SAN DIEGO — Would stripping commanders of court-martial authority in sexual assault cases increase prosecutions, or take pressure off those same commanders to fix the culture in their units?
It’s a question military brass and members of Congress have been wrestling with for months. And as increasing numbers of legislators back a plan to remove prosecution authority for serious crimes from the chain of command, some leaders and senators warn the proposal is a mistake that will send fewer criminals to prison.
Of the 2,661 sexual assault cases in which a final decision had been made in fiscal 2012, only 594 resulted in courts-martial charges, according to the Department of Defense’s annual report on sexual assault.
Sen. Kirsten Gillibrand, D-N.Y., is leading the charge to remove from commanders the ability to determine whether to move forward with courts-martial in many serious offenses. Under the proposal, trained military prosecutors not directly linked to the victim or accused servicemember’s chain of command would decide whether to convene a court-martial in many crimes that could result in more than a year of jail time.
The legislation is backed by more than 40 senators, as well as advocacy groups and many victims of military sexual assault, for whom “remove it from the chain of command” has become a kind of rallying cry. Friday, several representatives called on the House Armed Services Committee to convene a hearing on the role of the chain of command in sexual assaults.
But Adm. Sandy Winnefeld, vice chairman of the Joint Chiefs of Staff, on Wednesday noted that victims of military sexual assault are not required to report incidents inside their chain of command or directly to their commanders, and that DOD policy requires that commanders forward all unrestricted reports of sexual assault to law enforcement investigators outside their chain of command.
Additionally, Secretary of Defense Chuck Hagel will soon put out a directive with six new executive actions aimed at preventing and responding to sexual assaults, Winnefeld said, including one that will mandate all unrestricted reports of sexual assault be moved quickly to the first flag or general officer in the chain of command for oversight.
The Senate Armed Services Committee has already approved a multi-pronged approach to stopping military sexual assault as part of the National Defense Authorization Act.
Parts of that legislation would:
- take from commanders the ability to dismiss court martial convictions in many cases.
- require the military to provide specially trained military lawyers to victims of military sexual assault.
- make retaliating against servicemembers who report sexual assaults a crime.
- send cases in which a commander overrules the advice of a staff judge advocate to that branch’s service secretary for review.
- require commanders serving as the court-martial convening authority to get input from the victim before determining clemency.
- require servicemembers found guilty of rape, sexual assault, forcible sodomy or attempts to commit those crimes to be dismissed or dishonorably discharged from the service.
It’s a plan that “is not as easily captured visually or in a 30-second soundbite” like Gillibrand’s proposal, but it’s substantive and better for victims, Sen. Claire McCaskill, D-Mo., told Stars and Stripes.
McCaskill is being attacked by victims' advocates for her efforts, despite being the keynote speaker at a victims conference and receiving praise by those same groups for pressing military leaders on the issue.
Taking prosecution authority out of the chain of command won’t stop retaliation against victims, McCaskill said, and will likely result in fewer criminals behind bars.
“What I’ve tried to focus on from Day 1 is: How do we protect and empower victims and how do we get more successful prosecutions? And I believe our proposal does a better job for both of those,” McCaskill said in a phone interview.
Military leaders, victims and lawmakers agree that far too few victims report sexual assaults, but disagree on how to encourage more reporting. Gillibrand has said her proposal would make victims more likely to come forward, but McCaskill said there is no data to support that theory.
She pointed to several of the U.S.’s allies, where reporting of sexual assaults did not increase after court-martial decisions were removed from the chain of command. Additionally, the former prosecutor believes military prosecutors outside the chain of command are more likely to be focused on a win-loss record than taking care of the victims — which could mean fewer courts-martial.
“I want people who do this in the military to know that they’re not going to be able to escape just because it’s a he-said, she-said, and many of these cases are he-said, she-said,” McCaskill said. “I just think that there is a real danger of many of these cases being abandoned and not getting a day in court … We will have fewer prosecutions, based on the data that we know, if just lawyers are making the decision.”
She also said stripping prosecutorial authority from the chain of command would mean commanders could no longer be held responsible or accountable for how sexual assaults are handled in their units.
“If you let the commanders off the hook, then up and down the chain, it’s telling people, ‘This is just the lawyer’s job,'" McCaskill said. “It’s like they think they’re going to wipe away all of the cultural problems that are contained up and down the chain just by this one change.
“I think the one way you get the chain up and down to pay attention is when the guy at the top of your chain signed off that they want to get to the bottom of it. It’s not by saying, ‘Oh well, it wasn’t our call. I don’t know why the lawyers did that.”