WASHINGTON — Pushing back against recent moves to strip military commanders of authority over prosecutions of their subordinates, a top military leader this week told Congress that sexual predators face a more rigorous process inside the chain of command than they do outside of it.
In the last two years, Army prosecutors went ahead with sexual assault cases against 49 soldiers who civilian district attorneys had declined to prosecute, Vice Chairman of the Joint Chiefs of Staff Adm. James “Sandy” Winnefeld told the Senate Armed Services Committee on Thursday.
Since 2010, he said, the Marine Corps prosecuted another 28 cases civilian authorities had declined to pursue.
The result was 41 convictions, while some of the 77 cases are still open, he said. Winnefeld did not offer statistics for other service branches.
“Some of these were very heinous cases that the DAs wouldn’t take,” Winnefeld said. “One of them was a 10-year-old autistic girl who was sexually assaulted. We took the case — the commander insisted on it — and a conviction was obtained.”
Senators grilled Winnefeld and Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey on a range of topics, from Syria to sequestration, during Thursday’s confirmation hearing to determine if they should be approved for their second two-year terms.
The military’s sexual assault crisis was another top discussion point. Critics of the military justice system point to recent high-profile cases where commanders overturned sentences for sex-related offenses or reduced them as evidence commanders aren’t serious about punishing sexual predators. The consequence, they say, is a military where victims are afraid to report rape and other sexual assaults.
Sen. Kirsten Gillibrand, D-N.Y., who is leading a charge in the Senate to change the military justice code’s procedures for prosecuting serious crimes, said Winnefeld’s numbers don’t address Defense Department estimates that thousands of victims never report their assaults.
“You may have helped a handful of victims. We’re still having 23,000 victims who don’t feel the system is strong enough, objective enough and transparent enough to even report,” Gillibrand said.
But Sen. Claire McCaskill, D-Mo., who has been a vocal critic of the military’s response to what some see as an epidemic of sexual assault, said Gillibrand’s initiative would do little to spur more reporting. It might even lead to fewer prosecutions if military lawyers — mindful of win-loss records — have a say in who gets prosecuted, she said.
McCaskill, who last month helped defeat a Gillibrand amendment to remove sexual assault and other serious crime prosecutions from the chain of command, cited statistics from allies such as Canada, Australia and Britain she said showed that such moves in other countries failed to increase reporting.
In response to a McCaskill question, Dempsey said, “There is no analytical evidence or anecdotal evidence that it has increased reporting — and furthermore, what my counterparts tell me is that it has slowed the system down.”
But military law expert Eugene Fidell, who teaches at Yale University, said in an interview that the military’s prosecution procedures are antiquated and unnecessary for preserving good order and discipline. The opposition to allowing military legal professionals to decide who to prosecute is about protecting commanders’ turf, he said.
“It’s the human nature of office holders to preserve their own power,” he said. “It’s the rare official who will voluntarily relinquish some power.”
Thinking of military courts as backstops to civilian courts is unwise and potentially unfair to servicemembers, he added.
“If the district attorney doesn’t think the evidence is sufficient to make a prosecution, that ought to be the end of it,” he said. “Nobody else in society has that kind of exposure to prosecution, and in a way, this takes pressure off civilian prosecutors to get it right when they’re dealing with members of the military.”