Panel member: Military sex assault response hard to fix
By Dianna Cahn | The Virginian-Pilot | Published: July 7, 2014
NORFOLK, Virginia — Harvey Bryant hoped the panel he was appointed to last year would bring a sea of change to the military's handling of sexual assaults. Instead, Virginia Beach's former top prosecutor says the group's recommendations are little more than "a wading pool."
He was one of nine members on a panel that examined the handling of military sexual assault and made recommendations for improving the process. The group submitted a 284-page report to Congress on June 27.
Bryant, who served for 13 years as Virginia Beach commonwealth's attorney before retiring last year, said his biggest disappointment was the panel's support for keeping authority over the judicial process in the hands of military commanders.
"There would be a lot more confidence in the system if we... let prosecutors make prosecutorial decisions," Bryant said during an interview at his Virginia Beach home last week.
Commanders "are warfighters and that's what they should concentrate on," he said. "They just need to get out of the criminal prosecution business."
Bryant said he accepted his appointment to the Response Systems Panel on Military Sexual Assault hoping its work would have lasting impact. But after a year of meetings and conversations with victims, commanders and military and civilian lawyers, prosecutors and judges, he's disappointed.
"After the six or seven month mark, I began to feel like we weren't going to make a lot of substantive, game-changing recommendations," he said.
Last year, after a series of sex scandals involving senior officers, pressure mounted to reform the military's handling of sexual assault. Of particular concern was the treatment of victims, who complained of retaliation and further victimization if they reported sexual assaults.
Top military brass faced hours of angry questioning by lawmakers, and service branches began reforms to bolster the rights and treatment of victims. Congress stepped in to limit the power of military commanders to overturn sentences and subjecting them to oversight if they refuse to send a sexual assault case to court-martial.
A proposal by Sen. Kirsten Gillibrand, D-N.Y., to altogether strip commanders of their discretion over what cases are sent to court-martial met with resistance after military leaders objected forcefully, saying that would harm their authority and damage morale. The proposal fell five votes short in the Senate; she has vowed to bring it up again.
The panel heard testimony from victims that it was "often subordinate leaders who perpetrated the sexual assault itself, ignored it when it was reported or engaged in retaliation" afterward.
Still, seven of the nine members concluded that removing the authority to prosecute from the chain of command would not reduce the number of sexual assaults, increase the reporting of assaults or improve the quality of investigations or prosecutions.
Bryant and another panelist dissented, writing that the recommendation was based on testimony from high-ranking commanders and ignored the words of survivors, rank-and-file service members, experts and members of allied militaries that have successfully made those reforms.
The system now "creates doubt about the fairness of military justice, has little connection to exercising legitimate authority over subordinates and undermines the confidence of victims," wrote Bryant and fellow panelist Elizabeth Hillman, a law professor at the University of California.
Bryant compared the "convening authority" of military commanders to a police chief who has the power not just to determine if one of his officers should go to trial for committing a crime, but also whether to overthrow the conviction or sentence.
"Nobody would stand for that," he said.
Bryant said the panel also failed to take a stand on several other key issues, including "collateral misconduct" - in which a victim reporting sexual assault can be prosecuted if they admit to violating a law themselves.
So, for example, if an 18-year-old rape victim tells an investigator she was drinking before the incident, she can be charged with underage drinking. That inhibits what victims tell an investigator and can lead victims either not to report an attack or to lie, Bryant said.
"The investigators told us, the prosecutors told us, everybody told us this really puts a damper on their ability," Bryant said.
On this and several other issues, Bryant said that several panel members felt they had enough information to make a recommendation, but the panel instead left the issue for "further study."
The panel made a similar determination over how rape is delineated in the Uniform Code of Military Justice. Instead of being its own charge, it falls within a broad article that includes many sexual offenses, and doesn't differentiate between more and less serious ones.
Still, the panel did make a number of positive recommendations, he said. It called for bolstering victims' rights and input in how cases are prosecuted and called for a better system to monitor sexual assault reporting. It also recommended better alcohol education, something the Navy has already begun.
Bryant said that in Norfolk, the military is seeing a record number of acquittals in rape cases. Out of 31 cases that prosecutors handled in 2013, 10 were dropped, and seven resulted in acquittals, he said.
Bryant, who spent three years on active duty in the Army and five years in the reserves, said he felt members of the panel had "the best interests of the military at heart." But most of his fellow panelists were formed by careers spent in the military.
"I felt it might be a lot more difficult for them to see and agree on changes that needed to be made in a system of which they were a part and had spent their careers," he said.