Handling of military sexual assault up for debate
By HUGH LESSIG | Daily Press | Published: July 27, 2014
In March, the Senate rejected a bid to change how the military prosecutes sexual assault cases, keeping them within the chain of command instead of enlisting independent prosecutors.
Expect the debate to continue.
Sen. Kirsten Gillibrand, D-N.Y., who sponsored that bill, said too few victims trust their own chain of command, either due to fear of reprisal or skepticism that they'll receive fair treatment.
"It's like your brother committing the sexual assault and having your father decide whether to prosecute," she said at the time.
Gillibrand said she intends to continue pursuing the matter, which divides people in and out of the military.
In Hampton Roads, two Navy officers say the current system works, while a former Virginia Beach prosecutor who served on a military sexual assault panel says Gillibrand has it right.
Navy Capt. Chuck Marks is the sexual assault prevention and response officer at U.S. Fleet Forces Command. The Navy's 43 percent increase in sexual assault reports gives him confidence that more sailors are coming forward because they trust the system.
The current system holds commanders accountable for what happens inside their commands, Marks said, so they become "personally invested" in seeking a just outcome. Lt. Annie Otten, a victim's advocate at Fleet Forces, agrees. A case that proceeds up the chain of command will be addressed more promptly than if it were taken to independent prosecutors.
"It gives that commanding officer the ability to still have that control, to be able to swiftly address the problem, and do it so everybody can hear this behavior is not acceptable and this is what we're doing about it," she said.
Gillibrand's bill split the Senate along unusual lines. She's considered a progressive Democrat, yet she won support from two arch-conservative Republicans, Sens. Ted Cruz and Rand Paul.
Virginia's two senators, both moderate Democrats, voted against the bill. Sen. Mark R. Warner said he deeply respected Gillibrand's efforts, but had concerns about its effect on the military justice system. Kaine said bypassing the chain of command was not the most effective way to deal with sexual assaults, and he didn't think it would encourage more troops to come forward.
Another group also favors keeping commanders in the loop. A panel directed to examine the issue released a report June 30 that called for a number of reforms, but independent prosecution was not one of them.
However, two members of the nine-person panel issued a formal dissent, including former Virginia Beach Commonwealth's Attorney Harvey Bryant. Joining him was Elizabeth Hillman, a professor of law at the University of California.
They said the decision to keep commanders in the loop was based on "high-ranking commanders and attorneys within the U.S. military. It neglects the words of survivors of sexual assault, rank-and-file service members, outside experts and officers in our allies' militaries."
The commander-as-prosecutor "creates doubt about the fairness of military justice, has little connection to exercising legitimate authority over subordinates and undermines the confidence of victims," their statement reads.
Petty Officer 1st Class Bonnie McCammond is a sexual assault survivor based at Fort Meade, Md., who has been featured in Navy videos. She believes Navy culture is improving, but more work must be done. That includes using independent prosecutors, she said.
"I don't think the chain of command should be making the decision," said McCammond, who spoke to the Daily Press in June. "This is a criminal proceeding. This is not something you should have any personal involvement in because it's not possible to be objective."
Gillibrand's measure may return in the fall as part of the National Defense Authorization Act, said Barbara Brown, communications director for Service Women's Action Network, which supports the senator.
"Commanders are not lawyers," Brown said. "Most have not studied in law school, passed a bar exam or argued a case in court. Military lawyers are better trained and equipped to handle serious criminal matters. Commanders are better trained to lead their troops."
Gillibrand's bill, Brown said, "lets commanders command and lawyers lawyer."