Sexual assault panel: Keep prosecutions in chain of command

The Secretary of Defense, as required by Section 576(a)(1) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239) and in accordance with the Federal Advisory Committee Act of 1972 (FACA) (5 U.S.C., Appendix, as amended) and 41 C.F.R. Section 102-3.50(a), established the Response Systems Panel. The Response Systems Panel will conduct an independent review and assessment of the systems used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related offenses, under Section 920 of title 10, U.S.C. (Article 120, Uniform Code of Military Justice), for the purpose of developing recommendations regarding how to improve the effectiveness of such systems.


By JENNIFER HLAD | STARS AND STRIPES Published: June 30, 2014

Congress should not remove court-martial convening authority from the chain of command, a nine-member panel appointed to study how the military investigates, prosecutes and punishes sexual assault crimes said in its report.

The panel “heard testimony from a number of victims” indicating that it is “often subordinate leaders who perpetrated the sexual assault itself, ignored it when it was reported, or engaged in retaliation towards the victim afterwards,” according to the panel’s report to Congress; however, seven of the nine panel members agreed that removing prosecution authority from the chain of command would not reduce the number of sexual assaults, increase reporting of crimes or improve the quality of investigations and prosecutions, according to the report.

Published Friday by the Response Systems to Adult Sexual Assault Crimes Panel, the report is a blow to advocates of a plan proposed last year by Sen. Kirsten Gillibrand, D-N.Y., which would have removed the authority to prosecute sexual assault and other major crimes from commanders and given it to military lawyers.

But Nancy Parrish, president of victim advocacy group Protect Our Defenders, said she was not surprised the panel supported the status quo.

“This panel sadly became a tool to further delay needed reform,” she said, noting that the members of the panel were chosen by Secretary of Defense Chuck Hagel and members of Congress who opposed the Gillibrand bill.

“The fact that there was any dissent is remarkable.”

One of the voices of dissent was panel member Elizabeth Hillman, a professor of law at University of California Hastings College of Law. In a dissent posted on Gillibrand’s website, Hillman wrote that she believes “trained, experienced prosecutors” should make the decision on whether to prosecute rape and sexual assault.

While commanders “must lead the way in changing military culture,” they are ill-suited to make prosecution decisions, Hillman wrote.

Though the panel determined that prosecution authority should stay with commanders, it recommended dozens of other changes and initiatives, including:

* That Congress repeal sections of recently passed legislation that require higher-level review of commanders’ decisions not to refer some sexual assault cases to trial.

* That the Defense Department develop a new survey to measure the scope of unreported criminal sexual assaults

* That the services standardize the way they track the outcome of sexual assault cases, and

* That the services standardize the process for determining if a case is declared “unfounded” at the investigation stage.”

Currently, the military measures and records conviction data differently that civilian authorities, and different groups cite different conviction rates when discussing the challenge of prosecuting sexual assault crimes.

In the report on sexual assaults from fiscal 2013, the DOD said commanders took disciplinary action in 73 percent of cases in which there was sufficient evidence to consider doing so. However, only 373 people were convicted of any crime in cases related to sexual assault, out of more than 2,100 who could have been considered for legal action – making the conviction rate closer to 17 percent.

The panel also recommended the services correct the resource imbalance between the defense and prosecution in sexual assault cases, and that services develop specific programs to prevent male-on-male sexual assault, among other changes.

Maj. James Brindle, a DOD spokesman, said the department will consider “all aspects of the report, including the views of those who did not agree with the panel’s recommendations.”

Twitter: @jhlad