Commanders shouldn’t be decision makers in sexual assault cases, victim advocates say
WASHINGTON – Victim advocates and Democratic members of a House panel argued Tuesday that military commanders remain one of the biggest obstacles to combating sexual assault in the services.
Despite incremental changes to the law and ramped-up focus, the military remains plagued with sexual misconduct allegations, and improvements remain elusive, according to lawmakers, survivors and advocates.
“Incremental solutions are not good enough. Something here is fundamentally broken and we need to act, urgently,” Rep. Jackie Speier, R-Calif., and chairwoman of the House Armed Services subpanel on military personnel, said during Tuesday’s congressional hearing. Reforming this system requires balancing justice-involved parties, and “I am convinced finding this balance must involve … transferring the decision to try special victim cases from commanders to an independent prosecution authority.”
Tuesday’s hearing comes weeks after Sen. Martha McSally, R-Ariz., a former Air Force pilot, revealed during a congressional hearing that she was raped by a superior officer while in the service. She, like other Republicans and military leaders, is fighting to keep commanders in the system as decision makers tied to such cases.
Tuesday’s hearing, like one last month by the Senate Armed Services subpanel, also highlighted the party divide when it comes to who should be involved in such cases.
"As a former commander and district attorney, I know that sexual assault is a scourge on both the military and society as a whole,” said Mississippi Rep. Trent Kelley, the ranking Republican for the House Armed Services subpanel. “But from both a military and legal perspective, I am convinced that removing the commander from the process will not help the root issue and will likely undermine the process.”
However, survivors of sexual assault cases who testified before the House Armed Services Committee subpanel Tuesday agreed that the military has been woefully unprepared to handle such cases. All three survivors agreed the military investigations that followed were worse than the sexual misconduct incidents.
For example, Navy Lt. Cmdr. Erin Leigh Elliott and Angela Bapp, a former U.S. Military Academy West Point student, who have testified previously on the Hill, reiterated their concerns that retaliation can follow such cases. Nelli Hanson, a product support manager for the Air Force, said despite mounting evidence and admissions by her perpetrator, an Air Force colonel, he was not held accountable. Instead, the colonel, who admitted to sending her 400 text messages, graphic voicemails and photos, was allowed to later retire honorably.
“I followed the procedures, but it only made the workplace hostile. I noticed that I was treated differently by my colleagues and my supervisor. I was left out of important meetings and emails, further straining my career.”
Advocates for the survivors said their stories are not unusual and agreed that commanders no longer have a place in such decisions.
Retired Air Force Col. Don M. Christensen, president of the Protect our Defenders nonprofit in Washington, said it’s important to note that a small minority of military commanders have court-martial convening authority. For example, of the Pentagon’s 14,500 commanders, only 393 have the authority to convene a court, and even fewer do so, according to the recent data, Christensen said.
Statistics make clear that convening authority is not key to combating sexual assault in the military, he said.
“It is time to accept the practice of law is a profession in which commanders should not be engaged,” he said.
Retired Army Col. Ellen Haring, chief executive officer of the nonprofit Service Women’s Action Network, said that such concerns come down to a cultural problem within the military. She said there are too many conflicts of interest with commanders, among other concerns.
“As a former commander I can tell you that I would not want to have to decide if or when to move forward with the investigation of a sex crime because I know that my knowledge and expertise is limited,” Haring said. “Removing commanders from the decision-making process sends the signal that there are some crimes that are so severe that commanders have no place in deciding if, when or how they are prosecuted.”
A panel of judge advocate generals in the Army, Navy, Air Force and Marine Corps, however, said that while much work remains to combat sexual assault, commanders need to remain in the process.
“There is much work to do,” Army Judge Advocate General Lt. Gen. Charles Pede told the panel. “The commander has always been, and will always be, the solution, so it is and must be with sexual assault.”