The new Senate will have many national security and defense issues to deal with in 2015, but indulging Sen. Kirsten Gillibrand’s relentless campaign to alter the military justice system should not be one of them.
Despite several rejections since 2013, Sen. Gillibrand (D-NY) plans to revive her bill to remove decisions regarding prosecution of sexual assault and other serious crimes from military commanders. Such cases would be shifted to military lawyers who do not have (and do not want) responsibilities for command.
If the legislation could magically stop incidents of harassment or abuse, it would have strong support. But even liberal Democrats on the Senate Armed Services Committee, including former Chairman Carl Levin of Michigan and Claire McCaskill of Missouri, oppose Gillibrand’s controversial bill.
The only thing keeping the “Military Justice Improvement Act” alive is inexplicable support from a few Republicans, including Senators Rand Paul of Kentucky and Ted Cruz of Texas. Both have given political cover to Gillibrand, a liberal feminist unlikely to return the favor.
Senator Gillibrand emphasizes servicemembers’ fear of filing complaints when abusers are in their own chain of command. She also cites the 2014 Report of the Sexual Assault Prevention and Response Office (SAPRO), which includes results of a survey finding that 62% of military respondents reported retaliation for filing complaints.
Retaliation is wrong, and already prohibited by law and newly-implemented regulations. “Social retaliation” occurs most often when peers feel compelled to take sides, but the Gillibrand bill would not solve that problem.
Removing local commanders from prosecution decisions would not guarantee confidentiality or preclude awareness that allegations have been filed. Nor would cases lacking sufficient evidence result in automatic convictions and punishment. Lawyers outside the chain of command may not pursue marginal cases at all.
During a June 2013 Senate Armed Services Committee hearing, high-ranking judge advocates general (JAGs) did a better job than the Joint Chiefs of Staff in explaining why it would be a mistake to remove decisions about prosecutions from military commanders. Vice Admiral Nanette Drenzi, for example, explained that under the Uniform Code of Military Justice (UCMJ), commanders are accountable for everything that happens in their area of responsibility, including decisions regarding courts-martial or career-ending non-judicial punishments.
Military lawyers advise commanders constantly, but JAGs do not need command authority to do their jobs as professional adversaries in litigation. Under recently enacted laws, decisions to forego prosecutions are reviewed by higher-level commanders. These safeguards protect due process for both the accuser and the accused.
Sen. Gillibrand’s bill essentially would assign “victim” status based on accusations alone, and replace presumptions of innocence with presumptions of guilt. This would be demoralizing and unfair, especially since SAPRO reports that in one out five cases, allegations are unsubstantiated.
The “Provisional Statistical Data” section of the 2014 SAPRO report indicates that 19% of actual cases were unfounded every year since 2011. (Exhibit #16, p. 29) Contrary to beliefs that accusations prove guilt, primary motives for false allegations include jealousy or revenge when a relationship fails, self-interest, the need for an alibi, or emotional problems and a desire for attention.
These findings were overshadowed last December when the Pentagon released results of a revised bi-annual Workplace & Gender Relations Survey, conducted by RAND. Media spin emphasized a decline in online survey reports of unwanted sexual contacts, which dropped from 26,000 in 2012 to 20,000 in 2014. These “virtual” survey numbers should not be confused with actual cases that were reported elsewhere in the statistical data.
In 2014, a total of 5,983 cases of sexual assault were reported to Defense Department officials. Omitting incidents occurring before persons reporting them joined the service, there were 4,608 military assaults. (Exhibit 4, p. 11) Of 4,189 completed cases, 17% (up from 12% in 2013) were male (718), and 75% (3,121) were female. (Table 4, p. 30; data unavailable in 350 cases.)
The combined 8% increase comes on top of a 50% spike in assaults reported in November 2013. There were 2,828 cases in 2012, and 4,608 cases in 2014 − a 63% increase in only two years.
Pentagon victim advocates call this “good news” because people feel more confident filing complaints. If so, what does bad news look like? Trend lines indicate that military sexual misconduct is getting worse. RAND’s online survey exaggerates the problem, but the steep increase in actual cases discredits the claim that women will suffer abuse in silence unless Kirsten Gillibrand’s bill passes.
Instead of stubbornly endorsing Gillibrand’s bill as the only solution, lawmakers should review Defense Department actions already taken or recommended. An army of well-paid sexual assault response coordinators (SARCs) work with local officials to provide support for persons filing complaints. Secretary of Defense Chuck Hagel issued 28 directives on military sexual assault in 2014 alone.
In June 2014, the Pentagon’s Response Systems Panel on Adult Sexual Assault Crimes recommended many sound proposals for reducing harassment, supporting victims, and guarding due process. Sen. Gillibrand’s bill was not among them.
Sexual assault is a devastating crime that demands justice. Military women and men are not free to leave their posts when abuse of any kind occurs. A vast array of support systems and programs already exist for persons filing complaints on an open or confidential basis. Programs to improve legal representation for both the accuser and the accused deserve support.
Instead of emotional arguments and magic wand legislation, military people deserve leadership and sound policies that encourage good order, discipline, and justice for all.
Elaine Donnelly is President of the Center for Military Readiness, an independent, non-partisan public policy organization that specializes in military/social issues.
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