Military justice - an oxymoron for sexual assault victims in the armed forces

NY Sen. Kirsten Gillibrand, Democrat (official portrait).

NY Sen. Kirsten Gillibrand is right. Military justice is an oxymoron when it comes to sexual assault victims in the armed forces. And it’s way past time to take these decisions out of the hands of commanding officers.

The NY Times editorial board agrees with Sen. Gillibrand:

In his commencement address at the United States Military Academy late last month, Defense Secretary Chuck Hagel urged the newest graduates of the two-centuries-old academy to help stamp out the “scourge” of sexual assaults in the military. His call had special resonance. It had been revealed just days before that a sergeant responsible for advising cadets had been charged with secretly videotaping female cadets in the shower — just one of an alarming cascade of incidents in recent weeks evidencing the depth, frequency and sheer brazenness of the military’s sexual misconduct problem.

Last Friday, allegations surfaced that three members of the United States Naval Academy football team had sexually assaulted a female midshipman in April 2012. When she reported the attack, her lawyer said, she was disciplined for drinking but the academy did not bring charges against the three and allowed them to keep playing football. 

A Pentagon report released in early May estimated that as many as 26,000 people in the military were sexually assaulted in 2012, up from an already unacceptable 19,000 in 2011. Only a small fraction of victims — 3,374 in all — reported their attacks, despite new assistance programs, with many fearing harm to their careers and that their complaints would not be taken seriously anyway. 

The issue will get an airing Tuesday at a hearing convened by Senator Carl Levin, the Michigan Democrat who heads the Senate Armed Services Committee, to consider possible changes in the Uniform Code of Military Justice, using the annual defense authorization bill as a vehicle. The question, however, is whether Congress will undertake the broad reforms necessary to encourage more victims to come forward and to show that legislators take seriously the pledge of zero tolerance for such crimes that military leaders and successive administrations have been making for decades. 

A bill offered by Senator Kirsten Gillibrand, Democrat of New York, and co-sponsored by four Republicans and 13 other Democrats aims to do just that. Under the current system, senior officers with no legal training but with lots of conflicts of interest get to decide whether court-martial charges can be brought against subordinates. They also pick the jury pool, and they can throw out a guilty finding even after a verdict is rendered. A recent series in The San Antonio Express-News detailed instances in which senior officers put pressure on victims to get them to drop charges. 

Ms. Gillibrand’s bill would mandate immediate referral of formal complaints of sexual misconduct to investigators, and would take charging decisions out of the hands of commanders and give them to senior military lawyers independent of the chain of command. While not the entire answer, this is a necessary step for bolstering the system’s credibility. The bill would also strip commanders of the power to toss out verdicts involving serious crimes. 

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