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Senators Mull Removing Commanders From Rape Cases

Former Army Sgt. Rebekah Havrilla told a Senate panel hearing on March 13, 2013, that she encountered a "broken" military criminal justice system after she was raped by another service member while serving in Afghanistan. (AP Photo/Carolyn Kaster)
Former Army Sgt. Rebekah Havrilla told a Senate panel hearing on March 13, 2013, that she encountered a "broken" military criminal justice system after she was raped by another service member while serving in Afghanistan. (AP Photo/Carolyn Kaster)

A decision by an Air Force general to toss out a sexual assault conviction serves as a example why the U.S. military must reconsider how it prosecutes sexual assaults to include possibly removing convening authorities from commanders, U.S. senators said at a hearing Wednesday.

The personnel panel of the Senate Armed Services Committee held a two-part hearing on sexual assault Wednesday following a string of disturbing reports that highlighted the trend of sexual assault in the military ranks. A Pentagon study reported about 19,000 sexual assaults took place in the military in 2010.

Senators at the hearing held up a recent decision by Air Force Lt. Gen. Craig Franklin, the 3rd Air Force commander, to throw out the court martial guilty verdict against Lt. Col. James Wilkerson in a sexual assault case as proof that the system is failing servicemembers.

Wilkerson, who was serving at the Aviano Air Base in Italy at the time of the alleged acts, was convicted by a court martial jury of sexual assault and conduct unbecoming an officer. He was sentenced to serve a year in jail and be dishonorably discharged from the service.

Former servicemembers started the two-part hearing Wednesday morning explaining to the senate panel how they had been sexually assaulted in the military and the aftermath of the assaults. Former Army Sgt. Rebekah Havrilla explained in her testimony how she sought the counsel of a military chaplain after she was raped. Havrilla said the chaplain told her the rape was “God’s will” and it was his way of telling her to go to church more often.

Brian Lewis, a former Navy petty officer third class, explained to the senate panel that he was raped and then later forced out of the Navy when he was diagnosed for a personality disorder. He never reported the rape for fear of retaliation and said he will carry his general discharge as an “official and permanent symbol of shame on top of the trauma of the physical attack, the retaliation and its aftermath.”

Fueled by the morning’s testimony, the senators grilled an afternoon panel that included the judge advocate general officers for each of the services as well as Robert S. Taylor, the acting general counsel of the Defense Department, and Maj. Gen. Gary S. Patton, the Army director of the Sexual Assault Prevention and Response Office.

Defense Secretary Robert Hagel has ordered Taylor to look at “whether changes should be considered” to Article 60 of the Uniform Code of Military Justice, which gave Franklin the power as “convening authority” of the court martial to overturn or modify the verdict.

Hagel has also directed Air Force Secretary Michael Donley and Taylor to review Wilkerson’s case. He has ordered Taylor and Donley to issue their report March 20. Hagel, however, does not have the authority to overturn Franklin’s ruling.

Senators lined up to describe their anger over the military’s inability to stem the problem of sexual assault highlighting a culture that has intimidated victims from reporting the crimes. Sen. Richard Blumenthal, D-Conn., compared sexual assault to an improvised explosive device ticking in each unit in the military.

“It is the exact opposite of discipline and order,” said Sen. Kirsten Gillibrand, D-N.Y., the subcommittee chair.

Gillibrand targeted Lt. Gen. Richard Harding, the Air Force judge advocate general, with questions about whether he agreed with Franklin’s ruling. Harding said it was not for him to say whether Franklin made the right ruling, but he said Franklin completed his legal obligation and did so with “integrity.”

She then asked who was wrong, the colonels and lieutenant colonel who sat on Wilkerson’s jury, or Franklin. One way or the other justice was not done in this case, Gillibrand said.

At the morning hearing, the sexual assault victims and advocates said that Franklin’s ruling would dissuade airmen in his unit and throughout the Air Force from reporting sexual assaults. Taylor said he had similar fears.

"I'm concerned by the message that is received,” he said. “We have to redouble our efforts to make sure that victims are willing to come forward and are willing to entrust the military justice system."

Anu Bhagwati, the executive Director and Co-Founder of the Service Women’s Action Network, told the senators that the ruling propagated the fear that the military is a “boy’s club” and leaders will look out for their own. Franklin and Wilkerson were both pilots.

Sen. Lindsey Graham, R-S.C., asked Harding if he knew of any relationship between Franklin and Wilkerson, or if he saw evidence that Franklin protected Wilkerson because he was a fellow pilot.

“Absolutely not,” Harding said.

However, Taylor said he saw potential concerns with the ruling.

"There is something that seems odd about the power to reject findings that came out of a jury in the absence of some major obvious problem,” Taylor said.

The senators asked the top active duty military officers if they thought the service should amend Article 60 of the Uniform Code of Military Justice, which provides commanders with convening authority over court martial. Each one said no.

"So long as we hold our commanders accountable for everything a command does or fails to do, they must have these authorities," said Maj. Gen. Vaughn A. Ary, the Marine Corps staff judge advocate general.

Sen. Mazie Hirono, D-Hawaii, and Sen. Claire McCaskill, D-Mo., both lawyers, said they had concerns with a commander having the authority to overrule a jury even though, in most cases, the commanders have no legal background.

Graham, also a lawyer, said he supported commanders retaining convening authority. He explained that while he sympathized with the sexual assault victims, he didn’t want Congress to overreact to Franklin’s ruling and “over indict the system.”

In their opening statements, the top military lawyers from each service spelled out the improvements each has made in recent years to combat sexual assault.

Rear Admiral Frederick Kenny, judge advocate general for the Coast Guard, testified that the Coast Guard Investigative Service has established a Sex Crimes Investigation Program. The effort has established a cadre of 22 specially-trained agents known as Family and Sexual Violence Investigators.

Harding told lawmakers that the Air Force’s senior leadership is committed to eliminating sexual assault.

In January, the Air Force created the Special Victims Counsel, a pilot program designed to provide victims with an attorney to represent them. The SVC operates independently of the prosecution’s chain of command, Harding said.

Bhagwati said the military would be wise to provide an independent authority to rule upon sexual assault cases. She said it was unfair to the commander to put him in that position.

"Commanding officers cannot make truly impartial decisions because of their professional affiliation with the accused, and often times with the victim as well,” she said.

Matthew Cox and Richard Sisk contributed to this report.

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