Congress has floated a bill that would take ruling authority away from commanders in sexual assault cases and hand it over to an independent panel.
The bill comes as Pentagon leaders scramble to tackle a rising number of sexual assault cases spreading through the military. In 2011, servicemembers filed over 3,000 sexual assaults reports.
Air Force Chief of Staff Gen. Mark Welsh got emotional Tuesday when he described how concerned he was about the spike in sexual assaults in his service. A sex scandal has torn apart Lackland Air Force Base, Texas, where multiple reports have surfaced of basic military instructors sexually assaulting recruits.
U.S. Rep. Jackie Speier (D-CA) and sexual assault victim's advocates said the Pentagon needs to relieve unit commanders from the burden of ruling on sexual assault cases if it's serious about changing the culture and reducing the spree spreading through the services.
When a servicemember reports a sexual assault, it rises to the highest ranking officer in that chain of command over the rank of colonel—or captain in the Navy. That officer decides whether or to proceed with charging the accused.
Nancy Parrish, president of Protecting Our Defenders, said that system creates an inherent conflict of interest.
"The reporting of sexual assaults must be taken out of the chain of command if we are ever going to fix the epidemic of sexual assault in our military," she said.
A study by the Department of Veterans Affairs found that 23 percent of women and 26 percent of men in the military said that their attacker was in their chain of command.
"Victims are often afraid to report their assaults to a superior and commanders are hesitant to report assaults as it will negatively affect their careers leading many to cover up the assaults or ignore reports," Parrish said.
Officers making the decision to prosecute have no legal or investigative training.
"It's as absurd as having to report your rape to the president of your company and then letting them decide whether or not you are allowed to go to the police," she said.
The practice is called disposition authority and it made sense at one time, but not anymore, said Susan Burke, an attorney featured in the documentary The Invisible War and lead counsel for a group of rape survivors currently suing the government.
"In the old days you went off to war, you were gone and outside the country. It made some sense to give a commander full discretion when there was no other legal option. But it doesn't make sense now with the technology we have available," Burke said.
Speier sponsored the Sexual Assault Training Oversight and Prevention (STOP) Act to remove commanders in the process. Advocates would establish a panel of independent military and civilian personnel who would then review sexual assault cases and decide whether or not they would be prosecuted rather than an officer in the victim's chain of command.
The proposed independent council would be made up of two members appointed by the Defense Department who have served as military judges in courts-martial cases relating to sexual assault.
Three more members would be appointed by the president; one from the Justice Department, one from an advocacy group, and one civilian. All three presidential appointees would have extensive experience in sexual assault casework.
"The only way to end the epidemic of rape and sexual assault in the military is to prosecute and sentence perpetrators for their crimes," Speier said. "Repeated failures to bring these criminals to justice has enabled sexual predators to remain on active duty while the victims get discharged with trumped up mental health problems like personality disorders." She took issue with the assumptionby the Defense Department that higher-ranking officials would ensure more accountability.
"Even if very high ranking commanders are in charge of these cases, captains and colonels are not shielded from the conflicts of interest that exist in the chain of command structure," she said.
What isn't clear from the language in the bill is what happens if an assault claim is found to be lacking in evidence and the accused is not charged. There is no mention of whether or not the case is then referred back down to the commanding officer for non-judicial punishment.
In 2011, 791 subjects of the 3,192 sexual assaults reported that year were disciplined because commanders felt there was a lack of sufficient evidence to prosecute cases.
The Defense Department has been bullish on the issue of sexual assault prevention under Defense Secretary Leon Panetta's leadership, but critics argue that the victim-focused initiatives don't do enough to prevent sexual assault and prosecute sex offenders appropriately.
"Sexual assault has no place in the military - it is a violation of everything that we stand for, and an affront to the values we defend," said Defense Department spokeswoman Cynthia Smith. "Good order and discipline means creating an environment free from threat of sexual assault, where victims feel secure to report crimes, and where commanders hold offenders accountable."
When asked about the STOP Act, Smith said "an outside agency is not needed to investigate sexual assault cases."
"Handling these cases should stay within the chain of command. Removing discipline from the commander's purview jeopardizes the commander's ability to achieve mission success," she said.
Smith points to a recently announced change to disposition authority within the Defense Department as proof of the military's commitment and evidence of the progress being made internally to combat sexual assaults.
The changes include elevating disposition authority for the most serious sexual assault cases, establishing a "Special Victims Unit" capability within each of the service branches. The Pentagon is also requiring that sexual assault policies be explained to all servicemembers within 14 days of their entrance to the military.
Additional efforts include allowing Guard and Reserve members who have been sexually assaulted while on active duty to remain in their active duty status, and requiring the outcome of any disciplinary or administrative proceeding to be centrally retained in order to better track data.
Burke disagrees and remains unconvinced that internal changes are going to help the situation. She suggested a judicial remedy should exist for personnel who have been victimized.
That may be the biggest hurdle, legally, since servicemembers are not allowed to sue the military for personal damages, according to the Feres Doctrine. The doctrine references a 1950 ruling by the U.S. Supreme Court that the nation is not liable under the Federal Tort Claims Act for injuries to members of the armed forces occurring while on active duty and as a result of the negligence of others in the armed forces.
Burke said holding an organization, like the Defense Department, financially responsible is a way to motivate change.
"Tort law exists as a deterrent to misconduct. The value and benefit to society is that fear of having to pay the money forces people to do the right thing," she said.
Most likely, that won't happen in the near future, Burke said. But she will continue to advocate for the removal of the commander's dispensation despite push back from military leaders.