Senator Renews Push to Distance Commanders from Military Prosecutions

In this March 14, 2017 photo, Sen. Kirsten Gillibrand, D-New York, questions Marine Gen. Robert B. Neller, the commandant of the Marine Corps, at a Senate Armed Services Committee on Capitol Hill in Washington. (J. Scott/AP Photo)
In this March 14, 2017 photo, Sen. Kirsten Gillibrand, D-New York, questions Marine Gen. Robert B. Neller, the commandant of the Marine Corps, at a Senate Armed Services Committee on Capitol Hill in Washington. (J. Scott/AP Photo)

Alarming data from the Pentagon on the prevalence and prosecution of sexual assaults continue to drive advocates' efforts to push for an overhaul of the military justice system and to remove commanders from the process of deciding whether to prosecute.

Testifying March 6 in support of a six-year mission by Sen. Kirsten Gillibrand, D-New York, to give military attorneys – not commanders – the say in prosecuting serious crimes such as sexual assault, murder and child pornography, victims and advocacy groups said that the current system continues to fail those who report incidents.

According to retired Col. Don Christensen, former Air Force chief prosecutor and president of the Support Our Defenders advocacy group, about 8 percent of the 5,111 reports of military sexual assault in 2017 were prosecuted, with just 3 percent resulting in a conviction.

"Right now, we have a system where people have no faith in the process. There's ample surveys that show … that people would have more faith if independent prosecutors have this," Christensen told the Senate Armed Services Committee.

Gillibrand has tried for years to pass the Military Justice Improvement Act, which is designed to place responsibility for prosecuting crimes in the hands of trained uniformed criminal lawyers.

She has argued that the current system doesn't work, resulting in criminals going free and retaliation against victims.

"Despite many good leaders, far too many commanders don't make it a priority to address the problem of sexual assault in the military in a meaningful way," she said.

In her efforts to overhaul the system, Gillibrand has called attention to the issue, and changes have happened. For example, trained criminal investigators are now involved in pursuing any allegations of rape or sexual assault.

But, she said, the changes aren't enough.

"All too often, we hear from survivors that they're the ones who are punished. … They're retaliated against sometimes by the chain of command, sometimes by their peers. And in too many cases, survivors are punished for collateral misconduct such as underage drinking or fraternization, while the assailant goes free," Gillibrand said.

Gillibrand's arguments have been persuasive but have met opposition with Republicans and members of her own party. Former Sen. Claire McCaskill of Missouri in 2014 sponsored alternative legislation to shore up military sexual-assault investigations, but that also left responsibility within the chain of command.

And during the hearing March 6, a powerful voice for the status quo, retired Air Force colonel and Sen. Martha McSally, R-Arizona, said she "strongly believed that commanders must not be removed" and have a duty to their troops to "stay at the center of the solution."

McSally made her remarks after disclosing she had been raped while in the Air Force and didn't report it because she didn't trust the system. She added that, years later, her efforts to discuss the issue were dismissed.

"Like many victims, I felt the system was raping me all over again," McSally said. But, she added, "There are many commanders who would welcome taking this responsibility off their plate. Those are the very commanders we don't want leading our troops."

Gillibrand, an attorney, said she will reintroduce her legislation. Sen. Tammy Duckworth, D-Illinois, a retired lieutenant colonel in the Illinois Army National Guard, said she would support removing sexual-assault crimes from commanders' oversight but not other felony violent crimes.

"This is something we struggle with. … I still don't see the improvement in the UCMJ process in the military," Duckworth said.

Military officials who spoke at the hearing said there is no evidence that removing commanders from their authority over serious crimes would reduce the number of incidents or result in higher conviction rates.

"In my professional view, taking away a commander's decision over discipline, acts of misconduct, including the decision to prosecute crime at court-martial, [would] fundamentally compromise the readiness and lethality of our Army today and on the next battlefield," said Lt. Gen. Charles Pede, the Army Judge Advocate General.

"The balance is best struck when, at every critical juncture in the process, a commander is armed with the relevant facts, including victim input and advised by a judge advocate before making a decision on the next critical step in the process," said Lt. Gen. Jeffrey Rockwell, the Air Force Judge Advocate General. "We know that good order and discipline is best when command operates and executes discipline across the entire continuum."

-- Patricia Kime can be reached at Follow her on Twitter @patriciakime.

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