Military's Top Lawyers Push to Keep Prosecution Decisions with Commanders

Rep. Jackie Speier, D-Calif., center, is joined by other members of Congress as she speaks after the group toured the U.S. Border Patrol Central Processing Center Saturday, June 23, 2018, in McAllen, Texas. (AP Photo/David J. Phillip)
Rep. Jackie Speier, D-Calif., center, is joined by other members of Congress as she speaks after the group toured the U.S. Border Patrol Central Processing Center Saturday, June 23, 2018, in McAllen, Texas. (AP Photo/David J. Phillip)

The military services' top attorneys are holding the line against a renewed push by lawmakers to remove commanders from the process of deciding to prosecute sexual-assault cases.

Speaking at a House Armed Services Personnel Subcommittee hearing on the role of commanders in sexual-assault cases, the service attorneys said Tuesday that an 18-month review of the Pentagon's handling of sex crimes and subsequent "Report of the Response Systems to Sexual Assault Crimes Panel," completed in 2014, concluded that Congress should not "further limit the authority of the [commanders] under the Uniform Code of Military Justice to refer charges for sexual-assault crimes to trial by court-martial."

Although Congress ordered the Pentagon to form the panel to study the issue in 2013, several Senate and House Democrats have revived the issue. They say they're concerned that the number of assaults remains high while reporting rates are still low.

"A culture of endemic retaliation and doubt persists" in the military, said Rep. Jackie Speier, a California Democrat who leads the subcommittee. "Too many of our service members live and work in toxic cultures characterized by pervasive, unrelenting harassment and assault."

"I'm incredibly disappointed that after years of fighting this problem, after so many incremental changes in the law, that we're still in the exact same place," said Sen. Kirsten Gillibrand, D-New York, during a hearing on the same subject March 7. "Sexual assault in the military is still pervasive. It's still hurting our military readiness. It's still causing thousands of our service members to suffer. ... We need a fundamentally different approach to how these crimes are being prosecuted."

Testifying Tuesday, the attorneys insisted that the system works as-is, with commanders involved in decisions on whether to prosecute.

Army Lt. Gen. Charles Pede said that while there is much to do to address sexual assaults in the ranks, commanders must be the "fulcrum to any solution." He pointed to the recent military housing scandal caused by the Pentagon hiring private companies to manage base housing, effectively allowing commanders to relinquish oversight of the program.

"Who do our families look [to] for solutions? Who do you look [to] to drive change? Soldiers look to their commanders ... the notion that stripping commanders of authority over serious crimes will reduce crimes, result in more prosecutions or higher conviction rates is not supported by empirical evidence," Pede said.

The Response Systems to Sexual Assault Crimes Panel was comprised of nine members, including five appointed by the Pentagon and four named by Congress. The group included retired military officers, legal experts and a former member of Congress.

The panel concluded that changes previously made by Congress, including restricting a commander's ability to grant clemency to perpetrators and changes to Article 32 hearings, were sufficient. The members concluded that removing convening authority from commanders would not reduce sexual-assault incidence rates or increase reporting.

The panel made the decision, with two members dissenting, after a review that involved 65 meetings, 14 public hearings, site visits to military bases, hundreds of interviews and thousands of documents.

Navy Vice Adm. John Hannink said that his service's Victims Legal Counsel Program members agree with the panel's recommendations.

"Based on their work, they don't think that the removal of convening authority is a significant barrier to reporting," Hannink said.

Military personnel filed 6,769 reports of sexual assault in 2017, and personnel surveys show that nearly 15,000 active-duty troops experienced a sexual assault the previous year. But in 2006, the estimated number of troops who were sexually assaulted was 34,000.

While the attorneys all said that one sexual assault is one too many, they said recent changes to the UCMJ are improvements that will help increase prosecution rates and reporting.

"The military justice system might be the most studied criminal justice system in the past decade. We welcome this scrutiny," Hannink said.

According to retired Air Force Col. Don Christensen, president of the Protect Our Defenders advocacy group, conviction rates for prosecutions have declined significantly. Citing data provided by the Defense Advisory Committee on Investigations, Prosecution and Defense of Sexual Assault in the Armed Forces, Christensen said less than a quarter of "penetrative offenses" that went before a judge in fiscal 2017 resulted in a conviction. And just 3.6% of contact offenses, which include unwanted touching, groping or kissing, were convicted before a judge.

Christensen said the services need to improve their investigative teams that respond to sexual assaults.

"This needs to be something that is a career track," he said. "Let investigators be investigators for their entire career."

Rep. Trent Kelly of Mississippi, the subcommittee's ranking Republican, said much "remains to ensure that every sexual-assault perpetrator [in the military] is held accountable." But he warned against making changes to the UCMJ before reforms that went into effect Jan. 1 take root.

"I would caution against additional major changes to the commander-centric justice system when we have not even seen results from the reforms instituted just 90 days ago," said Kelly, who also serves in the Army National Guard.

The Defense Department Inspector General in March found that one of the reforms of the past five years -- a provision in the fiscal 2015 defense law that required DoD officials to ask sexual-assault victims about whether they would prefer the offense to be prosecuted by court-martial or in a civilian court -- was not being followed.

In 77 of 82 cases the IG reviewed, officials did not ask about or did not document that they asked about preference. Of the 77 cases, 21 victims weren't asked about preference, and in 56 cases, if victims were asked, their preference was not documented.

Christensen's group, Protect Our Defenders, called the UCMJ in sexual-assault cases "a broken military justice system exemplified by the obvious failure to hold offenders accountable."

Speier said she favors leaving convening authority within the military system, but would prefer the decisions be made by an independent prosecuting authority rather than the commander.

"Something here is fundamentally broken. We need to act," she said.

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

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