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Can We Trust Commanders with Military Sexual Assault Cases?

Can We Trust Commanders with Military Sexual Assault Cases?

Military sexual assault is a hot topic these days, thanks to a chorus of brave, outspoken men and women who have forced the issue into public light. Even Congress is getting involved, with extensive hearings on the subject as Congresspeople and Senators discuss how to reform the military justice system to tackle sexual assault and create an environment where people can safely report them. One of the most instrumental fighters for servicemen and women has been Senator Kirsten Gillibrand (D-NY, pictured above), who refuses to rest when it comes to advocating for her constituents in uniform.

Unfortunately, she lost a key battle last week: the fight to take prosecutions for rape and sexual assault out of the chain of command and into the hands of military prosecutors. And it didn’t happen along party lines, either. Democrats themselves were divided on how to reform the military to handle sexual assaults, and ultimately decided against Senator Gillibrand’s amendment to restructure sexual assault reporting, investigation and prosecution.

Their compromise, inserted by Senator Carl Levin (D-MI), says that if a case is dropped, officials at the next highest level of the chain of command are required to review it. They can choose to reopen it on the basis of their findings. This is substantially different than what Gillibrand proposed, and she’s not happy about it: she’s pledged to introduce a floor amendment in one last try to get her version passed when the bill is taken to the Senate floor for a vote.

What, exactly, is the problem here? Well, Gillibrand and others have clearly articulated the numerous issues with leaving sexual assault prosecution in the hands of the chain of command, namely that the chain of command is not a reliable authority. For one thing, it can put victims in a position where they may need to report their rapes to their rapists, or where their cases will inevitably come before their rapists or those closely allied with them for discussion. The tightknit ranks and tendency to support defendants rather than weighing evidence has resulted in overturning key rape cases among the top brass, which sends a clear message to victims: don’t bother reporting, because your rapist is unlikely to face penalties.

Not only that, but numerous rape victims, both those who have reported and those who have not, have reported fear of reprisals as a strong factor in their decisions surrounding reporting. Military rape victims have reported being slapped with mental health diagnoses and pushed out of the military, for example, rather than being supported in the reporting and prosecution process. Likewise, outspoken advocates in the lower ranks may be punished in other ways, even within the rigid and supposedly egalitarian structure of the military.

By taking the decision out of the hands of commanders and into those of independent prosecutors, Gillibrand wanted to make it more fair, and not just for victims. The accused also deserve a fair investigation and trial. Her proposal, however, sparked a revolt because military officials argued it would make it impossible for commanders to punish sexual offenders in the ranks (evidently they couldn’t…report such crimes to prosecutors and ask them for assistance?). Some Republicans seemed to feel that Gillibrand’s proposal would have removed control from the military, breaking the tradition of allowing the armed services to look after their own.

Yet, that may have been precisely Gillibrand’s point. The extent of the military sexual assault crisis demonstrates that the military is not prepared to protect servicewomen and men from rape in the ranks, and that means something clearly isn’t working. Maybe that something is leaving the ranks to police themselves, rather than pushing for outside authorities who can focus on the overall welfare and safety of servicemembers, rather than the appearance or “group cohesion” of a unit.

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Photo credit: personaldemocracy

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79 comments

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8:52AM PDT on Jul 14, 2013

NO, AT LEAST I DON'T TRUST THEM

7:42PM PDT on Jun 22, 2013

My take is that those opposed to taking sexual assault cases out of the chain-of-command is that it will badly affect unit cohesion. So, the question is, if somebody if afraid to report for fear of reprisal or the knowledge that they would not get justice (by the military's own study, this is very much the case), how does this help with unit cohesion when you have to work with the person who assaulted you and pretend that everything is just fine?

6:43PM PDT on Jun 22, 2013

Positively no, if they have to ask we have more of an issue than I thought. I believe that women should make decisions on this issue, that are in this field. Not all but men but some stick together or this just don't understand like a woman could. When all said & done it is a shameful situation. What makes it worse is it is a job to keep people safe & show respect.

9:43AM PDT on Jun 22, 2013

Gene J. I think you might have hit on a obvious, but probably not suggested, idea concerning this scandal of abuse.

While I am sure that it will transform the UCMJ in ways that the military as a whole may not like. It could bring a more balanced system of justice. Especially in the light of the fact the military is trying to work on the problem. While at the same time hoping it will go away.

Though the trouble is that the military system of justice is far different from that of the civilians. So the answer is not going to be as easy as we would all like at the same time. As the UCMJ has a legal fiction of three different ways of applying its system of justice. What would rate a demotion for an enlisted rank. Could spell prison and worse for an officer. What might be a slap on the wrist for a Private. Could earn a Sergeant time in Leavenworth.

And then there is the difference as to whether the court is civilian a court martial, or a full blown court martial.

So the answer and nuances of just how much over site and where is not going to be as easy as it might appear. Can it be done. Yes. Is there going to be mistakes made. Almost assuredly. Does that mean it such a project should be shelved. Absolutely not. It just may mean a slower process with a more determined outcome.

8:34AM PDT on Jun 22, 2013

" Maybe that something is leaving the ranks to police themselves, rather than pushing for outside authorities who can focus on the overall welfare and safety of servicemembers, rather than the appearance or “group cohesion” of a unit."

Absolutely no way should the "final" say be left to the military. Having served in the Army, albeit a long time ago, that chain of command is exceedingly venerated. And, just as in courtrooms, regardless the law, judges are kings or queens, so too are commanding officers ever the more so as you rise through the ranks. There are FAR too many examples of an officer up the food chain overturning a jury verdict of guilty or mitigating the sentence in sexual assault boys for what amount to ridiculous reasons, not fact based, the officer's opinion is what drives that. We have a civilian commander in chief for the same reason, no organization can be trusted to police itself. How many times do we need to have this proved to us? The big banks bailouts, antitrust laws, on and on, when any group has no outside oversight it abuses that absolute power. Checks and balances are what our system is built on and so too should the military be subject to that same system. Outside oversight, particularly in areas like this one, where they have consistently demonstrated their loyalty is to their organization, not its individual members.

5:13AM PDT on Jun 22, 2013

Interesting read. Also interesting comments

3:37AM PDT on Jun 22, 2013

Great! It's like putting thieves in charge of guarding the bank. Soldiers are the perpetrators, so by continuing to let decisions concerning cases of Military Sexual Trauma stay in the hands of military commanders, nothing will get better. They have a vested interest in not acknowledging these crimes, so that their commands can appear to be functional. The Uniform Code of Military Justice is anything but that for women.

John C., you must only get your information from Fox News. Other countries have women serving in their military and they don't have this problem. What fosters sexual abuse is men with your attitude. The problem isn't the women; it is the men. Unless there is a truly consensual permission granted, no one has the right to touch a woman's body. Ever.

Saying that women can't do the job is just plain lame. If you really think this is so, spend some time with the Israeli Army. The odds are that you could never keep up with female Israeli soldiers. In Switzerland, every citizen is required to do military service. It is only in America that sexual assaults are at epidemic proportions.

3:01AM PDT on Jun 22, 2013

Interesting. Thank you!

8:20PM PDT on Jun 21, 2013

Yeh, right! When Lt. Colonel Jeffrey Krusinski, the man in charge of the Air Force’s chief sexual-assault-prevention effort, is arrested for sexually assaulting a woman you just *know* you can trust him with sexual assault cases in the Air Force.

7:44PM PDT on Jun 21, 2013

The military chain of command has done NOTHING for these victims. The victims should be able to report it to a lawyer who is NOT in the military. They have to have someone outside of the military to help them because clearly the military is NOT going to be unbiased.

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