Joint Chiefs Want to Keep Sexual Assault Prosecution Authority

If there's one thing that our generals and admirals agree on it's that generals and admirals should retain their power.

joint-chiefs-sexual-assault-testimony

If there’s one thing that our generals and admirals agree on it’s that generals and admirals should retain their power.

DEFCON Hill (“Military brass oppose removing sexual assault cases from chain of command“):

Military leaders on Tuesday expressed unified opposition to stripping commanders of the power to decide where sexual assault cases are prosecuted.

In testimony to the Senate Armed Services Committee, Joint Chiefs Chairman Gen. Martin Dempsey and the service chiefs defended the current system, arguing it helped preserve good discipline.

[…]

One by one, the service chiefs stressed the importance of keeping commanders in the central role of prosecuting sexual assault cases. They said the accountability and responsibility was essential for commanders as they try to change the military’s culture.

Army Chief of Staff Gen. Ray Odierno compared sexual assault to “a cancer that left untreated will destroy the fabric of our force,” but said that changing the chain of command structure won’t fix the issue.

“Making commanders less responsible and less accountable will not work. It will undermine the readiness of the force,” Odierno said. “Most importantly, it will hamper the timely delivery of justice to the very people we wish to help.”

Marine Corps Commandant Gen. James Amos said in written testimony that commanding officers should “never be forced to delegate their authority.”

“We cannot ask our Marines to follow their commanding officer into combat if we create a system that tells Marines to not trust their commanding officer on an issue as important as sexual assault,” Amos said. “It is inconceivable to me that a commanding officer could not immediately and personally — within applicable regulations ­— hold Marines accountable for their criminal behavior.”

Air Force Chief of Staff Gen. Mark Welsh said that the military must avoid creating an environment where commanders have less accountability, and Chief of Naval Operations Adm. Jonathan Greenert said the fundamental structure of the military judicial code “is sound.”

 

Considering that these men are in charge of said system and have spent four decades steeped in it, this unanimity is hardly surprising. They also happen to be right: the essence of military justice is command discretion. It occasionally has its lapses—and lax enforcement of sexual assault sadly appears to be among them with too high a frequency—but the answer is holding commanders accountable, not stripping them of the ability to do their jobs.

A rash of incidents has shined the spotlight on the problem of sexual assaults in the military. A recent Pentagon report estimated 26,000 assaults occurred last year, an increase of more than a third.

Sen. Kirsten Gillibrand (D-N.Y.) has offered legislation to grant military prosecutors the power to decide whether to prosecute sexual assault and other major criminal cases. Her bill has 19 co-sponsors, including four Republicans, but has not gained the endorsement of Senate Armed Services Committee Chairman Carl Levin (D-Mich.).

Gillibrand and her supporters have argued that the current structure has discouraged sexual assault victims from coming forward given the fact that commanders can overturn guilty verdicts handed down by military juries.

“Because it’s in the chain of command — because this is what our witnesses have told us — people aren’t reporting,” Gillibrand said while grilling the Air Force chief of staff at a hearing last month. “They don’t feel that there is an atmosphere by which they can report safely.”

In his opening statement Tuesday, Levin said the problem of sexual assault has become a “stain on the military.”

But he also stressed the importance of having commanders deal with the problem and did not specifically talk about removing cases from commanders’ control.

“Only the chain of command can establish a zero tolerance policy for sexual offenses,” Levin said. “Only the chain of command can protect victims of sexual assault, by ensuring that they are appropriately separated from the alleged perpetrators during the investigation and prosecution of a case.”

Levin is spot on. It’s the job of commanders to protect their people. They can take immediate action based on an intimate knowledge of the people and situations involved. The base legal affairs office? Not so much.

This is indeed “a stain on the military,” and some careers should be ended. Some people should wind up in prison. But the main thing is for Demsey and company to make it crystal clear that sexual abuse will not be tolerated. It’s how the military dealt with racism, drug abuse, drunk driving, and all manner of other behavioral and cultural problems over the years. It’s how they’re so quickly adapting to the open integration of gays into the force.

FILED UNDER: Gender Issues, Military Affairs, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Lynn says:

    So how do you allow for “command discretion” while still ” holding commanders accountable”?
    How does the military “make it crystal clear that sexual abuse will not be tolerated” when it has tolerated it and continues to do so?

  2. James Joyner says:

    @Lynn:

    So how do you allow for “command discretion” while still ” holding commanders accountable”?

    It’s the essence of chain of command: all commanders, even the Commander-in-Chief, answer to somebody.

    How does the military “make it crystal clear that sexual abuse will not be tolerated” when it has tolerated it and continues to do so?

    The military tolerated racism, sexism, and homophobia–until it didn’t. The commander-in-chief sets forth the policy, ensures the Joint Chiefs back him, and then exercises vigilant supervision through the chain.

  3. Mu says:

    A good commanding officer prosecuting a subordinate for sexual assault admits his failure to supervise. A bad commanding officer suppressing a sexual assault gets promoted out of the job before the SHTF. We can always assume the commanding officer will take the good route instead of a carrier.

  4. James Joyner says:

    @Mu:

    A good commanding officer prosecuting a subordinate for sexual assault admits his failure to supervise.

    Nonsense. CO’s prosecute UCMJ infractions all the time.

    A bad commanding officer suppressing a sexual assault gets promoted out of the job before the SHTF.

    They’re still in the service. It’s not leaving McDonald’s for Burger King or Walmart for Target; they’re still reachable. Even after retirement, in fact.

  5. gVOR08 says:

    It’s the job of commanders to protect their people.

    I suspect that a lot of commanders don’t regard the females as actually “their people”.

  6. Lynn says:

    @James Joyner: “It’s the essence of chain of command: all commanders, even the Commander-in-Chief, answer to somebody.”

    That doesn’t really answer the question… what sort of system needs to be put in place to insure that they are held to account in these cases?

    “The military tolerated racism, sexism, and homophobia–until it didn’t.”

    The military doesn’t tolerate sexism? Hmmm… seems to me that rape and sexual harassment are sexism carried to the extreme. And I suspect that some of the assaults on men are a product of homophobia.

  7. Pharoah Narim says:

    You can make people believe anything by the manner in which you report on it on T.V.

    No, the military doesn’t tolerate sexual assault. When assault is reported, it is reported OUTSIDE of the chain of command and investigated OUTSIDE of the chain. If you looked at TV and Newspapers without having been in the military–you’d get the impression its entirely up to the woman’s supervisor and Commander who gets investigated, tried and convicted…..you get the WRONG impression. The men and women in position to act on these cases either are or have wives, sisters, daughters. You think they want some sociopath running out running order and discipline in a unit? You think the men and women in a unit are going to standby and let a sociopath destroy their teammate. Possible, as an execption. As a more common rule however, once an investigation is started– that Commander wants the perpetrator GONE from the unit if the evidence hints at them being guilty. If he/she didn’t take action—they would get a million Inspector General and Equal Opportunity complaints by the people under their Command. Our troops can handle working for someone incompetent—but not for someone who’s aiding and abetting a rapist. What Commander is going to jettison their career for a piece of trash? Not many I assure you.

    The bottom line, and I have direct experience… is that MANY times there is no evidence other than one persons word. We don’t prosecute people over that—we prosecute if supporting evidence or a corroborating witness is found. There are alot of terrible cases in the news right now that are being to made to appear that almost every case is black and white negligence on the military’s part to go after sexual assault. Its not even 95% of them. Many of them boil down to “her word against his”. Even if you know the guy is a scum bag and probably did it—you can’t take the case further without any evidence. She wasn’t beat up…medical tests weren’t abnormal. She says she said “no”….he says she didn’t. There is no clear black line in those cases.

    There are procedures in place that are designed to minimize possible scenarios where assault can take place i.e. no alcohol or unaccompanied, opposite sex guests in dorm rooms, etc. There are countless training clases to provide awareness to women and men on assault and where and how to report it if they know of an incident. Bases have dedicated people (mostly women) to handle this both stateside and in combat zones The media has a story to push that the military doesn’t care and isn’t doing anything to minimize it…and by golly that’s the story you’re going to get. Regardless of the truth…

  8. legion says:

    Unless you’re a temporary fill-in when someone else is incapacitated, you don’t get to be a “capital-C” Commander in any service simply by marking time. You get vetted & put on an eligibility list, and if – if, not when – a command billet opens up, you get a shot at the Big Chair. That vetting goes through a lot of hands, and it covers a lot of characteristics, but absolutely _none_ of those checkboxes are labeled “Can recognize and appropriately punish sexual assault”. Commanders do get training in the special roles & responsibilities of the position, including UCMJ issues, but there’s no magic wand that suddenly makes them legal scholars. They’re not skilled at it, the basic concepts are only one small part of after-the-fact training, and it’s not a very big part of their evaluation as COs.

    “Only the chain of command can establish a zero tolerance policy for sexual offenses,” Levin said. “Only the chain of command can protect victims of sexual assault, by ensuring that they are appropriately separated from the alleged perpetrators during the investigation and prosecution of a case.”

    And it is increasingly obvious that the chain of command has failed, utterly and completely, at fulfilling that responsibility. What do we do with such a situation, James – let them keep failing, or take away their toys?

  9. Pharoah Narim says:

    @James:

    This is somewhat relevant to the thread.

    http://www.bloomberg.com/news/2013-05-16/polling-experts-question-pentagon-sexual-assault-survey.html

    I heard the “70 sexual assaults per day” tag uttered ad nauseum on talk radio today. The number is so unbelievable it deserved a source check. There are clearly some issues in the military and a few freak cases that inflame public passions to boot. Many of the sociopaths that are doing these crimes came in after the first wave of professional troops got out after they’d had enough of Bush’s adventure in the mid/late 2000s. Its going to take a while to purge the rest of these clowns. However, NO system is jerk-proof. There needs to be a few tweaks to the existing procedures (as there should be with any internal procedures as they age) and people should be held accountable for not following the procedures that are in place.

    I still couldn’t find the actual survey–but people shouldn’t be quoting numbers in anonymous surveys as if they are gospel. There is so much administrative training and surveys for non-military things that quite frankly many of the troops don’t spend any time with it. They race through them to get it done so they can get back to their jobs.