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December 07, 2016
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Military justice denied

Earlier this month, the U.S. Senate had a chance to advance a bipartisan bill (S1752), introduced by Sen. Kirsten Gillibrand (D-NY), to reform the military justice system to address the epidemic of sexual assaults that plague our armed services. Though a majority of senators support the Military Justice Improvement Act (MJIA), they failed to muster enough votes to end debate on the bill, falling five votes short of the 60 votes needed to override a filibuster, and so the bill failed to advance.

After the vote, an impassioned Gillibrand said, “We know the deck is stacked against victims of sexual assault in the military, and today, we saw the same in the halls of Congress.” She added, “…we will not walk away; we will continue to work harder than ever in the coming year to strengthen our military.” We support Gillibrand’s commitment to continuing to push this legislation forward and the urge our readers to tell Congress that you support it, too.

Currently military law empowers a commander to decide if a case goes forward to court martial. The MJIA proposes to change that by taking sexual assault cases out of the chain of command and assigning them to independent, senior military prosecutors. Commanding officers would still be able to order non-judicial punishment for offenses not sent to trial by the prosecutors.

Supporters of the reform bill believe that commanders are not trained or prepared to weigh legal evidence when deciding whether to pursue and punish sex offenders. In addition, some commanders are by nature reluctant to recommend courts martial because these might reflect poorly upon themselves for failing to establish a proper “command climate” among their troops. Further, the accused and the accuser often report to the same commander, creating a conflict of interest for the commander who, rightly, has both personal and professional relationships with members of his command. All of these concerns raise red flags about how victims can receive justice under the current system. (Sadly, a majority of victims do not have even enough confidence in the existing system to report these despicable crimes; the Pentagon itself estimates that in 2010, 86% of sexual assaults went unreported.)

While the Department of Defense has been working to address this problem—in 2005, it established the Sexual Assault Prevention and Response (SAPR) program to promote prevention, encourage increased reporting of the crime and improve response capabilities for victims—to date real progress toward “zero tolerance” for sexual harassment and assault has been inadequate to the scope of the problem.

In 2012, the Pentagon reported an estimated 26,000 cases of sexual assault or unwanted sexual contact, a 37% increase from 2011. At the same time, reporting rates fell from 13.5% in 2011 (3,192 official reports out of 19,000 estimated incidents) to 9.8% in 2012 (3,374 official reports out of 26,000 estimated incidents). As for conviction, while the number of convictions increased from 191 in 2011 to 238 in 2012, the conviction rate dropped from 1% to 0.9%. Finally, 62% of victims who reported sexual assault said they perceived some kind of professional, social and/or administrative retaliation.

Perhaps less known is that sexual assault in the military is a genderless crime; both men and women are victims. While one in five of all female service members have reported experiencing unwanted sexual contact during their service in the military, more than half of all victims of unwanted sexual contact are believed to be men.

Both the accused and the accuser are entitled to a fair and informed assessment of their case and that putting this responsibility in the hands of “the boss” rather than an independent professional prosecutor outside of the chain of command is the best proposal we have seen. This proposal will not undermine order and discipline in the ranks by taking this out of command, but will instead give members of the military more faith that their case will be fairly heard and justice achieved. America’s sons and daughters, whom we send into harm’s way to defend us, deserve better than to suffer from sexual assault at the hands of their own comrades in arms. This problem must be fixed, and defenders of the current system, which is clearly broken, need to get on board.