The answer to Washington's questions about how the military can better respond to sexual assault may lie in Ottawa and Jerusalem and the other capitals of key U.S. allies, which have already done what some lawmakers here want to do -- remove the sexual assault reporting system from the chain of command.
Right now, it's up to a suspect's commander whether or not to press charges for sexual assault or any other crime. Military prosecutors advise commanders, but don't have the final say. And if a court-martial finds the suspect guilty, the commander has the power to overturn that decision, as Air Force Lt. Gen. Craig Franklin did last year after a lieutenant colonel under his command at a U.S. base in Italy was convicted of aggravated sexual assault and sentenced to a year in prison.
A bill introduced by New York Democratic Sen. Kirsten Gillibrand and others would remove prosecution of all crimes punishable by a year or more in prison from the chain of command, except for those that are uniquely military in nature, like being AWOL, and allow trained prosecutors to take the lead. The change would make victims more comfortable reporting crimes, proponents say, and make the process more independent and fair, eliminating the favoritism and willful blindness that are too often a problem in the current system.
The military has balked at the change, warning yesterday in a Senate hearing that undermining officers' authority would actually make the problem worse, since "victims need to know that their commander holds offenders accountable, not some unknown third-party prosecutor," as Army Chief of Staff Ray Odierno said.
But everyone agrees the current system isn't working, and Gillibrand and her co-sponsors note that many allied militaries, including Britain, Canada, Israel, Germany, Norway and Australia, have already implemented similar programs without major problems. Outside advocacy groups, meanwhile, warn that "the U.S. has fallen behind" other counties and could "learn from our allies."
Greg Jacob, a former Marine and the policy director at the Service Women’s Action Network, said he sees little merit in the brass's warnings about possible discipline problems if commanders lose their convening powers. "It's clear the military is afraid of losing this authority and they're trying to provide rationales for keeping it that are inconsistent with the reality of the criminal justice system," he told Salon.
"These other countries have been successful, they've had successful transitions, and we fight right along with them. If this is so detrimental to good order and discipline, why do we trust our allies to be on the battlefield next to us?" he added.
Politically, the reformers are taking a page from the successful campaign to repeal "don't ask, don't tell," which had as one of its strongest arguments the fact that respected allies like the U.K. and Israel had already lifted their ban on openly gay service members years ago without incident. Advocates of criminal justice reform note that military leaders used many of the same arguments they're making today about unit cohesion and discipline when they fought DADT repeal in the 1990s.
Most of the other countries reformers point to began with justice systems similar to that of the U.S., but were forced to overhaul them after court rulings found their military justice system lacked independence and due process protections for the accused. Now, many NATO countries have independent prosecutors who decide which cases get brought to trial, just like a civilian D.A., with varying degrees of input from commanders.
Victor Hansen, the vice president of the National Institute of Military Justice and an expert on foreign military judicial systems, said he's sympathetic to some of the Pentagon's concerns, but added: "I think some of it, frankly, stems from just a long tradition and resistance to change. The reality is that the U.K. military and the U.K. military justice system is not falling apart."
In 2009, Britain centralized all military criminal prosecutions under the Service Prosecuting Authority, which aims to provide "independent, efficient and consistent consideration of criminal cases" across all service branches. Meanwhile, commanders are still responsible for handling minor offenses and can dole out their own punishment outside of the justice system as they wish. They also have input in criminal cases and can confer with prosecutors.
Canada set up a similar system after the country's Supreme Court ruled in 1992 that the existing military justice system violated defendants' constitutional right to a fair and impartial trial. After all, commanders often know their subordinates well, and whether the relationship is friendly or acrimonious, that personal connection can make it difficult for officers to dispense equal justice, or at the least, create the appearance of favoritism.
In Australia and Germany, meanwhile, serious crimes are referred to civilian authorities.
But Israel goes even further, giving the Military Advocate General sole authority to make decisions about prosecutions, requiring them only to alert commanders about impending charges against subordinates. Amos Guiora, a law professor at the University of Utah who served for 19 years in the Israeli Defense Forces Judge Advocate General’s Corps, wrote to senators recently explaining why he thinks the Israeli system works:
While commanders understandably express reservations as to their lack of a role in the decision making, the system properly (and effectively) minimizes command influence in the criminal process to maintain fuller accountability and impartiality in meeting out justice... There is little doubt that recent high profile prosecutions have significantly enhanced the trust Israel Defense Forces soldiers feel in reporting instances of sexual assaults and harassment.
As the IDF increased its attention on sexual assault, the number of reports has jumped 80 percent in the past five years, a spike advocates attribute to the fact that more victims feel comfortable coming forward to report crimes. Indeed, the Pentagon guesses that 60 percent of victims never report abuse, and that number is likely even too low.
The biggest problem is that sexual assault victims don't trust the current system. Too often, Jacobs said, when victims call into the sexual assault hotline the Service Women's Action Network maintains, they say they didn't report the crime because they fear retaliation from their attacker or their attackers' friends (or even friendly commanders), and because they don't think anything will come of their criminal complaint anyway. Last year, commanders failed to act on over 900 cases that military prosecutors said were robust enough to be taken to a court-martial.
"Right now, there's a complete lack of faith among members of the military in the system," Jacobs said. "In order to restore that trust, you need to provide a system that is independent, judicial and fair."
Hansen, of the National Institute of Military Justice, cautioned that the U.S. military is different from other countries and so will need to find its own solutions, but agreed that it's worth studying their systems and that reform of the Uniform Code of Military Justice is badly needed.
So has the military examined the Canadian or British experience? New Hampshire Democrat Jeanne Shaheen asked the assembled brass before the Senate Armed Services Committee yesterday. They said they'd look into it.
Here's what Missouri Republican Sen. Roy Blunt said next: "Your answer to the question Sen. Shaheen asked was stunningly bad. Adm. Greenert, you said, ‘Thanks for the tip,’ and Gen. Dempsey, you said you’d just begun that process in preparing for this hearing. It’s a good thing we had the hearing.”