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Panel: Commanders should retain authority in sex assault cases

Jan. 30, 2014 - 06:00AM   |  
Kirsten Gillibrand
Sen. Kirsten Gillibrand, D-N.Y. continues to push for legislation that would require the Pentagon to strip commanders of their court-martial convening authority in rape and sex assault cases. A DoD panel recommended Jan. 30 that commanders should retain their authority. (J. Scott Applewhite / AP)
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Commanders should retain their authority to prosecute military sexual assault cases, a key subcommittee of a congressionally mandated Pentagon panel has concluded.

After months of meetings, interviews with victims, senators, attorneys, commanders, and more, and gleaning through scores of documents from the Defense Department and advocacy groups, members of the Response Systems to Adult Sexual Assault Crimes Panel concluded there is no evidence that stripping commanders of their authority would reduce sexual assaults or increase reporting of assaults in the ranks.

The Role of the Commander subcommittee also noted that recent reforms, signed into law in January as part of the 2014 Defense Authorization Act, have not had time to be instituted or evaluated.

“The evidence does not support a conclusion that removing such authority will increase confidence among victims of sexual assault about the fairness of the military justice system or reduce their concerns about possible reprisal for making reports of sexual assault,” said Barbara Jones, a former judge for the U.S. District Court for the Southern District of New York, who chairs the subcommittee.

The lone dissenter among the nine subcommittee members was Elizabeth Hillman, professor of law at University of California Hastings College of Law. Hillman said she firmly believes the authority to prosecute rape and sexual assault should be vested “in the same people on whom federal, state and many respected military criminal systems rely: trained, experienced prosecutors.”

“Although commanders must lead the way in changing military culture, they are neither essential nor well-suited for their current role in the legal process of criminal prosecution,” Hillman said. “An impartial and independent military justice system that operates beyond the grasp of command control would help restore faith that military service remains an honorable, viable choice for all.”

The subcommittee unveiled its recommendations Jan. 30 as Sen. Kirsten Gillibrand, D-N.Y., continues to push for legislation that would require the Pentagon to change the Uniform Code of Military Justice to strip commanders of their court-martial convening authority in rape and sex assault cases.

She has 53 colleagues on board but needs 60 votes to overcome a filibuster threat.

The 2014 Defense Authorization Act included 30 provisions on military sexual assault, including removing the authority of commanders to dismiss a court-martial finding, eliminating the current five-year statute of limitations on rape and sexual assault and establishing minimum sentencing guidelines for sex crimes.

The Response Systems on Adult Sexual Assault Crimes Panel was created by the 2013 National Defense Authorization Act. Members were appointed by Congress and Defense Secretary Chuck Hagel.

In testimony prior to the subcommittee’s recommendation, speakers pleaded for support of Gillibrand’s legislation.

Paul McHale, a retired Marine colonel, former congressman and former assistant defense secretary, said commanders have an inherent conflict of interest because too many courts-martial referrals reflects poorly on their command.

“The Gillibrand legislation will allow commanders to be combat leaders while lawyers handle the rest,” McHale said.

Defending the decision, however, Mai Fernandez, executive director of the National Center for Victims of Crime, said the evidence doesn’t support that idea that the change would have a real effect on stopping or prosecuting sexual assault.

“I went into this thinking [Gillibrand’s legislation] made sense. I’m a prosecutor; I wanted to go with that. But when you hear the facts, it doesn’t hold up,” Fernandez said.

Responding to news of the Sen. Claire McCaskill, D-Mo., who has pressed for reform the military justice system short of removing command authority from commanding officers, expressed support for the subcommittee findings, especially for suggesting recent changes should be given time to work.

“After an exhaustive and careful study of the issue, these independent and diverse experts have reached an unequivocal conclusion — stripping commanders of their ability to launch courts-martial in sexual assault cases would not result in more prosecutions of predators or more protections for victims,” McCaskill saidl “As we aggressively implement reforms, this panel’s diligent work is providing us with crucial information that must inform any future debate about alternative proposals.

The sexual assault victims advocacy group Protect Our Defenders was quick to denounce the recommendations and said the organization will continue pressing for change.

“Instead of listening to our veterans, those who were sexual assault victims and then subjected to retaliation by their chain of command — this panel has so far decided to stand with the status quo and the hollow Pentagon promises of ‘zero tolerance,’” noted a statement released by Protect Our Defenders President Nancy Parrish.

A straw poll of full committee members found that in addition to Hillman, retired Virginia Beach, Va., Commonwealth’s Attorney Harvey Bryant also does not support the subcommittee’s recommendations.

A previous version of this story mistakenly attributed Mai Fernandez’s comments to Joye Frost, director of the Office for Victims of Crime.

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