The Ongoing Battle to Remove Military Sexual Assault Prosecution From the Chain of Command

The Senate Armed Services chair has bowed to the objections of the Joint Chiefs of Staff and spiked Sen. Gillibrand's measure to take the prosecution of sexual assaults in the military out of the chain of command. This, after a day-long military sexual assault hearing that featured mostly men.

KirstenEGillibrand / YouTube

As the Senate Armed Services Committee meets Wednesday to take up its version of the Defense Authorization bill, senators will likely devote at least as much verbiage to discussion of sexual assault in the military ranks as they do to the finer points of the Pentagon budget that is the bill’s main focus. But missing from the committee’s final version of the bill will be the one measure that advocates for survivors of sexual assault and rape say is critical to ending the crisis that grips the military: removing the reporting and prosecution of sexual assault cases from the chain of command.

Despite its bipartisan support and 27 co-sponsors, Sen. Carl Levin (D-MI), the committee chairman, struck from the bill a measure offered by Sen. Kirsten Gillibrand (D-NY) that would have moved the adjudication of all serious crimes (such as murder, rape, and sexual assault) into the hands of independent prosecutors in order to create a safer environment and more impartial judicial process for those who have been the targets of assailants in the military ranks.

Levin made the decision Tuesday, replacing the provisions of Gillibrand’s Military Justice Improvement Act with a measure that simply requires that any command decision not to prosecute a sexual assault case be reviewed by a high-ranking officer. But as demonstrated in at least one recent case—the overturning of the sexual assault conviction of Air Force Lt. Col. James Wilkerson by Lt. Gen. Craig Franklin—the top brass often exhibit the same deference to defendants as commanders lower in rank.

Sen. Barbara Boxer (D-CA) has condemned Levin’s decision. “They basically embrace the status quo here. It’s outrageous,” she told the New York Times.

As Gillibrand and others noted in a June 4 day-long hearing on sexual assault in the military, victims often don’t come forward because of well-founded fears of reprisal by their commanders. Testimony by victims’ advocates laid out a picture of a landscape on which retaliation against those who report sexual assaults—including being drummed out of the service on the basis of mental-health diagnoses made by military medical personnel—seemed almost as common as the assaults themselves.

Citing a recent Pentagon report that estimated some 26,000 incidents of unwanted sexual contact experienced by members of the military at the hands of others in the ranks, Gillibrand addressed a panel of top military officials: “Of the victims who did report … 62 percent said they received retaliation.”

Of those estimated 26,000 incidents, only 3,300 were reported, and fewer than 200 went to trial.

Most U.S. allies, including the United Kingdom, Germany, Canada, and Israel, have altered their command structure to reflect the kind of change that Gillibrand and co-sponsors of her bill seek in the U.S. Uniform Code of Military Justice (UCMJ). But the Joint Chiefs of Staff don’t want it, and Levin is not disposed to make them do it, despite the fact that the Constitution places control of the military under the leadership of civilian elected officials.

Among the measures attached to the bill, which allocates the annual budget for the whole of the armed forces, will likely be several that aim to aid members of the military who survive rape and other sexual violence at the hands of their colleagues, measures that victims’ advocates applaud but that only deal with the aftermath of assault.

Proponents of Gillibrand’s measure contend that because it would encourage rape survivors and assault victims to come forward, and would likely result in a higher number of prosecutions, it could change the current military culture marked by rampant predation on lower-ranking members by their superiors.

On June 5, the House Armed Services Committee included in its markup of the bill some 11 amendments designed to address, in some measure, the crisis of sexual assault that has plagued the military for the last 25 years. They include measures to provide services to victims and to prevent commanders from overturning convictions made by military courts. But a change to the chain of command structure, proposed by Rep. Jackie Speier (D-CA), was not among them.

Wednesday morning, news came that a measure co-sponsored by Sens. Patty Murray (D-WA) and Kelly Ayotte (R-NH) that would form a Special Victims Counsel—a special military lawyer tasked with assisting sexual assault victims throughout the process of adjudicating their reports—in all branches of service had won a thumbs-up from Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff.

Where Are the Women?

The day before the House committee took up the authorization bill, in a grand but sparsely-populated hearing room on the other side of Capitol Hill, four people took their seats at the witness table for questioning by members of Senate Armed Services Committee on the epidemic of sexual assaults in the military. On the press tables, a mere smattering of laptops was present; most reporters had already left the day-long hearing to file their stories.

Out of a total 20 witnesses questioned by committee members that day, the two women on the panel, Anu Bhagwati of the Service Women’s Action Network (SWAN) and Nancy Parrish of Protect Our Defenders, were the only advocates called to appear before the committee to represent the tens of thousands of individuals estimated to have survived sexual assault by colleagues while serving in the armed forces. Absent from the witness list were any current or former members of the armed forces who had suffered sexual assault by their comrades.

“I have not met a woman in the military yet who has not experienced some form of discrimination or harassment,” Bhagwati, a former captain in the Marines, told the committee. “When that is … the average experience of a woman in the military, a culture of harassment is created, and sexual predators will thrive in that culture. These serial predators that are entering the ranks, they’re hitting a target-rich environment.”

Nancy Parrish shared the stories of several assault survivors, including some who were pushed out of the service, tainted with a mental-health diagnosis after they reported assaults—a pernicious form of retaliation, since it often deprives victims of benefits they would otherwise be entitled to through the Veterans Administration, and leads to the revocation of security clearances required in the victim’s area of vocational specialty.

Both Parrish and Bhagwati cited this sort of retaliation as common.

Unit Cohesion?

Parrish read part of a statement her organization collected from a woman soldier serving in a combat zone who said she had tried to file a rape report several times against a higher-ranking member, only to be rebuffed at each turn. The soldier’s immediate supervisor told her not to speak ill, Parrish said, of the man she said had raped her, and when she took her complaint to the next commander in the chain, the soldier said she was told that she would be charged with adultery if she tried to file an official report.

The woman was a truck driver, Parrish said, tasked with moving supplies over terrain laden with improvised explosive devices (IEDs), the homemade bombs that have killed countless soldiers and civilians in Iraq and Afghanistan. Parrish then quoted a snippet of the soldier’s first-person account, where she tells of how, after being raped by a higher-ranking member of the force, her rapist continues to seek contact:

He comes to my truck as I’m getting it ready for another mission. I shut down inside. I’m the lead driver in our convoy, and I kept hoping to hit an IED after that.

Parrish paused for a moment, and then asked, “Unit cohesion? Good order and discipline? This young soldier tried four times to report her assault. And what was her thinking at that time when she was getting ready to get in her truck to lead the convoy? ‘I hope I hit an IED.’ What would that do for mission readiness and unit cohesion? It’s undermined every day by disbelieving the victim.”

Asked by Sen. Claire McCaskill (D-MO), who is sponsoring a measure that would prevent military commanders from overturning sexual assault convictions rendered by courts martial, whether women rape survivors were being offered emergency contraception at base hospitals, Parrish responded, “Not in our experience.”

“So you’re saying, Ms. Parrish, that in the medical facilities on bases, they do not have a rape protocol?” McCaskill asked.

“Well, if they do, the victims that we’ve talked with don’t know it,” Parrish replied.

The Senate hearing was prompted by Gillibrand’s proposed Military Justice Improvement Act, as well as number of other measures proposed by lawmakers to address various aspects of the problem, all spurred by a spate of recent news reports on assaults in all branches, just as the Pentagon released its report on sexual assault.

Those news reports included the arrest of Lt. Jeffrey Krusinski, then head of the Air Force’s sexual assault prevention unit, for sexually assaulting a civilian in a shopping mall parking lot; the investigation of an Army sexual assault prevention officer for allegedly running a prostitution ring at Ft. Hood; the alleged rape of a woman midshipman at the Naval Academy; and the surreptitious videotaping, by a male sergeant, of women cadets in the shower at West Point.

Stripes and Ribbons (or Where Are the Women? Part II)

The late-afternoon panel on which Bhagwati and Parrish spoke was a markedly different scene from the one that took place earlier the same day in that very room. Then, a witness table of epic length was graced with the dress-uniform sleeves of every member of the Joint Chiefs of Staff, along with the those of the top lawyers of each branch of service, in addition to the commandant and judge advocate general of the U.S. Coast Guard.

Every member of the 12-member panel, save one, was a man.

Throngs of photographers clicked their shutters in flurried bursts and reporters bumped elbows at the press tables, as each ribbon-bedecked witness declared that to deprive commanders of the right to adjudicate sex-crimes cases would lead to the breakdown of “good order and discipline” in the ranks, a breakdown that Gillibrand and other women on the committee concluded had long ago occurred, given the statistics offered in the May Pentagon report.

“It is imperative that we keep the chain of command fully engaged and at the center of any solution to combat sexual assault and sexual harassment,” said Gen. Raymond T. Odierno, chief of staff of the U.S. Army. “Command authority is the most critical mechanism for ensuring discipline and accountability, cohesion and the integrity of the force.”

As Odierno faced often-withering questioning from the senators, his jaw hardened. He was hardly alone among his colleagues, who, like Odierno, conceded that a terrible problem plagued the military in the form of sexual assault, but bristled at the notion that commanders should give up their jurisdiction over such crimes in order to make it safer for victims to come forward.

Sen. Jeanne Shaheen (D-NH) reminded Adm. Jonathan W. Greenert, chief of Naval Operations, that the military services of the United States’ closest allies had changed their military justice codes along the lines that Gillibrand proposed, and suggested he confer with his counterparts in those services to see how removal of sex crimes from the chain of command was working for them. “Thanks for the tip,” Greenert said, flippantly.

Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, told Shaheen he hadn’t had time to confer with his counterparts in the United Kingdom or Israel or Australia, where serious crimes committed by service members were no longer handled through the chain of command, but through independent military prosecutors. He said he’d get right on it, though.

That led Sen. Roy Blunt (R-MO) to label the brass’ answers to Shaheen’s question as “stunningly bad,” and seemed incredulous that they made their case against Gillibrand’s bill without knowing how similar measures undertaken by U.S. allies had affected the operation of militaries in those countries.

When asked by Sen. Jack Reed (D-RI) how many commanders had been held accountable for allowing sexual assault to proliferate in their units, most of the military chiefs drew a collective blank, except for Odierno and Coast Guard Commandant Robert Papp. Odierno said more than 20 Army commanders had been relieved of command or discharged for not punishing sexual assault, and Papp remembered having the same done to one commander in the Coast Guard. Later, Marine Corps Commandant Gen. James Amos and Air Force Chief Gen. Mark Welsh corrected the record to note relieving the commands of a total of three commanders, though it seemed from the commandant’s description that the commanders relieved under Amos’s leadership were for sexual misdeeds of their own, not for failure to punish others.

But military brass are said to have supported the overturning of Lt. Wilkerson’s sexual assault conviction by Lt. Gen. Franklin, and when asked by Stars and Stripes for a reaction on Franklin’s decision to throw out the court martial verdict, Welsh refused to comment. Welsh also made waves last month when he blamed the military’s assault problem on a “civilian hook-up mentality” that recruits brought into the service with them.

All About Power

The one last option Gillibrand has for getting her chain-of-command measure into the final Defense Authorization bill is to renew it on the floor of the Senate. It would be an audacious move for the junior senator, but one that observers are betting on.

The Joint Chiefs of Staff, while standing their ground on maintaining a commander’s power to adjudicate sexual assault claims, seem willing to accept a prohibition on overturning court martial convictions, a measure also supported by Defense Secretary Chuck Hagel.

But given that the United States’ closest allies have made the kinds of chain-of-command changes that Gillibrand and her allies seek, one has to wonder what it is the generals and admiral fear.

In Israel, Gillibrand noted at the hearing, reports of sexual assault have increased by 80 percent since reporting and prosecution of those crimes were taken out of the chain of command.