Civil Rights Commission urged to order audit of military sex-assault cases
By Bill Briggs
With only 8 percent of reported military sexual assaults ending in the court-martial convictions of offenders, the head of a victims group testified Friday before the U.S. Commission on Civil Rights that an independent audit of those investigations and trials “would be a wonderful thing.”
“I think that’s a great idea,” testified Nancy Parrish, president of the advocacy group Protect Our Defenders, who was responding to an audit suggestion floated by commission member David Kladney. Parrish also reported that military leaders later reduced some of those rape convictions to lesser charges such as adultery and indecent language, meaning the offenders remain on active duty and had their time in the brig substantially decreased.
“That’s the message. That’s why we’re here today because unpunished sexual assault in the military is an epidemic (and) victims don’t come forward and report because it’s futile,” she testified.
The hearing in Washington, D.C., marked the first time the Civil Rights Commission has taken up the issue of sexual assault in the military in the post-9/11 era, when women began to make up 15 percent of the American armed forces.
The eight-member panel — four appointed by the White House, four by Congress — invited a roster packed with 14 key players in current efforts to stem sexual assaults inside the military, including victim supporters, academics and flag officers from the Army, Navy, Air Force and Marine Corps.
Courts, not therapy sessions
The commission this year will draft a report and offer its findings and recommendations to President Barack Obama and to the U.S. Senate and House. But based on the tone and content of many questions posed by the commission — including the first question asked by Commission Chair Martin Castro — it seems possible that the White House and Congress may be faced with the notion of removing sex assault investigations and trials not just from the chain of command but from the military altogether.
Castro’s opening question was sparked by the testimony of retired Army Maj. Bridget Wilson, a former judge advocate in the California State Military Reserve and now a partner at the San Diego law firm Rosenstein, Wilson & Dean. She testified that sex-assault investigations must remain in the military “for the process to have credibility” and that “it has to be command driven.”
Wilson testified that a 23 percent increase in reports of sexual assaults at U.S. military academies — revealed by the Pentagon in late December — was simply a byproduct of a military legal process that “is being driven by fear, by the goal being set, as opposed to the truth of the situation.”
Military commanders "were told their goal for the year was to have more reports and, by God, they had more reports,” Wilson said. “Now, the pressure is to have more convictions and, trust me, they will have more convictions. Because that’s what the military does: You give it a mission, it gets it done, regardless of how that works.
“We can reduce sexual assault of our troops. It is a terrible violation ... But we have to do it right. We can’t do it in a way that makes this look like a feeding frenzy and a witch hunt,” she added.
“Would it not be better,” Castro then asked, “to have a civilian process in place, where cases that aren’t being charged (but) that should be charged in the military might have a fresh and different view — in a civilian process?”
“I think we’ve got to have good cases,” Wilson responded. “These are courts of law. They’re not therapy sessions.”
Several military leaders invited to the hearing also decried the notion of pulling sexual-assault cases out of the military and handing them to an independent, civilian tribunal where evidence and testimony would be judged and defendants would be either cleared or convicted.
Such a move would undermine the authority of military commanders, who are tasked with training their troops, setting standards then disciplining those service members who fail to follow the established codes of conduct, testified Army Maj. Gen. Gary Patton, director of the Department of Defense Sexual Assault Prevention and Response Office.
“It’s important to retain the commanders as a central role in a justice system,” Patton testified. “The commanders own this problem. Commanders are going to have to fix this problem. ... By removing any kind of decision-making, with regard to discipline, away from the chain of command, we are not keeping commanders involved in the problem.”
The Sexual Assault Training Oversight and Protection bill (also called the STOP Act) was introduced to Congress in 2011 by Rep. Jackie Speier, D-Calif., as her plan to address rising reports of sexual assaults in the military — and to encourage more victims to file charges. It remains stalled in committees. The bill would create an autonomous sexual assault oversight and response office staffed by both military and civilian personnel.
During the hearing, commission member Roberta Achtenberg asked Castro if the STOP Act’s recommendations could be made part of the testimonial record. Castro agreed.
Protect Our Defenders has long been a vocal proponent of the STOP Act, and Parrish testified that the 8-percent conviction rate, in part, “validates the standing up of an independent, impartial, expert office.”
'Outlier among the world's militaries'
But another expert, University of California, Hastings, School of Law Professor Elizabeth Hillman, cautioned that the STOP Act doesn’t go far enough. She testified that the U.S. military should follow several of its key allies and remove all criminal prosecutions from the desks of military commanders.
“The United States is an outlier among the world’s militaries in placing the discretion to prosecute in the hands of commanding officers rather than civilian authorities,” Hillman said. “The clear trend in the militaries of our allies is toward civilian control over military criminal prosecutions, not only in sexual assault but in all criminal cases.”
The United Kingdom, for example, named a civil servant as director of its armed service prosecutions; his deputy is a brigadier general, Hillman testified. Similar strategies have been applied to the militaries in Canada, South Africa, Australia and New Zealand — they each have military-justice systems with civilian authority to prosecute.
Though acknowledging that U.S. military officials are visibly trying to curb sexual assaults with an array of new tools and programs, Hillman said she remains "less sanguine about the likelihood of success under this latest regime.”
Allowing military commanders to retain responsibility for criminal prosecutions leaves them “liable to the scrutiny of the public, to criticism no matter what they do,” said Hillman, an Air Force veteran. It also “leaves their troops vulnerable to a problem that, so far, our military has gained little traction over despite two decades of what I would consider serious and comprehensive efforts to address it.”
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