An Independent & Objective Military Justice System:

The Myths Vs. Facts

The problem of sexual assault in the military is not new, neither are the pledges of “zero tolerance” from the commanders and senior members of the committee, which date all the way back to then-Secretary of Defense Dick Cheney in 1992. Yet in 2012, according to the Pentagon, 50% of female victims stated they did not report the crime committed against them because they believed that nothing would be done with their report. Even the current top military leadership admits the current system "has failed" and victims do not come forward because "they don't trust the chain of command. The Military Justice Improvement Act was drafted in direct response to the testimony heard in the Armed Services Subcommittee on Personnel from victims of sexual assault in the military, and the testimony of the military leadership. Unfortunately, in opposition to the victims, the full SASC committee chose to strike the Military Justice Improvement Act during the mark-up of the NDAA, protecting the current broken system. 

Below is a fact sheet correcting some of the misinformation used by opponents of the Military Justice Improvement Act:

Myth: Moving the decision over whether prosecutions move forward from the chain of command to independent military prosecutors will increase retaliation against victims. If an independent prosecutor, and not the commander, moves the case forward others will take it less seriously and retaliation will increase.

Fact: There is absolutely zero statistical or anecdotal evidence that would lend any credibility to this theory. Contrary to that theory, in the current DoD SAPRO survey, of those who responded they have been victims of unwanted sexual contact, 62% say they have already been retaliated against which demonstrates the current chain of command structure some are seeking to protect is not working to protect victims. The idea that a commander putting forth the court martial “protects victims from retaliation” is directly rebutted by victims own reports, and ignores anecdotal evidence that commanders are also sometimes the assailant, or have conflicts of interest when a superior officer victimizes a lower ranking servicemember. Additionally, according to a 7 month investigation by the San Antonio Express, a survey of 1,200 service members who sought help since 2003 at the Military Rape Crisis Center found that 90% of victims who reported sexual assault where involuntarily discharged and diagnosed with mental disorders (an extreme form of retaliation).

 

Myth: We will have more prosecutions from within the chain of command because commanders move forward cases that civilian lawyers would not. Under the Gillibrand bill, if the lawyer doesn’t want to prosecute a case, it ends. Under the Levin bill, the commander can move forward even if the prosecutor doesn’t want to.

Fact: To claim keeping prosecutions inside the chain of command will increase prosecutions is not supported by the statistics. Of the DoD’s 26,000 estimated cases, only 2,558 victims sought justice by filing an unrestricted report and only an abysmal 302 proceeded to trial. A chain of command orientated system that produces only 302 prosecutions of 2,558 actionable reports is simply not holding enough alleged assailants accountable under any metric. The Military Justice Improvement Act will increase victims perception that they can receive an unbiased chance at justice, increasing unrestricted reporting and the number of successful prosecutions, which will put more sexual predators behind bars unable to victimize men and women in uniform again and again. While the claim that under the Levin bill a commander can proceed against the lawyers recommendation is true, it omits the fact that rarely does a commander currently disagree with his JAG attorney. Additionally, it omits that in the current structure that the NDAA protects, the JAG making the recommendation to the commander is in the commander’s direct chain of command. Under the Military Justice Improvement Act, the JAG making the decision to proceed to trial would be independent of the commander and any possible bias from within the chain of command, such as the current ability for a commander to choose a jury pool. Moreover, putting a trained prosecutor in charge of the disposition would ensure that that decision is based on evidence, therefore eliminating any bias a commander might have about a member of his unit that might be very popular or integral to a mission. Lastly, the argument that we should go all the way in the other direction by reducing the civil liberties of the accused does not adhere to the fundamental values of a fair and independent American justice system.

 

Myth: Critics say this lets the commanders off the hook. How can you hold them accountable when you reduce their power?

Myth: This is a false choice and just plain inaccurate. There is nothing about this proposal that lets commanders off the hook. Commanders will still be held accountable for setting the command climate whether or not they make this one legal decision. They are still fully responsible for and in control of their troops. In fact, this proposal leaves many crimes within the chain of command, including 37 serious crimes that are unique to the military, such as going AWOL or insubordination, in addition to all misdemeanor type crimes under Article 15. That’s why a law professor and former Air Force officer wrote in the New York Times, “Everything about the proposal takes military needs into account, except for the fact that military leaders don’t like change.”

 

Myth: Victims can already report the crimes committed against them outside of the chain of command.

Fact: Of course they can, but under the current system, regardless of whom you report the crime to initially, it ultimately ends up on the desk of the commander who becomes the sole decision maker over whether a case moves forward. The commander holds all the cards regardless of where the crime is reported and it is this bias in the system that keeps victims from coming forward and reporting the crime anywhere because they do not believe they can receive justice.

 

Myth: This proposal will lead to fewer trials since prosecutors are concerned about their win/loss record and will only recommend cases they can win.

Fact: This reflects a fundamental misunderstanding of how the military justice system works. JAGs move back and forth between defense and prosecution assignments, so they are less concerned about their prosecution numbers. Prosecutors are detailed to the billet for 2-3 years and take whatever cases are given to them by their department head. The department head takes the cases that are preferred/referred. Under our new structure the O-6 JAG would have the disposition authority to decide if a case proceeds to trial based on the strengths/weaknesses of the evidence. In the military, prosecutors are professionally graded on a whole host of matters - not just wins/losses. In fact, military prosecutors often receive praise from their superiors for being willing to take tough cases to trial.

 

Myth: The Military Justice Improvement Act would cost the military millions of dollars to implement.

Fact: Judge Advocate Generals are already in the system, MJIA simply requires the military to use O-6 JAG’s that are not in the chain of command of the victim or the accused. Further, military sexual assaults cost the U.S. $3.6 billion last year, according to a recent report from the RAND Corporation. The estimate is based on a calculation of the cost of medical and mental health services victims are likely to seek after an incident, as well as other "intangible costs."

 

Myth: If we make this change commanders will have no avenue in which to discipline their troops and they will not be able to enforce good order and discipline.

Fact: Nothing in this amendment lets commanders off the hook for maintaining good order and discipline – they will still have the full ability and responsibility to enforce routine discipline, ensure the readiness of their units and create a positive command climate. Further, the amendment exempts 37 felony-level crimes from any changes. Misdemeanor-level crimes are not affected by this proposal. Misdemeanors and the 37, military-specific, exempt crimes will still be in the hand of commanders. Commanders will also still have the ability to enforce non-judicial punishment, the most common mechanism for corrective action. MJIA only changes the decision for felony crimes that are punishable by more than one year of confinement.

 

Myth: We will have more prosecutions from within the chain of command because commanders move forward cases that civilian lawyers would not. Under the Gillibrand bill, if the lawyer doesn’t want to prosecute a case, it ends. Under the Levin bill, the commander can move forward even if the prosecutor doesn’t want to.

Fact: To claim keeping prosecutions inside the chain of command will increase prosecutions is not supported by the statistics. Of the DoD’s 26,000 estimated cases, only 2,558 victims sought justice by filing an unrestricted report and only an abysmal 302 proceeded to trial. A chain of command orientated system that produces only 302 prosecutions of 2,558 actionable reports is simply not holding enough alleged assailants accountable under any metric. The Military Justice Improvement Act will increase victims’ perception that they can receive an unbiased chance at justice, increasing unrestricted reporting and the number of successful prosecutions, which will put more sexual predators behind bars unable to victimize men and women in uniform again and again.

While the claim that under the Levin bill a commander can proceed against the lawyers recommendation is true, it omits the fact that rarely does a commander currently disagree with his JAG attorney. Additionally, it omits that in the current structure that the NDAA protects, the JAG making the recommendation to the commander is in the commander’s direct chain of command. Under the Military Justice Improvement Act, the JAG making the decision to proceed to trial would be independent of the commander and any possible bias from within the chain of command, such as the current ability for a commander to choose a jury pool. Moreover, putting a trained prosecutor in charge of the disposition would ensure that that decision is based on evidence, therefore eliminating any bias a commander might have about a member of his unit that might be very popular or integral to a mission.

 

Myth: In the past two years, commanders moved 93 cases forward to court martial that prosecutors did not. This shows that commanders are willing to take risks that prosecutors will not take. Under the Gillibrand bill, there will be fewer prosecutions, undermining victims’ confidence in the system.

Fact: In the past two years, commanders moved forward to court martial 93 cases that civilian prosecutors did not prosecute. This statistic says nothing about the willingness of a military prosecutor to prosecute. The military has not provided information about why the civilians did not prosecute – it is possible that they handed over the cases to the military because it has greater resources to deal with these crimes. Moreover, when the commanders did push the cases forward, the conviction rates were mixed. An independent military justice system based on evidence will protect the victims and the accused.

 

Myth: When a JAG lawyer half a continent away makes the decision to pursue charges there is a greater likelihood that a victim will experience retaliation then when the commander of that unit has signed off on pursuing charges.

Fact: JAGs are members of the military just like any other service member in uniform. JAGs are trained military lawyers that are required to deploy and serve overseas. The idea that a JAG half a continent away will be making key decisions in misleading; there are JAG’s stationed in all major commands around the world. Right now there are JAG officers deployed in Afghanistan that could serve as independent counsel to make decisions on whether or not cases go to trial. Under the current chain of command system, 62% of respondents to a DOD survey who reported the crime committed against them say they have been retaliated against. This notion also ignores that in some cases, the assailant is also the commander.

 

Myth: The Military Justice Improvement Act will slow down justice. O6 JAGs can’t be everywhere, which will mean that the meting out of justice will be slowed.

Fact: Under the MJIA, unit level commanders will still be responsible for handling the immediate impacts of an alleged assault or other felony-level crime, including whether to transfer the victim or the alleged perpetrator. The military investigative services will continue to be responsible for investigating the case. If the crime occurs in the remote location, the O6 JAG will monitor the process remotely, much as special victims’ counsels in the Air Force and those in other services do now, through telephone calls, emails and video conferencing. And, if necessary for adjudication, the JAG will be flown in. There is no reason to think that this will slow down the administration of justice. It will simply move the responsibility to an independent actor.

 

Myth: We don’t need the MJIA since the Levin proposal is going to ensure justice by elevating the review authority to the next higher command if the JAG and the commander don’t agree.

Fact: The Levin proposal is a solution looking for a problem. In fact, commanders and JAG’s only disagree in 1% of cases according to DOD. The problem with the system is not that commanders and JAG’s disagree, as you hear from victims over and over again, the central issue is the bias and conflicts of interest posed by commanding officers holding the sole authority over whether a victim has a fair shot at justice.