Washington D.C. – With the FY 2016 National Defense Authorization Act (NDAA) now on the Senate floor after a motion to invoke cloture passed the Senate last night via unanimous consent, U.S. Senator Kirsten Gillibrand released the following statement and infographic today showing some of the reasons why the bipartisan Military Justice Improvement Act is still needed to restore trust and fairness in the system. Gillibrand also released an updated resource center on her website for information on the legislation at www.gillibrand.senate.gov/mjia.
“Our men and women in uniform deserve a military justice system worthy of their service, and in the year since the earlier reforms passed, the Pentagon simply has not made the progress it promised,” said Senator Gillibrand. “Too many in Congress are willing to take the Pentagon’s word that it’s getting better but when an average of 52 incidents of unwanted sexual contact occur each day, when 62 percent of those who report experience retaliation – a rate unchanged from 2012, and when three in four servicemembers lack confidence in the military justice system, the mission is far from accomplished. It’s time for Congress to do its job and pass the reform that will finally create the military justice system our men and women in uniform deserve.”
Despite clear evidence to the contrary, the Pentagon and opponents of reforming the status quo will argue over the next week that the military has made sufficient progress in curbing the decades long problem of sexual assaults in the military. Here are five of the top things they want Senators to ignore when considering a common sense reform to professionalize the military justice system that would benefit both survivors and the accused:
1) Despite having already been made a crime, retaliation remains rampant: According to a new Human Rights Watch report, servicemembers who reported a sexual assault were 12 times more likely to suffer retaliation than see their offender get convicted for a sex offense. Also, they could not find evidence of a single serious disciplinary action against anyone for retaliation. According to the DOD’s own SAPRO report, retaliation remains at 62 percent for women – over one-third experienced administrative action, and 40 percent faced other forms of professional retaliation. DOD admits they have made “zero progress” since 2012.
2) According to recent Gillibrand study of four U.S. military bases, the true scope of the sexual assault problem is vastly underrepresented by DOD:
A review of 107 case files DOD fought against turning over showed a high prevalence of sexual assault against civilian women near bases and civilian spouses of servicemembers – two survivor groups not counted in DoD prevalence surveys – raising new questions about the scope of both the survivor population and underreporting. The analysis also reaffirms a lack of trust in the military justice system as nearly half of the survivors in the cases reviewed declined to move forward after initially filing a report. Even when cases did proceed, just over 20 percent went to trial and only 10 percent of all cases resulted in a sexual assault conviction with penalties of confinement and dishonorable discharge. The cases that did proceed to trial but failed to obtain a sexual assault conviction typically resulted in more lenient penalties, such as a reduction in rank or docked pay.
3) Current System is Still Broken By Any Metric…But Here Are Some To Consider:
- 3 out of 4 men and women in uniform who have been sexually assaulted lack the confidence in the military justice system to come forward and report the crimes committed against them.
- In 2014,the same year when the Chairman of the Joint Chiefs of Staff said “we are currently on the clock” to better address sexual assault, almost the same number of servicemembers said they were victims of unwanted sexual contact as in 2010 – an average of 52 per day.
- 76 percent of servicewomen and nearly half of servicemen said sexual harassment is common or very common. Women who were sexually harassed were 1,400 percent more likely to be sexually assaulted that same year.
- A climate where supervisors and unit leaders were responsible for sexual harassment and gender discrimination in nearly 60 percent of all cases demonstrates a system deeply in need of further reform before there can be trust in the chain of command.
4) You Won’t Hear Active Duty Military Voices Back Reform…Because DOD Wants to Silence Them:
Shot: In December, the Washington Post reported that a Special Victim’s Counsel was placed under criminal investigation for posting messages on Facebook in support of Gillibrand’s bill.
Chaser: Don Christensen, former chief prosecutor in the Air Force, now president of Protect Our Defenders, said the criminal investigation into Capt. Jarzabek would resonate within Air Force legal circles. “It’s clear that if you support the current system and you do so publicly, then that’s something that’s considered praiseworthy and can get you promoted,” he said. “But if you oppose it and say so, you’ll get criminally prosecuted.”
Another Shot: But Jarzabek said she quickly began to suffer blowback – and evaluations far below her previous ratings – from supervisors who criticized her for being “too victim-centered.” She had to struggle to ensure that clients were kept informed about the status of their cases; she pushed, at clients’ request, to have the chance to consult directly with the deciding authority, only to be told to drop the issue because there was no such right; and saw clients give up because the process was so traumatizing. Read more here:
5) Supreme Court Precedent Exists For Removing These Legal Decisions from Chain of Command:
Contrary to the claim that removing convening authority for serious non-military crimes is a radical approach, America has already had an 18-year period where that was exactly the case. Under Chief Justice Warren Burger, the U.S. Supreme Court ruled in the 1969 case O’Callahan v. Parker, that unless the military could establish a “service connection” showing that an offense had direct bearing on military order and discipline, a court-martial lacked jurisdiction to try the case. This decision was rooted in recognition of the potential for command influence to cloud independent judgment and a corresponding desire to limit command-driven justice to as narrow a domain as possible. This decision remained in effect throughout the 1970s and 1980s, ending only when a differently constituted Supreme Court overturned its earlier ruling in Solorio v. United States (1987).
BONUS: This testimony happened after earlier NDAA reforms were passed:
“If any more sexual assault cases come forward” the whole company of soldiers won’t graduate. – from 14th Military Police Command Sergeant Major at Fort Leonard Wood according to witness testimony at court-martial of former Fort Leonard Wood Drill Sergeant Angel Sanchez, who was found guilty on multiple counts of sexually assaulting female trainees (September 23, 2014).
The carefully crafted Military Justice Improvement Act is designed to reverse the systemic fear that survivors of military sexual assault describe in deciding whether to report the crimes committed against them due to the bias and inherent conflicts of interest posed by the military chain of command’s current sole decision-making power over whether cases move forward to a trial. This reform moves the decision whether to prosecute serious crimes to independent, trained, professional military prosecutors while leaving military crimes to the chain of command. In fact, the decision whether to prosecute 37 serious crimes uniquely military in nature, plus all crimes punishable by less than one year of confinement (Article 15, non-judicial punishment), would remain within the chain of command.
The Military Justice Improvement Act has been endorsed by Iraq & Afghanistan Veterans of America (IAVA), Vietnam Veterans of America (VVA), Service Women’s Action Network (SWAN), National Women’s Law Center (NWLC) and the National Task Force to End Sexual and Domestic Violence Against Women just to name a few. The bill is also supported by dozens of U.S. military flag officers, including the first female three-star General of the Army, Claudia Kennedy, UCMJ experts and major newspaper editorial boards across the country.