OPINION:
The new Senate will have many national security and defense issues to deal with in 2015, but indulging Sen. Kirsten Gillibrand’s relentless campaign to alter the military justice system should not be one of them.
Despite several rejections since 2013, Mrs. Gillibrand, New York Democrat, plans to revive her bill to remove from military commanders decisions regarding prosecution of sexual assault and other serious crimes. Such cases would be shifted to military lawyers who do not have (and do not want) responsibilities for command.
If the legislation could magically stop incidents of harassment or abuse, it would have strong support. However, even Senate Armed Services Committee liberals, including Democrats such as former Chairman Carl Levin of Michigan and Claire McCaskill of Missouri, have opposed Mrs. Gillibrand’s controversial bill.
The only thing keeping the Military Justice Improvement Act alive is inexplicable support from a few Republicans, including Sens. Rand Paul of Kentucky and Ted Cruz of Texas. Both have given political cover to Mrs. Gillibrand, a liberal feminist unlikely to return the favor.
Mrs. Gillibrand emphasizes service members’ fear of filing complaints when abusers are in their own chain of command. She also cites the 2014 report of the Sexual Assault Prevention and Response Office, which includes results of a survey finding that 62 percent of military respondents reported retaliation for filing complaints. The same survey found that 70 percent to 82 percent praised their commanders for treating them with sensitivity and respect.
Retaliation is wrong and already prohibited by law and newly-implemented regulations. “Social retaliation” occurs most often when peers feel compelled to take sides, but the Gillibrand bill would not solve that problem.
Removing local commanders from prosecution decisions would not guarantee confidentiality or preclude awareness that allegations have been filed. Nor would cases lacking sufficient evidence result in automatic convictions and punishment. Lawyers outside the chain of command may not pursue marginal cases at all.
During a June 2013 Senate Armed Services Committee hearing, high-ranking judge advocates general (JAGs) did a better job than the Joint Chiefs of Staff in explaining why prosecution decisions should not be removed from military commanders. Vice Admiral Nanette Derenzi, for example, explained that under the Uniform Code of Military Justice, commanders are accountable for everything that happens in their area of responsibility, including decisions to convene courts-martial or impose career-ending nonjudicial punishments.
Military lawyers advise commanders constantly, but JAGs do not need command authority to do their jobs as courtroom adversaries. New laws require automatic higher-level review if commanders decide to forego prosecutions, and programs to protect due process by improving legal representation for both the accuser and the accused deserve support.
Mrs. Gillibrand’s bill implies that accusations alone justify “victim” or “survivor” status and a presumption of guilt, not innocence. Legislating this attitude would be demoralizing and unfair, especially since the Sexual Assault Prevention and Response Office reports that in one out five cases, allegations are unsubstantiated.
According to Provisional Statistical Data in the 2014 report, 17 percent of actual cases were unfounded every year since 2011. Investigators trained to elicit factual testimony also recognize common motives for false allegations: jealousy, retaliation or revenge when a relationship fails, self-interest, emotional problems, or the need for an alibi or attention.
These findings were overshadowed last December when the Pentagon released results of a revised biannual RAND Military Workplace Survey. Media spin stressed that in the online poll, reports of unwanted sexual contacts dropped from approximately 26,000 to 20,000 since 2012.
Calculations extrapolated from these “virtual” survey numbers suggest that more men than women reported unwanted sexual contact (approximately 10,000 and 9,000, respectively).
Actual statistical data indicates that in 2014, a total of 5,983 cases of sexual assault were reported to Defense Department officials. Omitting incidents occurring before complainants joined the service, there were 4,608 military assaults. Of completed cases with data available, 75 percent (3,121) were female, and 17 percent were male (718), up from 12 percent in 2013.
The combined 8 percent increase comes on top of a 50 percent spike in assaults reported in November 2013. There were 2,828 completed cases in 2012 and 4,608 in 2014 — a 63 percent increase in only two years.
Pentagon officials call this “good news,” reflecting confidence in the justice system. So what would bad news look like? Escalating numbers are disturbing, but the same data discredits the claim that women will suffer abuse in silence unless Mrs. Gillibrand’s bill passes.
Instead of lending support to the senator’s misguided obsession, lawmakers should consider Pentagon actions already taken or recommended. Twenty-two thousand well-paid sexual assault response coordinators provide support for persons experiencing abuse. Results of 16 military justice measures that Congress recently passed should be evaluated, along with the 28 directives on military sexual assault that Defense Secretary Chuck Hagel issued in 2014 alone.
Sexual abuse is a devastating crime. Military women and men are not free to leave their posts when abuse of any kind occurs. In June 2014, the Pentagon’s Response Systems Panel on Adult Sexual Assault Crimes recommended many sound proposals for reducing harassment, supporting victims and guarding due process. The panel strongly opposed Mrs. Gillibrand’s bill.
Military people don’t need emotional arguments and magic-wand legislation. They deserve leadership and sound policies that encourage good order, discipline and justice for all.
• Elaine Donnelly is president of the Center for Military Readiness.
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