Carolyn Kaster Associated Press Michael Donley, secretary of the Air Force, testifies Wednesday at a Senate budget hearing. He had been chided Tuesday by Sen. Kirsten Gillibrand over sexual assaults in the military.

Bills to target military justice system over sex abuses

Published: Thursday, May. 9, 2013 - 12:00 am | Page 9A
Last Modified: Thursday, May. 9, 2013 - 7:57 am

WASHINGTON – An aviation commander for the Navy was raped by a co-worker, but there was no prosecution and the female accuser was denied re-enlistment. A noncommissioned officer was assaulted by a captain, who was found guilty but then granted clemency without explanation.

Both cases come from the victims' accounts, and as in all military criminal cases, the person in charge of deciding whether to prosecute and whether to uphold a conviction was a senior commander – the boss – of the accused.

As Washington grows increasingly alarmed about sexual assault in the military, lawmakers of both parties and in both chambers of Congress are moving to introduce legislation seeking to prevent and to better prosecute abuses. President Barack Obama has expressed fury over the issue, and this week the administration asked lawmakers to the White House to discuss the legislation with Valerie Jarrett, a senior adviser to Obama.

Embarrassed military officials say they are working to stop the abuse; a Pentagon survey released Tuesday estimates that 26,000 people in the armed forces were sexually assaulted last year.

But they are largely opposed to what many experts and lawmakers believe is a crucial step toward reducing assault and more effectively punishing abusers: the reversal of a centuries-old policy stemming from English law that gives commanders the power to decide whether and how an offender should be tried.

The policy comes from a time before there were military judges and court-martial appeals. Unlike civilian judges, a military commander decides who is prosecuted for what crimes and at what level of severity. The commander who convenes the court-martial picks the jurors and after trial must approve or disapprove findings of guilt and sentences.

"We have a system partly from the 20th century and partly from the 18th century," said Eugene Fidell, who teachers military justice at Yale Law School. Commanders believe "as an article of faith that they must have the power to decide who gets prosecuted."

Victims and their advocates say such a process serves as a disincentive for reporting sexual assault because victims fear and often experience retribution from peers and superiors, and are not given the due process civilians receive.

"Placing the fate of a case with one person from beginning to end is illogical, it's not practical and it also is a completely unjust system in which neither the victim nor the accused is well served," said Anu Bhagwati, director of the Service Women's Action Network.

Next week, Sen. Kirsten Gillibrand, D-N.Y., will introduce legislation – certain to be controversial at the Pentagon – that would give military prosecutors rather than commanders the power to decide which cases to try.

The legislation would also abolish a commander's post-trial powers.

"It's essential that we do this," Gillibrand said. "This has been elevated to national consciousness."

She will seek to include her bill in the coming defense authorization act. Should that fail, it will be up to Sen. Harry Reid, D-Nev., the majority leader, to bring it to the floor as a separate measure.

The effort will be uphill. Defense Secretary Chuck Hagel, who appeared shaken and embarrassed by the findings released this week, has expressed an openness to changing the part of the system that allows commanders to overturn convictions and modify sentences.

But in a Pentagon news conference on Tuesday, Hagel remained opposed to the idea of taking military justice out of the chain of command, saying that would hurt good order and discipline.

"It is my strong belief that the ultimate authority has to remain within the command structure," he said. The matter is certain to be hotly debated by the Senate Armed Services Committee.

Sens. Patty Murray, D-Wash., and Kelly Ayotte, R-N.H., introduced legislation that would provide victims of sexual assault with a special military lawyer and would change some of the procedures for courts-martial in the case of sexual assault charges.

"We believe that chain of command needs to change," Murray said Wednesday during a Senate appropriations hearing as she and others grilled Gen. Mark Welsh III, the Air Force chief of staff, about how sexual assault is prosecuted. "We don't want to be sitting here 20 years from now with the same statistics."

Many lawmakers would also like to see an end to the process that permits senior officers to overturn a jury conviction in a sexual assault case.

In the House, Reps. Michael Turner, R-Ohio, and Niki Tsongas, D-Mass., have sponsored legislation that would strip an officer's authority to change or dismiss a court-martial conviction in major cases, such as sexual assault, and require that an individual found guilty of rape, sexual assault and some other offenses be either dismissed or dishonorably discharged.

In addition, Sen. Susan Collins, R-Maine, is considering legislation that would require the Coast Guard to better comply with laws permitting victims of sexual assault to transfer away from the region of their alleged attacker.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Jennifer Steinhauer



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