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Why Does Kirsten Gillibrand Want To Give Soldiers Worse Options For Prosecuting Sexual Assault?


With the convening of a new Congress, Sen. Kirsten Gillibrand, D-N.Y., has reintroduced a bill to drastically change the role of senior commanders in the military justice system. The bill would remove senior commanders from the court-martial referral and review process for sexual assault and other felony-level “common law” crimes and place that responsibility in the hands of lawyers, much like a civilian district attorney’s office.

First introduced in 2013, the proposal has so far failed to pass the Senate and has been opposed by the Pentagon. This time around, however, Gillibrand has enough Republican co-sponsors to guarantee passage and the backing of a Pentagon advisory committee appointed by Secretary of Defense Lloyd Austin. Furthermore, Gen. Mark Milley, chairman of the Joint Chiefs of Staff, has indicated he will not oppose the measure.

As of this writing, the text of the bill hasn’t been posted to, so it appears that we may have another situation where we have to pass the bill to know what’s in it. Nevertheless, while some provisions might improve the military’s handling of sexual assault cases, civilianizing the military criminal justice system by removing senior commanders from the process isn’t one of them.

A Solution in Search of a Problem

This provision carries an imprimatur of congressional distrust that undermines the authority of commanders across the board and casts doubt on their suitability for command in general. This radical change sends the message that senior commanders are incapable of intelligently and fairly exercising the prosecutorial discretion those holding such positions have exercised since the Revolutionary War.

To justify the radical change to fix a system that isn’t broken, proponents of the bill argue removing senior commanders from the criminal justice system for felony-level offenses will encourage more victims to report crimes and result in more convictions. They claim placing the decision of whether to prosecute a given case in the hands of lawyers instead of commanders — as is done in the civilian criminal justice system — will create a perception that the system is fair and unbiased.

The data and extensive research do not support that claim. Professors David Schlueter and Lisa Schenck, experts in criminal law generally and military law specifically, compared the civilian handling of sexual assault cases with the military’s and found that offenses are reported at a higher rate in the military and more of those cases are successfully prosecuted than in comparable civilian jurisdictions.

For example, Schlueter and Schenck found almost 30 percent of military sexual assault victims reported the offense while only 3 percent of undergraduate sexual assault victims at a civilian college reported the assault to college authorities and only 20 percent of college-aged victims reported the crime to civilian law enforcement. When comparing the military’s prosecution results to those collected in a database of large urban counties with a total population of more than 60,000,000 people, they found, “the military rate of felony-level sexual assault convictions compared to population is about six times the rate for large urban counties.”

Civilianizing the military justice system to make it more like a civilian district attorney’s office makes no sense if the goal is to improve the handling of sexual assault cases in the military. Perhaps Congress should encourage the civilian system to take lessons from the military instead of remaking the military in the image of the civilian system.

The Responsibilities of Military Commanders

The Uniform Code of Military Justice is both a mechanism to punish criminal behavior and, quite importantly, a mechanism to promote and preserve good order and discipline within the command. Referred to as the “convening authority,” the role of the senior commander is critical to both functions.

Commanders are responsible for everything a unit does or fails to do. Commanders are responsible for developing and executing battle plans to defeat the enemy, the care and feeding of the troops, training, and the morale and discipline of the force. From medical care to ammunition to meals at forward-operating bases, the commander’s responsibility is all-encompassing.

While medical doctors deliver medical services and lawyers deliver legal services, they do so to assist the commander in fulfilling the weighty responsibility of equipping, training, and employing military units to protect our national security and, when necessary, find, fix, and destroy the enemy. Recognizing the scope, uniqueness, and seriousness of the commander’s responsibilities, the UCMJ vests the convening authority with the power not only to call a court-martial into being but to review its results. Indeed, the world of the military is vastly different than the civilian world, and its criminal justice system is similarly different for valid reasons.

Courts-martial are not standing courts like those we find in our state and federal systems. They are convened on a case-by-case basis by the convening authority. While military lawyers prosecute those charged with criminal offenses, it is the convening authority who decides the disposition of those charges.

In civilian society, this “prosecutorial discretion” is exercised by executive branch officials such as United States attorneys; in the military, it is a function of command. The military prosecutor does not have the discretion to dismiss a case or approve a plea bargain like a civilian district attorney because the commander, not the lawyer, is responsible for good order and discipline within the command.

While a military judge presides over a court-martial, the military judge does not possess the power of civilian judges to set aside a finding of guilty that is not supported by the law or facts. Nor does the military judge have the power to suspend a sentence to confinement pending appellate review.

Under the UCMJ, these powers are reserved to the convening authority, for it is the convening authority, not the military judge, who is responsible for maintaining good order and discipline within the command. These are command functions carried out by commanders, not purely legal functions delegated to lawyers.

Asking the Right Questions

The important role of the convening authority in both the administration of justice and the maintenance of good order and discipline has been a part of our military law since before the adoption of the Constitution. The unique and specialized nature of the Armed Forces requires a different and specialized system of military justice. Since George Washington, convening authorities have discharged these responsibilities to do justice and maintain good order and discipline in their commands.

The calls for radical change to a long-standing and fundamental aspect of our military justice system raises several very important questions:

  1. Are today’s senior commanders so lacking in judgment, experience, intelligence, integrity, and common sense that we must strip them of authority senior commanders have exercised since our nation’s founding?
  2. Are we promoting officers to positions of senior leadership who do not have the temperament and sound judgment necessary to appropriately exercise discretion in these matters?
  3. Have the Judge Advocate Generals (the senior uniformed lawyers in each service) failed to provide adequate training to senior commanders so they can faithfully and fairly discharge their duties as convening authorities?
  4. Is justice better served and discipline within the command better preserved when lawyers, who are not responsible for good order and discipline within the command, are put in charge of administering justice?

If the answer to these questions is “yes,” then the problem is far more serious than any change to the UCMJ will correct. If senior commanders are incapable of discharging their responsibilities under the UCMJ, then something is wrong with our system of selecting senior commanders.

Perhaps the senior uniformed leaders of today lack the intelligence, character, fortitude, and commitment needed to handle the heavy responsibilities the UCMJ places upon them. If so, we need to rethink how we select, train, promote, and equip officers for senior leadership positions. If senior commanders cannot be trusted to discharge their UCMJ duties, should we trust them to lead troops into battle?

For two and a half centuries, American military commanders have carried the dual responsibilities of preserving good discipline and doing justice. From time to time, individual commanders — like men and women from all walks of life — have failed. When that happens, the military is more than equipped to replace that inadequate individual quickly and efficiently.

The American military is widely regarded as the best trained, best led, best equipped, most efficient, and lethal military in the history of the world. Gillibrand’s bill sends the message that America’s senior military leadership is incapable of preserving good order and discipline and administering justice.

If she’s correct, changing the military justice system will not fix the bigger problem of incompetent and incapable leadership. If she’s wrong, hamstringing good commanders by limiting their authority and responsibility for preserving good order and discipline and administering justice by civilianizing the military criminal justice system and putting lawyers in charge will not solve the problem of sexual assaults in the military.