- The Washington Times - Saturday, May 8, 2021

For victims and advocates, it’s a move that may finally turn the tide in the battle against sexual assault in the military.

To critics, it will erode order and discipline in the ranks and represents an overreaction that will create a host of unintended long-term consequences.

The polarizing push to pull sexual assault cases from the chain of command would represent a fundamental change to one of the core tenets of U.S. military practice. The idea now appears inevitable, with openness from top Pentagon commanders and support from even some of the most outspoken pro-military conservatives on Capitol Hill. Supporters across the political spectrum argue that it’s the only way to remove stubborn barriers to progress and justice in the ranks, including victims’ fears of retaliation from superior officers or peers that often lead to violations going unreported.

That dynamic is squarely in the public consciousness after the death of Army Spc. Vanessa Guillen, who was killed by another soldier at Fort Hood, Texas, in April 2020. She reportedly told family members she had been sexually harassed but feared reporting it.

In Washington, the case has been a catalyst for a wave of bipartisan legislation. Even Joint Chiefs of Staff Chairman Gen. Mark A. Milley has revealed that he is dropping his long-standing opposition to removing sexual assault cases from the chain of command. Gen. Milley’s move likely opens the door for a permanent policy change by Defense Secretary Lloyd Austin, who is studying the recommendations of a special Defense Department review panel.

But some retired military officers and other critics say the principle of the chain of command, especially on such serious, sensitive matters, is a cornerstone that should not be compromised. 

“In the military, everything important is the commander’s responsibility,” said retired Air Force Gen. Charles J. Dunlap Jr., now the executive director of the Center on Law, Ethics and National Security at Duke University. “So it doesn’t make sense to outsource something as critical as the handling of sexual assault cases to some staff officers and civilian bureaucrats. It needs to remain a front-and-center command responsibility,” he said.

“That doesn’t mean,” he added, “that we shouldn’t look for ways to improve the military justice system, but the reality is that you can’t hold commanders accountable for an issue within that system if you take away the critical tool for dealing with it.”

Gen. Dunlap noted that he has had experience from all sides of the process: as a prosecutor, defense counsel and military judge.

“To me, it is absurd to suggest that in the military setting you can effectively parse an individual’s criminality to dispositions by fundamentally different adjudicative authorities,” said Gen. Dunlap, who spent more than three decades in the Air Force’s Judge Advocate General Corps. “In truth, commanders are in the best position to determine the morale and discipline needs of their units and how a particular criminal offense might impact it.”

Many military officers and Pentagon officials share that view, as do lawmakers of both parties on Capitol Hill. 

But momentum is building against them.

The proposed changes on Mr. Austin’s desk include a system in which the military’s civilian-led office of the chief special victim prosecutor, not a military commander, would decide whether to charge someone with sexual assault and whether that charge proceeds to a full court-martial.

Despite the building momentum, Mr. Austin, a retired four-star Army general, is not tipping his hand on his decision. He told reporters Thursday in his second public briefing as defense secretary that he is still consulting with top commanders from the various services.

“I think we’ve done things a certain way for a while, and I think we really need to kind of broaden our horizons and kind of look at things differently, and be willing to take different paths to improve things,” Mr. Austin said without committing to a course of action.

“I’ve given them specific guidance in terms of my desire to have them review the recommendation, and then I want their feedback on that,” he told reporters. “And then we’re going to discuss it.”

‘A really bad situation’

In addition to removing some of the fear of retaliation, the new system would greatly limit an individual commander’s unchallenged discretion to ignore accusations or to reduce formal charges. The concept of removing that kind of authority from a unit commander was once a red line for uniformed leaders, but that opposition has gradually crumbled.

Gen. Milley revealed last week that he is dropping his opposition to the change because it’s clear that other efforts to address the problem haven’t worked.

“We’ve been at it for years, and we haven’t effectively moved the needle” on sexual assault and harassment in the military, he said. “We have to. We must.”

“I was adamantly opposed to that for years,” he said of his previous position, “but I haven’t seen the needle move.”

Gen. Milley in the past acknowledged potential pitfalls of a revamped system, but he said the military’s chain of command already is compromised if service members don’t trust superior officers to deal with serious, credible charges of harassment and assault.

“That’s really bad for our military if that’s true, and surveys and the evidence indicate it is true,” he said. “That’s a really bad situation if the enlisted force — the junior enlisted force — lacks confidence in their chain of command to be able to effectively deal with the issue of sexual assault.”

Indeed, statistics paint a bleak picture. In 2019, there were 6,236 reports of sexual assault by service members, up from 6,053 a year earlier and dramatically higher than the 2,828 reported in 2012, according to Defense Department data. The numbers have risen steadily over the past two decades.

The numbers do not factor in violations that are never reported.

Service members are clearly more willing to come forward than in years past, but studies have found that the fear of retaliation remains a key roadblock. A recent detailed Rand Corp. report on assault in the military found that victims often fear further harassment — or worse — if they tell anyone about their experiences.

“For these victims, the source of the perceived retaliation may be the perpetrator or someone in the perpetrator’s confidence,” the study reads in part. “Perceived professional retaliation is a particular risk when the perpetrator has authority over the victim via the chain of command.”

Support for overhauling the system has quickly gained steam on Capitol Hill, where Sen. Kirsten E. Gillibrand, New York Democrat, has long advocated for a new way to handle sexual assault and harassment cases in the military.

Now Sen. Ted Cruz of Texas and other key Republicans also are on board and are throwing their full weight behind the effort. Mr. Cruz and Ms. Gillibrand late last month joined other lawmakers at a press conference to promote their Military Justice Improvement and Increasing Prevention Act, which would move prosecutions for assault and harassment out of the chain of command.

“This is the right solution and, importantly, this is not taking the decision of prosecution out of the military,” Mr. Cruz said. “This is instead responding to the problem that we’ve heard testimony on year after year after year, which is a commanding officer with divided loyalties where the assailant and the victim — the commanding officer, is potentially conflicted in those loyalties.”

Republican Sens. Joni Ernst and Chuck Grassley of Iowa are co-sponsoring the bill, as are Democratic Sens. Richard Blumenthal of Connecticut and Mark Kelly of Arizona.

Ms. Gillibrand told NPR last week that the bill has “enormous momentum” in the Senate and said it already has more than enough votes to overcome any filibuster.

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