Recently, it was reported that the Independent Review Commission on Sexual Assaults in the Military, established by Secretary of Defense Lloyd Austin, finished its work. It recommended that it is time to remove commanders from the military justice system and to place in the hands of high-ranking military lawyers the decisions to prefer and refer court-martial charges.
The impetus for the change is the argument that the military has a serious problem with sexual assault and the best way to solve that problem is to make this drastic and uncalled for change. We believe that removing the commander from decisions regarding court-martial charges is drastic and statistically unsubstantiated.
Congress has repeatedly rejected proposals to remove commanders from the process because it recognizes that commanders must have a stake in the enforcement of good order and discipline. Currently, military lawyers advise commanders on courses of action, after reviewing available witness statements, forensic evidence and the likelihood of success at trial. Commanders, not lawyers, make the final decision because signaling to a unit that the commander, not lawyers, are in charge is critical during periods of training as well as combat.
On April 29, seven senators announced their support for legislation that would place the decision to bring court-martial charges for serious offenses in the hands of senior military lawyers. If the Pentagon supports that legislation, there is a real possibility that serious damage would be done to the military criminal legal system.
Although there is a problem with sexual assaults in the military, the same is true in the civilian community, especially on college campuses. We recently published a law review article comparing and contrasting the rates of sexual assaults and the prosecution of those offenses. We concluded in that article that the military is doing a better job prosecuting sexual assaults than indicated in national and college statistics.
We also concluded that in the area of victims’ rights, the military is leading the way in protecting sexual assault victims’ interests. Victims’ rights in the military include the appointment of a military lawyer, free of charge, to represent the victim during the investigation and trial stages. That is a right generally not found in civilian criminal justice systems. Military victim’s counsel receive special training and support to carry out that representation. In a court-martial for sexual assault, it is not unusual to see three counsel in the courtroom — one representing the prosecution, one for the defense and one for the sexual assault victim.
In an attempt to address the problem of sexual assaults in the military, Congress in the National Defense Authorization Act of Fiscal Year 2015 required the Department Of Defense (DOD) to create advisory committees on the subject of sexual assaults in the military, including the Defense Advisory Committee on the Investigation, Prosecution and Defense of Sexual Assaults in the Military. In our article, we relied on that committee’s fiscal 2018 report and compared the statistics for military sexual assault prosecutions with statistics in civilian jurisdictions. We concluded that an accused service member is about six times more likely to receive a felony-level disposition in the military than in urban counties with a population of 60 million people.
Furthermore, according to surveys, females attending college have the highest rate of victimization for sexual assault of any age or gender. A woman in college has a 51 percent greater likelihood of being sexually assaulted than a woman between 18 and 24 years of age serving in the military. The military rate per thousand for felony-level sexual assault convictions based on population is five times higher than the rate per thousand of Texas and eight times the rate per thousand of New York.
In October 2020, that same committee reported that “commanders’ disposition of penetrative sexual assault complaints [were] reasonable in 95 percent of the cases.”
What these numbers represent is that the military justice system is not “broken” and that commanders are not the reason for the military’s sexual assault problem. In our combined 80 years of experience with military justice, we have observed cases where commanders should have prosecuted a case but did not do so. For the most part commanders follow the advice of their military lawyers in dealing with military justice issues, and certainly in sexual assault cases.
We remind Congress that the 1969 Supreme Court’s O’Callahan v. Parker decision limited courts-martial to “service-related” misconduct, until that precedent was overturned in Solorio v. United States in 1987. During that time, trials for service members proved unworkable and the Supreme Court affirmed the importance of the role of commanders.
We urge our lawmakers to make a well-informed, educated decision and reject any attempts to remove commanders from the equation.
Dave Schlueter is a professor of law at St. Mary’s University. Lisa Schenck is an associate dean at the George Washington University Law School.