By Rachel Brody |
Defense Secretary Chuck Hagel called our current military justice system “broken.” And he’s right. 90 percent of the men and women who experience sexual assault in the military don’t report because they are convinced nothing will be done or that seeking justice will result in career-ending personal and professional retaliation.
The reforms created by the 2014 National Defense Authorization Act make changes that many argue are sufficient to stem the tide of military sexual assault. As a former Navy Commanding Officer, I can tell you: they won’t. The damage done by the current system runs too deep, is too flawed and leaves too much potential for injustice. Recent reforms are band-aids to the same system we have been trying to fix for nearly 23 years, since the Tailhook scandal in 1991 that rocked the public’s conscience and exposed a military culture in which sexual assault and harassment received tacit acceptance.
Our current military justice system’s central flaw is this: it positions commanders, rather than military lawyers, as legal decision-makers for nonmilitary-specific felony-level crimes.
Practically, what does this mean? Commanders, with perhaps as little as a week of legal training, are relied on to decide whether and how to proceed with regard to rape and other felony-equivalent charges. Is this a resource issue? Is it because the military does not have attorneys who have graduated from law schools and passed bar examinations at its disposal to address these issues in the ranks? No. Is it because, as some have suggested, commanding officers cannot maintain good order and discipline within their units without this legal decision-making power known as the “convening authority”? Again, no. Not every commander has convening authority for General Courts-Martial, the authority to hear felony cases, and those without it still maintain good order and discipline.
Sen. Kirsten Gillibrand’s Military Justice Improvement Act makes changes to an antiquated, 18th-century structure for administering justice. It places decisions regarding nonmilitary-specific felony-level crimes in the hands of military attorneys, allowing commanders to maintain decision-making authority over military-specific crimes such as desertion or mutiny and smaller misdemeanors. The result of this change will be better justice for our service members. Professionalizing and modernizing the military justice system will not only increase survivors’ faith and confidence in objective, law-based outcomes but will also result in better due process protections for the accused.
Without Gillibrand’s Military Justice Improvement Act, military justice will continue to be rooted in an archaic system, in which those with little legal training are strangely tasked with administering justice for serious crimes. It doesn’t make sense to prosecute rapes in this way — either for survivors or the accused. Further tweaks to this system, for example adding an extra layer of commander review to another commander’s decision — as proposed by Missouri Sen. Claire McCaskill — will not create the fundamental change necessary to ensure justice. It’s just another ineffective band-aid to a system that misdirects responsibilities, failing to simply let commanders command and lawyers lawyer.
the nearly 23 years we’ve had to correct this problem
under the current system, more waiting has only resulted in more injustice for
military sexual assault survivors. Give our service members the access to
justice they deserve. We need Gillibrand’s Military Justice Improvement
About Lory Manning
is the Service Women’s Action Network’s senior policy fellow and served as Commanding Officer of the Naval Telecommunications Station, Diego Garcia, British Indian Ocean Territory.
is a senator from New York and serves on the Senate Armed Services Committee.
is a third year student at Yale Law School and a member of the Veterans Legal Services Clinic.
is a retired lieutenant, helicopter pilot and U.S. Navy Member, and serves on the Board of Directors of Protect Our Defenders.
is a psychiatrist and cofounder of Threshold GlobalWorks.
is the second ranked Democrat on the House Armed Services Committee and founder and cochair of the Women in the Military Caucus.
is executive director of the National Center for Victims of Crime.
is a former sex crimes prosecutor and a senior member of the Armed Services Committee.