Trusting the Chain of Command

This approach better protects victims of military sexual assault from retaliation.

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The debate over legislation to address sexual assault in the military should have one goal: crafting the strongest, most effective protections for our troops against this plague. The legislation approved by the Senate Armed Services Committee and sent to the full Senate for consideration meets that test.

Our toughest decision was on a proposal to remove military commanders from the process of deciding whether to prosecute allegations of sexual assault, placing new decision-making authority for those and most other serious crimes in the hands of lawyers outside the chain of command. The committee adopted an alternate approach, one I sponsored with a bipartisan group of senators. Our approach offers stronger protections for sexual assault victims and is likely to result in more prosecutions than the proposal to remove commanders' authority.

[Read Sen. Kirsten Gillibrand: Justice Equal to their Sacrifices]

Under our approach, if a commander decides not to move forward with a prosecution following a sexual assault allegation, that decision is automatically reviewed by a higher commander. Under the approach we rejected, if the outside lawyers decide not to prosecute, there is no such review. In addition, in cases where a commander's decision not to prosecute goes against the recommendation of his legal advisers, that automatic review is conducted by the service secretary – the highest civilian official in each military branch.

Under our approach, for the first time, retaliation against victims who report a sexual assault would be a crime under the Uniform Code of Military Justice. This provision aims straight at what is perhaps our biggest hurdle: the fact that many victims are afraid to report the crime because they fear ostracism or retaliation. Our legislation calls for removal of commanders who fail to maintain a climate in which victims can report assaults without fear of reprisal.

Even those who support the idea of removing commanders from the process acknowledge that it is rare for commanders to decline to prosecute when their legal advisers recommend going to trial. The committee heard testimony that commanders are more likely to go to trial in difficult cases where lawyers may see less than a 50-50 chance of a conviction. So shifting the authority from commanders to lawyers is actually likely to weaken our efforts to combat sexual assault.

[See a collection of political cartoons on women in combat.]

Our bill includes a number of other provisions designed to give victims confidence that their reports will be taken seriously. It requires that all allegations of sexual-related offenses be referred to criminal investigators for a full investigation; it requires the military to provide a Special Victims Counsel to all sexual assault victims to assist them during the investigation and judicial proceedings; it requires an inspector general's investigation of any allegation of retaliation against victims; and it imposes strict new limits on the commander's authority to overturn the verdict of a court-martial.

If I believed that removing commanders' authority to make these decisions would strengthen our efforts, I would support it, even if our top generals objected. Our decisions should be guided solely by what is most likely to reduce the number of assaults and to bring justice to victims. Everyone agrees that we need to hold our military leaders accountable if they fail to act. But it's hard to hold someone accountable if you take away their authority to act. Our legislation makes clear that there is no more important mission for our military than the fight against sexual assault, and it gives them the strongest, most effective weapons to win that fight.

Carly Levin is a Democratic senator from Michigan.

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