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Military justice denied

March 19, 2014

Earlier this month, the U.S. Senate had a chance to advance a bipartisan bill (S1752), introduced by Sen. Kirsten Gillibrand (D-NY), to reform the military justice system to address the epidemic of sexual assaults that plague our armed services. Though a majority of senators support the Military Justice Improvement Act (MJIA), they failed to muster enough votes to end debate on the bill, falling five votes short of the 60 votes needed to override a filibuster, and so the bill failed to advance.

After the vote, an impassioned Gillibrand said, “We know the deck is stacked against victims of sexual assault in the military, and today, we saw the same in the halls of Congress.” She added, “…we will not walk away; we will continue to work harder than ever in the coming year to strengthen our military.” We support Gillibrand’s commitment to continuing to push this legislation forward and the urge our readers to tell Congress that you support it, too.

Currently military law empowers a commander to decide if a case goes forward to court martial. The MJIA proposes to change that by taking sexual assault cases out of the chain of command and assigning them to independent, senior military prosecutors. Commanding officers would still be able to order non-judicial punishment for offenses not sent to trial by the prosecutors.

Supporters of the reform bill believe that commanders are not trained or prepared to weigh legal evidence when deciding whether to pursue and punish sex offenders. In addition, some commanders are by nature reluctant to recommend courts martial because these might reflect poorly upon themselves for failing to establish a proper “command climate” among their troops. Further, the accused and the accuser often report to the same commander, creating a conflict of interest for the commander who, rightly, has both personal and professional relationships with members of his command. All of these concerns raise red flags about how victims can receive justice under the current system. (Sadly, a majority of victims do not have even enough confidence in the existing system to report these despicable crimes; the Pentagon itself estimates that in 2010, 86% of sexual assaults went unreported.)

While the Department of Defense has been working to address this problem—in 2005, it established the Sexual Assault Prevention and Response (SAPR) program to promote prevention, encourage increased reporting of the crime and improve response capabilities for victims—to date real progress toward “zero tolerance” for sexual harassment and assault has been inadequate to the scope of the problem.