Blog No. 292. Sexual Assaults in the Military—Still Appalling

RINOcracy.com got underway on May 19, 2013 with Blog No. 1, titled Sexual Assaults in the Military. The Blog began:

Is there anyone who does not believe that the disclosures of sexual assaults in the military are appalling? The official Pentagon report, Sexual Assault Prevention and Response [SAPR], indicated that, between 2010 and 2012, reported incidents of sexual assaults had increased from 3,192 to 3,374. Even more troubling is the fact that many sexual assaults go unreported, resulting in an estimate that the total number of sexual assaults rose from 19,300 to 26,000.

Tragically enough, eight years later, appalling is still the operative word and, if anything, even more fitting. According to the latest issue of SAPR, there were 7,816 reported instances of a sexual assault in FY 2020. While that figure may reflect some improvement in reporting of sexual assaults, there is no doubt that the number of unreported incidents is still far greater and it was estimated to be in the range of 20,500.

The 2013 blog indicated that a central issue was whether prosecution of sexual assaults should be “removed from the chain of command and handled independently…to diminish the fear of retaliation against complainants and instill greater confidence in the system.” That issue remains at the heart of the matter.

Immediately upon taking office, Secretary of Defense, Lloyd Austin appointed an Independent Review Commission to address the problem of sexual assaults, and the Commission has made an initial recommendation that investigation and prosecution of sexual assaults (and sexual harassment and domestic violence) be handled outside the chain of command. According to published reports, the commission “recommended that the prosecution of sexual assaults, be shifted to judge advocates reporting to a civilian-led Office of the Chief Special Victim Prosecutor. The independent judge advocates would decide two key legal questions: whether to charge someone and whether that charge should go to a court martial.”

At a press conference on May 5, Chairman of the Joint Chiefs, Mark Milley, stopped short of endorsing such a change, but indicated that he had become open to it, given the dimensions of the problem and the military’s lack of progress in resolving it:

I’m going to wait until the final results of the review commission. But I was the Chief of the Army for four years, then the Chairman for coming up on two. And frankly what’s — you asked me what has caused me to have a change and I did a lot of hard thought. We had to move the needle, that’s the bottom line.

We haven’t resolved this issue. According to some pretty solid data we think, we estimate based on some surveys that [there] were probably 20,000 men and women who were sexually assaulted in the United States military last year. That’s one percent of the force.

If we had 20,000 killed or wounded in Afghanistan or Iraq, those are casualties, that’s huge, that’s significant. And that number hasn’t significantly been reduced over time. And we keep saying – people like me keep going behind a microphone in front of committees saying, we need to do this, we need to do that, we need to do this, we need to do that. And it hasn’t changed.

On the other hand, the AP reported that the civilian heads of the military services have submitted memos to Secretary Austin expressing “their concerns about the growing push to shift prosecution decisions on sexual assault and possibly other major crimes to independent judge advocates.” Reportedly, they argued that “the shift could decrease the number of prosecutions, delay cases and potentially provide less help for victims.”

In the meantime, momentum for change has been building on Capitol Hill. The 2013 Blog was written from a Republican perspective, and called for Republican leadership on the issue, but noted that leadership on both sides of the aisle had come principally from women: Democratic Senators Kirsten Gillibrand, Diane Feinnstein and Claire McCaskill and Republicans Lisa Murkowski, Kelly Ayotte and Susan Collins. Even in 2013, several bills had already been introduced seeking to remove sexual assault cases from the chain of command, but those bills – and similar bills in later years – never made it to a vote. Now, however, it appears that the legislative landscape has changed.

Since 2013, the most relentless and prominent advocate of reform has been Senator Gillibrand who is currently pressing for passage of S.1520, Military Justice Improvement and Increasing Prevention Act [MJIA]. Curiously, the text of the MJIA is not publicly available, but its central provision is summarized in a press release from Senator Gillibrand’s office:

The Military Justice Improvement and Increasing Prevention Act would take critical steps to create a more professional and transparent military justice system for serious crimes —including rape and sexual assault, murder, manslaughter, child endangerment, child pornography, and negligent homicide — and address the need for sexual assault prevention that DoD has not implemented. Specifically, the legislation would: 

• Move the decision on whether to prosecute serious crimes to independent, trained, and professional military prosecutors, while leaving misdemeanors and uniquely military crimes within the chain of command. By moving this work off of the commander’s plate, it will empower commanders to focus on mission critical activities—while specifically preserving the authorities that a commander needs to provide strong leadership and a successful command climate. [Emphasis in original]

The bill is striking in that it goes beyond the investigation and prosecution of sexual assaults to encompass virtually all serious crimes. The press release set out data showing the depth of the military’s problem with sexual assaults, but did not offer any evidence as to failings of the military to investigate and prosecute other crimes.

The bill has a remarkable number of co-sponsors, 64 so far, from both sides of the aisle, prominently including two conservative Senators from Iowa, Chuck Grassley and Joni Ernst. Such support should be enough to make the bill filibuster-proof and to assure its passage. Nevertheless, the path forward is not entirely clear. The MJIA was referred to the Armed Services Committee, and the chairman of that committee, Democrat Jack Reed of Rhode Island, and its ranking member, Republican James Inhofe of Oklahoma, have objected to the bill proceeding to a swift vote. According to the New York Times, “Mr. Reed has said he is now open to changes in the way sexual assault is adjudicated — after years of resisting any such move — but does not want other crimes included in the bill.” Reed believes that the measure should be considered as part of the annual defense policy bill (where, the Times notes, even many of the MJIA’s supporters “agree it would most naturally fit.”

It is not clear how Majority Leader Schumer will resolve the matter. As the Times put it:

Any move to push the bill to the floor without Mr. Reed’s blessing could create a headache for Senator Chuck Schumer, Democrat of New York and the Majority Leader. He would then have to choose between kneecapping a chairman of his own party and defying the junior senator from his own state, whose bill he supports.

Not surprisingly, Reed and Inhofe have been accused of being overly deferential to the views of the military, and perhaps they are. On the other hand, their position is not, on its face, unreasonable. Impatience with the military’s failure to resolve the issue of sexual assault is more than justified and demands action. With respect to other crimes, however, the evidence is far less obvious both as to the need for reform and possible negative effects of the proposed change. That aspect of the MJIA might well benefit from committee hearings at which the military could be heard and the issues explored. In any event, pursuit of the broadest possible bill should not be allowed to prevent action from being taken where it is most clearly needed.