Sexual Assault Reform or 'Slippery Slope' for Military Justice?

Recently, one of the Joint Chiefs said privately that he was open to the idea of taking sexual assault cases out of the military chain-of-command, a proposed reform to the military justice system that has gained significant bipartisan support in Congress. The issue of sexual assault in the military, the officer said, had become too much of a distraction.

When the Senate Armed Services Committee held its first full hearing on military sexual assault in a decade last June, however, that same officer joined a rare, four-star picket line that the Joint Chiefs formed in unified opposition to removing such cases from the chain-of-command. Military leaders had not so openly pushed back against their civilian masters since opposing President Bill Clinton’s 1993 proposal to allow gays and lesbians to serve openly in uniform, a reform which they successfully watered down into “don’t ask, don’t tell.”

The problem is not that the Joint Chiefs refuse to take the scourge of sexual assault in military ranks seriously. General Martin Dempsey, chairman of the Joint Chiefs, has three daughters who have served in the U.S. Army. You bet he takes the problem seriously. And yet Dempsey testified that preserving the commander’s authority to instill “good order and discipline” in the face of such charges was essential. “Reducing command responsibility could adversely affect the ability of the commander to enforce professional standards and ultimately, to accomplish the mission,” he said.

When asked why so many senior officers were so adamantly opposed to taking sexual assault out of the military chain-of-command -- where many victims understandably fear they cannot get a fair and impartial hearing -- another recently retired flag officer was blunt in his assessment: “Because they all fear the slippery slope,” he said.

Calling sexual assault in the military "a stain on the honor of men and women who serve honorably," today Defense Secretary Chuck Hagel unveiled his own reforms to combat the problem, but stopped well-short of removing the investigation and adjudication of sexual assault cases from the chain-of-command. Instead, his proposed reforms included: requiring a timely review of such incidents by a flag-rank officer in the chain-of-command; establishing victims advocacy programs in each of the armed services; allowing victims’ input in the sentencing phase of courts-martial; standardizing restrictions on interactions between recruiters and recruits; and giving commanders authority to transfer out of their units those accused of such crimes during investigations, so as to limit contact with the accused.

To better grasp the senior leadership’s nearly unanimous resistance to handling crimes outside of the chain of command, consider the slope they fear slipping down.

First, commanders worry that the metric used to define the problem is already being misused and is masking their efforts to combat the problem. Much has been made of the fact that the estimated numbers of sexual assaults in military ranks grew from roughly 19,000 in 2011 to 26,000 in 2012, according to the annual report by the Pentagon’s Sexual Assault Prevention and Response Office. Those figures are calculated by taking the number of sexual assaults reported in a given year (2,723 in 2011 versus just over 3,000 in 2012), and then multiplying them by an “X” factor to compensate for the vast underreporting of the crime. But what if the numbers actually reveal an increased propensity of victims to report the crime due to greater awareness and attention focused on the problem?

Some military commanders also fear slipping further towards a “political correctness” where even the hijinks of young men and women is viewed as potentially criminal behavior. The system already unhelpfully conflates heinous acts of rape and misuse of rank to coerce sexual favors, with groping at the end of a night of drinking. Sen. Kristin Gillibrand, D-N.Y., whose legislation proposing that sexual assault cases be taken out of the military chain-of-command has won support from 46 senators, referred to that important distinction when grilling the Joint Chiefs. “You say you could never support taking this out of the chain-of-command…[but] not every commander can distinguish what’s a slap on the ass and what’s rape.”

Under Pentagon regulations and accounting rules, both are lumped together in the estimated figure of 26,000 “sexual assaults.”

The bottom of the slippery slope U.S. commanders most fear, however, is the over-criminalization not of sexual assault, but of warfare itself. Lawmakers who advocate removing sexual assault cases from the military chain-of-command have repeatedly noted that the military forces of many allied countries have already take that step for criminal proceedings with no adverse effect. U.S. commanders who have fought alongside many of those allies in Iraq and Afghanistan, however, worry about the precedent of giving prosecutors outside the chain-of-command authority to launch investigations and prosecute individuals in a war zone.

They point to the “Nangar Kehl Syndrome,” named after the town in Afghanistan where a Polish army unit came under attack in Afghanistan in 2007. In returning fire, the Polish troops mistakenly killed six civilians with an errant mortar round. Seven of the Polish soldiers were later tried for murder by an independent prosecutor in Europe’s first war crimes trial associated with the Afghan war. Though they were all acquitted, the officer in charge of the unit was relieved of command, and word quickly spread that an assertive interpretation of the “rules of engagement” could land soldiers in prison. Afterwards, the “Nangar Kehl Syndrome” became synonymous with a general lack of aggressiveness on the part of many coalition partners in the International Security Assistance Force (ISAF) in Afghanistan. The joke among U.S. troops was ISAF actually stands for “I Saw Americans Fighting.”

“I can tell you from personal experience that many of our allies in both Iraq and Afghanistan were very risk-adverse, and constantly looked over their shoulders wondering whether they would be charged with a war crime by the European Court of Human Rights,” said Col. James Danna, commander of the 191^st Infantry Brigade. The major concern with taking sexual assault cases out of the chain-of-command and giving them to independent investigators and prosecutors, he said, was that it would begin to undermine the foundation of the Uniform Code of Military Justice, or UCMJ. “U.S. commanders are comfortable with an aggressive style of war-fighting because we feel that the UCMJ and our chain-of-command has our back,” said Danna. “I would be very wary of any change that undermines that confidence.”

Of course the problem with all-or-nothing arguments is that they often stand in the way of incremental, common sense reforms. Congress should give Hagel’s new rules regarding sexual assault cases time to get the “silent epidemic” of sexual assault in the ranks under control, but lawmakers have already put the Pentagon on notice. The next logical step might be a system that preserves full chain-of-command authority only for deployed units or those in war zones. That at least would address the sum of the U.S. military’s worst fears about the slippery slope.