Commanders Key to Solving Military Sexual Assault

Cully Stimson / February 10, 2014

A key Obama Administration committee of experts recommends that military commanders should retain the authority to refer sex assault cases to court-martial.

The Response Systems Panel subcommittee’s findings complement and add further support for our same conclusion in our Special Report entitled “Sexual Assault in the Military: Understanding the Problem and How to Fix It.”

We found that removing authority to convene courts-martial from commanders would:

• Not reduce the incidence of sexual assault or increase reporting of sexual assaults;
• Reduce the number of sexual assault prosecutions;
• Reduce the number of convictions; and
• Reduce sexual assault victims’ confidence in the system, because their commanders would no longer be responsible for maintaining good order and discipline.

We also demonstrated why removing commanders as convening authorities would not reduce the number of sexual assaults or increase sexual assault reporting:

• Sexual assault victims have numerous channels outside the chain of command to report their crimes;
• Military prosecutors and investigators are already independent of the chain of command;
• Commanders receive legal advice from a trained judge advocate before referring criminal charges; and
• Our allies who removed commanders did so to protect the accused, had low caseloads and slower prosecutions, and saw no increase in the number of convictions.

The Obama subcommittee found that removing authority to convene courts-martial from senior commanders would not:

• Reduce the incidence of sexual assault or increase reporting of sexual assaults in the armed forces;
• Improve the quality of investigations;
• Increase the number of prosecutions;
• Increase the conviction rate in sexual assault cases;
• Increase confidence among victims of sexual assault about the fairness of the military justice system; or
• Reduce victims’ concerns about possible reprisals for making reports of sexual assault.

Similarly, the subcommittee found that:

• There is no “evidentiary basis at this time supporting a conclusion that removing senior commanders as convening authorities will reduce the incidence of sexual assault or increase sexual assault reporting”;
• Sexual assault victims have “numerous channels outside the chain of command to report incidents of sexual assault”;
• Sexual assault allegations must be referred to, and investigated by, military criminal investigative organizations that are independent of the chain of command;
• Senior commanders must receive advice from judge advocates before determining appropriate resolution of sexual assault allegations; and
• Our allies who eliminated the role of convening authorities and placed prosecution decisions with military or civilian prosecutors “still face many of the same issues in preventing and responding to sexual assaults as the United States,” and the change did not positively affect the reporting of sexual assaults.

The subcommittee concluded:

Commanders must play a central role in preventing sexual assault by establishing command climates that ensure subordinates are trained in and embrace their moral and legal obligations, and by emphasizing the role of accountability at all levels of the organization.

We previously concluded:

Radically upending the military justice system by removing convening authority power from commanders actually relieves commanders of the responsibility of proper investigation and adjudication of misconduct, which will irreparably harm the military’s ability to enforce good order and discipline.