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In recent years several high-profile military sexual assault cases have left the military open to criticism. Furthermore, the government has released troubling data on the frequency of military sexual assaults. According to the Department of Labor 20-48% of female veterans have been sexually assaulted and 80% have been sexually harassed. Critics are not just disappointed that the assaults occurred. Critics are disappointed, surprised and angered as to how such cases have been handled by the military justice system. As a result, several members of Congress have proposed changes in the way the military handles accusations of sexual assault. The goal is to both reduce the number of sexual assaults and to ensure that both the accuser and accused are treated fairly when there is an accusation of sexual assault.
Currently, military law gives a commander a tremendous amount of authority over the course of action when there is an accusation of sexual assault. Indeed, the commander decides whether or not to refer the case to the military prosecutor or not. The commander can even have convictions dismissed. For example, earlier this year Air Force Lt. Gen. Craig Franklin overturned the sexual-assault conviction of Lt. Col. James Wilkerson, who like Franklin is a fighter pilot. In the relatively small military world it is not uncommon for the commander to know and even be friends with the accused. Sadly, the commander is sometimes the accused rapist. As a consequence victims are often reluctant to report assaults and reported assaults are sometimes not fully investigated. Accusers have been the subject of harassment and retaliation.
A Macon personal injury lawyer notes that the way the military handles sexual assault cases and other crimes is very different from how such cases are handled in the civilian world. In a civilian case, typically the accuser informs either the police or a prosecutor of the attack. If an investigation uncovers sufficient evidence of an assault the accused is arrested and criminally charged. A criminal trial is held and a jury determines the fate of the defendant based on evidence presented by both the prosecution and the defense. During this process steps are taken to shield the identity of the accuser from the public and to ensure that the accuser is not victimized or demonized. In cases where there is not sufficient evidence to prosecute (or even where there is a prosecution), the victim has the option of pursuing a personal injury case against the perpetrator.
Sen. Kirsten Gillibrand, D-N.Y., proposes an amendment that would remove sexual-assault cases from the usual military chain of command. Thus, only military prosecutors would have the authority to investigate and prosecute military sexual assault cases. Military commanders would also be stripped of their authority to dismiss court-martial convictions in cases of rape, sexual assault and other crimes. Furthermore, Gillibrand’s proposal would make it a crime to retaliate against a victim for reporting being attacked. This proposal is sharply opposed by the Pentagon and does not generally have strong support in Congress.
Senators Claire McCaskill (D-Mo.) offers a competing proposal on the issue of military sexual assault cases that appears to be more palatable to both the Pentagon and members of Congress. McCaskill’s proposal would also strip commanders of their authority to dismiss court-martial rape and sexual assault convictions. It too would make it a crime to retaliate against a victim for reporting an attack. The significant difference between McCaskill’s proposal and Gillibrand’s proposal is that McCaskill’s proposal leaves authority and accountability within the current military chain of command. Both proposals, however, recognize that a change is necessary to protect victims.
In addition to the legal aspects related to investigating and prosecuting sexual assault cases, there are psychological nuances that make such cases best handled by those with specialized training and experience. In what way if any should a “specialist” be involved in the investigation or prosecution of military sexual assault cases?