Major General Dunlap, USAF (Ret.), Professor of Law at Duke and former Deputy Judge Advocate General of the United States Air Force, has written a paper that opposes many of the current legislative proposals to change the UCMJ, and Senator Gillibrand’s proposal in particular. His paper is titled Top Ten Reasons Sen. Gillibrand’s Bill is the Wrong Solution to Military Sexual Assault, and is available on SSRN at this link.
The paper’s ten reasons are:
1) It will unnecessarily hurt victims of sexual assault.
2) It will impose a civilian-like process that has shown utterly no sign that it is more successful (and often less successful) at preventing sexual assault than the military’s commander-led system.
3) It will remove commanders – who have direct responsibility for success in combat – from taking tough action they need to take to maintain morale, good order and discipline, and it will shift accountability for sexual assaults away from them.
4) It fails to appreciate the purpose of military law, and the vital role commanders play in it.
5) It removes commanders from the disciplinary process even though the overwhelming majority of members of the armed forces, and their families, give their commanders the highest ratings in the battle against sexual assault.
6) It is inconsistent with the public’s opinion, which expresses vastly more confidence in military leaders than it does in any group of lawyers, including the Supreme Court.
7) It will deprive commanders – unique in their experience and expertise – of a key tool in addressing sexual assault as a threat to military readiness.
8) It is in ‘denial’ about the fact that foreign militaries that removed the commander from the disciplinary process fail to show an increase in the number of sexual assault reports, and may have complicated prosecutions in a way that would be detrimental to the American military.
9) It will unnecessarily cost the military millions in scarce dollars, and will drain needed legal resources away from troops and their families.
10) It is too tainted by bad data and the activities of “Washington-based advocacy groups with limited membership, participating in personal attacks, [and who] do not represent the views of all [sexual assault] survivors.”