The Report of the Response Systems to Adult Sexual Assault Crimes Panel was released to Congress on June 27, 2014. Here is today’s coverage (via Stars and Stripes) of the report and a link to the report, here, now available on the Panel’s website. Stars and Stripes reports that 7 of the 9 members recommended keeping referral decisions in sexual assault cases with the chain of command. Former NIMJ President, Professor Elizabeth Hillman was one of the dissenters, along with Harvey Bryant the former elected Commonwealth’s Attorney in Virginia Beachand past chair of the Virginia State Bar Association’s Criminal Law Section, writing
The Panel’s assessment revealed many improvements already in place and other areas in which changes should be made. Removing prosecutorial discretion from the chain of command, however, is not among the changes recommended by the Panel. We write separately because it should be. Court-martial convening authorities, a small and high-ranking part of the military’s command structure,1 should no longer control the decision to prosecute sexual assault cases in the military justice system. The Panel’s recommendation that the authority to prosecute remain within the command structure of the military is based on the testimony of high-ranking commanders and attorneys within the U.S. military. It neglects the words of survivors of sexual assault, rank-and-file Service members, outside experts, and officers in our allies’ militaries. They tell us that the commander as prosecutor creates doubt about the fairness of military justice, has little connection to exercising legitimate authority over subordinates, and undermines the confidence of victims.2 Preserving command authority over case disposition, pre-trial processes, and post-trial matters prevents commanding officers from acting assertively to deter and punish military sexual assault.3 It also undermines the rights of both victims and accused Service members, all of whom deserve an independent and impartial tribunal.
The report included 125 separate recommendations for changing everything from the UCMJ to budgets for various portions of the military justice system. As we reported earlier, here, two other panels will weigh in on some of the same topics later this year.
The Judicial Proceedings Since Fiscal Year 2012 Amendments Panel will “conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice (UCMJ) involving adult sexual assault and related offenses since the amendments made to the UCMJ by section 541 of the National Defense Authorization Act of Fiscal Year 2012 (“the FY 2012 NDAA”) (Pub. L. 112-81) for the purpose of developing recommendations for improvements to such proceedings.” The Military Justice Review Group has a broader focus on a comprehensive review of the military justice system, but seems to have the same impetus as the other panels.