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.

23 Responses to “Report from First Panel on Sexual Assault in the Military”

  1. SFC V says:

    Will a victim have any more confidence in the system when a prosecutor declines to pursue the case because the evidence is terrible?  This belief that the system will be so much better for victims if lawyers are making the decisions is not rooted in fact.

    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

    So what you’re saying is you want to allow commanders to punish without all that pesky due process?  Doesn’t the UCMJ prohibit punishment before trial?  I don’t see how removing the prosecutorial authority will allow commanders to punish anyone. 
    Also, who are these “independent prosecutors”?  Why would we limit it to only sexual assaults?  Doesn’t that create more of a headache?  If you are going to have a new system shouldn’t it apply to all offenses?  If a guy is charged with say burglary, theft, and rape do we have to have two separate trials by two different prosecutors?
    I am not opposed to changing the system but making it more complicated than it already is seems counterproductive.  You could probably come up with a model based on the way the federal district courts and USAO’s operate and get a system that is more efficient and fair yet still recognizes the unique requirements of the military justice system. 

  2. DCGoneGalt says:

    SFC V:  FWIW, my take on the eventual end state is that a separate sexual assault legal system will be created.  There will be a separate convening authority (maybe JA), separate member panels, and SVPs who only handle sexual assault prosecutions.  It is the only proposed solution that guarantees more cases go forward (handing it to JA will not do it, handing it to DOJ surely will not do it) while maintaining the possibility of increasing the conviction rate (which stripping Art 32s will not do, pressuring CCs has not done, and the constant messaging/briefing seems to have had the opposite effect of what was intended).
    I found the RSP Subcommittee report to be very balanced.  Admittedly, I have not had a chance to check out the Victims and CC Subcommittee reports or match up the subcommittee reports with the final report yet but I was pleasantly surprised to see so much common sense contained within the subcommittee report.

  3. k fischer says:

    SFC V, 
    Making lawyers in charge of the system will create an appearance that the system is better for victims and will eradicate the fallacious arguments that Commanders sweep sexual assaults under the carpet and vics are required to report sexual assault to their Commanders.  Ultimately, it will be a fairer system for the accused becuse it will do better to eliminate inherent UCI from Courts martial than a command driven system.  It will be better for Commanders because they will be able to make strong statements against sexual assault without worrying about a defense attorney filing a motion to dismiss for UCI.  Commanders won’t have to worry about having their promotions held up because of independent decisions.  And, it will ultimately be better for those in Congress who are striving so dilligently to create a better system because they will only have to push the belly buttons of the five TJAGs instead of countless GO’s who are looking to get promoted and run the sexual assault AAR gauntlet.  
    Sounds like a win/win/win/win, i.e. victims, accused, JAG Corps, and Commanders.

  4. SFC V says:

    If the members are still coming from the military I doubt you will have fewer UCI motions because a commander that says we need to punish sexual assault could certainly be construed to influence potential members.  This is true regardless of whether the commander has the authority to refer the charges or not. 

  5. Advocaat says:

    At least the report has some positive suggestions and observations, including FINALLY doing an accurate mission analysis, stopping the proliferation of misinformation that is tainting court members, and giving the defense its own independent investigators.  What are the chances SECDEF will actually follow through on any pro-defense recommendations after so many years of throwing resources in the other direction?

    Data received from the [anonymous DoD survey] provides important information about attitudes and perceptions, but the survey was not intended to, and does not accurately, measure the incidence of criminal acts committed against Service members. (R at 11)


    Evidence presented to the Panel indicates it is increasingly difficult to seat military panel members in sexual assault cases because of their exposure to sexual assault prevention programs that lead some prospective panel members to draw erroneous legal conclusions, such as the idea that consuming one alcoholic drink makes consent impossible. (R at 38)


    Military defense counsel need independent, deployable defense investigators to zealously represent their clients and correct an obvious imbalance of resources.  (Id.)


  6. J says:

    I’d love to see a more independent system modeled on the federal system. I know many here will disagree, but I am honestly at a point where I feel our current system has outlived its usefulness.
    Keeping administrative actions with the commands, remove everything else. That solves a lot of these issues, and we can all stop worrying about UCI :-)

  7. k fischer says:

    SFC V,
    I said it would do better to eliminate “inherent UCI.”  The scenario you described would be apparent UCI or, in my opinion, obstruction of justice via jury tampering.  At least there would be a witness who could testify that the old man took him into a room and told him to convict, or everyone would lie or keep their mouths shut.
    Inherent UCI is that bugaboo that exists where you get a sexual conviction where everyone is left scratching their heads how that happened, with a sentence of a reprimand.  Or where the panel deliberates for 5 hours on a rape case they should have acquitted after 15 minutes of deliberations.  If you haven’t seen that one, then I would be inclined to ask you how many panel cases you’ve tried.  And for anyone who says that panels always follow the military judge’s instructions and are way above board, I was a pretty well-liked Trial Counsel with a good relationship with my Commanders who confided in me even after I moved to The Dark Side.   They always had some pretty good advice after an acquittal or retention at an admin sep board.  And, they don’t always follow instructions.
    And, if someone says, “Well, if you’re that worried, then why don’t you go MJ alone?” then I will respond with, “You just made my point.”  I shouldn’t have to go MJ alone to get a panel free from inherent UCI.  
    And J, was it you who was making some pretty compelling points supporting the command driven UCMJ?  If so, you had me on the fence.

  8. k fischer says:

    Has anyone followed the Coast Guard court martial of US v. Bond where a former victim advocate alleged she was raped by the accused three years after the incident allegedly occurred in a house after a night on the town where she was giving lap dances, and she did not scream for help from the other people who were at the house because she was afraid she would awaken the baby?  He got acquitted after closing arguments where the alleged vic lol’d upon the DC’s assertion that she had a personality disorder.  (I apologize for all the victim blaming I’ve done in the previous two sentences)  And, the accused did not testify.
    I wonder what kind of sentence he will get for the adultery conviction?  And, isn’t there a motion that you could bring to have the CA reconsider the decision to refer post acquital of the major charge?

  9. stewie says:

    I’ve had that situation kf…I had an accused where it stated with rape and ended with adultery. I simply asked for the CG on clemency to disapprove the findings at trial, and he did.  The panel gave him a reprimand.
    I would hope most CGs would not give someone a federal felony conviction for adultery.

  10. DCGoneGalt says:

    For the life of me, absent extreme circumstances I cannot understand why LOR/NJP offenses like adultery, underage drinking, curfew violations, etc. still make it as add-on charges to a court-martial.  For instance, I understand the General Sinclair court (with the exception of the insistence of blindly going forward with the rape allegation until it became a public embarassment) due to the rank/deployed nature of the adultery.  However, in my experience although it is highly uncommon I have seen cases with a standard sexual assault acquittal fact pattern that are even more baffling to me where a convening authority will enforce a court-martial conviction for these add-on charges that clearly did not warrant a court-martial.  It is almost as if the convening authority is enforcing a litigation penalty for having to make the difficult decision to refer an Art 120 case where the facts justified non-referral and NJP for the minor misconduct.

  11. k fischer says:

    Anybody hear about what happened down at Ft. Hood with Judge Gross.  I wonder if Senator Gillibrand is going to use this as a reason as to why UCMJ should be taken out of the hands of the Command.  
    Couldn’t the defense bring another 917 motion?
    b/t/w, this is what I am talking about when I refer to “inherent unlawful command influence.”

  12. stewie says:

    DCGG, I think the thought process is it makes the accused look like a bad person, and as we know, bad people rape.  Obviously you can’t make that direct connection…

  13. k fischer says:

    But, wouldn’t it have been a lot easier to stop the trial and see if the CG wanted to continue with the GCM, instead of making the Court reporter type all the crap up, whether it be summarized or verbatim, and instead do a record of trial for an acquittal, and dismiss the adultery without prejudice, have an Article 15 hearing, and everybody go on their way?  
    Or maybe I’m just a lot smarter than you, Stewie…….that was sarcasm btw……..I really meant “just a little”………dang, there it goes again!
    And, I’ve learned four (4) things in military justice: (1) A conviction is virtually guaranteed when there are more than two vics who do not know each other, (2) An acquittal is virtually guaranteed when the vic acts up (storms out of the courtroom, lol’s at the possibility she could have a personailty disorder, etc) during closing arguments, and (3) there are some who are incapable of extrapolating conclusions from missing information.

  14. k fischer says:

    There is also the argument that has been attempted that goes, “If he is going to fail to keep his oath to his wife to forsake all others, then how can you, as a panel, trust that he will keep his oath to tell the truth?”

  15. stewie says:

    Well, in my case, I believe the merits ended sometime when the moon was fairly high in the sky.
    And I pretty much enjoyed watching the deflated TC flail on sentencing.  So getting a hold of the CG right then and there wasn’t really a thought, and I suspect he wouldn’t have made a quick call like that at 2100 hours. No A15 by the way, just straight up disapproval and on his way.
    As for your four things: Seen more than one instance of 1) not being true.  Not sure I concur on 2) as it’s fact dependent. Agree on 3), some people infer well, others need it explicit or they can’t go any farther.  I anxiously await your 4) as it must be in a follow-on post.

  16. stewie says:

    kf, on Fort Hood…I guess it depends.  Why is he seeking to overturn it? Yes, the defense can request the MJ reconsider, but what if this is simply him disagreeing with the panel?

  17. k fischer says:

    Re: Hood, 
    It’s kind of weird that the Judge sua sponte announced during sentencing that he was looking to overturn the verdict of guilty.  I wonder if there was something brought up during the presentation of sentencing evidence that was not know or could be known to the Defense counsel during findings where the DC could ask for a new trial and the judge was attempting to telegraph that to the defense.  It was a strange article, and I’m sure that the writer is leaving a ton of things out, unlike the writer of the US v. Bond articles for the Miami Herald.  She pretty much hit all the high notes and didn’t leave me scratching my head how this guy could get acquitted.

  18. k fischer says:

    US v. Bond sentence: No punishment.  
    I wonder how many of my tax dollars were wasted trying this monstrosity of a case aimed at ensuring a female with a personality disorder did not become the next actress on The Invisible War II?

  19. President Camacho says:

    I’ve been wondering if MJ is currently hitting all time lows between the SA hysteria,Hornbeck TC incompetence, Morse don’t defend yourself order debacle, Sinclair debacle, US v Wright , Heritage briefs UCI, all the other UCI that we know exists everywhere, or is this cyclical like those who say “back when I was a young x,y,z”. Just a bump in the road or a complete breakdown? And if a breakdown where do we go from here?

  20. stewie says:

    Let’s keep historical perspective…plenty of “lows” prior to the UCMJ that far exceed anything happening now IMO. We identify problem cases here, there are plenty of places/cases where it’s pretty ho-hum in large part because everyone did their job adequately well on both sides of the aisle, and everyone acted ethically, etc.  While there are problems, let’s not start talking about all time lows and complete breakdowns.  With respect, that’s hyperbole, and not very helpful in identifying and solving real issues.

  21. President Camacho says:

    Stewie. Thanks for ur thoughts. I haven’t been involved in MJ issues long enough to know/have sufficient perspective whether they are bumps or lows. I suspect bumps, sometimes big bumps w reasonable and honorable folks working toward just solutions

  22. k fischer says:

    Stewie/Mr. President, 
    Sounds like we entered the JAG Corps about the same time.  I can’t think of any period of “lows” that far exceeds things that are happening now, nor can I find any that slightly exceed the lows that are being experienced now.
    I think the frequency in bumps indicates an extended period of lows.  Are you aware of any other time where within a week you had two major results in Courts-martial from two services result in several Congressional representatives lambasting the military justice system, which got the right result (finally) followed by third referral within the same week?  Specifically, I am referring to Sinclair, Tate, and Wright. 
    And perhaps, we just hear about the really really screwed up cases, which there appears to be many nowadays.  Just think about how ridiculous the facts must be in all the cases that are preferred, but dismissed at an Article 32.  I agree that the vast majority of lawyers in military service are ethical, but there does seem to be an awful lot of cases being discussed lately that raises eyebrows of those who aren’t exactly defense friendly.  Listen to the comments of COL (R) Holly Cook.  She seems to be aware of the erosion of the accused rights under the UCMJ and the effects it has on appearance of the fairness of the UCMJ.
    But, let me break it down, my way of fixing the UCMJ under my three point plan.  First, we got these two Senators, Gillibrand and McCaskill.  Two, even though they never served in the military, they are smarter than everyone on how to combat sexual assault in the military.  Three, they are going to fix EVERYTHING.

  23. stewie says:

    Well, I specifically said prior to the UCMJ. I don’t know anything about how the 50s-90s were as far as the JAG universe, but that’s the point, a little hard to declare the darkest timeline has arrived when there’s so much before, both that we know was worse prior to the UCMJ, and that we don’t know (but at the very least, no independent TDS in the Army until 1980).
    CAAFLOG hasn’t been around that long, and there are not historically a lot of sites like this where news is collated together.  Thus, like with the advent of CNN et al, we see all the time news leads to the idea that everything is going to Hades in a large manbag. that doesn’t mean there ain’t problems, there are, several.
    As for the senators, how is that different from anything else? Senators try to solve all military problems (and representatives) because we live in a democracy with civilian control of the military.