[Senate Hearing 113-303]
[From the U.S. Government Publishing Office]
S. Hrg. 113-303
TESTIMONY ON SEXUAL ASSAULTS IN THE MILITARY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON PERSONNEL
of the
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MARCH 13, 2013
__________
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COMMITTEE ON ARMED SERVICES
CARL LEVIN, Michigan, Chairman
JACK REED, Rhode Island JAMES M. INHOFE, Oklahoma
BILL NELSON, Florida JOHN McCAIN, Arizona
CLAIRE McCASKILL, Missouri JEFF SESSIONS, Alabama
MARK UDALL, Colorado SAXBY CHAMBLISS, Georgia
KAY R. HAGAN, North Carolina ROGER F. WICKER, Mississippi
JOE MANCHIN III, West Virginia KELLY AYOTTE, New Hampshire
JEANNE SHAHEEN, New Hampshire DEB FISCHER, Nebraska
KIRSTEN E. GILLIBRAND, New York LINDSEY GRAHAM, South Carolina
RICHARD BLUMENTHAL, Connecticut DAVID VITTER, Louisiana
JOE DONNELLY, Indiana ROY BLUNT, Missouri
MAZIE K. HIRONO, Hawaii MIKE LEE, Utah
TIM KAINE, Virginia TED CRUZ, Texas
ANGUS KING, Maine
Peter K. Levine, Staff Director
John A. Bonsell, Minority Staff Director
______
Subcommittee on Personnel
KIRSTEN E. GILLIBRAND, New York, Chairman
KAY R. HAGAN, North Carolina LINDSEY GRAHAM, South Carolina
RICHARD BLUMENTHAL, Connecticut KELLY AYOTTE, New Hampshire
MAZIE K. HIRONO, Hawaii MIKE LEE, Utah
TIM KAINE, Virginia SAXBY CHAMBLISS, Georgia
ANGUS KING, Maine ROY BLUNT, Missouri
(ii)
C O N T E N T S
__________
CHRONOLOGICAL LIST OF WITNESSES
Testimony on Sexual Assaults in the Military
march 13, 2013
Page
Boxer, Senator Barbara, a U.S. Senator from the State of
California..................................................... 5
Bhagwati, Ms. Anu, Executive Director and Co-Founder, Service
Women's Action Network......................................... 8
McCoy, Ms. Brigette, former Specialist, U.S. Army................ 11
Havrilla, Ms. Rebekah, former Sergeant, U.S. Army................ 15
Lewis, Mr. Brian K., former Petty Officer Third Class, U.S. Navy,
Advocacy Board Member, Protect Our Defenders................... 18
Kenney, RADM Frederick J., Jr., USCG, Judge Advocate General of
the U.S. Coast Guard........................................... 44
Harding, Lt. Gen. Richard C., JAGC, USAF, Judge Advocate General
of the U.S. Air Force.......................................... 49
Chipman, LTG Dana K., JAGC, USA, Judge Advocate General of the
U.S. Army...................................................... 52
Taylor, Hon. Robert S., Acting General Counsel of the Department
of Defense..................................................... 61
DeRenzi, VADM Nanette M., JAGC, USN, Judge Advocate General of
the U.S. Navy.................................................. 66
Ary, Maj. Gen. Vaughn A., USMC, Staff Judge Advocate to the
Commandant of the Marine Corps................................. 71
Patton, MG Gary S., USA, Director, Sexual Assault Prevention and
Response Office................................................ 86
ANNEX A: Prepared Statement by Ms. Nancy J. Parrish, President of
Protect our Defenders.......................................... 141
ANNEX B: Prepared Statement by Ms. Lisa Maatz, Director of Public
Policy and Government Relations of the American Association of
University Women............................................... 154
ANNEX C: Prepared Statement by Mr. Ben Klay...................... 157
ANNEX D: Prepared Statement by Aviano Air Base Sexual Assault
Victim......................................................... 162
ANNEX E: Prepared Statement by The American Civil Liberties Union 166
ANNEX F: Prepared Statement by The American Legion Veterans
Affairs and Rehabilitation Commission.......................... 171
(iii)
TESTIMONY ON SEXUAL ASSAULTS IN THE MILITARY
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WEDNESDAY, MARCH 13, 2013
U.S. Senate,
Subcommittee on Personnel,
Committee on Armed Services,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:09 a.m. in
room SH-216, Hart Senate Office Building, Senator Kirsten
Gillibrand (chairman of the subcommittee) presiding.
Committee members present: Senators Gillibrand, Blumenthal,
Hirono, Kaine, King, Graham, Ayotte, and Blunt.
Other committee members present: Senators Levin, McCaskill,
Shaheen, Donnelly, and Inhofe.
Committee staff members present: Leah C. Brewer,
nominations and hearings clerk; and Barry C. Walker, security
officer.
Majority staff members present: Jonathan D. Clark, counsel;
Gabriella E. Fahrer, counsel; Gerald J. Leeling, general
counsel; and Peter K. Levine, staff director.
Minority staff members present: Steven M. Barney, minority
counsel; and John A. Bonsell, minority staff director.
Staff assistants present: Jennifer R. Knowles, Kathleen A.
Kulenkampff, John L. Principato, and Bradley S. Watson.
Committee members' assistants present: Jason Rauch,
assistant to Senator McCaskill; Christopher Cannon, assistant
to Senator Hagan; Chad Kreikemeier, assistant to Senator
Shaheen; Elana Broitman and Brooke Jamison, assistants to
Senator Gillibrand; Ethan Saxon, assistant to Senator
Blumenthal; Marta McClellan Ross, assistant to Senator
Donnelly; Nick Ikeda, assistant to Senator Hirono; Karen
Courington, assistant to Senator Kaine; Steve Smith, assistant
to Senator King; Todd Harmer, assistant to Senator Chambliss;
Brad Bowman, assistant to Senator Ayotte; Craig Abele and Alice
James, assistants to Senator Graham; and Charles Prosch,
assistant to Senator Blunt.
OPENING STATEMENT OF SENATOR KIRSTEN E. GILLIBRAND, CHAIRMAN
Senator Gillibrand. Thank you all for joining us.
It is an honor and a privilege to chair this hearing of the
Personnel Subcommittee this morning. I want to thank the
ranking member of the subcommittee, Senator Lindsey Grahahm,
for his support and for working with me to move this hearing
forward as quickly as possible.
I know that all of our colleagues on the Armed Services
Committee share our deep commitment to improving the quality of
life of the men and women who serve in our All-Volunteer Force
on Active Duty, the National Guard, and Reserves, their
families, military retirees, and Department of Defense (DOD)
personnel.
That is why this hearing today is so important to me
personally and to thousands of servicemembers and their
families across this country.
The issue of sexual violence in the military is not new. It
has been allowed to go in the shadows for far too long. The
scourge of sexual violence in the military should be
intolerable and infuriating to all of us. Our best, brightest,
and bravest join our Armed Forces for all the right reasons: to
serve our country, to protect our freedom, and to keep America
safe.
The U.S. military is the best in the world and the
overwhelmingly, vast majority of our brave men and women
serving in uniform do so honorably and bravely, but there is
also no doubt that we have men and women in uniform who are
committing acts of sexual violence and should no longer be
allowed to serve.
Too often, women and men have found themselves in the fight
of their lives not in the theater of war but in their own
ranks, among their own brothers and sisters and ranking
officers in an environment that enables sexual assault.
After an assault occurs--an estimated 19,000 sexual
assaults happened in 2011 alone according to DOD's own
estimates--some of these victims have to fight all over again
with every ounce of their being just to have their voice heard,
their assailant brought to any measure of justice, and then to
fight for the disability claims they deserve to be fulfilled.
Congress would be derelict in its duty of oversight if we
just shrugged our shoulders at these 19,000 sons and daughters,
husbands and wives, mothers and fathers and did nothing. We
simply must do better by them.
When brave men and women volunteer to serve in our
military, they know the risks involved, but sexual assault at
the hands of a fellow servicemember should never be one of them
because not only does sexual assault cause unconscionable harm
to the victim, but sexual assault is also reported to be the
leading cause of post-traumatic stress disorder (PTSD) among
women veterans. Sexual assault in the military also
destabilizes our military, threatens our unit cohesion and
national security. Beyond the enormous human costs, both
psychologically and physically, this crisis is costing us
significant assets, making us weaker both morally and
militarily.
Already this committee and the Pentagon took some first
steps on this issue as part of last year's National Defense
Authorization Act (NDAA) that President Obama signed. While
obviously our work is not done, I am hopeful that we can build
on some of these initial changes which include: one, ensuring
that all convicted sex offenders in the military are processed
for discharge or dismissal from the Armed Forces regardless of
which branch they serve in.
Second, we removed case-disposition authority from the
immediate commanding officer in sexual assault cases, which is
one of the issues we will look into today as to whether we need
to remove such disposition authority entirely from the chain of
command and place it with a trained prosecutor instead.
We pushed the Pentagon to lift the combat ban that prevents
women from officially serving in many of the combat positions
that can lead to significant promotion opportunities. By
opening the door for more qualified women to excel in our
military, we have increased diversity in top leadership
positions, improving response from leadership when it comes to
preventing and responding to sexual assault.
We passed an amendment that was introduced by Senator
Jeanne Shaheen and that was based on our legislation, the
Military Access to Reproductive Care and Health for Military
Women (MARCH) Act, which means that troops who do become
pregnant as a result of a rape no longer have to pay out of
pocket for those pregnancies to be terminated.
After we hear from Senator Barbara Boxer who has
extraordinary passion and leadership on this issue, our second
panel will be of men and women who are going to tell their
personal stories. I want to salute each and every one of you
for having the courage to tell such painful and personal
stories. It is my hope and belief that by committing this
selfless act, you are encouraging others to step forward and
are also helping to prevent crimes from going unpunished. We
have a duty to you and thousands of victims that you represent
to examine whether military justice is possible and what is the
most effective and fair system.
Despite some very dedicated Judge Advocate General (JAG)
officers, I do not believe that the current system adequately
meets our standard. The statistics on prosecution rates for
sexual assault in the military are devastating. Of 2,439
unrestricted reports filed in 2011 for sexual violence cases,
only 240 proceeded to trial. Nearly 70 percent of these reports
were for rape, aggravated sexual assault, or nonconsensual
sodomy.
A system where less than 1 out of 10 reported perpetrators
are taken to trial for their alleged crimes is not a system
that is working. That is just the reported crimes. DOD itself
puts the real number closer to 19,000. A system where in
reality closer to 1 out of 100 alleged perpetrators are faced
with any accountability at all is entirely inadequate and
unacceptable.
My view is that emphasizing institutional accountability
and the prosecution of cases is needed to create a real
deterrent to criminal behavior. The system needs to encourage
victims that coming forward and participating in their
perpetrator's prosecution is not detrimental to their safety or
their future and that it will result in justice being done
because currently, according to DOD, 47 percent of
servicemembers are too afraid to report their assaults because
of fear, retaliation, harm, or unjust punishment. Too many
victims do not feel that justice is likely or even possible.
We need to take a close look at the military justice system
and we need to be asking the hard questions with all options on
the table, including moving this issue outside of the chain of
command so that we can get closer to a zero tolerance reality
in the armed services. The case we have all read about, the
Aviano Air Base case, is shocking and the outcome should compel
all of us to take the necessary action to ensure that justice
is swift and certain, not rare and fleeting.
I had the opportunity to press Secretary Hagel on the issue
of sexual violence in the military during his confirmation
hearing. Secretary Hagel responded by saying, ``I agree it is
not good enough to say zero tolerance. The whole chain of
command needs to be accountable for this.'' I could not agree
more.
I was pleased with the Secretary's public statement earlier
this week that he is open to considering changes to the
military justice system, as well as legislation to ensure
effectiveness of our responses to the crime of sexual assault.
In addition, the Secretary has written two letters to the
Services requesting a review of Article 60 of the Uniform Code
of Military Justice (UCMJ) in light of the Aviano decision to
be made by March 20 and March 27. This is a useful first step.
After Ranking Member Graham makes his opening remarks, we
will hear the testimony from Senator Barbara Boxer who has been
a leading voice on this issue. In last year's NDAA, she
successfully including an amendment that prohibits any
individual who is convicted of felony sexual assault from being
issued a waiver to join the military.
We will then have witnesses who have either been victims of
sexual assault while serving in the military or are very
knowledgeable advocates for addressing the issue of sexual
assaults in the military.
I will now defer to Senator Graham to give his opening
remarks.
STATEMENT OF SENATOR LINDSEY GRAHAM
Senator Graham. One, I want to thank Senator Gillibrand for
having this hearing. When 47 or 49 percent--I cannot remember
the number--feel intimidated to come forward because they think
they may face reprisal, something is obviously wrong.
Having said that, the purpose of military justice is to
instill good order and discipline in the units so that when
they are called upon to engage the enemy and to train and
deploy together, they can do so in the most effective fashion
possible.
The military is a unique place. It is not a democracy. It
is a place where you are asked to do extraordinarily difficult
things and you have to count on the people to your right and to
your left to be there when you need them and vice versa.
In the military we have it as a crime for a commander to
have a personal relationship, sexual in nature or otherwise,
overly familiar relationship that would be consensual. It is
called fraternization. We probably should look at that policy
as well to make sure that we are dealing with fraternization
cases in an appropriate fashion.
Why would you be concerned about a consensual relationship
that you would not be concerned about maybe in the private
world? If your unit is called into combat, the last thing you
want to think about is that the person who has a close
relationship with the commander may get a pass at your expense.
So we want to keep professional relationships between those who
order the unit to engage the enemy so that those who follow the
orders will never believe that there is some special
relationship between the commander and a particular individual
in the unit because that will break good order and discipline
apart. That is one area where human sexuality can really deal a
blow to a unit that is consensual.
But I cannot think of a more devastating blow to a unit
than to have one member assault another. If you want to break a
unit apart and create a horrible environment to effectively
engage the enemy, allow this to happen because it shows not
only physical violence is the ultimate sign of disrespect. I
cannot think of a more disrespectful measure than taking
advantage of someone or physically violating them. That is just
absolutely not only a crime, it is an ultimate detrimental
demise of a unit to have such conduct break out. The reason,
Senator Gillibrand, we want to prosecute people who do that is
they are destroying the unit's effectiveness. They are the bad
guy.
Having said that, I have been a military lawyer for 30
years. Another problem that could hurt a unit is for somebody
to be wrongfully accused and feel like they have no voice, that
the system is going to go from one extreme to the other. So at
the end of the day, military justice is about rendering justice
in an individual case, but always the theme of military justice
is to make that unit as effective as possible to maintain good
morale and discipline. If you are a female in a unit and you
feel like nobody cares about what happens, you have destroyed
morale. Also, if you are in a unit where people may
misunderstand what you are saying and you feel like you cannot
defend yourself, we have to find some balance here.
To the victims, thanks for coming forward. I know it is not
an easy thing to do.
The numbers are astounding. If we are going to continue to
be the most effective fighting force for freedom and good in
the world, we are going to have to solve this problem. As long
as you have human beings, you are going to have problems.
But clearly, the message we are sending to our female
members of the military is that we are way too indifferent and
that your complaints are falling on deaf ears. To all of our
commanders, how in the world can you lead your unit in a
responsible manner if people in that unit feel like the system
does not care about them? I will do everything I can within
reason to make sure that that stops and that if you are accused
of an offense in the military, you still get a fair trial.
Senator Gillibrand. Senator Boxer.
STATEMENT OF SENATOR BARBARA BOXER, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. Thank you so much, Madam Chairman and
Ranking Member Graham. Thank you both for holding this critical
hearing. It is very timely. Thank you so much for this
opportunity to testify. I am very honored--very honored.
Today I am here to talk about the violent crime of sexual
assault in the military, not about fraternization. I am not
here to talk about disrespect but about vicious crimes. I am
not here to talk about false charges but about real charges and
the way they are handled.
As you well know, Congress to our great credit passed the
bipartisan Violence Against Women Act, and I thank everyone on
both sides of the aisle who worked so hard for that to pass. I
was so proud that President Obama signed it into law just last
week.
That law recognizes that every human being--every human
being, male, female--deserves protection from violence. It
sends a clear and unequivocal message that wherever a sexual
assault occurs, whether on a college campus or on an Indian
reservation or in a religious setting or in our military, yes,
the offender must be punished. Sexual assault is a heinous and
violent crime and it must be treated as such. It is not an
internal matter. It is a violent crime and it must be treated
as such.
I want to thank each and every one of you for supporting
the Boxer-Cornyn Amendment that said, no, the military cannot
take offenders, people who have been convicted of sexual
assault, into the military. That will help us going forward.
But we need to do much more.
We know this crisis is staggering and despite some
important reforms by DOD--and I thank them for those, they are
trying to improve prevention, investigation, prosecution--still
too many military sex offenders go unpunished and too many
victims do not get the justice that they deserve.
As the chairman said, this is unacceptable and it must
stop. We are the ones who can stop it, and you particularly are
the ones who can stop it.
Well, in response to a letter that Senator Shaheen and I
sent him last week, Defense Secretary Hagel committed to taking
a hard look at the military justice system. He agrees that much
more must be done to combat military sexual assault.
Now, let me tell you I do not have all the answers. If I
had all the answers, I would tell you that today. But one thing
I do know is that immediate steps must be taken to prevent
senior commanders from having the ability to unilaterally
overturn a decision or a sentence by a military court. I want
to thank Senator McCaskill, who has introduced legislation to
do just that. That is the first step and only the first step.
Two recent events I want to share with you to highlight the
urgent need for dramatic change. The first case involves a
decision by an Air Force lieutenant general to dismiss all
charges against a lieutenant colonel who had been convicted of
aggravated sexual assault. Again, all you had to do was listen
to Senator McCaskill's comments on that to understand how deep
this hits us. Many in Congress, our military, and our Nation
were stunned to read that the general used his discretion as
the convening authority to throw out a military jury's guilty
verdict, the jury of high-ranking military officers. I want to
say who was on this jury. Four colonels and a lieutenant
colonel had sentenced the lieutenant colonel to a year in
prison and dismissal from the Air Force. That is a jury of his
peers for sure. Under the UCMJ, the general's decision to
overturn that verdict is final and it cannot be reviewed or
changed.
The second event I want you to hear because you may not
know of it. It took place in my home State of California. Last
month an Army veteran shot and killed two Santa Cruz police
detectives who were attempting to question him over a sexual
assault allegation. In the aftermath of this shooting, we
learned that even though the former soldier had faced two
separate rape charges while serving in the Army, charges
against him were dropped and he was discharged without a
conviction as part of a plea bargain.
What is it going to take to convince the military that
sexual assault is a violent and vicious crime and that those
who perpetuate it are capable of other violent crimes,
including murder? What is it going to take? It is a vicious,
violent crime, and those capable of that vicious crime are
capable of other crimes. Yes, murder.
These examples speak for themselves, and there are so many
more. You will hear them today, and your heart will break.
It is time for us to take swift decisive steps to ensure
that decisions in the military justice system do not rest
solely in the hands of one individual. It is not enough that
our military says zero tolerance for sexual assault. You can
say anything. I can say anything. But the facts speak for
themselves. DOD estimates that 19,000 sexual assaults occur in
the military. I want to point out to my colleagues here, my
friends, that many of these cases involve men. Only 17 percent
of these cases are ever reported.
I am so grateful to both of you for this hearing. Senator
Gillibrand, I am so happy that you chose to hold this
subcommittee hearing, your first, on military sexual assault. I
look forward to working with you on comprehensive solutions to
this problem.
Today's hearing is the first on this critical issue in
nearly a decade. A decade. It is high time not only for this
hearing but for changes in the way the military handles these
cases. I know we, all of us, who are touched by this issue, are
going to work with our colleagues, Republicans, Democrats,
Independents, and with the military. The military, most of all,
wants this to go away, and we have to end this terrible tragedy
of sexual assault. Just think of what an amazing legacy it will
be for this Senate if we succeed. Even more important, think
about how many men and women we will rightly protect.
Thank you so much and I am very excited about this hearing.
I know with your leadership, the two of you, we can get this
done. Thank you very much.
Senator Gillibrand. Thank you, Senator Boxer, for your
very, very strong and valuable testimony. We are so grateful
for your leadership.
We are now going to welcome the next panel. You can come up
and I will read a biography that is very brief of each of you
while you get settled.
We have Anu Bhagwati, who is the Executive Director and Co-
Founder of the Service Women's Action Network (SWAN). Anu is a
former captain and company commander. She served as a Marine
officer from 1999 to 2004. While serving, Anu faced
discrimination and harassment as a woman in the military and
has borne direct witness to the military's handling of sexual
violence.
We have BriGette McCoy, former specialist in the U.S. Army.
BriGette served in the U.S. Army from 1987 to 1991. She was
just 18 years old when she signed up to serve her country in
the first Gulf War. While stationed in Germany from 1988 to
1991, she was sexually assaulted by a non-commissioned officer.
We have Rebekah Havrilla, former sergeant in the U.S. Army.
Rebekah served in the U.S. Army from 2004 to 2008. She was the
only female member of a bomb squad in eastern Afghanistan and
was attacked by a colleague at Salerno Forward Operating Base
near the Pakistani border during her last week in country in
2007.
We have Brian Lewis, former petty officer third class, U.S.
Navy. Brian enlisted in the U.S. Navy in June 1997. During his
tour aboard USS Frank Cable, AS-40, he was raped by a superior
noncommissioned officer (NCO) and forced to go back out to sea
after the assault.
I encourage each of you to express your views candidly and
tell us what is working and what is not working. Help us to
understand what we can do to address this unacceptable problem
of sexual assaults in the military.
We will hear your opening statements. Your complete
prepared statements will also be included in the record.
Following the opening statements, we will limit our questions
to 7 minutes for the first round for the Senators.
Ms. Bhagwati?
STATEMENT OF MS. ANU BHAGWATI, EXECUTIVE DIRECTOR AND CO-
FOUNDER, SERVICE WOMEN's ACTION NETWORK
Ms. Bhagwati. Thank you. Good morning, Chairman Gillibrand,
Ranking Member Graham, and members of the subcommittee.
My name is Anu Bhagwati. I am the Executive Director of
SWAN, and a former Marine Corps captain.
SWAN's mission is to transform military culture by securing
equal opportunity and freedom to serve without discrimination,
harassment, or assault and to reform veterans services to
ensure high-quality health care and benefits for women veterans
and their families.
Military sexual violence is a very personal issue for me.
During my 5 years as a Marine officer, I experienced daily
discrimination and sexual harassment. I was exposed to a
culture rife with sexism, rape jokes, pornography, and
widespread commercial sexual exploitation of women and girls
both in the United States and overseas.
My experiences came to a head while I was stationed at the
School of Infantry at Camp Lejeune, NC, from 2002 to 2004,
where I witnessed reports of rape, sexual assault, and sexual
harassment swept under the rug by a handful of field grade
officers. Perpetrators were promoted or transferred to other
units without punishment, while victims were accused of lying
or exaggerating their claims in order to ruin men's
reputations.
As a company commander at the School of Infantry, I
ultimately chose to sacrifice my own career to file an equal
opportunity investigation against an offending officer. I was
given a gag order by my commanding officer, got a military
protective order against the officer in question, lived in fear
of retaliation and violence from both the offender and my own
chain of command, and then watched in horror as the offender
was not only promoted but also given command of my company.
Many of the women who were impacted by these incidents,
including me, are no longer in the military. However, all of
the officers who were complicit in covering up these incidence
have since retired or are still serving on Active Duty.
I was devastated because I loved and still love the Marine
Corps.
I wish my experience was unique, but in the last few years
of working on these issues, and in the hundreds of cases we
handle each year on SWAN's helpline, I have discovered that
rape, sexual assault, and sexual harassment are pervasive
throughout the military. Sexual violence occurs today in every
branch of service in both operational and non-operational
environments, in both combat arms, as well as support units,
and affects both men and women.
DOD itself estimates that 19,300 assaults occurred in 2010,
and that while 8,600 victims were female, 10,700 were male.
This is a critical point. Military sexual violence is not a
women's issue. Sexual assault is widely understood by military
personnel who have been overexposed to a culture of victim-
blaming and rape mythology.
So let us be clear. Rape and assault are violent, traumatic
crimes, not mistakes, not lapses of professional judgment, not
leadership failures, and not oversights in character. Rape is
about power, control, and intimidation.
Thanks to a surge of pressure over the last few years by
advocates, the media, and Congress, military leadership has
finally been forced to reckon with the issue of military sexual
violence. Some victims protections reforms have been sensible
like the creation of special victims units, mandatory transfers
for victims, or in the Air Force's case, a pilot program which
assigns each victim a designated special victims counsel. Yet,
while these measures help a victim after an assault, they will
neither prevent sexual violence nor change a culture that still
condones sexual violence.
Military leadership cannot solve this problem on its own. I
urge Congress to enact the following reforms going forward.
First, Congress should grant convening authority over
criminal cases to trained, professional, disinterested
prosecutors. Commanding officers cannot make truly impartial
decisions because of their professional affiliation with the
accused and oftentimes with the victim as well.
In recognition of this fact, a number of common law
countries have already transferred case disposition away from
commanders to prosecutors, deeming the policy a violation of
the right to a fair and impartial trial.
Second, open the civil courts to military victims. Civilian
victims of workplace crimes, including civilian DOD employees,
have one critical avenue for redress currently unavailable to
uniformed personnel: access to civil courts.
To this day, the U.S. Supreme Court and the Federal courts
below it continue to maintain that servicemembers are barred
from bringing claims of negligence or intentional
discrimination against the military, depriving military
personnel of remedies for violations of their rights. In the
face of this judicial doctrine, Congress must ensure that men
and women in uniform can access the remedies available to all
other aggrieved individuals under the Federal Tort Claims Act
and the Civil Rights Act.
Given the prevalence of retaliation against servicemembers
who report incidents of sexual assault and harassment, the
absence of these remedies for military personnel is especially
shameful.
I will close by saying that today we are looking at an
institution that desperately needs to be shown the next steps
forward. Senators, do not let today's servicemembers become
another generation of invisible survivors.
Thank you.
[The prepared statement of Ms. Bhagwati follows:]
Prepared Statement by Ms. Anu Bhagwati
Good morning, Chairman Gillibrand, Ranking Member Graham, and
members of the subcommittee. My name is Anu Bhagwati. I am the
Executive Director of Service Women's Action Network (SWAN), and a
former Marine captain.
SWAN's mission is to transform military culture by securing equal
opportunity and freedom to serve without discrimination, harassment or
assault; and to reform veterans' services to ensure high quality health
care and benefits for women veterans and their families.
Military sexual violence is a personal issue for me. During my 5
years as a Marine officer, I experienced daily discrimination and
sexual harassment. I was exposed to a culture rife with sexism, rape
jokes, pornography, and widespread commercial sexual exploitation of
women and girls in the United States and overseas.
My experiences came to a head while I was stationed at the School
of Infantry at Camp LeJeune, NC, from 2002-2004, where I witnessed
reports of rape, sexual assault, and sexual harassment swept under the
rug by a handful of field grade officers. Perpetrators were promoted or
transferred to other units without punishment, while victims were
accused of lying or exaggerating their claims in order to ``ruin men's
reputations.''
As a Company Commander at the School of Infantry, I ultimately
chose to sacrifice my military career to file an equal opportunity
investigation against an offending officer. I was given a gag order by
my commanding officer, got a military protection order against the
officer in question, lived in fear of retaliation and violence from
both the offender and my chain of command, and watched in horror as the
offender was not only promoted but also given command of my company.
Many of the women who were impacted by these incidents chose not to
re-enlist. I left by the skin of my teeth. However, all of the officers
who were complicit in covering up these incidents have since retired or
are still serving on active duty.
I was devastated, because I loved the Marines.
I wish my experience was unique, but in the last few years of
working on these issues, and in the hundreds of cases we handle each
year on SWAN's Helpline, I have discovered that rape, sexual assault
and sexual harassment are pervasive throughout the military. Sexual
violence occurs today in every branch of Service, in both operational
and nonoperational environments, in combat arms as well as support
units, and affects both men and women.
The Department of Defense (DOD) estimates that 19,300 sexual
assaults occurred in 2010, and that while 8,600 victims were female,
10,700 were male.
This is a critical point. Military sexual violence is not a
``women's issue''. Sexual assault is widely misunderstood by military
personnel, who have been over-exposed to a culture of victim-blaming
and rape mythology, where victims are considered responsible for their
own assaults, and perpetrators are simply naive young servicemembers
who might have had a lapse of professional judgment, at worst.
So let's be clear.
Rape and assault are violent, traumatic crimes, not mistakes,
leadership failures or oversights in character.
Rape is about power. Control. Intimidation.
Thanks to a surge of pressure over the last few years by advocates,
the media and Congress, military leadership has finally been forced to
reckon with the issue of military sexual violence. Some victims
protections reforms have been sensible, like the creation of Special
Victims Units, mandatory transfers for victims, or in the Air Force's
case, a pilot program which assigns each victim a designated Special
Victims Counsel. Yet, while these measures help a victim after an
assault, they will neither prevent sexual violence, nor change a
culture that condones sexual violence.
Military leadership cannot solve this problem on its own. I urge
Congress to enact the following reforms going forward:
1. Professionalize the Military Criminal Justice System
Congress should grant convening authority over criminal cases
to trained, professional, disinterested prosecutors. Commanding
officers cannot make truly impartial decisions because of their
professional affiliation with the accused, and often times with the
victim as well.
Last year's reform to make colonels the convening authorities
over sexual assault cases was a step in the right direction, but it
does not resolve the issue of institutional bias. Colonels and Generals
may have more rank than junior officers, but their rank does not endow
them with expertise in the law.
In recognition of this fact, a number of common law countries
have already transferred case disposition authority from commanders to
prosecutors, deeming the policy a violation of the right to a fair and
impartial trial.
Recent news about an Air Force Lieutenant General reversing
the conviction of a Lt Colonel--a fellow pilot--in a sexual assault
case at Aviano Air Force Base emphatically underscores several points.
First, senior officers are not infallible, and in fact can be complicit
in criminal injustice, and second, today's military criminal justice
system is undermined by built-in bias.
There is no logical reason to let this system remain as it
is. I urge you to enact legislation to authorize trained, professional
prosecutors to handle criminal cases, as they do in the civilian
criminal justice system.
2. Open Civil Courts to Military Victims
Civilian victims of workplace crimes, including civilian DOD
employees, have one critical avenue for redress currently unavailable
to uniformed personnel: access to civil courts.
To this day, the U.S. Supreme Court and the Federal courts
below it continue to maintain that servicemembers are barred from
bringing claims of negligence or intentional discrimination against the
military, depriving military personnel of remedies for violations of
their rights. In the face of this judicial doctrine, Congress must
ensure that men and women in uniform can access the remedies available
to all other aggrieved individuals under the Federal Tort Claims Act
and the Civil Rights Act.
The civil system is where victims are much more likely to get
justice. Civilian employers have historically improved hostile
workplace climates because when victims win civil cases--which they win
much more often than they win criminal cases--the courts can grant them
relief that deters employers from violating the law.
Under laws like the Federal Tort Claims Act and the Civil
Rights Act, employers may be held liable for failing to exercise
reasonable care to prevent and correct harassment or assault, as well
as for retaliating against employees who report violations. Given the
prevalence of retaliation against servicemembers who report incidents
of sexual assault and harassment, the absence of these remedies for
military personnel is especially shameful.
Allowing military victims to pursue civil claims will act as
a real deterrent to workplace assault and harassment--a deterrent that
does not exist in today's military. The threat of civil claims and the
right to pursue these claims will directly transform military culture.
3. Ensure Survivors' Department of Veterans Affairs (VA) Claims
Get Accepted
The quickest and easiest thing the Senate can do to help
survivors today is to pass The Ruth Moore Act, a bill introduced by
Senator Jon Tester and Congresswoman Chellie Pingree, that fixes the
broken VA claims process for survivors. Veterans often face a triple
betrayal, first by their sexual predator, then by members of their own
unit who fail to support them, and then finally by the VA that unfairly
rejects their disability claims for post-traumatic stress or other
life-threatening conditions related to in-service abuse. The Ruth Moore
Act already has bi-partisan support. It can and must be passed in 2013.
I'll close by saying that today we are looking at an institution
that desperately needs to be shown the next steps forward. Senators, do
not let today's servicemembers become another generation of invisible
survivors.
Thank you.
Senator Gillibrand. Ms. McCoy.
STATEMENT OF MS. BRIGETTE McCOY,
FORMER SPECIALIST, U.S. ARMY
Ms. McCoy. Thank you very much for having me here today. I
have deep gratitude towards those who have worked tirelessly
for our voices to be heard and to those here listening with
compassionate and open hearts poised to make positive changes
toward these matters at hand, changes that need to come from
the root.
I am a Gulf War-era, service-connected, disabled veteran.
I was raped during military service and during my first
assignment. That was 1988. I was 18 years old. It was 2 weeks
before my 19th birthday. This happened in a foreign country,
away from American soil, while I was stationed in Germany.
I did not report it for reasons which will become clear as
I tell my story. That would not be the last time I would be
assaulted or harassed. This is my story, but it is not mine
alone. More than 19,000 men and women every year share similar
stories.
That year, the year that I was raped, that same year I was
raped again by another soldier in my unit.
Another year, I was sexually harassed by a commissioned
officer in my unit.
Between 1990 and 1991, another NCO in my unit began to
harass me through inappropriate touching, words, and behavior.
This NCO then requested from my command that I be moved to work
directly for him in a work environment where there was no
access, closed and window-less, key entry coded vault. Upon
receiving my new shift schedule, I can only compare the anguish
of this entrapment to discovering your child has been
constantly molested by a person of authority. I was at mental
and emotional collapse.
A senior woman NCO in my unit helped me to write a written
statement to present to my command and to file a formal
complaint, a complaint that my command answered with no
official hearing, no written response, and it was only answered
later with a verbal response from my first sergeant who asked
me what did I want and that I had misunderstood this NCOs'
intentions toward me.
The only thing that I wanted at that time was two basic
things. One was an apology and for the harassment to stop. That
was all.
I did not know what was happening, and at no time did
anyone ever move forward with my formal complaint. Nor was
anyone willing to discuss the process with me. They did,
however, remove me from his team and his formal apology
consisted of him driving by me on base, rolling down his
window, and saying to me sorry.
So after that in the days that followed, I was verbally and
socially harassed, put on extra duties that conflicted with my
medical profile, and socially isolated. Eventually I was given
a choice to either get out or to face possible UCMJ action
myself.
Most women who are victims of sexual harassment or abuse
are threatened and charged with UCMJ action. So I felt I had no
choice. I was literally terrified, and so in that terrified
position, I was paralyzed and I just chose to get out because
that was the option that was given to me.
Within a week, I had orders out of Germany and I was
escorted by two NCO's to my plane and that was it. My career
was over.
Please note that in unit I was not the only one that was
sexually assaulted or sexually harassed. Many women came to me
and said they had had the same situation happen, but they never
told me who in fact did this.
Returning to the United States and civilian life was
difficult, and I had a lot of false starts. I had a lot of
negative behaviors that carried from the military. I was
anxious and overly protective. I became suicidal and attempted
suicide. I went through severe depression and had multiple
severe medical illnesses and was unable to carry on the rigors
of work for which I was highly trained. I repeatedly moved from
place to place and was homeless and medically disabled, but not
even the Department of Veterans Affairs (VA) would recognize
this and help me until some 2 decades later.
I lost many material things and emotional relationships in
my lifetime and struggled with my faith. I grieved because I
felt I was the lucky one. I left my unit alive with an
honorable discharge. Although discombobulated and scared for my
life and my future, many leave with less than honorable
discharges and personality disorders on their records, further
hindering them from applying for medical treatment and medical
claims. Some, like Private First Class (PFC) Lavina Johnson, do
not come home to their parents alive.
22 years later almost to the day of my early expriation of
term of service, I was awarded veteran service compensation and
service connection for military sexual trauma (MST). Can you
tell me why did it take so long? Why did I have to go through
so much before anyone would listen to me? Why did I have to be
violated again through the process of asking for help and
seeking claim status?
Today I volunteer and this helps to ground me. I volunteer
through different veterans organizations and outreach
foundations. I participate in listening sessions to help
organizations like the Sierra Club and Warrior Songs better
understand the many facets of women veterans' needs for their
programmatic purposes.
My history is chronicled with other women and men veterans
in the documentary service, ``When Women Come Marching Home.''
I am a social media peer supporter and technology advocate
through my organization, Women Veterans Social Justice, and I
collaborate with both community and veteran organizations and
dozens of other organizations.
I speak and spoke at the Surgeon General's Task Force for
Suicide Prevention because suicide and homelessness are two
huge issues in the MST community and with the claims denial and
lack of purposeful medical treatment exacerbating those issues.
Of course, PTSD from MST is the main contributing factor.
I have to say I no longer have any faith or hope that the
military chain of command will consistently prosecute, convict,
sentence, and carry out the sentencing of sexual predators in
uniform without absconding justice somehow. Only 8 percent of
them are prosecuted. How many are relieved of their duties,
their pensions, their careers? How many of them are placed on
the national registry as sex offenders before they are returned
to civilian life? Even asking that, what happens to the 92
percent that were not sentenced or prosecuted?
Let's not allow sexual predators who happen to wear a
uniform the opportunity to become highly trained, highly
degreed, military decorated sexual predators. Let's make sure
they are convicted and dishonorably discharged and listed on
the national registry. Let's do this before they go on notice
in our communities to further harm our servicemembers, our
community, and our family members.
Sexual assault and trauma has deep and broad roots in the
military. Let's not just pluck a few leaves and trim the
branch. Let's deal with this from the roots. Please make it
stop.
[The prepared statement of Ms. McCoy follows:]
Prepared Statement by Ms. Brigette McCoy
Thank you. I have deep gratitude towards those who have worked
tirelessly for our voices to be heard and to those here listening with
compassionate and open hearts poised to make positive changes toward
these matters at hand.
I am a Gulf War era service connected disabled veteran.
I was raped during military service and during my assignment at my
first and only duty station. This was 1988 and I was 18 and in country
less than 90 days. I did not report it. That would not be the last time
I would be assaulted or harassed. This is my story but its not mine
alone more than 19,000 annually share similarities in their story too.
In 1991, I reported sexual harassment. I was to the point of mental
and emotional fatigue. When I reported to my command in a formal
written complaint with help from one of the women noncommissioned
officers (NCO) in my unit, I was told I misunderstood the offending
NCO's intentions and was asked ``what do you want''--I only wanted a an
apology and to be removed from working directly with him. No one ever
officially explained any further process like pressing charges or
moving forward with my formal written complaint. It was never spoken
about again. They did remove me from his team and his formal apology
consisted of him driving by me on base and saying ``sorry'' out of his
open car door window.
Afterwards, I was verbally and socially harassed, put on extra
duties that conflicted with my medical profiles, and socially isolated.
After major verbal and physical conflicts with my first sergeant, I was
given a ``choice'' to either get out, by breaking my extension, to
maintain my honorable discharge or continue to stay in and face Uniform
Code of Military Justice (UCMJ) action. By this point the atmosphere in
my unit and on post was so hostile I was in fear for my life so I
signed the papers. Within the week I had orders out of Germany and I
was escorted by two NCOs to my plane in Frankfurt, Germany. That was
it! Within a few days, my military career was over.
Please note that in that unit I had not been the only servicemember
sexually harassed I had been told directly by other women soldiers who
were afraid to come forward.
Returning to the United States and civilian life was difficult, I
had a lot of false starts, I had a lot of negative behaviors that
carried over from the military. I was anxious and overly protective. I
became suicidal and had suicidal attempts. I went through severe
depression and had multiple severe medical illnesses and was unable to
carry on the rigors of work for which I was highly trained for. I
repeatedly moved from place to place, was homeless and medically
disabled but not even the Department of Veterans Affairs (VA) would
recognize this and help me until some 2 decades later.
I lost many material things and emotional relationships in my
lifetime and struggle with my faith. I grieve because I feel I was the
lucky one. I left my unit alive, with an honorable discharge, although
discombobulated and scared for my life and my future. Many leave with
less than honorable discharges and personality disorders on their
records further hindering them from applying for medical treatment and
medical claims. Some like PFC LaVena Johnson don't make it home to
their parents alive.
22 years later, almost to the day of my early expiration of term of
service, I was awarded veterans service compensation and service
connection for military sexual trauma (MST). Why did it take so long?
Why did I have to go through so much before anyone would listen? Why
did I have to be violated again through the process?
Today I am a volunteer for a veteran therapeutic arts programs. I
participate in listening sessions to help organizations better
understand the many facets of women veterans needs for their
programmatic purposes. My story is chronicled with other women veterans
in the documentary ``Service When Women Come Marching Home.'' I am a
social media peer supporter and advocate. I collaborate with dozens of
organizations working to resolve issues for veterans. Suicide and
homelessness are two huge issues in the MST community with claims
denial and lack of purposeful medical treatment exacerbating those
issues. Post-traumatic stress disorder from MST is the main
contributing factor with regard to women veteran community issues.
I have to say I no longer have any hope that the military chain of
command will consistently prosecute, convict, sentence, and carry out
the sentencing of sexual predators in uniform without absconding
justice somehow. Only 8 percent are prosecuted . . . of that 8 percent
how many are relieved of their duties, their pensions, their careers?
How many of them are placed on national registry as sex offenders
before they are returned to civilian life. What happens to the 92
percent?
Lets not allow sexual predators in uniform the opportunity to
become highly-trained, highly-degreed, military-decorated sexual
predators. Lets make sure they are convicted and dishonorably
discharged and listed on the national registry. Lets do this before
they go unnoticed into our communities to further harm our
servicemembers, our community, and family members.
Sexual assault and trauma has deep and broad roots in the military,
lets not just pluck a few leaves and trim a branch, lets deal with this
from the roots.
#makeitstop
Thank you.
Senator Gillibrand. Thank you.
Ms. Havrilla.
STATEMENT OF MS. REBEKAH HAVRILLA, FORMER SERGEANT, U.S. ARMY
Ms. Havrilla. Good morning. My name is Rebekah Havrilla. I
am currently the Outreach and Education Coordinator for SWAN. I
previously managed SWAN's National Helpline for Legal and
Social Services from May 2011 to December 2012. During that
time, I assisted and provided referrals for over 600
servicemembers, veterans, and their families on issues related
to military rape, sexual assault, and sexual harassment. These
included overcoming barriers to getting VA MST claims accepted,
overcoming homelessness and accessing housing, and finding
quality mental health care.
I hail from the great State of South Carolina where I grew
up and lived until I joined the Army in 2004. I was an
explosive ordnance disposal (EOD) technician and I achieved the
rank of sergeant in 3 years and 3 months. I deployed to
Afghanistan from September 2006 to September 2007 and spent the
majority of my time in the eastern provinces where I was
assigned to Taskforce Paladin, a combined explosives
exploitation cell tasked with improvised explosive devices
(IED) response and intelligence operations. I also spent time
running route clearance missions with multiple combat engineer
companies. I was awarded the Joint Service Commendation Medal
for my achievements while deployed and was given an Army
Achievement Medal and Good Conduct Medal before I left Active
Duty.
My deployment brought more than just the stress of
occupational hazards. During my tour, one of my team leaders
continuously sexually harassed me and was sexually abusive
towards me. This behavior caused me so much anxiety that I
ended up self-referring to mental health and on medication to
manage not just the stress of my deployment, but also the
stress of having to live with an abusive leader and coworker.
One week before my unit was scheduled to return back to the
United States, I was raped by another servicemember that had
worked with our team. Initially I chose not to do a report of
any kind because I had no faith in my chain of command as my
first sergeant previously had sexual harassment accusations
against him and the unit climate was extremely sexist and
hostile in nature towards women.
After disclosing my rape to a few close friends, I ended up
filing a restricted report 60 days before I left Active Duty
against both my rapist and my team leader, but had no
intentions of ever doing a formal investigation.
I began a job as a contractor and entered the Reserves at
Fort Leonard Wood, MO, and tried to start a different life for
myself. Reintegration was challenging and I had few support
systems to rely on. I struggled with depression and the effects
of PTSD.
Approximately a year after separating from Active Duty, I
was on orders for job training, and during that time I ran into
my rapist in a post store. He recognized me and told me that he
was stationed on the same installation. I was so retraumatized
from the unexpectedness of seeing him that I removed myself
from training and immediately sought out the assistance from an
Army chaplain who told me, among other things, that the rape
was God's will and that God was trying to get my attention so
that I would go back to church. Again, I did not file an
unrestricted report against my rapist.
Six months later, a friend called me and told me they had
found pictures of me online that my perpetrator had taken
during my rape. At that point, I felt that my rape was always
going to haunt me unless I did something about it. So I went to
Army Criminal Investigation Division (CID) and a full
investigation was completed.
The initial CID interview was the most humiliating thing
that I have ever experienced. I had to relive the entire event
for over 4 hours with a male CID agent, whom I had never met,
and explain to him repeatedly exactly what was going on in each
of the pictures. After the interview was completed, I heard
nothing from the investigator until 4 months later when CID
requested that I come back in to repeat my statement to a new
investigator who was taking over my case. I almost refused.
During the 4 months of waiting without any word on the case
except phone calls from my friends who had been interviewed, I
lived in constant fear that I might run into my rapist again or
that he might retaliate against me in some way. I decided to
continue with the case even though I felt that nothing was ever
going to be resolved, and 6 months later I was told that even
though my rapist had admitted to having consensual sex with me
while married, his chain of command refused to pursue any
charges of adultery and the case was closed.
The military criminal justice system is broken.
Unfortunately, my case is not much different from the many
other cases that have been reported. I feared retaliation
before and after I reported, the investigative process severely
retraumatized me, many of the institutional systems set up to
help failed me miserably, my perpetrator went unpunished
despite admitting to a crime against the UCMJ, and commanders
were never held accountable for making the choice to do
nothing.
What we need is a military with a fair and impartial
criminal justice system, one that is run by professional and
legal experts, not unit commanders. We also need an additional
system that allows military victims to access civil courts if
the military system fails them. Without both military criminal
justice reform and access to civil courts, military sexual
violence will continue to be widespread and a stain on the
character of our Armed Forces.
Thank you for your time.
[The prepared statement of Ms. Havrilla follows:]
Prepared Statement by Ms. Rebekah Havrilla
Good morning. My name is Rebekah Havrilla. I am currently the
Outreach and Education Coordinator for Service Women's Action Network
(SWAN). I previously managed SWAN's National Helpline for Legal and
Social Services from May 2011 to December 2012. During that time, I
assisted and provided referrals for over 600 servicemembers, veterans,
and their families on issues related to military rape, sexual assault
and sexual harassment. These included overcoming barriers to getting VA
Military Sexual Trauma claims accepted, overcoming homelessness and
accessing housing, and finding quality mental health care.
I hail from the great state of South Carolina where I grew up and
lived until I joined the Army in 2004. I was an Explosive Ordnance
Disposal Technician and achieved the rank of Sergeant in 3 years and 3
months. I deployed to Afghanistan from September 2006 to September 2007
and spent the majority of my time in the eastern provinces where I was
assigned to Taskforce Paladin, a Combined Explosives Exploitation Cell
tasked with Improvised Explosive Device (IED) response and intelligence
operations. I also spent time running route clearance missions with
multiple combat engineer companies. I was awarded the Joint Service
Commendation Medal for my achievements while deployed and was given an
Army Achievement Medal and Good Conduct Medal before I left active
duty.
My deployment brought more than just the stress of occupational
hazards. During my tour, one of my team leaders continuously sexually
harassed me and was sexually abusive towards me. This behavior caused
me so much anxiety that I ended up self-referring to mental health and
on medication to manage not just the stress of my deployment, but also
the stress of having to live with an abusive leader and co-worker. One
week before my unit was scheduled to return back to the United States,
I was raped by another servicemember that had worked with our team.
Initially, I chose not to do a report of any kind because I had no
faith in my chain of command as my first sergeant previously had sexual
harassment accusations against him and the unit climate was extremely
sexist and hostile in nature towards women. After disclosing my rape to
a few close friends, I ended up filing a restricted report 60 days
before I left active duty against both my rapist and my team leader,
but had no intentions of ever doing a formal investigation.
I began a job as a contractor and entered the Reserves at Fort
Leonard Wood, MO, and tried to start a different life for myself.
Reintegration was challenging and I had few support systems to rely on.
I struggled with depression and the effects of Post-Traumatic Stress.
Approximately a year after separating from active duty, I was on orders
for job training and during that time I ran into my rapist in a post
store. He recognized me and told me that he was stationed on the same
installation. I was so re-traumatized from the unexpectedness of seeing
him that I removed myself from training and immediately sought out
assistance from an Army chaplain who told me among other things, that
the rape was God's will and that God was trying to get my attention so
that I would go back to church. Again, I did not file an unrestricted
report against my rapist.
Six months later, a friend called me and told me they had found
pictures of me online that my perpetrator had taken during my rape. At
that point, I felt that my rape was always going to haunt me unless I
did something about it so I went to Army Criminal Investigation
Division (CID) and a full investigation was completed. The initial CID
interview was the most humiliating thing that I have ever experienced.
I had to relive the entire event for over 4 hours with a male CID agent
whom I had never met and explain to him repeatedly exactly what was
happening in each one of the pictures that were found. After the
interview was completed, I heard nothing from the investigator until 4
months later when CID requested that I come back in to repeat my
statement to a new investigator who was taking over my case. I almost
refused. During the 4 months of waiting without any word on the case
except phone calls from my friends who had been interviewed, I lived in
constant fear that I might run into my rapist again or that he might
retaliate against me in some way. I decided to continue with the case
even though I felt that nothing was ever going to be resolved and 6
months later, I was told that even though my rapist had admitted to
having ``consensual'' sex with me while married, his chain of command
refused to pursue any charges of adultery and the case was closed.
The military criminal justice system is broken. Unfortunately, my
case is not much different from the many other cases that have been
reported. I feared retaliation before and after I reported, the
investigative process severely retraumatized me, many of the
institutional systems set up to help failed me miserably, my
perpetrator went unpunished despite admitting to a crime against the
UCMJ, and commanders were never held accountable for making the choice
to do nothing. What we need is a military with a fair and impartial
criminal justice system, one that is run by professional and legal
experts, not unit commanders. We also need an additional system that
allows military victims to access civil courts if the military system
fails them. Without both military criminal justice reform and access to
civil courts, military sexual violence will continue to be widespread
and a stain on the character of our Armed Forces. Thank you for your
time.
Senator Gillibrand. Thank you.
Mr. Lewis.
STATEMENT OF MR. BRIAN K. LEWIS, FORMER PETTY OFFICER THIRD
CLASS, U.S. NAVY, ADVOCACY BOARD MEMBER, PROTECT OUR DEFENDERS
Mr. Lewis. Chairman Gillibrand and Ranking Member Graham,
members of the subcommittee, thank you for holding this hearing
today on sexual assault in our military. I am humbled to be
sitting here today before you as the first male survivor to
testify in front of Congress on this very important issue, and
thank you for allowing that privilege to me.
I also want to take a minute to thank my partner Andy and
all the spouses and partners of MST survivors. I would also
like to thank the parents and caregivers that work so hard to
keep us on a level playing field. Some days they shoulder a
very large load and deserve our recognition.
I enlisted in the Navy in 1997 and advanced to the rank of
petty officer third class. During my tour on the USS Frank
Cable, I was raped by a superior NCO. I was ordered by my
command not to report this crime.
After this crime had taken place, I was misdiagnosed with a
personality disorder by the current director of the Defense
Centers of Excellence for Psychological Health and Traumatic
Brain Injury. I filed retaliation claims to no avail. I was
given a general discharge for a personality disorder in August
2001.
My petition to change my discharge from a general discharge
for a personality disorder to a medical retirement for PTSD was
denied by the Board for Correction of Naval Records. I carry
that discharge as an official and permanent symbol of shame on
top of the physical attack, the retaliation, and the aftermath.
I fear it will be discussed when I apply for law school, when I
apply to be admitted to the bar, even when I apply for a job. I
wonder what opportunities it may destroy for me.
However, I choose not to dwell on what the past has brought
my way. I will graduate in May with a bachelor of science
degree from Stevenson University in Maryland, and I will
graduate in December with a masters of science degree from the
same university. I plan to go to Hamline University School of
Law, and I choose to work towards stopping this crime in our
military. Needless to say, because of my discharge, I have had
to pay for all of these degrees on my own.
I am here today because I am not alone. My story is all too
common. Protect our Defenders regularly hears from Active Duty
personnel seeking help as they are being denied opportunities
to report, generally retaliated against, diagnosed with errant
medical diagnoses, or being charged with collateral misconduct
after reporting the attack. The culture of victim-blaming and
retaliation while failing to punish the perpetrator must end.
DOD regularly acknowledges this crisis. They estimate
19,000 sexual assaults occur each year and 86 percent of
victims do not report mostly out of fear of retaliation. Of
those 19,000 victims, about 10,700 are men and 8,300 are women.
To translate this into percentages, about 56 percent of
estimated victims in our military are men. This is the part of
the crisis that DOD does not acknowledge.
Now, just what can we do to stop sexual assault in our
military? First, we must recognize that rape is not just about
sex. It is about violence, power, and sometimes about abuse of
authority. General Franklin's recent action to set aside the
guilty verdict against Lieutenant Colonel Wilkerson of
aggravated sexual assault is yet another example of an abuse of
authority taken by a commander that will have a chilling effect
on military judges, prosecutors, and juries and inhibit victims
from coming forward. A system that elevates a single
individual's authority and discretion over the rule of law
often precludes justice and hinders it long into the future.
Colonel Wilkerson's victim has been in contact with Protect
our Defenders, and she wants you to know, quote, I endured 8
months of public humiliation and investigations. Why bother to
put the investigators, prosecutors, judge, jury, and me through
this if one person can set aside justice with the swipe of a
pen?
I have here a copy of her statement which has already been
submitted for the record, Madam Chairman.
[The information referred to follows:]
[Please see Annex B at the end of this hearing]
Mr. Lewis. Reforms to date, have clearly not successfully
addressed this epidemic because they have targeted the symptoms
without addressing the root cause, which is that the military
justice system is fraught with inherent personal bias,
conflicts of interest, abuse of authority, and too often a low
regard for the victim. Whereas civilians have the
constitutional protections of an independent judicial system,
servicemembers do not. Servicemembers must report an assault to
their commanders. However, if those commanders take action and
prove that an assault occurred, they also prove a failure of
their own leadership. Congress has put commanders in charge of
violent sexual crime from victim care, through the legal and
investigative processes, through adjudication, and post-trial.
Commanders have too often failed to care for the victim or
prosecute the perpetrator. They have failed to end this
longstanding epidemic.
We also need to ensure that prevention efforts are
inclusive of male servicemembers. The majority of prevention
efforts are targeted toward females. As I demonstrated, men are
a majority of the victims in our military. We cannot
marginalize male survivors and send a message that men cannot
be raped and therefore are not real survivors.
Survivors of MST also need a fair review of their
discharges. The military has shoved many survivors out the back
door with inaccurate, misleading, and very harmful, almost
weaponized medical diagnoses like personality disorders that
affect their benefits and future employment opportunities. We
need to establish a system separate and apart from the boards
for correction of military records to examine these discharges
and grant survivors the medical retirements they are due from
DOD. Currently the correction boards only change about 10
percent of their discharges. These discharges make it much
harder for veterans to find meaningful employment, often re-
victimize the veteran, make it impossible often for these
veterans to use their earned education benefits.
In conclusion, this epidemic has not successfully been
addressed in decades of review and reform by DOD or by
Congress. Some of the reasons for this include men being
invisible and ignored as survivors of MST, inherent bias and
conflict of interest present in a broken military justice
system. The reporting, investigation, prosecution, and
adjudication of sexual assault must be taken out of the chain
of command and into an independent office with professional
military and civilian oversight.
The established discharge review process is a rubber stamp
that causes lifelong harm and needs overhaul badly. It is
another way that DOD fails us.
Congressional legislation created these systems that are
inherently biased, unfair, and do not work. It is now Congress'
duty to pass legislation so servicemembers can receive justice
that is fair, impartial, and finally addresses the military's
epidemic of sexual assault. It should also be noted that a lot
of survivors, as the other panelists have said, do not come
home. There are people like Harry Goodwin and so many others
that do not survive from their sexual assaults, and we need to
do this in memory of them.
Madam Chairman, this concludes my remarks. I am prepared
for your questions and those of the subcommittee.
[The prepared statement of Mr. Lewis follows:]
Prepared Statement by Mr. Brian K. Lewis
Chairman Gillibrand and members of the subcommittee, thank you for
holding this hearing today on sexual assault in our military. I am very
humbled to be here today. I am the first male survivor to testify in
front of Congress on this very important topic. Thank you for making
this historic event possible. I also want to thank my partner Andy and
all the spouses of military sexual trauma survivors. They shoulder a
heavy load and deserve our recognition.
I enlisted in the Navy in 1997 and attended numerous schools and
advanced to the rank of Fire Control Technician Third Class. During my
tour on the USS Frank Cable (AS-40), in August 2000, I was raped by a
superior noncommissioned officer. I was ordered by my command not to
report this crime to the Naval Criminal Investigative Service. After my
command learned of this crime, I was misdiagnosed as having a
personality disorder by the current director of the Defense Center of
Excellence for Psychological Health and Traumatic Brain Injury, and I
was discharged in August 2001. I received a 100 percent disability
rating from the Department of Veterans Affairs in June 2002 for post-
traumatic stress disorder as a result of the rape. In August 2004, my
petition to change my discharge from general discharge for a
personality disorder to a medical retirement for post-traumatic stress
disorder was denied by the Board for Correction of Naval. Therefore, I
carry my discharge as an official and permanent symbol of shame, on top
of the trauma of the physical attack, the retaliation and its
aftermath. I fear it will be discussed, when I apply for law school,
when I apply to take the bar exam, even when I apply for a job, and I
wonder what opportunities it may destroy for me. No one should be
forced to undergo such painful and inappropriate treatment. However, I
choose not to dwell on what the past has brought my way. I will
graduate in May with a Bachelor of Science degree in Paralegal Studies
and graduate in December with Master of Science degree in Forensic
Studies. I plan to go to law school, and I choose to work toward
stopping this crime in our military.
I am here today because I am not alone. My story is all too common.
Protect Our Defenders' regularly hears from active duty personnel
seeking help as they are being denied opportunities to report,
generally retaliated against, diagnosed with errant medical diagnoses
or being charged with collateral misconduct after reporting the attack.
One survivor recently discharged put it this way:
``I still cannot grasp what happened to me. When mentioned to
commanders, nothing is done--your report gets lost, people turn
their backs on you. For 10 years, I was honored to wear the
uniform, but I was treated like a second class citizen.''
The culture of victim blaming and retaliation while failing to
punish the perpetrator must end.
The DOD regularly acknowledges the crisis. They estimate that 86.5
percent of violent sexual crimes go unreported, of the approximately
19,000 that occur every year.
The military is 85 percent men and 15 percent women. According to
the Naval Personnel Command, (2012 Sexual Assault Awareness Month
Training Guide) of those 19,000 victims about 10,700 are men and 8,300
are women. To translate this into percentages about 56 percent of
estimated sexual assaults in our military are men and 44 percent are
women.
Now, what can we do to stop sexual assault in our military? First
we must recognize that rape is not just about sex, it's about violence
and power, and sometimes about abuse of authority,
For over 20 years, repeated scandals of sexual violence, cover up,
and abuse of authority in the military have come to light: including
Tailhook, Aberdeen, The Air Force Academy, Marine Barracks Washington
and the still unfolding scandal at Lackland AFB.
Reforms passed by Congress or announced by the DOD to date have
clearly not successfully addressed this epidemic. Despite all the
rhetoric, things are not getting better. Between 2010 and 2011, the
number of assaults did not decrease, yet actions taken by commanders
regarding sexual assault cases decreased 23 percent. The number of
perpetrators convicted of any charges, even adultery, in a sexual
assault court martial decreased 22 percent. The number of initiated
courts-martial fell 8 percent.
The reforms haven't worked because they have targeted the symptoms
of this epidemic. They have not addressed the root cause, which is that
the military justice system is fraught with inherent personal bias,
conflict of interest, abuse of authority and too often a low regard for
the victim. While civilians have the constitutional protections of an
independent judicial system, servicemembers do not. Servicemembers must
report rape to their commanders. However, if their commanders take
action and prove that rape occurred, they also prove a failure of their
own leadership.
It is only natural for commanders to want to believe that a crime
did not happen. Making it disappear entails less risk for their
careers. Not pursuing prosecution is much less disruptive for their
units. Commanders know and work with the people involved, therefore
they have biases. All those within the military hierarchy have strong
incentives to follow their commanders' biases. Commanders have
tremendous power over the lives and future careers of those in their
command. It is only natural that survivors experience repeated patterns
of cover-up and retaliation. No wonder Congress' reforms have not
successfully delivered justice within a military justice system
governed by commanders who have strong incentives not to bring rape to
justice.
According to DOD, 51 percent of male victims report that the
perpetrator is of higher rank and 26 percent report that the
perpetrator is actually in their chain of command and 62 percent of
female victims report that the perpetrator is of higher rank and 23
percent report that the perpetrator is actually in their chain of
command.
Congress, through the UCMJ, put commanders in charge of violent
sexual crime--from victim care, through the legal and investigative
processes these cases involve. Commanders have too often failed to care
for the victim or prosecute the perpetrator. They have failed to end
this longstanding epidemic.
The quest for a quick resolution or an affinity for the defendant
sometimes leads the command to reduce sentences, grant clemency, or
overturn convictions. These decisions are some of the reasons why 86
percent of victims do not report.
Aviano Air Base commander, General Franklin's recent action to set
aside the guilty verdict by a court-martial, against Lieutenant Colonel
Wilkerson for aggravated sexual assault is yet another example of an
action taken by a commander that will have a chilling effect on
military judges and prosecutors, potentially effect future cases and
inhibit victims from coming forward. A system that elevates a single
individual's autho1ity and discretion over the rule of law often
precludes justice and hinders it long into the future.
It's time to address the fundamental problem to end this epidemic
and eliminate the bias and conflict of interest inherent in the
military justice system.
We need to take the reporting, investigation, prosecution, and
adjudication outside the chain of command and into an independent
office with professional military and civilian oversight. This step is
vital to ensuring that victims feel safe to come forward and report.
This will also ensure that victims and the accused receive a fair and
unbiased look at their cases from a disinterested party.
We also need to ensure that prevention efforts are inclusive of
male servicemembers. The majority of prevention efforts are targeted
toward females.
As I demonstrated, men are a majority of the victims in the
military. DOD's infamous ``Ask her when she's sober'' marginalizes to
male survivors and sends a message that men cannot be raped and
therefore are not real survivors.
Men need medical and psychological services crafted specifically
for them and made available in gender specific settings. In 2009, the
Defense Task Force on Sexual Assault in the Military Services
recommended this specific step and it is not known whether this
recommendation was implemented. Currently there are no residential
treatment facilities specializing in treating only male survivors of
military sexual trauma. Women can be sent by DOD to any one of a dozen
currently run by the Department of Veterans Affairs. Often men cannot
even receive effective outpatient therapy. This contributes to a
suicide problem. Thirty-five veterans commit suicide every day and only
15 percent are combat related.
Another form of victim blaming comes from military doctors. Under
pressure from commands, doctors often diagnose survivors with
personality or similar disorders, as a way to discharge survivors from
the Service. Survivors of MST need to be treated equally with combat
troops suffering from PTSD. This means that the ban on personality
disorder discharges currently in effect should be extended throughout
DOD to include survivors of military sexual trauma Personality
Disorders, by definition, cannot come about as the result of a rape.
Military doctors need to be held accountable for these false diagnoses.
Such weaponizing diagnoses are unfair and unjust to our service men and
women who have been victims of sexual assault in our military.
Survivors also need a fair review of their discharges. The military
has shoved many survivors out the back door with inaccurate,
misleading, and very harmful discharges that effect their benefits and
future employment opportunities. We need to establish a system separate
and apart from the Boards for Correction of Military Records to examine
these discharges and grant survivors the medical retirements they are
due. Currently the Board for Correction of Military Records only
changes about 10 percent of discharges. These discharges make it much
harder for veterans to find meaningful employment and often impossible
to use their earned education benefits. In reviewing the discharges,
the Boards, by Federal regulation (32 C.F.R. Sec. 723.3(e)(2) and other
analogous provisions concerning the Army, Air Force, and Coast Guard),
must ``presume regularity in the conduct of governmental affairs.'' In
other words, they assume the military does not make mistakes. The
military's own sexual assault statistics, though, show it would be far
more appropriate to presume that, at least where rape is involved, the
military's conduct is predominantly characterized by mistakes.
Therefore, today, the system of reviewing discharges is a rubber stamp
for a process known to be a deeply flawed. It is broken and unfair to
service men and women who have been victims of military sexual trauma.
Survivors need to be able to have their discharges reviewed by an
independent authority and not the same organization that unjustly
damaged them. There should be no presumption that the organization that
hurt them did so correctly. This is why we support H.R. 975, which
would allow these erroneous discharges to be reviewed by the same
Physical Discharge Review Board that is evaluating combat veterans for
medical retirement
In conclusion, even after decades of review and reform by the
Department of Defense and by Congress, this epidemic has not been
successfully addressed. Men are still invisible and ignored as
survivors of military sexual trauma. Reform won't be effective until
conflict of interest is removed in military justice, and the reporting,
investigation, prosecution, and adjudication of sexual assault is taken
outside the chain of command and into an independent office with
professional military and civilian oversight. Discharge review is a
rubber stamp that causes life-long harm, and needs overhaul. Congress'
legislation created these systems that are inherently biased, unfair,
and don't work. It is now Congress' duty to pass legislation, so
servicemembers can receive justice that is fair, impartial, and finally
addresses the military's epidemic of sexual assault.
Madam Chairman, this concludes my remarks. I am prepared for your
questions and those of the subcommittee.
Senator Gillibrand. Thanks to each of you for such direct
and thoughtful testimony.
Each of you has recommended in your own way that you would
like the disposition authority removed from the chain of
command and in fact that there should be an independent legal
review and a prosecution.
Ms. Bhagwati, if we are able to institute a prosecution
system that does not involve having to report to your chain of
command, do you think that will increase the number of cases
that are reported? Do you think it will increase the number of
cases that are prosecuted? Do you think it will increase the
number of cases where a conviction is found?
Ms. Bhagwati. Thank you, Senator Gillibrand.
Yes, I do. It is really a two-pronged system, though, that
needs to be changed. We have the pipeline of accused being
prosecuted and hopefully convicted, but also the retaliation
that so many servicemembers face in the process which cannot
just be dealt with through the criminal justice system within
the military. Yes, absolutely, an independent prosecutor being
given case disposition authority, given convening authority
will dramatically shift the way victims approach whether or not
to report. Victims' care is a huge piece of that as well.
I look at it as kind of a cynical way of thinking about
sexual assault being inevitable in the military if all we focus
on is prosecution and victims' care. We need to do something on
the front end to prevent sexual assault from happening at all.
Right now, there is really no deterrent with the military to
prevent these crimes. There is no deterrent to cause sweeping
culture change.
Senator Gillibrand. Do you think that if we have more
convictions and justice is served, that that will signal change
within the military, that if you do commit these crimes, you
will be caught, you will be prosecuted, you will be punished?
Ms. Bhagwati. Absolutely. It is a huge step we need to
take. But I would like to encourage the Senate to consider the
fact that criminal justice is not a perfect system either in
the military or the civilian world, and that victims need more
than just a criminal justice system to achieve closure to get
any sort of full access to justice. Civilian victims right now
within our United States have much more access to redress, and
that is why the civil court system needs to be open to military
victims as well. Right now military victims have less access to
justice than the civilian victims whom they have sworn to honor
and protect and defend.
Senator Gillibrand. How do you think if you could open the
civilian court system to victims, that will change the culture
in the military?
Ms. Bhagwati. Civil courts traditionally have been designed
to serve victims. There is a lower burden of proof and victims
are likely to get more justice in that system. It also acts as
a deterrent to workplace discrimination, harassment, and
assault. That is why it functions within the civilian context.
You cannot go a week without reading a case in the news, in the
mainstream news, about a civilian victim of discrimination,
harassment, or assault actually getting her day in court
because even the civilian criminal justice system has not been
able to give her justice.
Senator Gillibrand. What are some other ways, do you think,
that we can change the culture within the military to create
less of a climate of discrimination and a possibility of
assault and abuse?
Ms. Bhagwati. One very integral piece to this kind of
unfortunate puzzle is really the legalized sex discrimination,
which still exists in the military, and despite Secretary
Panetta's fantastic news last month, only one military
occupational specialty has actually been open to women as far
as we know. We are very much looking forward to what the
Service Chiefs announce in the way of how the lift of combat
exclusion will actually be implemented. But sex discrimination
within the military goes hand in hand with sexual harassment
and sexual assaults.
Senator Gillibrand. Thank you.
For the other three witnesses, if you were able to have
reported your case of sexual assault and rape to a prosecutor
directly, how do you think it would have changed how your case
was handled, and what differences do you think it would have
shown? Ms. McCoy, you can go first, if you like.
Ms. McCoy. I really have to reach back over 20 years to
think about it, but I believe I would have moved forward with
pursuing it. I would not have backed away. In my case, I did
present the documentation that was necessary to move forward,
and they did not do anything. So I would have had something in
place or someone in place to go to to have that conversation so
that we could have moved forward with some type of legal
process. Ultimately I would have still had my career. I would
have still been serving. I would not have been forced out. I
would not have been scared for my life because I would have had
someone, an intermediary, to go to.
Senator Gillibrand. Ms. Havrilla?
Ms. Havrilla. I am not sure if I would do much differently.
I was in a unit of 22 people. Even if I had an independent
prosecutor, up until last year's NDAA, there was no potential
for base transfers. Had I actually gone through with a full
investigation while serving, I still would have had to live
with many of the men who were abusive towards me, and that is
not anything that I would have ever wanted to go through,
independent prosecutor aside.
The challenge is partially changing the culture within the
military of how women are viewed. Until the leadership is held
accountable for the actions of some of their subordinates, when
leadership is allowed to push those things under the rug, when
leadership is never made to stand for the actions others that
they, hands down, could have easily said this is unacceptable
behavior, it will not stop. Until that happens within certain
units--not all units were like mine. I just happened to get a
bad one. But had I been in that situation with that unit, I
will probably would have not reported at that time.
Senator Gillibrand. Mr. Lewis?
Mr. Lewis. Thank you for your question, Madam Chairman.
I want to be absolutely clear that my perpetrator was not
just a perpetrator against me. He has perpetrated this crime
against other victims at that same command while under the
command of the same commanding officer. So, yes, an independent
prosecutor would have made a world of difference. It would have
gotten the reporting outside of the chain of command and not
enabled my commanding officer to sweep this under the rug. Even
if I had had to stay on board the ship with my command and
perpetrator, I would have still been able to access some form
of justice, and that at the end of the day, would have saved
me, I feel, a lot of heartache and a lot of disappointment.
Hearing one of my senior members of my chain of command come to
me and say you are not going to report this, that is
devastating to any survivor, male, female, or whatever. It
feels like your heart breaks when your commanders break faith
with you in that fashion. An independent prosecutor would have
made all the difference.
Thank you, Madam Chairman.
Senator Gillibrand. Thank you.
Senator Graham.
Senator Graham. Do all of you believe if you had had
somebody in your corner, someone assigned to kind of help you
through the system, an advocate, that that would have helped?
Ms. Havrilla. I initially went to the Sexual Assault
Response Coordinator (SARC), and I found them to be very
helpful and very supportive. But they have absolutely no
authority with these issues. While it was comforting in some
respect to know that they were supportive and they were there,
there is nothing that they can really do for you when you are
going through the military judicial system. I think having
someone who--because I eventually did a full investigation, and
even then I had no one to guide me through that to explain to
me what was going on. Again, I did not hear from CID for 4
months after my initial report. I think that having someone
like a special victims individual who is trained in the legal
aspects of what is happening and what is going on would have
been extremely beneficial for me when I was going through the
actual investigation process.
Senator Graham. Could you give the committee not in public
here but privately the name of the chaplain who told you that?
Ms. Havrilla. I honestly do not remember his name, but I
can easily find it out for you.
Senator Graham. Would you please find that out?
Ms. Havrilla. I can do that for you.
Senator Graham. About opening to civilian litigation--is it
Bhagwati?
Ms. Bhagwati. It is Bhagwati.
Senator Graham. Would you suggest that the claim be against
the Government or the individual member?
Ms. Bhagwati. As I understand it, claims against the
Government are really the key piece here. It is claims against
your employer that Federal tort claims and Civil Rights Act
cases have been traditionally brought up for the victims. I
mean, all of this, I think, needs to be closely looked at, but
in our system, in our culture, civil courts are aware victims
get justice much more frequently than in the criminal courts.
We have to look at how we can make the military more on par
with the civilian system. It makes no sense that a young
American should put on the uniform and then sacrifice their
constitutional rights. It makes no sense.
Senator Graham. Mr. Lewis, you received a general
discharge. Is that correct?
Mr. Lewis. Yes, Senator.
Senator Graham. Again, maybe we can do this in the
committee privately. Do you mind if we look at your file?
Mr. Lewis. No problem, Senator.
Senator Graham. From your point of view, do you think
having a victim advocate would have been helpful if there is
somebody that you could have went to that would have sort of
been in your corner to kind of educate you of the things you
could do when you hit a roadblock?
Mr. Lewis. Some survivors have had success with a victim
advocate, but I think that in order to be feasible, any person
that would be in my corner would have to be of rank and able to
issue orders and able to do things to help me directly. I was
fortunate enough to see mental health, and I thought that
doctor was in my corner and he was not.
Senator Graham. He was not?
Mr. Lewis. No, sir. I just cannot imagine a case where
someone of lesser rank could effectively be in my corner while
being subject to the chain of command.
Senator Graham. Ms. McCoy, you were victimized multiple
times. Is that correct?
Ms. McCoy. That is correct.
Senator Graham. Did you ever go through a CID process?
Ms. McCoy. I did not. I did go through the process of
filing the paperwork with another NCO. They helped me file a
sexual assault complaint only. At that time, I do not know that
there was necessarily a victim's advocate. I know that we had
sexual harassment training and we were already given some steps
to how to handle sexual harassment, but there was no one that
could come alongside----
Senator Graham. One thing I want to make sure people
understand. Rape is not sexual harassment. It is a violent
crime subject to severe punishment under the UCMJ.
Do you think a victim advocate may have been helpful to
you?
Ms. McCoy. I have to say that the victim's advocate, if
they have the proper rank and if they are set aside and they
supersede maybe the unit and they have more authority and more
power, because if they just come along and they are just kind
of supportive, I do not know how that is going to help that
individual who is going through that day-to-day maybe some
backlash for even reporting it and the isolation. I do not know
how that is going to help that individual while they are still
stationed in that unit where they are receiving that type of
treatment.
Senator Graham. Maybe all of you could comment on this
individually from your own personal experience. Why do you
think the command, the commanders, the senior NCO leadership--
why were they so hostile to these claims?
Ms. Bhagwati. In my own experience in the Marine Corps,
there were signs of hope along the way. When I was at the
School of Infantry, it was actually the infantrymen on the
enlisted side that were just as outraged as victims of sexual
harassment and assault were. However, on the officer side,
there was definitely a sense of an old boys' club, colonels
protecting lieutenants, colonels protecting staff sergeants.
Whether or not that has to do with an inclination to protect
one's own career, looking out for a future star, or whether or
not there is some sort of misguided attempt to protect a good
man because you know his family and he has served for 20
years--I mean, you hear this language all the time. Officers--
there are fewer of us and we spend time with one another,
hanging out at the O-Club. It is a completely different
culture.
That is why the Wilkerson case was even more egregious. I
mean, you have two pilots. There is this appearance of
impropriety even without looking at the facts of the case. That
is typical in every unit throughout the armed services.
Ms. Havrilla. One of the things that I really do stress is
it is about leadership. The hostility is not necessarily even
towards women. The hostility is towards the feminine, the
perception of being less than and the perception of being weak.
Even though I was the only female in my unit, I was not the
only one that was targeted for abuse. We had two other males in
my unit that were targeted regularly for sexual harassment and
sexual abuse that went through a lot of the same stuff that I
did. It was not a gender issue. It was, we are targeting what
we see as less than, and just by being a woman, I was
automatically less than even though I was just as good as they
were.
The mind-set when you have that mentality and then again
you have the leadership that allows it to continue every day--I
cannot tell you a single day that did not go by without some
type of rape joke, sex joke, sex play, simulated sex play
between men.
We had a sexual assault and harassment training that we
went through, and one of our sergeants got up on the table and
stripped completely naked and danced and laughed at it. I mean,
that is the kind of culture that I lived in on a daily basis.
Then when you deploy, you are stuck with these people in very
small units in very small places. Why would I go to a chain of
command that I knew was going to allow those things?
It is not even a hostility towards women in general. It is
that is the kind of culture that some of these units'
commanders allow to thrive, and when you have that type of
culture, these issues are going to continue to be perpetuated.
Senator Gillibrand. Thank you.
Senator Blumenthal.
Senator Blumenthal. Thank you, Senator Gillibrand. I want
to thank you and other members of this panel who have been
working for some time on this issue. I think Senator McCaskill,
Senator Shaheen, Senator Gillibrand obviously. I have been
privileged to be involved in some of the work that has preceded
this hearing.
But I think the hearing is critically important because it
really highlights why we are here today, which is that in the
aftermath and the wake of 10 years of war, we want to assure
that we continue to have in our military the best, the
brightest, and the bravest. Obviously, sexual assault is one of
the primary and predominant obstacles to attracting and
retaining good people to our military. It is not just about the
victims, although we deeply respect and care for the horrific
experience that you have encountered. It is the national
interest that brings us here today.
It is the interest of our extraordinary military that also
brings us here today. They have demonstrated that they are
aghast and disgusted by this problem and that they are acting
to do something about it, not just Defense Secretary Hagel but
I believe many of our leaders in the military and that they
will do something about it.
I view today's hearing as a cooperative effort, cooperative
between this panel and our DOD, in seeking to address a problem
that ought to have zero tolerance, literally zero tolerance.
As a parent of two sons who are currently serving in the
military and one who serves on this panel and has spent some of
the best moments of my 2 years as a Member of the Senate with
our military, three times visiting Afghanistan, and having the
privilege of working with our military, I believe that we have
in our military, right now the next greatest generation, and
that if we can deal with this problem, we will assure that we
continue to have that quality of people in the military. I
believe the leaders of our military are determined to make it
so.
But this issue is more complicated than just making a
speech or saying that we have zero tolerance. Literally
deterrence is in the details. I say that as a former
prosecutor, as U.S. Attorney in Connecticut for 4\1/2\ years,
as State Attorney General for 20 years. The details of
evidence, of sentencing, of review, and appeal are what will
enable us to solve this problem. I really welcome the
suggestion, for example, that we have independent prosecutorial
authority outside the chain of command, which might be welcome
by many of the officers who have to make these decisions. I
think these issues ought to be explored.
The Wilkerson case is extraordinary not just for the
reversal of the decision and the conviction, but the sentence
was only a year, as I understand it, and even more
troublingly--and I am going to quote from the full statement,
Mr. Lewis, that was provided by the victim. ``I endured 8
months of public humiliation and investigations, interviews by
the Office of Special Investigations and the prosecution,
apparently without an attorney.'' To continue the quote, ``I
was interrogated for several hours by Wilkerson's legal counsel
without the benefit of legal counsel myself.'' She was
interrogated for hours by the defense counsel without any aid
of an attorney herself.
Let me ask you, Ms. Bhagwati, would you suggest that we
ought to have not just a victims advocate, but a victims
advocate who would serve, in effect, as legal representation
for the victim so that that victim's rights and perhaps
expanded rights would be better protected?
Ms. Bhagwati. Senator, that is a very sensible
recommendation or suggestion, and I would refer you to the Air
Force's pilot program. I imagine General Harding will be
touching on that in a few hours. We have actually referred a
couple of clients just for this purpose, airmen who have needed
that extra buffer, because it is an incredibly intimidating
process even under the best circumstances because there is so
much hierarchy and power and intimidation in the process of
coming forward. Yes, that measure, as it has been briefed to
us, even goes beyond what civilian victims have, which is
fantastic because military victims do need that extra buffer
because of the hierarchical nature or environment in which they
operate every single day, especially junior enlisted troops.
Senator Blumenthal. We should be very clear. Civilian
victims who come forward do so in a highly intimidating
process, and they have needed--I can tell you, as one who has
seen this process improve over the years, they have needed the
kind of advocacy that the military is beginning to provide. I
commend the pilot program that has been started, and we will be
hearing later from folks who can tell us more about it. But I
ask you as victims or their advocates now whether that kind of
separate unit, which I have advocated, ought to be made
institutional.
Ms. Bhagwati. I believe it should be.
I would just add I do think there is extra pressure on
military victims. It is a very different environment. It is a
confined environment in which you cannot quit your job or you
will be charged. In the civilian environment--rape, assault,
and harassment are horrendous under any condition in any
environment, but within the military you just have less freedom
of movement, less access, and you have this incredibly
hierarchical system in which 9 times out of 10, you are told to
stay silent. That is how we are trained in basic training and
officer candidate school, not to talk back.
Senator Blumenthal. Ms. Havrilla, I think you have
highlighted that point by calling attention to the culture
within your unit, the practices within your unit which, in
essence, were unreviewable because of both the physical and the
command structure that you encountered.
Ms. Havrilla. Yes. It is something that I saw outside as
well. I spent the majority of my time with infantry special
forces and combat engineers. I spent 99 percent of my time
deployed as the only female. I have had exposure to other units
in other capacities, and there were some that were just as bad
and there were some that were not. There were some that treated
me with absolute professional respect and dignity and I never
had any problems with some. So in my mind, it really does come
to what is allowed, what does that leadership say goes and does
not go and where they draw their lines, and that filters down
to the lower levels and continues to do so.
Senator Blumenthal. My time, unfortunately, has expired but
I just want to close by saying that your testimony in
particular--really all of your testimony--calls attention to
the need for prevention. Part of it is deterrence. I say that
as a prosecutor. I am a big believer in deterrence, firm
punishment, excellent prosecution, but also education. I know
the military has begun using an extraordinary documentary
called ``The Invisible War,'' which I hope will be shown to
everybody, all of our brave men and women in the Armed Forces,
so that we can prevent the kind of unit culture that you have
described so movingly.
I really want to thank all of you for being here today, for
having the courage to step forward, but also for your service
in our military and thank all of the military and veterans who
are present here today for your service as well. Thank you.
Senator Gillibrand. Thank you, Senator Blumenthal.
Senator Ayotte.
Senator Ayotte. Thank you, Madam Chairman. I want to thank
you for having this important hearing today.
I want to thank the witnesses for their service to our
country and, in particular, for their courage for being here
today. We really appreciate what you have to say, and this is
an incredibly important issue.
I wanted to ask about this idea of prevention. What do you
think we can do more effectively? I do not pretend to have a
very good understanding. Now, I know that the military has made
some steps in terms of what kind of education they are doing,
whether it is showing individuals ``The Invisible War'' film,
but also it seems to me that we will not have prevention unless
we have at the military academies, at basic training this be a
core component of readiness, a core component of training up
the chain of command as a priority.
What was your experience with that, and any sense of what
we could do more on that end to make this, as you say, changing
the culture means this being a core component of every aspect
of when you receive training and your readiness--awareness and
reporting and accountability?
Ms. McCoy. I have to say that it even starts at recruitment
because we have quite a few of our men and women that are being
raped and sexually harassed during the recruitment process. I
would say even before you get to the Military Entrance
Processing Station center where you are having this process of
you being examined and all of your background history
interrogated, it needs to start at the very beginning before
you even get into the military so that when people come in,
they know that there is a no tolerance, that this is not going
to occur in this area, this breeding ground for you to wreak
havoc against other people. It has to start at the very
beginning. That is just what I believe.
Mr. Lewis. Thank you, Senator.
One of the key components, as I said in my opening
statement, was that we not marginalize the idea of a male
survivor. DOD's campaign last year or so was ``ask her when she
is sober.'' The whole idea of that campaign marginalizes the
idea of a male survivor being able to come forward, and given
the strong societal, almost blind eye that is turned toward the
idea of a male survivor, we need to empower them to come
forward.
The other things, in terms of prevention, is yes, it must
be a core part of readiness. It must extend, as Ms. McCoy said,
all the way back to recruitment. Commanders must actually put
the things they learn in training into practice. If they
receive an expedited request for a transfer, the benefit of the
doubt should automatically be with the victim, and the transfer
should be granted unless there is some extenuating
circumstances against it. I would be hard-pressed to think of
any.
But prevention also has to be a way of thinking and it has
to be accepted all the way down almost to the very bones of
people that we do not act this way against each other. We do
not hide the crime when it comes up, and even if this crime
does come up, it is not a failure in my leadership to say this
has happened and I need to report it up the chain of command
properly.
Ms. Havrilla. Thank you. This is a question I have thought
a little bit about. The DOD has direction about how sexual
harassment trainings are to be conducted. A few years ago, the
Government Accountability Office (GAO) did a report on those
trainings, and it just does not happen the way it is supposed
to happen for numerous reasons. We have been at war for over a
decade now. Time is crunched. It becomes a PowerPoint, check
the block here, read this, go on, move on. We have to get this
done. Let's get through this. One of the things that we always
saw is we had an E-6 in the unit click through our slides.
Everybody sign here and move on.
So I think that by actually implementing the DOD's
recommendations of having outside educators come in and do
these trainings--that is very important that you have someone,
again, who is not in the military system who understands the
military system that can come in and say this is what consent
is. They can lay out exactly and define it and then say this is
what is going to happen if you do this and have actual
consequences, as we have discussed all morning, for those
actions if they occur.
But I think it is very important--the training is there. It
is just not being implemented properly. There is not enough
educators out there that are doing this--SARC--sometimes there
is only one or two to an entire installation. They cannot
handle reports and do training at the same time. So it is a
budget issue, a funding issue of how are we going to provide
appropriate educators for this topic exactly from recruitment
on.
Senator Ayotte. Thank you.
Ms. Bhagwati.
Ms. Bhagwati. I think Brian's point is really important.
Messaging is critical. Culture change cannot happen without an
entire rethinking of how this issue is messaged within the
military. I mean, generally I think the way servicemembers and
veterans talk about this issue, there is this assumption that
you are harassed or assaulted because you are weak. Weakness
somehow plays into the entire makeup of why this does not--this
is such a hard problem within the military. We are not trained
to think of ourselves as weak. Victimhood is not something that
any veteran wants to kind of own. It is completely out of sync
with being in the military. But when there is messaging that is
sort of ``small women who are not strong enough are victims''--
and you see variations on that theme constantly, which is a
complete myth. It has nothing to do with the sex of a victim.
When there is mixed messaging about alcohol and rape, where
there is an assumption that there is just a lapse of
professional judgment on the part of a young man in most cases,
you see messaging about them. ``Ask her when she is sober''
posters is a perfect example of that. There is an inappropriate
mixing of messages, which is also just based on mythology. It
is not based on fact.
Rapists tend to be serial. They use tools like alcohol to
undermine their victim's credibility. It is not a matter of
young people partying and the wrong thing happening. Rapists
lay out tactics to do what they want to do. There is really
just a lack of understanding about what rape is, what sexual
harassment is.
The final thing I would say is the culture is so entrenched
right now when it comes to sexual violence, and because chain
of command is really how we learn to operate from day one of
basic training or Officer Candidate School, you really need
outside systems that are available to victims within the
military because it is hard for your mind to really think
outside of that box once it becomes your 24-hour norm. It
changes you for all the right reasons because it is very
effective operationally to be trained that way, but when it
comes to being violated, to being attacked, to losing your
dignity at the hands of a fellow servicemember, we need outside
systems because they are obviously perceived as safer and they
are definitely more functional. They work better.
Senator Ayotte. I want to thank all of you. My time is up.
Just briefly, first of all, sexual assault and rape is not
about the weakness of the victim. It is about power and control
and the assertion of that. That, obviously, in a military
context becomes an even greater problem. My background is as a
prosecutor too. I want you to know, Mr. Lewis, that I very much
appreciate that men are victims of sexual assault both in the
civilian sector but in the military. I can imagine this is an
even greater issue that we need to address for both men and
women and all people's dignity.
Two things I wanted to say briefly, which is that in my
State on the civilian side, we had what is called a victim's
bill of rights. It seems to me like there needs to be some kind
of bill of rights also when you are in the military in terms of
you know how you will be treated, and that has to also be
something that the chain of command is held accountable for.
I appreciate all of you being here today and look forward
to hearing what you have to say and listening to what you have
to say beyond this hearing, as we try to make sure that we
address this issue and stop what is happening. Thank you.
Senator Gillibrand. Thank you.
Senator Hirono.
Senator Hirono. Thank you, Madam Chairman and Ranking
Member Graham, and thank all of you for your testimony and the
information that you provided.
I realize that this situation is very complicated, and one
of the hardest things to change, of course, is the culture of
an institution such as the military. We are very proud of the
service of our men and women in uniform, but these kinds of
assaults--we must move in the right direction. Some of the
suggestions that you made were, I think, steps that we should
consider seriously.
Ms. Havrilla, one of the questions that you were asked was
if we were to remove the decision to prosecute or even to
investigate from the chain of command and giving it to an
independent authority, would that help. Something you said
really struck me. You said that while this is all going on,
though, are still in the environment. You are still feeling
very vulnerable.
What are some things we could do during the process?
Basically I want to know what kind of privacy is afforded to
someone who comes forward to report these crimes. What can we
do even if we were to remove the decision from the chain of
command?
Ms. Havrilla. I think when you are in the military, you
feel like you have absolutely no privacy at all anyway. When it
comes to medical issues, there really is no privacy.
As mentioned, I think that implementing the concept of base
transfers or unit transfers are getting you away from those
people that were perpetrators against you. I cannot imagine
being in my unit going through an investigation at any point in
time. But had I that option, I am saying, hey, for example, say
I go to the SARC and say this happened to me. I am thinking
about reporting it, but I am really not sure because I do not
want to stay in this unit and have to deal with all of the
potential backlash that is going to come for me. What are my
options? Had they given me the option of saying we can transfer
you to another unit, another duty station--again, EOD is very
small. It is not like I can go from one unit to another, one
platoon to another. I would have to literally permanent change
of station or go temporary duty in some capacity to get away
from--change duty stations. I would have to move to the States
basically. Then you have the challenges that might come with
that. I am in another location. I have decided to press
charges, and I am having to do all of this from a remote
location.
I mean, there are complications as everybody has discussed,
but I really think that had I the option to say you can go
forward with a prosecution and not be in the unit that you are
in, I might have considered that very seriously. But I cannot
imagine doing it while embedded and entrenched with the same
unit that was causing all of my difficulties.
Senator Hirono. Would the rest of you agree that that
should have been an option presented to you, to be removed from
the environment in which these incidents occurred? Mr. Lewis?
Mr. Lewis. Absolutely. Thank you, Senator Hirono, and
absolutely.
One of the current problems with the unit transfer idea is
that a unit may be in the same geographic location. For
instance, if this had happened to me aboard a ship stationed
out of Pearl Harbor--I was stationed on a submarine before I
went to the Frank Cable out of Pearl Harbor. But if I could
have been moved from that submarine to Naval Submarine Support
Command right there in the same base, almost the same building,
that should not be. Speaking personally, I would rather deal
with the pressures of having to deal with the prosecution from
half a State away or wherever than to be in a situation where I
have to look my perpetrator in the face, where I have to eat,
sleep, breathe, go to the bathroom, or anything else with that
perpetrator.
Senator Hirono. Thank you.
Would all of you agree that removing the decision to go
forward with either investigation or prosecution should be
removed and should go to an independent authority and out of
the chain of command? Would all of you agree that that would be
a desirable step?
[No verbal response.]
Senator Hirono. Ms. Bhagwati, there are other countries
that have removed the chain of command from making these
decisions. I think Great Britain has done so. Are you familiar
with the experiences in these countries, whether the incidence
of sexual assault went down, whether prosecutions went up,
whether reports went up? Are you familiar enough to talk to us
a little bit about what your impressions are of these other
countries that have made this kind of change?
Ms. Bhagwati. We have done some research. It is my
understanding that the UK and Canadian systems are ones we
should look at in closer detail. The Australian system is also
one you can look at, although we have seen less success in that
system. I think beyond that though, I would refer you to some
additional subject-matter experts. It requires a great deal of
further study. But the UK has done it successfully, and it is
my understanding that the prosecutors themselves are military
but that the supervisor of those prosecutors is civilian. It is
a bit of a mix in the UK system.
Senator Hirono. There are some things, evidently, that we
can learn from these other countries.
I happened to read an article in the Maklachi newspapers,
March 10, 2013, and it is talking about the Aviano case. It
notes that because of all of the attention being paid to this
terrible situation--these assaults--that somehow there is a
political climate where commanding officers feel pressure to
prosecute sexual assault allegations. The article goes on to
say that commanding officers sometimes use their prosecutorial
discretion to proceed with weak cases. They cite some examples
of when this happened. So it seems to me would this not point
to the desirability of removing these kinds of decisions from
the chain of command so that they would not feel political
pressure to prosecute weak cases? Would you like to comment?
Ms. Bhagwati. Absolutely. It is a really critical point
that professionalizing the system, actually putting legal
experts in charge of the process serves everyone better. It
creates a fairer and more impartial trial for the accused as
well.
The classic kind of example of why the current problem is
so serious is the Commandant of the Marine Corps doing the
right thing as the head of the Marine Corps by speaking out
strongly against sexual assault in the Marine Corps. We were
very excited to hear that kind of language, but because he is
in everyone's chain of command, it is seen as problematic. But
if he were removed from that process like all other unit
commanders, he could speak strongly about this issue, as he
should, as everyone within the Armed Forces should. But we have
this perception that there is undue influence by the Commandant
or other military commanders because commanders have this
discretion over these cases. It does not need to be that way.
If we professionalize the system and go in the direction of,
for example, the UK, we will not see this undue influence.
Senator Hirono. Thank you.
Madam Chairman, my time is up and I thank you.
Senator Gillibrand. Thank you.
Senator McCaskill.
Senator McCaskill. Thank you, Senator Gillibrand, and thank
you for being here today.
Rape is the crime of a coward. Rapists in the ranks are
masquerading as real members of our military because our
military is not about cowards.
Our military does an amazing job of training. I am so proud
of our military. But, unfortunately, I believe that this is not
a crime that we are going to train our way out of because the
crime of rape has nothing to do with sexual gratification. It
has nothing to do with dirty jokes, and frankly, there are a
lot of studies that say it is not even connected necessarily
with people who like to look at dirty pictures. It is a crime
of assault, power, domination. I believe, based on my years of
experience, that the only way that victims of sexual assault
are going to feel empowered in the military is when they
finally believe that the focus on the military is to get these
guys and put them in prison.
I believe that the focus of our efforts should be on
effective prosecution and what do we need to do to make sure
that these investigations are done promptly and professionally,
that the victims are wrapped in good information, solid
support, and legal advice, that the prosecutors have the
wherewithal and the resources to go forward in a timely and
aggressive way, and you do not have the ability of some general
somewhere who has never heard the testimony of factual
witnesses in a consent case who can wipe it out with the stroke
of a pen.
What I would love from you all--your cases are all
compelling, they are all moving. I, like Senator Graham, am
infuriated at that chaplain. I am infuriated that the notion
that some of the men who put up with what happened to you or
even perpetrated what happened to you are still serving in our
military.
I would like to hear from you, especially those whose cases
were more recent, what happened when you reported in terms of
getting good legal information about what your rights were and
what to expect.
Ms. Havrilla. Thank you, Senator McCaskill.
As mentioned, I had none. When my friend notified me that
he had found the pictures of my rape online, again it was
actually kind of a spur of the moment decision. I was like,
okay, enough is enough. This has gone on long enough. I am
going to do an investigation. This is ridiculous.
Senator McCaskill. If I could go back to your initial
decision because we know that there is a huge number of these
cases, that there is never a restricted or an unrestricted
report. Just so we make the record clear, a restricted report
is kept for 5 years; an unrestricted report is kept for 20
years.
Ms. Havrilla. I believe those just changed. I believe that
restricted reports now are to be kept for 50, but previously
there was a much lower cap on that.
Senator McCaskill. Okay. Well, whatever the amount is, the
difference between a restricted report and an unrestricted
report is how timely we can get after it because if it is a
restricted report, it is not going to be investigated.
Ms. Havrilla. Correct. You basically just become a
statistic.
Senator McCaskill. So if, in fact, one of the reasons you
made your report restricted was the unique nature of the victim
being embedded with her perpetrator in a work environment that
is intense and depends on working together, what would have
happened when you went in if you were told that if there is
probable cause found in the next 30 days that this crime was
committed, your perpetrator would be removed from the unit?
What would your response have been?
Ms. Havrilla. It probably would have been worth
considering. At that point, you have a timeline, a light at the
end of the tunnel, so to speak, with set standards and
guidelines of, okay, this will happen in the event that this,
this, this are found.
Again, when you are in the middle of it--you look back on
it with kind of 20/20 or Monday morning quarterback style, and
you are like, oh, I can look back on this and be like, oh, I
might have done it differently. But when you are in the middle
of it, it is extremely difficult to be able to think clearly.
It is a huge trauma. It affects your mental health. It affects
how you see the world, how you see yourself. But had I had more
information, had there been some type of recourse of saying
this is not about me, this is about him, and had there been
probable cause for some type of prosecution--and I was actually
asked later when I did my full investigation. They said if they
find enough, are you willing to take this to court-martial, and
I said, yes, absolutely. But in the beginning that was not even
an option for me. That was not something that was given to me.
Again, we can do the ``what if's'' all we want.
Looking forward, I am a different person now than I was. If
I were to be in the same situation now and have that happen to
me, I would say, yes, absolutely I am willing to take that as
this perpetrator is going to be done in 30 days or at least the
potential for that. Let's move forward with this.
Senator McCaskill. Do you feel like your SARC, your special
advocate that you talked to--do you feel like they were
neutral, supportive, tried to talk you out of it, tried to talk
you into it?
Ms. Havrilla. Most of them were very supportive and they
wanted to be helpful, but they all understood that their hands
were tied to what they could actually do for you as a victim.
When I went in to do my restricted report against my rapist, I
mentioned in passing the constant sexual harassment and sexual
assault of my team leader. They said, oh, do you want to do a
report against him too. I was like, I had not even thought of
that. But sure, why not? So they were not pressuring me into
anything. It was just kind of you have the option of also
making a restricted report against this individual as well. Is
that something that you are willing to do?
At that time, my end of the tunnel, my light at the end was
I had 60 days and I was out of the Army, and that is all I
wanted. I just wanted out. I wanted to be done. I wanted to be
away from the unit that I was in.
Senator McCaskill. Mr. Lewis, what about you? Did you feel
like, at the point in time you reported, that there was any
legal help or any kind of help at all that would have allowed
you to move forward with some kind of effort to--and is your
perpetrator still in the Navy?
Mr. Lewis. I honestly do not know, and at this point I hope
that I have moved far enough away from it that I honestly do
not care. It has to be about me at this point, not what my
perpetrator--
Senator McCaskill. I appreciate that, but I care, just so
you know.
Mr. Lewis. I appreciate that, Senator.
Senator McCaskill. I care.
Mr. Lewis. Honestly, when the situation came to light,
there was an eerie silence that emanated from the JAG office.
Senator McCaskill. What year was this?
Mr. Lewis. 2000.
It was like a black hole had all of a sudden surrounded the
JAG office because the JAG at that command is subordinate to
the commanding officer. At some point, it becomes about
preservation of their own career rather than helping me. No,
there was no effective legal situation that I could access,
Senator.
Senator McCaskill. My time is out. I do want to say I have
spent a number of hours with amazing professional prosecutors
in the area of sexual assault at the Pentagon on Monday--
decades of experience. I do feel that there is some progress
being made in some branches, some more than others, recognizing
that they have failed at getting after this and doing what our
military usually does best and that is focus on a mission and
make it happen. What you all are doing today allows us to focus
on the mission to get the coward rapists out of the ranks, and
we are going to do everything we can to make that happen.
So thank you all very, very much for being here.
Senator Gillibrand. Thank you, Senator.
Senator Shaheen.
Senator Shaheen. Thank you, Madam Chairman, and thank you
for holding this hearing today.
Thank you all very much for your testimony. We especially
appreciate your willingness to come forward and tell your
stories in a way that allows us to hopefully follow up and take
some action to try and address with the military what is
obviously a continuing challenge.
Mr. Lewis, I especially appreciate your willingness to
point out that this is a crime that victimizes not just women
but men.
Senator McCaskill said and, Ms. Bhagwati you have said in
your testimony--and I think it is very important to start
with--the fact that rape and sexual assault are not about
sexual activity. They are about power, control, and
intimidation. I think that is an issue that has taken a long
time for the civilian world to appreciate. I was on the
Commission on the Status of Women in New Hampshire back in 1980
when we were working with law enforcement and other advocates
to try and get across that point. Clearly, it is still an issue
and it is still something that not everyone understands,
particularly people who have not been in your situation.
I was amazed to see that in your statistics that SWAN
brought forward that one in three convicted sex offenders
remain in the military and that the only branch of the service
that says they discharge all sex offenders is the Navy. It
seems to me that that is a pretty basic bar that we should
think about as we are looking at people who have been convicted
of rape and sexual assault.
Ms. Bhagwati, we hear that there is a connection between
resistance to pursue sexual crimes and careerism among military
officers. There is concern for the reputation of the accused
and the commanding officer. Those concerns have been presented
as reasons to frustrate the efforts to bring criminals to
justice.
I wonder if you could talk more. You have made several
recommendations in your testimony. But how can we more
effectively show that covering up sexual crimes is not a way to
advance careers?
Ms. Bhagwati. I will go back to what I think some of my
colleagues here were talking about. When these crimes happen--
in my case I was a junior officer reporting these crimes to
senior officers. Thinking back 20/20, as Rebekah said, on those
experiences, I had so much more rank and authority than the
average servicemember navigating these issues, by far. Much
more freedom of movement, but there is something that I think
happens beyond the company grade level with officers who
definitely are staying in for the full 20 years or more.
It was suggested to me by an equal opportunity officer that
I should charge my battalion commander for failure to do the
right thing in these cases, which was an absolutely
overwhelming prospect. It just shut me down completely, and
here I was a captain. I could not even fathom what it was like
for somebody who was maybe E-2/E-3 going through the exact same
thing. I could not do it because the thought of doing it made
me dysfunctional. I had command. I had to command my company,
and to do that, in addition to filing an Equal Opportunity
investigation against a lieutenant--I mean, it was just
overwhelming.
The old boys' club, which I was referring to earlier, is
very much alive and well within each Service branch. I think
the fact that for women in the military, there are still
significant barriers to career progression and that there are
not enough women throughout the Services at top levels, that
there are not enough flag officers who are women, all of this
is related ultimately. We need a sea change in which so many
more women are entering the military. Six to 7 percent of the
marines are female, but we are moving toward a quarter or a
third and maybe even more eventually. We see at that rate,
beyond 20 percent, where climates start to shift when it comes
to discrimination, harassment, and assault. That is what we
need to aim for. You cannot isolate women from all of these
positions and expect your institution to treat its
servicemembers fairly. Everyone suffers as a result.
Senator Shaheen. Does SWAN have metrics that show overall
career impact to servicemembers who have been subjected to
sexual assault? How many of those who report assault choose to
remain in the military, and how many get out because of the
trauma they have experienced? Are those numbers that have been
collected?
Ms. Bhagwati. Not to my knowledge. We have been in
discussion with several congressional offices about discussing
the retention issue alone. To my knowledge, the military is not
yet, at least, suffering a recruitment crisis when it comes to
more Americans learning about sexual violence in the ranks. But
we are all examples of the retention crisis. There are
thousands of our colleagues every year who are adding to those
numbers because they know it is not a safe or welcoming
environment for them to stay in.
Senator Shaheen. Absolutely. As the percentage of women in
the military now is close to 15 percent, as you say, it has not
reached the critical mass where it will begin, hopefully, to
have more of an impact on how sexual assault is treated. But
this could become an issue of recruitment, and as we look at
how we attract the best and the brightest people to our
military, obviously this is an issue when it comes to both
women and men that is going to greatly affect our ability to do
that.
So thank you all very much for your testimony.
Senator Gillibrand. Senator King?
Senator King. Thank you, Madam Chairman.
Thanks to all of our witnesses for joining us.
On the issue of culture, which keeps coming back, I lived
through a period of change in this country of culture that was
very significant and it was the culture of drunk driving. When
I was a kid, it was sort of a badge of honor. How did you get
home from the party? I do not remember. Ha, ha, ha, and that
really changed.
I have tried to think through why it changed. One reason
was the laws changed, and punishment became immediate and
certain. In Maine, anyway, if you are caught drunk driving, you
are going to spend the weekend in jail. Period, and you are
going to lose your license for a period of time. It is very
certain and no doubt about it.
I think part of what the message you are sending us is it
is the length of time and the uncertainty of punishment that
has allowed this culture to continue to exist in the military.
Would you agree with that?
Mr. Lewis. Yes, Senator, I would absolutely. It is
unconscionable that punishment is solely up to the discretion
of one individual who, as has been noted, was not even in the
courtroom. It is also unconscionable that a sexual assault on a
person brings a year in prison. It is sending the wrong message
that the military does not value what happened to the victim.
Senator King. What is the typical lapse of time between the
time a charge is filed and the time the charge is disposed of
one way or the other within the military system? Is there an
average? Is it weeks, months, years?
Mr. Lewis. That I am not certain of. I imagine that the
military panel would be able to address that far better than I
would.
Senator King. Other thoughts? Ms. McCoy?
Ms. McCoy. I would like to say that I received more
reprimand for not passing a physical training test during my
time than the perpetrator of sexual harassment and sexual
assault toward me received with me filing official papers to my
command.
Senator King. What does that tell you?
Ms. McCoy. That is what I am saying. There is no
standardized if you assault someone, if you sexually harass,
these are the things that are going to happen to you in an
absolute and finite way. It absolutely depends on the command.
It absolutely depends on the individual within the command and
what their relationship is with the commander and the people
who are going to possibly move that case forward.
Senator King. We have been talking about various solutions
today involving independent prosecution and those kinds of
things, but it seems to me one of the other things we ought to
talk about is the period of time. The charges shall be
considered within 30 days or some period and a schedule of what
the penalties are so that there is certainty. To me, that is
what led to the change in the culture of drunk driving, that
people understood that there were consequences, and then it
became socially unacceptable. Now drunk driving is way down. A
lot of lives are being saved.
Ms. McCoy. Again, in my particular case, I was
systematically exited from the military following my bringing
forward this case of sexual harassment and just purely asking
for something to be done. Within 90 days, I was out of the
military completely.
Senator King. I want to follow up with you on a different
question that is not strictly within the purview of this
committee, but it is being considered here at the Capitol, and
that is how long it took you to get VA benefits after this
because there is a bill, the Ruth Moore bill, that is named
after a very stalwart, wonderful Maine woman. Talk to me about
your experience on that, on the VA side.
Ms. McCoy. When I got out, on my documentation, my medical
exam, I specifically stated that I was scared, that I was
fearful and that I had physical injuries, multiple physical
injuries. It took probably 2 years for them to finally get me
processed and send me a document stating that my injuries were
service-connected, but there was 0 percent compensation. That
was in 1992.
So from 1992, because I did not understand the process--
there was really no one there to guide me even though there
were Veterans Service Organization (VSO)----
Senator King. That is a separate issue. We will talk about
that.
Ms. McCoy. Yes. Even though there were VSOs there, going to
the VA--at that time I was in North Carolina. I mean, it was a
daunting experience to walk in as a young woman amidst nothing
but older male veterans and try to go through that process.
Fast forward to 2006-2007, somewhere in there when I went
again and put in paperwork, again for multiple medical issues--
I had not even touched on anything MST because I did not even
know that there was anything like that at that time. They sent
me paperwork back, process, process, 10 percent again. So it
was just constant.
Senator King. We are talking almost 20 years.
Ms. McCoy. It was 22 years before I actually received some
response to the MST portion of the case--my benefits--and
again, another 18 years before the physical injuries that I
sustained partially because of the sexual trauma and partially
because of patrol, being out on patrol.
But it is amazing to me that 1-in-3 MST cases are awarded.
I mean, 1 in 3. So you have to go through this long process of
filing paperwork, explaining to people exactly what happened to
you step by step, and then get a doctor's note from the VA.
Most veteran women are not even in the VA system. They just do
not want to even touch it, and so you have to go through that
process to even get them to look at your case to be approved
for your benefits for compensation.
Senator King. So our country is letting you down in three
places: first by the perpetrator, second by the military while
you are there, and third by the VA.
Ms. McCoy. It is absolutely awful.
Senator King. Ms. Bhagwati, comments on the Ruth Moore Act?
Ms. Bhagwati. Yes, thank you, Senator King, for mentioning
the Ruth Moore Act. It is in my testimony as well. I just did
not have time to add that. It is the easiest thing that the
Senate can do at this point to alleviate the third betrayal of
the three betrayals that you just outlined, which is the
military may have betrayed servicemembers, but the VA can very
easily award compensation which is well deserved. The standard
which the Ruth Moore lays out would be comparable to the
standard for PTSD that is currently laid out by VA policy for
combat-related trauma. This legislation would easily resolve
that problem.
Senator King. Thank you.
Thank you, Madam Chairman.
Senator Gillibrand. Thank you, Senator.
Senator Kaine.
Senator Kaine. Thank you, Madam Chairman.
To the witnesses, I very much appreciate your testimony. I
apologize for stepping out for another committee meeting in the
middle, and I hope I do not repeat questions.
This is a very important hearing, and I thank the chairman
for putting this first up to draw attention to this very
serious issue. I was a civil rights lawyer for 17 years before
I got into statewide politics, and this is a fundamental issue
of civil and human rights and we need to get it right.
The experience that you share, painful experience, is going
to help others, and so let me begin by thanking you and then
thanking you additionally for being advocates for others, as I
know you all are. You present sort of an interesting timeline
for us because we have the four of you from different Service
branches and you have served at different points in time from
the 1980s through very recently. In your capacity as advocates,
you are working for people who are serving today. So I feel
like we can kind of get a little bit of the timeline of the
military culture.
I guess where I would like to start is, are things
changing? In your own experiences or in the work you are doing
with victims, are things changing? Are things changing for the
good? Are things changing for the bad? Are people more willing
to open up and share their experience? I am hearing each of you
address that because, to the extent that things are changing
for the positive, if there are things that are changing for the
positive, then we will want to do more of them, and to the
extent that things are changing for the negative, then we will
want to address solutions directly at things that are changing
for the negative. In your experiences during the time you
served but especially as advocates, do you see changes in the
culture, steps being taken that are either moving us in the
right direction or moving us in the wrong direction?
Ms. McCoy. From my perspective, I come to this--I started a
social media project that basically I just wanted to connect
with other people who had been through the same things that I
had been through. So I perceive that social media and
grassroots community activism has been the single most
important thing that brought people together to help solidify
the groups of different, varying issues and brought all these
people together to say, hey, we have an issue, let's work
together to get something done in a positive direction.
Senator Kaine. When did you start the social media
activity, Ms. McCoy?
Ms. McCoy. I had a Ning site called Veteran Social Justice.
Initially it was very secret. You could not get on it unless
you were invited. That was to protect women who had been
sexually assaulted. At that time, people did not want to come
forward and say anything. But then I felt that Facebook would
be a better venue to move forward to gather more people
together, to bring the community together, the community
supporters together, the people who were starting organizations
who were advocating on behalf of veterans. It just made sense
to me. If everyone was on Facebook, then everyone was on
Facebook.
Senator Kaine. Your sense is that that has been a positive
change because it gives people first a safe way to share their
stories and then find out there are others that have their
stories. They need not suffer in silence. It is a way to better
the community.
Ms. McCoy. For peer support in suicide prevention,
absolutely. Absolutely.
Senator Kaine. How about other thoughts about things that
are changing either for the positive or the negative in your
experience? Ms. Havrilla?
Ms. Havrilla. Yes, thank you, sir.
I managed SWAN's helpline for 18 months, and I noticed a
lot of interesting trends and dynamics as I started tracking a
lot of the demographic data. One of the things that really has
made a huge impact over the last 2 years is the constant media
attention around these issues. The more education and awareness
that the general population gets or even other veterans and
survivors get, again it kind of goes to the social media
aspect, but the concept that we as survivors are not alone with
our shame, our stigma, whatever label we choose to put on our
experiences. SWAN did a summit last year in Washington, DC, and
we had one woman who came and she told us--she is like I have
never met another survivor before, ever. I did not know that
other women and other men had even gone through this. I was
completely by myself and alone with my own experiences.
Unfortunately, our helpline is set up to help people who
have been through these things. Obviously, we get a lot of the
negatives. We get a lot of the people who have experienced
these traumas who need assistance with mental health,
homelessness, VA claims benefits.
One of the other interesting things that I have noticed too
is I do get a lot of older clients, a lot of older women who
served in Vietnam in careers starting to speak out about their
experiences.
There has been a shift in momentum over the last 2 years.
There has been a shift forward. There have been baby steps made
through legislation in the NDAA. There has been some positive
progress. That is what I try to hold onto.
But at the same time, we are still dealing with a lot of
individuals. I get calls from Active Duty women and emails from
Active Duty men who are still going through these things every
day. I get calls from Korea, from Germany, from Japan, and from
everywhere in the United States. The climate is still very much
the same in a negative capacity. Obviously, we would not be
having this hearing if this still was not a problem.
I think that we need to recognize the problems and we are,
and then we need to continue to make forward progress, continue
to educate the public, continue to educate our own military,
continue to educate ourselves around these issues, and continue
to take the steps that we have made already and continue on the
path that we have already started on. We will continue to see
more positives. We will continue to, hopefully, see less of
these instances occur. We will continue to see that culture
shift that we have been discussing so far.
Senator Kaine. Thank you.
Please, others? Mr. Lewis?
Mr. Lewis. Thank you, Senator.
The unfortunate reality is that DOD is not leading the
charge on change that you are mentioning. The change has been
coming externally. One Senator mentioned ``The Invisible War''
by Kirby Dick as an agent for change. This summer, another
documentary focusing on male survivors will be coming out,
``Justice Denied.'' They have been agents for change.
There have been veterans as a result of advocacy
organizations going as far back as World War II to come out and
talk about what happened to them in terms of MST. So you are
right, Senator. We do have a timeline here. Just from my own
personal knowledge, it goes at least all the way back to World
War II.
In change, I think that a greater emphasis should come from
the DOD Sexual Assault Prevention Response Office. The branches
themselves need to be reaching out to the MST advocacy
organizations and saying you have this expertise, you have the
survivors, what can you do to help us because, time and again,
the military has proven themselves incapable of addressing this
problem.
Another avenue of change also has to come, as I said, that
men need to be validated and lifted up. Survivors in general
need to be validated and lifted up and say that we believe you.
There needs to be a system whereby survivors that have been
kicked out in the last 20, 40, 50 years need to be able to go
back to the military and get the medical retirements for PTSD
that they are due and not have to suffer through life with a
bad piece of paper saying, in essence, they pushed me out. It
is unconscionable, but that change is not happening and it
really needs to.
Thank you, Senator.
Senator Kaine. Finally, Ms. Bhagwati, do you have thoughts
on that question?
Ms. Bhagwati. I would echo what all of my colleagues said.
I would love to see the DOD come out with a poster that
says ``don't rape.'' Don't rape. Period. End of story.
Senator Gillibrand. Well, thank you to each of you for not
only your courage but your determination and your unbelievable
passion and advocacy on behalf of others. It makes a
difference. I am sure for any survivor, they cannot imagine how
such a horrible crime committed against them could ever make a
difference. But because of your experience, you are making a
difference. I can tell you we as Senators cannot do this job
alone without your stories, without your courage, without your
dedication. We cannot find the right solution.
I am grateful that many members of the armed services who
are currently in command sat here for your testimony. They
heard everything you said. This is the beginning of a much
longer conversation, a conversation that we need to have not
just as a committee in the Senate, but as a Nation. I want to
thank you for your unbelievable strength and courage in leading
that conversation. Thank you very much.
[Whereupon, at 12:17 p.m., the subcommittee recessed to
reconvene at 1 p.m.]
Afternoon Session--2:20 p.m.
Senator Gillibrand. Our hearing of the subcommittee will
resume.
Thank you, each of you, for your service, for your
dedication, for the sacrifices you have made for our country. I
am so grateful that you are here today for this important
hearing. I am also incredibly grateful that many of you came
this morning and participated and listened to the first two
panels. That means a great deal, not just to our witnesses, but
also to their families and to all of our military families. We
appreciate it very, very much.
I know that this has become a very debated issue, both
within the military and in everyday conversation. I also know
that many of you have seen the film, ``The Invisible War,'' as
sort of a jumping-off point on how important this issue is for
our military and their families.
I am very, very eager to hear your testimony, and each of
you will have 5 minutes to give an oral statement, and you can
submit for the record any additional material that you want to
submit today and after your testimony.
We are going to hear from Robert Taylor, the acting General
Counsel of DOD; Lieutenant General Dana Chipman, the Judge
Advocate General of the U.S. Army; Vice Admiral Nanette
DeRenzi, Judge Advocate General of the U.S. Navy; Lieutenant
General Richard Harding, Judge Advocate General of the U.S. Air
Force; Major General Vaughn A. Ary, Staff Judge Advocate to the
Commandant of the Marine Corps; Major General Gary Patton,
Sexual Assault Prevention and Response Office; Rear Admiral
Frederick Kenney, Judge Advocate General of the U.S. Coast
Guard.
Thank you all, and I think we can start with Mr. Kenney.
STATEMENT OF RADM FREDERICK J. KENNEY, JR., USCG, JUDGE
ADVOCATE GENERAL OF THE U.S. COAST GUARD
Admiral Kenney. Good afternoon, Chairman Gillibrand, and
distinguished members of the subcommittee.
Thank you for the opportunity to appear before you to
discuss the Coast Guard's efforts to prevent and respond to
sexual assault in our Service.
Good afternoon to you, Ranking Member Graham.
I share the Commandant's commitment to the safety and well-
being of each of our servicemembers, ensuring that Coast Guard
personnel have a collaborative, cohesive work environment that
allows them to accomplish their mission, protecting those on
the sea, protecting America from threats delivered by sea, and
protecting the sea itself.
Eliminating incidents of sexual assault within the Coast
Guard was a significant, central theme of the Commandant's
State of the Coast Guard address delivered 3 weeks ago. Sexual
assault is intolerable in the Coast Guard. It is devastating to
its victims. It has broad repercussions throughout the Service.
We are committed to doing everything we can to prevent sexual
assault, to investigating every allegation, to holding people
accountable through military justice and other actions, and to
ensuring victims of sexual assault are protected, treated with
dignity, and provided appropriate ongoing support.
I would like to now address some of the highlights of our
policies and programs. More detailed information is contained
in my written testimony submitted for the record.
All allegations of serious sexual misconduct must be
reported to the Coast Guard Investigative Service for
investigation (CGIS), and CGIS has formally established a sex
crimes investigation program. CGIS has also established a cadre
of 22 specially trained and credentialed agents known as family
and sexual violence investigators.
Coast Guard regulations on sexual assault prevention and
response (SAPR) have been updated in the last year to more
clearly define roles and responsibilities, mandate significant
education and training, and ensure greater victim support and
safety.
In April 2011, the Vice Commandant chartered a task force
to holistically examine the Coast Guard's posture toward SAPR.
The Vice Commandant approved 39 recommendations from the task
force in January, including the establishment of the Sexual
Assault Prevention Council (SAP-C). The SAP-C is a standing
body of the most senior Coast Guard admirals and subject-matter
experts designed to, among other things, oversee the
implementation of the task force recommendations and order
immediate and actionable course corrections to the Coast Guard
SAPR policy as needed. The Vice Commandant held the inaugural
meeting on February 27 of this year.
We place great importance on the need to train and empower
all Coast Guard personnel to recognize and respond
appropriately when they observe situations that involve
disrespectful behavior. Last year, the Coast Guard created and
rolled out a new Sexual Assault Prevention Workshop presented
live by CGIS agents, judge advocates, and work-life
specialists. It includes gender-specific breakout sessions to
have a frank dialogue about sexual assault, how to prevent it,
and how to respond. Since its inception, the workshop has
provided training to 48 units and approximately 7,500 Coast
Guard personnel. This initiative received the Department of
Homeland Security's Office of General Counsel Award for
Excellence in Training in 2012. Many Coast Guardsmen have
reported that this training was the most meaningful and
effective training they have ever received.
SAPR training sessions are and have been incorporated into
all command and leadership courses in the Coast Guard, as well
as at our recruit training center in Cape May, New Jersey, and
the Coast Guard Academy in New London, Connecticut. We have
also significantly expanded the number of trained victim
advocates across the Coast Guard with nearly 400 new victim
advocates added in the last few years.
I am committed to enhancing the expertise of Coast Guard
lawyers serving as counsel in sex assault cases. Coast Guard
judge advocates serve in Navy and Marine Corps trial shops to
gain experience the relatively small Coast Guard trial docket
would otherwise not allow. Coast Guard judge advocates also
attend advanced training to hone their litigation skills in sex
assault cases.
In closing, our goal is to eliminate sexual assault within
the Coast Guard by building a strong culture of prevention,
education and training, response capability, victim support,
appropriate reporting procedures, and accountability.
Thank you again for the opportunity to testify today and I
am pleased to answer any questions that you may have.
[The prepared statement of Rear Admiral Kenney follows:]
Prepared Statement by RADM Frederick J. Kenney, Jr., USCG
introduction
Good afternoon Madame Chair Gillibrand, Ranking Member Graham, and
distinguished members of the subcommittee. Thank you for the
opportunity to appear before you to discuss the Coast Guard's efforts
to prevent and respond to sexual assault in our Service.
As Judge Advocate General of the Coast Guard, I share the
commandant's commitment to the safety and well-being of each of our
servicemembers and ensuring that all members of the Coast Guard have a
collaborative, cohesive work environment that allows them to accomplish
their mission keeping the Nation safe and secure. This includes
eliminating incidents of sexual assault within the Coast Guard.
Sexual assault is a criminal act that is simply not tolerated in
the Coast Guard. It is devastating to its victims, and it has broad
repercussions throughout the Service. Not only is the Coast Guard
committed to doing everything we can to prevent sexual assault, we are
also committed to investigating every allegation and ensuring victims
of sexual assault are protected, treated with dignity and respect, and
provided appropriate ongoing support.
The Coast Guard is dedicated to ensuring that in addition to
persons accused of sexual misconduct, there is accountability across
the entire organization, to include bystanders, the chain of command,
commanders, and senior leadership. Every Coast Guardsman is trained in
the Coast Guard's Sexual Assault Prevention and Response (SAPR) policy,
and every Coast Guard Command is expected to know how to rapidly access
the full range of support resources for the victims of sexual assault.
Every Coast Guardsman is also expected to work tirelessly, individually
and personally, to contribute to a work climate where sexual misconduct
is never tolerated, and where every allegation is swiftly and
appropriately addressed. Commanders are obligated to address and
respond properly to every allegation of sexual misconduct in their
unit. Simply put, commanders must be part of the solution.
policy & programs
The Coast Guard has had policy in place for several years to
address sexual assault.
As early as 2004, Coast Guard policy required commands to report
all allegations of serious sexual misconduct to the Coast Guard
Investigative Service (CGIS) for investigation, and in 2006, the Coast
Guard Investigative Service formally established a distinct CGIS Sex
Crimes Program and hired a Senior Special Agent to oversee the stand-up
of the program. Indicative of the maturation of that program, the CGIS
Sex Assault Investigations Tactics, Techniques, and Procedures manual
is currently in final clearance with a formal release anticipated
within fiscal year 2013.
In 2007, the Coast Guard SAPR instruction was significantly amended
to include the addition of the restricted reporting option for victims,
which aligned the Coast Guard's reporting options with the two options
offered by the Department of Defense (DOD) (restricted and
unrestricted). Restricted reporting is the process used to disclose to
specific individuals on a confidential basis that he or she is the
victim of a sexual assault. Unrestricted reporting is the process used
to disclose a sexual assault to the chain of command and law
enforcement authorities. The official policy and guidance was issued in
December of that same year.
In 2008, a dedicated Sexual Assault Prevention Program Manager was
hired to implement and oversee the day-to-day administration of the
USCG SAPR program.
In March 2011, CGIS established a cadre of specially trained and
credentialed CGIS special agents--known as Family and Sexual Violence
Investigators (FSVIs). In addition to their standard investigatory
training, these agents attend advanced courses and seminars on sexual
assault, domestic violence and child abuse. CGIS has credentialed 22
FSVI special agents to date.
In April 2011, the Vice Commandant of the Coast Guard chartered a
Sexual Assault Prevention and Response Task Force to examine
holistically the Coast Guard's posture toward sexual assault in five
discipline areas:
Education /Training;
Policy/Doctrine;
Investigation/Prosecution;
Communications; and
Climate/Culture
Subject matter experts from each of these five disciplines met for
over a year to provide input to the Vice Commandant on ways to improve
our sexual assault prevention and response program. The Vice Commandant
approved the 39 recommendations from the Working Groups. One of the
most significant recommendations, the establishment of a flag level
Sexual Assault Prevention Council (SAP-C), has already been fully
implemented. Other recommendations from the Task Force include
providing enough Victim Advocates to cover our widely dispersed
population, improving annual SAPR mandated training and leadership
course training segments, implementing various bystander strategies,
and continuing SAPR messaging year-round.
Some of these recommendations are already in the implementation
stage (such as the bystander intervention initiative titled the
``Sexual Assault Prevention Workshop''). The other recommendations are
in the process of being prioritized and assigned for action to the
three standing committees (currently being chartered) of the SAPC.
The SAP-C is a standing body of the most senior Coast Guard
admirals and subject matter specialists designed to:
Oversee the implementation of the Task Force
recommendations;
Consider and discuss SAPR policy generally;
Direct empirical studies and trends (root cause
analyses) based on accurate and reliable data; and
Order immediate and actionable course corrections to
Coast Guard SAPR policy as needed.
The Vice Commandant held the inaugural meeting on February 27,
2013.
In April 2012, the Coast Guard issued a new and comprehensive SAPR
policy that clearly defines roles and responsibility, mandates
significant education and training, defines reporting processes and
response procedures, and ensures greater victim safety. The policy also
clarifies that commands must immediately notify not only the CGIS, but
also work-life and victim advocacy specialists, as well as the
servicing legal office, upon receipt of an unrestricted report of
sexual assault. This helps ensure a comprehensive interdisciplinary
approach toward managing the victim's safety and support is in place,
and that the investigation begins immediately.
In June 2012, the Commandant of the Coast Guard, along with the
Secretary of Defense, issued a Coast Guard wide order to withhold the
initial disposition authority for serious sexual misconduct to a
Special Court-Martial Convening Authority having achieved the grade of
O-6 (Captain) with a dedicated Staff Judge Advocate assigned. The
Commandant included in his withholding order not only the most serious
felony-level sexual offenses under the UCMJ (rape, sexual assault, and
forcible sodomy) but also each of the lesser sexual offenses under
Article 120a of the UCMJ such as abusive sexual contact. With the
exception of several senior Coast Guard Base and Training Center
Commanders, all serious sexual offenses will be reviewed by a flag
officer (Admiral) level with a senior and experienced Staff Judge
Advocate personally advising them.
leadership and training
We place great importance on the need to appropriately train and
empower all Coast Guard personnel to recognize and respond
appropriately when they observe situations that involve disrespectful
behavior. All personnel must develop a strong understanding of the
definition of sexual assault and act to alert potential offenders and
victims to what sexual assault is and how to prevent and/or stop it.
Every commanding officer, officer-in-charge, manager, supervisor,
servicemember, and civilian employee is responsible for creating and
maintaining a culture in which we hold those who commit sexual assault
accountable; provide confidential avenues for reporting; treat all
victims of sexual assault with dignity, fairness, and respect; and
afford all victims timely access to appropriate services whether they
choose to make a restricted or unrestricted report.
Within the last year, members of the Coast Guard Judge Advocate
General were instrumental in the creation and roll-out of the Coast
Guard's successful bystander intervention training program known as the
``Sexual Assault Prevention Workshop'' (which is one of the Task Force
recommendations). The workshop is presented live by CGIS special
agents, Judge Advocates and Coast Guard Work-Life specialists, who, in
addition to providing the necessary information about the SAPR program
in plenary session, then engage in gender specific break-out sessions
to have a frank dialogue about sexual assault and SAPR. Since its
inception in 2012, the workshop has provided training to 48 units and
approximately 7,500 personnel. This training initiative received the
Department of Homeland Security Office of General Counsel Award for
Excellence in Training on January 11, 2013, and many Coast Guardsman
have reported that this training is the most meaningful and effective
training they have ever received. In addition to Sexual Assault
Prevention Workshops, SAPR training sessions are being incorporated
into all command and leadership courses in the Coast Guard, and we have
significantly expanded the number of trained Victim Advocates across
the Coast Guard, resulting in approximately 400 new Victim Advocates
added in the last few years.
The Coast Guard Academy (CGA) will continue to offer training to
the ``Cadets Against Sexual Assault'' organization to allow trained
cadets to maintain confidentiality and accompany a victim to a Victim
Advocate in the event another cadet discloses a sexual assault to them.
The CGA also has the billet for the one dedicated SARC in the Coast
Guard, and there is quite a robust training plan in place for cadets.
Starting in ``swab summer'' all cadets receive training at various
points during their 4 years at the CGA. Recruits at Cape May are
provided computer-based training as soon as they arrive to ensure they
know the reporting options and who they can go to for help in the event
of sexual assault. SAPR information was also added to the pocket
handbook the recruits carry on their person at all times, and the
recruits receive a more extensive SAPR training module prior to their
graduation from basic training.
The Coast Guard has a close working relationship with the Army and
Navy Trial Counsel Assistance Programs. Through our longstanding
Memorandum of Understanding with the Navy, Judge Advocates can gain
significantly more trial experience than the small size of the Coast
Guard's trial docket would generate through assignment to Navy offices
around the country. Over the last 8 years, the Coast Guard has also
been able to send our Judge Advocates to gain experience as prosecutors
with the Marine Corps at Marine Corps Base Quantico, Camp Lejeune, and
Camp Pendleton. Beginning in fiscal year 2013 Coast Guard Judge
Advocates began attending, along with their CGIS Special Agent
counterparts, the nationally-recognized U.S. Army Special Victim
Investigator Unit course. To date, four Coast Guard Judge Advocates
have completed the course, each stating at the conclusion of the course
that it was the best training they had ever received as a prosecutor.
Thirteen additional trial counsel are scheduled to receive training by
the conclusion of fiscal year 2013.
closing
The Coast Guard places the highest priority on preventing sexual
assault. Sexual assault is not tolerated in the Coast Guard--it is
incompatible with honorable service in the Coast Guard, and
incompatible with our Core Values of Honor, Respect and Devotion to
Duty.
Our goal is to eliminate sexual assault within the Coast Guard by
providing a strong culture of prevention, education and training,
response capability, victim support, appropriate reporting procedures,
and accountability.
Thank you again for the opportunity to testify today. I will be
pleased to answer any questions you may have.
Senator Gillibrand. Thank you.
Lieutenant General Harding?
STATEMENT OF LT. GEN. RICHARD C. HARDING, JAGC, USAF, JUDGE
ADVOCATE GENERAL OF THE U.S. AIR FORCE
General Harding. Madam Chairman and members of the
committee, I also thank you for the opportunity to speak today
about SAPR efforts in the Air Force.
We are committed to supporting victims of sexual assault
while we do everything humanly possible to eradicate this awful
crime from our Service.
Our Secretary, the Honorable Michael Donley and our Chief
of Staff, General Mark Welsh, are fully committed to
eliminating sexual assault within our ranks. They have made
their position abundantly clear. The Air Force has zero
tolerance for this offense. One sexual assault is one too many.
We believe that our sexual assault challenge, like other
challenges we have faced in the past and will face in the
future, will be overcome by staying rooted to our core values,
integrity, service, and excellence, and acting on those values.
We have actively engaged in improving our efforts to
prevent and respond to sexual assault across many different
lines of effort. While we have many ongoing efforts to combat
sexual assault, time constraints will limit my comments to just
one at this time. Specifically, I would like to talk to you
about our Special Victims Counsel (SVC) Program that we
initiated in January. I believe it represents a positive and
profound change in the way we approach sexual assault cases.
The pilot program provides airmen who report that they are
victims of sexual assault with an attorney to represent them.
Our SVC Program is unique among Federal agencies in providing
that level of support to victims of sexual assault. This pilot
program's primary purpose is to give the very best care to our
people. Our SVC operate independently of the prosecution's
chain of command. They establish an attorney-client
relationship with victims, and they zealously represent on
their client's behalf, thereby protecting victims' privacy and
immeasurably helping victims not feel revictimized by having to
endure alone what can be a complex, exhausting and often
confusing criminal justice process.
We are in the early stages of this program, but we are
extremely excited about what the future holds. In December, we
trained our first cadre of 60 experienced military attorneys as
SVC. To date, we are representing about 200 clients in various
stages of the investigation and adjudication phases of their
cases, and feedback from victims to date has been very
positive. The SVC program is the right thing to do in caring
for airmen, and SVCs are already making a difference for their
clients.
In closing, the men and the women who raised their right
hand with great pride and volunteered to serve this great
Nation became more than just airmen. They became part of our
Air Force family. Therefore, we strongly believe that we have a
sacred obligation to provide a work environment that welcomes
them, that keeps them free from sexual abuse by their fellow
airmen, and provides the very best care and advocacy on their
behalf.
I look forward to answering your questions. Thank you.
[The prepared statement of Lieutenant General Harding
follows:]
Prepared Statement by Lt. Gen. Richard C. Harding, USAF
opening
Madam Chairman and members of the subcommittee, thank you for the
opportunity to speak to you today about sexual assault prevention and
response within the Air Force. This topic is extremely important to us.
We are fully committed to supporting victims of sexual assault, while
we do everything humanly possible to eradicate this crime from our
service.
Our Secretary, the Honorable Michael Donley, and our Chief of
Staff, General Mark Welsh, are fully committed to eliminating sexual
assault within our ranks. They have made their position clear. They and
other senior leaders in the Air Force have zero tolerance for this
offense. Our goal is to drive the rate of sexual assault in the Air
Force to zero. One sexual assault is one too many.
We believe that preventing sexual assault begins at the time of
accession for each airman, when they join our ranks and become part of
our Air Force family. At that time, they must enter a mission-focused
work environment, one that emphasizes respect, trust, and
professionalism and reflects our core values of integrity first,
service before self, and excellence in all we do. We believe that our
sexual assault challenge, like all challenges we have faced in the past
and will face in the future, will be overcome by staying rooted to our
core values--integrity, service, and excellence--and by acting on those
values.
Employing our core values in combination with the Department of
Defense's guidance, we developed a comprehensive approach to combating
sexual assault with five lines of effort: Personal Leadership, Climate
and Environment, Community Leadership, Victim Response, Holding
Offenders Accountable.
While we are actively engaged in improving our efforts in all five
lines of effort, I would like to discuss our efforts with regard to
work environments, accountability and victim services . . . fields of
practice where I have been personally involved in my role as the Air
Force Judge Advocate General. These examples demonstrate our senior
leaders' tireless resolve to do everything possible to combat sexual
assault in the Air Force.
worldwide wing commander meeting and inspection
Our core values demand that we maintain and sustain an environment
of mutual respect. The Air Force succeeds because of the
professionalism and discipline of our airmen. Every airman is
critically important, and everyone deserves to be treated with respect.
Anything less marginalizes great airmen, degrades mission
effectiveness, and hurts unit morale and readiness.
In November, our Chief of Staff brought together Air Force wing
commanders--more than 160 senior colonels or one-star generals--for an
unprecedented day-long face-to-face conversation about leadership. One
of the primary topics he discussed at length was sexual assault
prevention and response. As far as I am aware, this is the first time
all wing commanders have met in a single place at a single time with
the Chief of Staff of the Air Force on any topic. It was an extremely
candid discussion. The Chief stressed to them that as wing commanders--
as leaders--they must directly and aggressively combat sexual assault
in the Air Force. His message was clear--we must redouble our efforts,
and we need to start by ensuring our work environments reflect respect
for all airmen.
As part of this meeting, the Chief announced a Health and Welfare
Inspection across the Air Force to reinforce expectations for the
workplace environment, to correct deficiencies, to remove inappropriate
materials, and to deter conditions that may be detrimental to good
order and discipline. Commanders looked for and removed items that
hinder a professional working environment. Stated another way, it was a
``reset'' of sorts to ensure that Air Force workplaces were free of
offensive materials that might breed a lack of respect among airmen.
Commanders inspected thousands of units at more than 100 Air Force
installations, where almost 600,000 Air Force military and civilian
personnel work and discovered over 32,000 items deemed inappropriate or
offensive and removed them.
senior trial and defense counsel
Ensuring and maintaining appropriate work environments is only one
initiative. We also have improved the staffing and training of our
prosecutors and defense counsel, who litigate sexual assault cases.
For more than 40 years, the Air Force has staffed and fielded
specially trained, senior trial counsel, who prosecute our most
demanding cases. Sexual assault cases fall into this category and
traditionally have been tried by Air Force senior trial counsel. To
improve an already strong and mature program, we recently designated
eight of these senior trial counsel as special victims' unit senior
trial counsel and are focusing their practice on sexual assault
prosecutions. These JAGs also received specialized training on complex
legal issues that arise in prosecuting sexual assault cases.
We have a similar training program for our senior defense counsel.
It is important that our defense counsel be as experienced and well
trained as our prosecutors. We must equally arm both the prosecution
and defense with talent and training, in order to ensure that in our
system of criminal justice, truth is never a casualty.
We are also working closely with the Air Force Office of Special
Investigations on developing team teaching--developing courses where
both special victims' trial counsel and other senior trial counsel are
trained shoulder-to-shoulder with criminal investigators. This will
strengthen our sexual assault investigative efforts. As an example, in
January three of our senior trial counsel attended the Air Force Office
of Special Investigation's Sexual Crimes Investigations Training
Program to help strengthen our investigations into sexual assault, as
well as instruct our special prosecutors in how sexual assault
investigations often unfold.
Additionally, we are finalizing a course where we will bring
investigators, prosecutors and defense counsel together to focus on the
legal issues surrounding investigations and trials. We are also
enhancing the training we provide our victim and witness liaisons and
paralegals to better support special victims' teams.
special victims' counsel
Lastly, we have initiated a program that I believe represents a
very positive and profound change in the way we approach sexual assault
cases. On January 28, we began a pilot program to provide airmen, who
report they are victims of sexual assault, with a personal attorney at
Air Force expense. This new initiative, called the Special Victims'
Counsel Program, is unique among Federal agencies in providing an
unprecedented level of support to victims of sexual assault. It will
greatly improve the quality of support we provide victims of sexual
assault and help end victims feeling as if they were revictimized by
criminal investigative and judicial processes designed to hold
offenders, and not the victims, accountable.
From the fiscal year 2011 sexual assault statistics, we noted that
96 victims, who originally agreed to participate in the prosecution of
their alleged offender, changed their minds before trial and declined
to cooperate with law enforcement personnel and the prosecution. These
96 victims represented 29 percent of our victims of sexual assault who
had filed an unrestricted report of sexual assault. I believe that, had
these victims been represented by their own attorney, many of them
would not have declined to cooperate in holding their alleged offender
accountable.
While our pilot program will likely increase prosecutions for
sexual assault, make no mistake, its primary purpose is to give the
best care to our people. Victim care is extremely important to the Air
Force. Our Special Victims' Counsel operates independently of the
prosecution's chain of command, establishes attorney-client
relationships, and zealously advocates on their clients' behalf . . .
thereby protecting victims' privacy and immeasurably helping victims
not feel revictimized by having to endure alone a complex, exhausting
and often confusing criminal justice process.
We are in the early stages of this program, and are excited about
what the future holds. In December, we trained the first cadre of 60
experienced military attorneys as special victims' counsel. Over the
course of 3 days, these attorneys received in-depth training from
experts in military justice, professional responsibility, legal ethics,
and victims' rights. The training featured a recognized civilian expert
on counsel for victims, Professor Meg Garvin, the Executive Director,
National Crime Victims' Law Institute and Clinical Professor of Law in
the Crime Victim Litigation Clinic at Lewis and Clark School of Law.
Professor Garvin taught our JAGs lessons that she has learned in over a
decade of experience in representing victims, providing valuable
insights, recommendations, and practical tips to our new victims'
counsel.
We also trained other Air Force professionals, who interact with
the Special Victims' Counsel, including our investigators and our
Sexual Assault Response Coordinators prior to starting the program.
To date, we are representing over 170 clients in various stages of
the investigatory and adjudicatory phases of their case. These
attorneys are zealously representing their clients and providing a very
much needed service. The SVC Program is already making a difference for
the Air Force and for its airmen. The feedback from victims that we
have received to date is very positive and extremely encouraging. In
short, providing attorneys to victims of sexual assault is the right
thing to do.
closing
The men and women of the U.S. Air Force raised their right hand
with pride and volunteered to serve this great Nation. When they did
so, they became more than just airmen . . . they became part of our Air
Force family. We strongly believe that we have a sacred obligation to
provide a work environment that welcomes and celebrates their diverse
backgrounds and contributions, and emphasizes the Air Force core values
of integrity, service, and excellence, without which respect, trust,
and professionalism cannot thrive. We also owe them the very best care
possible when they tell us they have been victims of sexual assault,
while at the same time providing the best criminal justice services
possible to fairly judge, and appropriately hold accountable, the
airmen who sexually abuse them.
While we have a long way to go in eradicating sexual assault from
our ranks, we remain committed to a zero-tolerance approach and have
taken key steps in strengthening accountability and victim care.
I look forward to answering your questions. Thank you.
Senator Gillibrand. The next speaker is Lieutenant General
Chipman.
STATEMENT OF LTG DANA K. CHIPMAN, JAGC, USA, JUDGE ADVOCATE
GENERAL OF THE U.S. ARMY
General Chipman. Madam Chairman and members of the
subcommittee, on behalf of the Honorable John McHugh and
General Ray Odierno, thank you for the opportunity to testify
before you here today.
Listening to survivors who bravely testified this morning
about breaks firsthand in those bonds of trust that should lie
at the core of Army values--how do we restore those bonds? How
do we retain the trust of the very best of America's daughters
and sons, those who continue to answer the call to serve our
Army because it defends all of us?
For me the answer lies with a system of justice that gives
voice and support to victims, maintains good order and
discipline for our force, and protects due process for any
soldier who stands accused of a crime.
Sexual assault crimes destroy the trust that enables
mission accomplishment. Because of the harsh reality of these
cases, we have developed a tailored approach to handle them. In
the Army, professional and independent investigators and
prosecutors form the vanguard for a special victims' capability
directed by Congress last year. We actually began the
transformation to a special victims' focus in 2008.
The capability starts with a report of a sexual assault.
Victims have various options to report an allegation. Our goal
is simple: to encourage victims to come forward. We understand
that victims are often reluctant to report.
Every unrestricted sexual assault allegation reaches the
Army's CID. There, specially trained criminal investigators,
independent of the command, pursue their investigations without
interference or agenda. These agents receive extensive training
in sexual assault investigations. Working hand in hand with
these investigators are the Army's special victim prosecutors
(SVP). These experienced judge advocates are seasoned trial
lawyers and are trained specifically to focus on victim care.
They complete career prosecutor courses offered by the National
District Attorneys Association and on-the-job training with a
civilian special victim unit in a large metropolitan city.
In addition, both CID and the JAG Corps have hired civilian
investigators and prosecutors to mentor, train, and assist
these special victim teams. These experts bring decades of
experience and expertise from civilian police agencies, other
Federal law enforcement agencies, and State district attorneys
offices.
SVPs serve the interests and rights of the victim, the
community's safety interests, and the good order and discipline
of the unit by holding offenders accountable. Testimonials from
victims and their families attest to the dedicated support
these attorneys provide, such as that from a victim's mother
who described the SVP as a member of her family who made her
daughter feel stronger and more capable than she knew she could
feel.
Eleven years of war have reaffirmed that commanders have a
central role in administering military justice in the same way
that they are accountable for health, training, welfare,
safety, morale, discipline, and mission readiness.
A recent court-martial conviction set aside by a commander
has focused concern over the post-trial role of the commander.
Should we evaluate needed changes to that post-trial role?
Absolutely. We collectively evaluate military justice processes
and procedures in an ongoing forum, the Joint Service Committee
(JSC) established by DOD. Moreover, we have congressionally
mandated panels that could responsibly consider changes to the
code. These vehicles, like this hearing, are signs of a healthy
system of justice subject to scrutiny, transparency, and
accountability.
Although the focus of your hearing today is the prosecution
of these offenses, we cannot assume we can prosecute our way
out of this problem. Accountability remains critical. But real
change will occur only when both prevention and response
measures yield culture change. So we begin with every new
recruit focusing on Army values and bystander intervention
techniques.
Our system of justice is not perfect. No system is. We have
worked dramatic changes to our system over six consecutive
legislative cycles. Policy, programmatic, and statutory changes
over that period are comprehensive. We make mistakes. Every day
in every jurisdiction around this country, prosecutors make
difficult decisions on cases. We are no different. But my
commitment to you is that we will do everything in our power to
retain the trust of the men and women who serve our Army and to
preserve a system of justice of which we can be proud.
Thank you, and I look forward to your questions.
[The prepared statement of Lieutenant General Chipman
follows:]
Prepared Statement by LTG Dana K. Chipman, JAG, USA
Sexual assault is an issue with which the Army continues to
grapple. Its impact on readiness and individual survivors can be
devastating. The Army takes accountability for sexual crimes very
seriously and is committed to reducing and ultimately preventing sexual
assault in the military. To that end, we believe the modern military
justice system, in existence and evolving since the 1950's and based on
the Uniform Code of Military Justice (UCMJ), is well equipped to meet
the challenges of crime and indiscipline in the Army, and in
particular, the terrible crime of sexual assault. Indeed, our system is
focused, well resourced, intent on doing what is right and, cognizant
of the necessary scrutiny we receive every day. A modern, comprehensive
criminal statute, combined with trained commanders and qualified
investigators and prosecutors, with a fully resourced justice system
provide all the tools necessary to hold offenders accountable, to
protect due process rights of accused soldiers and to provide support
and justice for victims. In the Army, our professional and independent
investigators and prosecutors form the vanguard for our modern Special
Victims Capability, simultaneously mandated by Congress and initiated
by the Department of Defense in 2012.
The military justice system was established as a separate system
because of the worldwide deployment of military personnel, the need for
a system that can be responsive to the unique nature of military life
and the combat environment, and the need to maintain discipline in the
force. Though instituted with a draft Army in 1950, the UCMJ remains a
key element of our all-volunteer force.
Ultimate authority in our system is vested in the commander for
very important reasons. The commander is responsible for all that goes
on in a unit--health, welfare, safety, morale, discipline, training,
and readiness to execute the mission. The commander's ability to punish
quickly, visibly, and locally is essential to maintaining discipline in
units. The Uniform Code of Military Justice ensures that commanders can
maintain good order and discipline in the force.
This unique role of the commander has raised questions in two
areas: why do we allow a non-lawyer to make disposition decisions in a
criminal justice system? Can a commander improperly influence the
military justice process? Our system addresses these concerns through
career-long training, the role of the Judge Advocate, and other
procedural safeguards. First, the commanders who make these disposition
decisions do not go into this process blindly, nor execute their
authority in a vacuum. They are trained in their responsibilities under
the Uniform Code of Military Justice from the day that they are
commissioned and throughout their careers. Second, commanders have at
their disposal Judge Advocates to provide advice and counsel. Judge
Advocates are an integral part of the military justice system, and they
serve as command legal advisors, prosecutors, defense counsel, and
military judges. Judge advocates are trained to analyze evidence to
determine if there are sufficient facts to support allegations, and to
make recommendations to commanders on disposition. Third, there are a
variety of procedural safeguards that ensure commanders make evidence-
based disposition decisions, particularly in regard to sexual assault
allegations. These include the ability of senior commanders to withhold
disposition of an allegation from a subordinate.
The most fundamental procedural safeguard is written into the UCMJ.
Commanders are, before all else, officers whose commission and oath of
loyalty is to no person--but to the Constitution. Second, judge
advocates are officers of the court - sworn to the profession of law
and to uphold the due process accorded by the Constitution and our
laws. These profound tenets of our American Army, conscientious
commanders and judge advocates, adhering to and enforcing the rule of
law and doing what is right regardless of costs, are, in my view, the
best safeguards for our system of justice. Although the individuals
operating within the institution are not perfect we have a system in
place that holds these soldiers accountable. Our Uniform Code speaks
loudly to the proper role of the Commander in military justice. Article
37 prohibits unlawful command influence--that is, a commander may not
influence a subordinate commander's independent decision making.
However, the ultimate procedural safeguards include the oversight
authority vested in the civilian judges of the Court of Appeals of the
Armed Forces, and in Article III courts, as well as the authority
vested in the Army and DOD Inspectors General. To that end, it must be
stated expressly--we attempt to track and report every allegation of
sexual assault and make every disposition decision available for
review.
What this means is that the military shares the truth in every case
reported. In those cases where hindsight reveals a failure, we make
adjustments. We have been in a self-evaluation and reaction mode for
six consecutive legislative cycles now, and the policy, programmatic,
and statutory changes made are comprehensive, progressive, and
meaningful.
disposition: options and authority
Commanders have a wide range of disposition options available to
them, from four levels of court-martial, nonjudicial punishment,
punitive administrative discharge, adverse administrative action,
imposing nonpunitive measures to taking no action. The particular level
of disposition is based on the nature and circumstances of each
offense. This toolbox of disposition options allows Commanders to
address the entire spectrum of sexual misconduct, from precursor
behaviors of verbal harassment up to and including a rape. Civilian
systems do not provide a corresponding range of disposition options.
Given the unique nature of sexual assault allegations, disposition
authority for the penetrative offenses (rape, sexual assault, forcible
sodomy and attempts to commit these crimes) has been withheld to
Brigade Commanders, Colonels with 20-25 years of experience in the
Army, and significant training and experience in executing their
authority and duties under the Uniform Code of Military Justice. These
senior officers also have dedicated legal advisors. The dynamics of
each case are evaluated and treated individually, just like any
civilian criminal case, and there is no doubt that commanders listen
carefully to their legal advisors. After 10 years of complicated
contingency operations, the commander-legal advisor relationship is
stronger than it ever has been in our military history, in my opinion.
The dynamics of each case are evaluated and treated individually, just
like any civilian criminal case, and there is no doubt that commanders
listen carefully to their legal advisors. Commanders are not afraid to
require the prosecutors to try the most difficult cases.
sexual assault statutes under the ucmj
The punitive articles of the Uniform Code of Military Justice,
including Articles 120 and 125, criminalize a broad range of sexual
misconduct from an unwanted touch over the clothing to forcible rape.
Article 120 is a modern, offender-focused statute that recognizes
constructive force as it exists in the unique hierarchy of the
military. It is one of the most progressive sexual assault statues in
the country. The statute also provides the ability to prosecute drug
and alcohol facilitated sexual assaults like many other States with
progressive statutes. Other Articles of the UCMJ criminalize behaviors
that have been identified as precursors to sexual assault such as
sexual harassment and indecent language. This enables commanders to
hold potential offenders accountable for what is considered non-
criminal behavior in the civilian justice system
As in every civilian criminal jurisdiction, there are procedural
and evidentiary rules that protect victims, particularly victims of
sexual assault. Military Rule of Evidence 412, the ``rape shield''
rule, nearly identical to Federal Rule of Evidence 412's criminal
provisions, excludes evidence of a victim's past sexual history subject
to limited Constitutionally-required exceptions. Motions and hearings
regarding Rule 412 evidence are closed to the public and sealed in the
record of trial. Confidentiality provisions, found in Military Rule of
Evidence 513 and 514, protect disclosure of confidential statements
made by victims to their mental health providers and their victim
advocates.
The Army has made tremendous progress in providing special training
to prosecutors and investigators since 2009. I will talk about our
Special Victim Prosecutors in a minute, but want to emphasize the
importance of victim privacy to our prosecutors and commanders. We know
that victims are subject to pressures, direct and indirect, after a
sexual assault allegation is made. Commanders, prosecutors,
investigators, and especially victim advocates, are extremely sensitive
to this reality.
accountability process for sexual assault allegations
I believe that the investigative and prosecutorial arms of our
system provide an independent, professional process for accountability.
Victims have a variety of options to report an allegation of sexual
assault including unit Victim Advocates, unit Sexual Assault Response
Coordinators, the chain of command, military or civilian police,
military or civilian hospitals and hotlines. Because victim reporting
is a universal problem, the goal of these initiatives is to encourage
victims to come forward by providing adequate support and services. All
unrestricted sexual assault allegations in the Army, from an unwanted
touch over the clothing to forcible rape, are referred to the Army
Criminal Investigation Division (CID). There, specially trained
criminal investigators, independent of the command, are free to pursue
their investigations without interference or agenda. CID agents receive
some of the best and most extensive training in sexual assault
investigations of any investigative agency, including their initial
training, annual refresher training, and an in-depth 80-hour Special
Victim Unit (SVU) Investigation Course. Further, CID has hired civilian
sexual assault investigators (SAIs) to supervise their SVUs and sexual
assault investigative teams. The sexual assault investigators bring, on
average, 16 years of experience and expertise from civilian police
agencies and other Federal law enforcement agencies.
The legal offices that provide advice and counsel to the criminal
investigators, as well as to commanders, are made up of licensed
attorneys who are trained and skilled in the practice of criminal law.
In the Army, we employ Special Victim Prosecutors (SVP) to advise on
and develop these cases. The objective of these collaborative criminal
investigations, led by the SAI and the SVP is the same as in any
criminal investigation--to develop sufficient facts and evidence to
allow a decisionmaker to make an appropriate decision. SVPs are
notified of and track every allegation of sexual assault. SVPs confer
early and often with the investigators to ensure a thorough and
professional investigation. SVPs are trained to meet with the victim as
soon as practicable after the report, to establish rapport and begin
the relationship that will serve as the foundation of every case.
Educating and supporting the victim is the primary charter of the
prosecutor, who must serve both the interests and rights of the victim
and the community's interest in holding offenders accountable and
preserving good order and discipline. The SVP utilizes a member of the
prosecution team known as the Victim Witness Liaison (VWL) to inform
and educate a victim of his or her rights and the benefits to which one
is entitled. The VWL is normally a civilian paralegal within the Staff
Judge Advocate's Office who receives special training to provide victim
care and support victim rights.
If the investigation reveals that there is sufficient evidence to
support the allegation, that report is referred to the command for
disposition. When a commander of any active duty servicemember
determines that allegations are supported by the evidence, criminal
charges are preferred. For a general court-martial to occur, the
charges must first be referred to an investigation under Article 32 of
the Uniform Code of Military Justice. The purpose of the Article 32
investigation is to have an independent officer review the case and
determine if the charges are in the proper form, if there is sufficient
evidence to support the charges, and whether a general court-martial is
appropriate. Rules of evidence, including rape shield protections under
Military Rule of Evidence 412, apply in the Article 32 proceedings.
SVPs and paralegal Victim Witness Liaisons work with victims from the
day of the initial report to prepare victims to testify. The Article 32
investigating officer makes a recommendation that informs the review
and action of an intermediate-level Commander, a Colonel with between
20-25 years experience. From there, the case is forwarded to the Staff
Judge Advocate who advises the General Court-Martial Convening
Authority. Ultimately, the General Court-Martial Convening Authority
decides whether the case will be referred to court for trial based on
the legal advice of the SJA.
When a case is referred to court-martial, the parties to the trial
and the process are similar to what one would see in a civilian
criminal court. We have an independent military judiciary, made up of
military lawyers who have extensive criminal law experience. It is
their duty to be fair and impartial in overseeing trials, applying the
law, and if applicable, determining guilt or innocence and imposing an
appropriate sentence upon an accused soldier. An accused soldier is
represented by a military defense counsel who zealously represents
their client's legal interests. It is important to note that military
defense counsel and military judges are assigned to separate
organizations within the military, with command and performance rating
chains that are separate from those of the prosecutors and convening
authorities. Finally, the government is represented by a trial counsel,
or prosecutor, whose mission is to present the evidence and argue the
case against the accused on behalf of the United States.
After a soldier is convicted, the military justice system has a
unique process for post-trial clemency and review by the Convening
Authority known as the Initial Action under Article 60, UCMJ. The Staff
Judge Advocate conducts an initial legal review of the proceedings and
advises the Convening Authority on appropriate action. Convicted
soldiers are permitted to submit materials for review by the Convening
Authority. A recent court-martial conviction and sentence received
significant media coverage because the Convening Authority disapproved
the panel's findings of guilt and sentence and the convicted Lieutenant
Colonel was released from jail. I cannot speculate about that matter,
but I can say that I have not seen such a result in a court-martial in
32 years of service. Should we evaluate the need for the commander
authority exercised here and for changes to our post trial system?
Absolutely. Our Services already collectively evaluate military justice
processes and procedures in an ongoing forum through the DOD
constituted Joint Service Committee. Any changes to our system must be
done with a full appreciation for the second- and third-order effects
on our post-trial and appellate processes.
Moreover, the Uniform Code of Military Justice has been in place
since 1950--more than 60 years. Before its enactment, Congress took 2
years, conducted numerous hearings, took testimony from lawyers and
non-lawyers, and carefully drafted the law creating our current
military criminal legal system. Since that time, Congress made major
changes to the Code on only one occasion, when it enacted the Military
Justice Act of 1968. That Act, passed during the Vietnam War era,
similarly involved months and months of hearings and testimony. This
deliberate and thoughtful approach has ensured that the UCMJ not only
is a first class piece of legislation, but also has ensured that
unforeseen or unanticipated consequences did not adversely affect our
military legal system. Consequently, it is my view that any changes to
our UCMJ--even if we agree that change is required--not be made in
piecemeal fashion. We must ensure that we adopt the best possible
legislative update and that we avoid the law of unintended
consequences. I believe with the congressionally-mandated panels
directed in NDAA for Fiscal Year 2013, we have the right vehicles in
motion to responsibly consider possible changes to our Code.
special victim prosecutor program
For sexual assault cases in the Army, we have established a Special
Victim Prosecutor program to develop and prosecute sexual assault and
special victim cases. In 2009, the Secretary of the Army authorized 15
Special Victim Prosecutors to assume responsibility for sexual assault
and domestic abuse cases. As a result of the success of this program,
in 2012, I increased the number of SVPs to 23. The SVPs have regional
responsibilities. These judge advocates are individually selected and
assigned based on demonstrated court-martial trial experience, ability
to work with victims and ability to train junior counsel. They complete
a specially designed foundation and annual training program to elevate
their level of expertise in the investigation and disposition of
allegations of sexual assault and family violence. This training
includes the career prosecutor courses offered by the National District
Attorneys Association and on-the-job training with a civilian special
victim unit in a large metropolitan city. The SVP's primary mission is
to investigate and prosecute special victim cases within one's
geographic area of responsibility. Their secondary mission is to
develop a sexual assault and family violence training program for
investigators and trial counsel in their area of responsibility. SVPs
are involved in every sexual assault and special victim case in their
assigned region. The SVPs work hand-in-glove with the SAI investigators
throughout the process. They train together and, in some locations,
SVPs and SAIs are in the same office. As our program develops, we
intend to strengthen and formalize the relationship to enhance the
Army's accountability efforts. For example, one of our most senior SVPs
will move to a new jurisdiction where he will not only prosecute
special victim offenses, but also teach at the military police school.
Finally, in addition to working directly with victims in these cases,
SVPs provide training, support and guidance to those professionals
responsible for the physical, emotional and other needs of victims,
including Victim Advocates (VAs), Sexual Assault Response Coordinators
(SARCs) and Victim Witness Liaisons (VWLs). The SVPs also work closely
with local police, prosecutors and service providers. To provide
continuity and develop expertise, we have assigned SVPs to 3-year tours
and developed a strategy to assign former SVPs to positions that will
utilize their skills. We are growing and developing a corps of Judge
Advocates educated and experienced in the adjudication of these
difficult cases. Looking to the future, we will expand and formalize
the concept adding additional resources and personnel to establish a
premier Special Victim Capability, consistent with NDAA for Fiscal Year
2013 direction.
What I am most proud of is the rapport these SVPs develop with
victims. What you don't read about in the media is the case where the
SVP went with the victim to the victim's custody hearing, or where the
SVP helped the victim get out of a lease so she could move, or where
the SVP helped a civilian victim obtain a restraining order in civilian
court. Even better is a recent note from a victim's mother, in which
she wrote that the SVP is considered a member of her family and that
the SVP made her daughter feel stronger and more capable than she knew
she could feel. Along with the reality that we try the harder cases
that many civilian prosecutors will not touch, our SVPs work hard to
connect with and assist our victims. From counterintuitive behavior, to
traumatic memory recollection, to an understanding of alcohol-
facilitated sexual assaults in general, our primary focus is knowing
and supporting our victims.
highly qualified expert assistance
At the same time, the Army initiated the SVP program, we hired
seven civilian Highly Qualified Experts (HQEs) to further enhance our
ability to effectively investigate, prosecute and defend sexual assault
and special victim cases. The HQEs bring a wealth of civilian
experience and trial litigation expertise to our program. One HQE is
assigned to the Criminal Law Department at the JAG school. His primary
mission is to develop and train the curriculum on litigating sexual
assault and special victim cases that we use to train our judge
advocates. Two HQEs are assigned to our Trial Counsel Assistance
Program to provide direct assistance to our Special Victim Prosecutors
and other trial counsel in developing and litigating sexual assault and
special victim cases. These dedicated professionals meet with victims,
advise trial counsel, SVPs and Staff Judge Advocates on individual
cases, assist in every phase of the prosecution of complex cases and
train at conferences and outreaches. Their training includes the entire
spectrum of first responders; including Judge Advocates, law
enforcement, victim advocates, medical providers, and victim services
providers for the Army and all other services. Two HQEs are assigned to
our Defense Counsel Assistance Program to provide direct assistance to
military defense counsel representing soldiers in sexual assault and
special victim cases.
victim witness liasion
The final component of the Army's Special Victim capability,
working alongside the SAI criminal investigator and the Special Victim
Prosecutor, is the Victim Witness Liaison (VWL). The VWL is a paralegal
immersed in the military justice system and trained to work with all
victims of crime, including sexual assault victims. The role of the VWL
is to assist the victim in navigating the court-martial process. The
VWL will educate the victim on her rights and the military justice
system. The VWL may accompany victims to interviews with defense
counsel, sit with the victim through Article 32 hearings or motions,
coordinate travel or childcare for victims and provide referrals for
all available resources. We are continuing to improve training for the
VWLs to ensure they are equipped to educate victims about the process
and their rights. We hope the relationship between victims and VWLs
reflects the same level of care and assistance common between SVPs and
victims and believe that adding additional highly skilled, highly
trained VWLs to our team will facilitate that goal.
trial counsel/defense counsel training--comprehensive, integrated, and
synchronized
The Army has an extensive training system in military justice for
judge advocates from 3 months to 25 years in service. All of our judge
advocates are trained on their role in the military justice system in
general, and specifically on the unique aspects of prosecuting and
defending sexual assault and special victim cases. Prosecutors are
trained that the Army is their client, rather than any individual
commander. If there is a conflict between the interests of the
individual commander and the interest of the Army, the Army's interests
should prevail. Our prosecutors are trained that the Army's interest in
``doing the right thing'' is paramount to any interest that is contrary
to that principle. All of our military justice practitioners are put
through a synchronized, graduated training program administered by The
Judge Advocate General's Legal Center and School, and our Trial Counsel
Assistance and Defense Counsel Assistance Programs. Sexual assault and
special victim cases are complex, and difficult to prosecute and
defend. However, we strive to provide the training and resources to
ensure that these cases are appropriately investigated, analyzed,
developed, and resolved. In addition, we carefully analyze our training
synchronization and planning to provide defense-specific training
commensurate with the expertise required. This requires a delicate
balance, and we are careful to allocate our resources appropriately.
victim services/policy
An essential element to the success of the Army's accountability
efforts is providing victims with ongoing support. Although the
prevention and response arms of the Army Sexual Harassment/Assault
Response Program (SHARP) fall within the responsibilities of The Deputy
Chief of Staff for Personnel (G-1), it is important to provide you with
a comprehensive picture of the Army's efforts. The Army has invested
unprecedented resources, over $50 million in each of the past 2 fiscal
years, into a prevention and response program designed to achieve
culture change. The I.A.M. STRONG training, emphasizing Army values and
teaching bystander intervention techniques, saturates soldier training
at every level beginning with our newest recruits. A senior leader
priority, this is an ongoing and monumental institutional effort.
Advocacy and assistance for the victim are provided from the initial
report through post-trial proceedings. Alongside the other Services,
the Army has implemented policy to address the unique needs of soldier-
victims, who have concerns about privacy and collateral misconduct.
Details of the Army SHARP prevention and response program are attached.
victim rights and remedies
As to victims' rights in the military justice system, rights
afforded to victims in the Army are set forth in regulations and
generally track the provisions of the Federal Crime Victims Rights Act,
18 U.S.C. 3771. These rights include the right to be treated with
dignity and fairness, with a respect for privacy; the right to be
reasonably protected from the accused offender; the right to be
notified of court proceedings; the right to be present at court
proceedings related to the offense; the right to confer with the
attorney for the Government; the right to restitution; and, the right
to information regarding conviction, sentencing, imprisonment and
release of the offender from custody. These rights are provided both in
written, standard forms and in letters to victims after the court-
martial process concludes. I note the CVRA was amended by Congress in
2004 which added 2 rights: the right to proceedings free from
unreasonable delay, and the right to reasonably be heard at any public
proceeding in the district court involving release, plea, sentencing or
any parole proceeding. Current DOD regulations were drafted prior to
the 2004 amendment to the Federal law and must be updated to reflect
these two additional rights.
The responsibility to inform victims about these rights and the
duty to enforce the rights are shared by all of the personnel who
assist a victim. An overlapping and encompassing team of professionals,
this includes the Commander, the Victim Advocate, the Sexual Assault
Response Coordinator, the CID investigator, the Victim Witness Liaison,
a Legal Assistance Attorney, the trial counsel prosecutor, the
appellate court Victim Witness Liaison and Army Corrections Command
officials. Army regulations require these personnel to provide
information to the victim throughout the investigative and
accountability process. In calendar year 2011, Army Victim Witness
Liaisons and investigators provided 31,898 victim's rights forms to
victims and witnesses of all crimes. During the court-martial process,
the VWL, the trial counsel prosecutor and the SVP work together to keep
the victim informed and actively participating. An educated victim is
the most important asset the prosecutor and the Command have in the
effort to hold offenders accountable.
Army legal assistance attorneys represent victims on any legal
issues arising from the offense, including child custody, child
support, landlord-tenant and other personal matters. A 2011 survey of
legal assistance attorneys in the field indicates that many victims
avail themselves of these services and that Army legal assistance
attorneys were able to provide meaningful assistance. Legal assistance
attorneys can also assist victims with requests for expedited transfers
or other matters that arise in the command.
Each of the military Services has sought innovative solutions to
providing advocacy for victims within the military justice system
without sacrificing the ability to hold offenders accountable.
Recently, the Air Force began a pilot program to provide a Special
Victim Counsel, generally defined as an attorney detailed to represent
victims who can intervene in the court-martial proceedings against the
accused. The Army will watch this program carefully to learn best
practices and potential pitfalls in such a change, one not contemplated
by current rules and procedures. Our concern is that introducing an
adversarial relationship between the government representative, the
prosecutor, and the victim, especially during the presentation of
evidence at trial, will have an adverse impact on the ability to
prosecute and achieve accountability for offenders. The relationship
between the prosecutor and the victim remains the bedrock of every
case. If that trust or confidence is eroded, or a wedge is forced
between them, the offender will reap the benefits. Even lawyers will
admit that entry of another `lawyer-litigant' to litigation almost by
definition does not improve the process. The Army's specially trained
SVPs are taught to work with victims to understand their concerns and
address their needs, and we believe this is a more effective method of
securing sexual assault accountability while also caring for the
victim's interests, pursuing the interests of discipline, and enforcing
the statutes created by this Congress. The prosecutor's responsibility
to protect victim privacy and rights to the greatest extent possible
should not be delegated to another party.
If a victim feels that one of his or her rights has been violated,
the victim has several avenues of redress. The first avenue is the most
direct--through the chain of command, the Victim Advocate, the Legal
Assistance Attorney, the VWL or the SVP. All of these personnel are
available to address the victim's concern and seek a remedy. In the
event that a victim does not get relief from these personnel or does
not wish to utilize these personnel, the victim has a set of secondary
options. The victim can contact the Army or DOD Inspector General's
office, independent investigative agencies. If the victim believes the
chain of command is not enforcing the victim's rights, the victim can
file a complaint under Art. 138 ``Complaint of Wrongs'' of the Uniform
Code of Military Justice, with the assistance of a Legal Assistance
Attorney. Finally, a victim can seek assistance and information from
hotlines run by the Army SHARP program and the Department of Defense
Sexual Assault Prevention and Response Office (SAPRO). But in the end,
the first and best resource for a victim is the prosecutor and those on
the government team (the VA for example) who are trained and focused
specifically on ensuring the victim succeeds.
metrics to measure progress
In my view, prosecution and conviction rates do not alone measure a
criminal justice system's ability to address the crime of sexual
assault. If we pursue challenging cases because we believe that serves
victims and our community interests, some defendants will be acquitted.
An acquittal in American justice is not failure. Whether there is an
acquittal or a conviction is a manifestation of our reliance on the
presumption of innocence. We cannot lose sight of this enduring bulwark
in our foundation. The real measure or metric is the quality of our
training, the ardency of our counsel in the pursuit of justice, the
care we provide victims, and the commitment to equally resourcing our
defense bar. These are the metrics, the benchmarks of a healthy justice
system. In each of these categories we strive for excellence.
Furthermore, in my experience, the Army JAGC takes on types of sexual
assault cases that the civilian authorities decline to prosecute. For
example, the Army often prosecutes sexual assault allegations involving
an incapacitated or intoxicated victim. In my experience, civilian
authorities often decline to prosecute these types of cases, especially
when the accused has no prior criminal record.
Having said that, the Army's focus on accountability has produced
measurable benefits and results. The close coordination between the
Judge Advocate General Corps SVPs and the Criminal Investigation
Command SAIs has improved the investigation, prosecution and victim-
care aspects of sexual assault allegations. Commanders are trained to
make evidentiary based disposition decisions with the advice of
experienced, senior judge advocates and SVPs who understand the nuances
of sexual assault allegations, particularly the unique aspects of
behaviors exhibited by some victims in the wake of the trauma of sexual
assault. The statistics on the number of sexual assault prosecutions in
the Army reflect a healthy military justice system focused on these
difficult cases. Since the inception of the SVP program in 2009, the
number of courts-martial for sexual assault and domestic violence has
steadily increased.
We know this because of the transparency of the process and our
reporting. For example, the Annual Report to Congress on Sexual Assault
in the Military shows a comprehensive breakdown of the numbers of
sexual assault reports and their dispositions. However, the report was
never intended to serve as a vehicle for calculating prosecution and
conviction rates for four primary reasons. First, the report is a
snapshot in time, taken on the last day of the fiscal year and thus
includes in the total number of reports cases that are still pending
investigation or disposition. Second, the total number of reports
includes restricted reports, in which no law enforcement investigation
is triggered, preventing commanders from taking any disciplinary
actions. Third, the total number of reports includes cases involving
either a soldier victim or a soldier offender and thus includes cases
in which a soldier has been assaulted by a civilian, foreign national
or unknown offender. The military does not have jurisdiction over these
individuals and cannot take any disciplinary actions against them.
Fourth, the report covers the entire spectrum of sexual assault as
defined by the UCMJ in seven separate offenses that range from an
unwanted touch over the clothing to rape. Any collective discussion of
disposition data ignores the fact that at one end of the spectrum of
misconduct, administrative or nonjudicial punishments are likely
appropriate, while at the other end of the spectrum, courts-martial
should be considered. Statistics garnered from the Annual Report that
place the number of convictions over the total number of reports are
misleading and of no value in measuring our success. However, when one
looks at the most serious penetrative offenses, rape and aggravated
sexual assault, in which there is a completed disposition and
jurisdiction over the offender, the Army's rate of prosecution is
strong and compares favorably with any other jurisdiction - civilian or
military. The Army pays equal attention to the non-penetrative, contact
offenses that can be just as disturbing and traumatic to victims.
The military justice system, through the Annual Report to Congress,
is simply the most transparent and scrutinized system in the country.
We welcome the scrutiny because we understand our obligation to the
American public. Civilian jurisdictions are not required to report on
the circumstances, demographic data and disposition of every report of
the full range of sexual assault offenses.
Some members of the public and media have confused reported
``clearance rates'' for civilian jurisdictions with prosecution rates.
Civilian jurisdictions report data to the Federal Bureau of
Investigation for the Uniform Crime Report (UCR) on clearance rates
only for the offense of rape. Only now does the FBI define rape as
expansively as the military. Prior to 2012, the UCR definition of rape,
unchanged since 1927, did not include rapes where the victim was
incapacitated by drugs or alcohol, sleeping victims, male victims or
penetration with an object or finger. For purposes of the UCR, an
allegation is considered cleared when there is an arrest and a
presentation for charging or when there is probable cause to identify
an offender, but no arrest. Many civilian jurisdictions have policies
requiring corroboration of a victim's complaint, either through DNA
evidence, injury or a confession, in order to prosecute a case. The
Army has no such requirement. In 2009, the Congressional Defense Task
Force on Sexual Assault in the Military examined the investigation and
prosecution of sexual assault allegations and reported ``the military
services prosecute many types of sexual assault cases that civilian
prosecutors choose not to pursue.''
victim testimonials
Much of the criticism of our system comes from experiences of past
victims who have felt revictimized by the system. The nature of the
crime of sexual assault can make the process of the system
exponentially more difficult to navigate than any other crime. In
recognizing this additional burden on victims of sexual assault we have
developed and mandated specialized training for all SVPs and trial
counsel that addresses the unique needs of these victims from rapport
building through proper interview and direct examination techniques
that employ compassion and empathy. As a result of these efforts, we
have received feedback from victims and their families attesting to the
dedicated, compassionate assistance provided by the specially-selected
and trained Special Victim personnel. In a letter sent to supervisors,
the mother of a rape victim described the SVP as ``a member of the
family'' who ``fought for her daughter . . . but most of all, showed
her that the Army does the right thing.'' A victim in an acquittal
wrote ``I want to thank you for what you did. Even though we didn't win
I was very comfortable having you on my side and help tell my story.''
Another victim wrote, ``To many people it may not seem like much, but
you made it easier for me to sleep at night. You helped me to take my
life back and get the justice I needed.''
Since 1950, we have evolved our military justice system in response
to forces both internal and external. That evolution continues today,
reflected in an extraordinary number of changes over the last several
years. I am convinced that our focus on the Special Victim Capability,
and the constant training and education of commanders, investigators,
and judge advocates, will help create a command climate that will allow
military victims to feel safe and confident in reporting misconduct.
Leadership is the solution to the change in culture we seek. Along with
senior leaders across the Army, we in the JAG Corps will lead the march
to accountability that reinforces committed leadership efforts to solve
this critical problem.
Senator Gillibrand. Mr. Taylor?
STATEMENT OF HON. ROBERT S. TAYLOR, ACTING GENERAL COUNSEL OF
THE DEPARTMENT OF DEFENSE
Mr. Taylor. Chairman Gillibrand, Ranking Member Graham, and
members of the subcommittee, thank you for the opportunity to
testify here today.
DOD is determined to combat and prevent sexual assault in
the military. The men and women who put their lives on the line
to protect this country must be assured that they have the
opportunity to serve without fear of sexual assault. Sexual
assault in the military is not only an abhorrent crime that
does enormous harm to the victim, but it is also a virulent
attack on the discipline and good order on which military
cohesion depends. We must combat this scourge with all the
resources at our disposal. Secretary Hagel has made it crystal
clear to the senior military and civilian leadership of DOD
that combating this blight is a major priority for him and that
he demands results.
I watched the hearing this morning and I want to take this
opportunity to thank the witnesses for coming forward, and I
believe that their testimony will contribute to making our
military better.
DOD is in the process of implementing a multifaceted effort
to address sexual assault in the military. In the legal arena,
my office, along with the JAG, and the JSC on Military Justice
are working to improve DOD's legal policies pertaining to
sexual assault. These efforts are designed to make our
judicial, investigative, and support structures more efficient,
effective, and responsive to the rights and needs of victims
while preserving the rights of the accused.
DOD has recently authorized the U.S. Air Force to implement
a pilot program that assigns SVC to victims who report a sexual
assault. SVC are experienced attorneys who may advocate on
behalf of the victim to commanders, convening authorities,
staff judge advocates, trial counsel, and to the extent
authorized by the Manual for Courts-Martial, military judges.
Although the pilot has been operational for just 6 weeks, I
understand that numerous victims have already requested
assistance.
We need to evaluate the program's effectiveness and to
resolve questions concerning the proper role of SVC in the
military justice system, which is critical to ensuring that
this expansion of victims' rights does not have unintended
consequences that could hinder the pursuit of justice. To that
end, I have tasked the JSC, military justice experts from
across DOD and the Coast Guard, with evaluating the program.
A longstanding issue of concern is the significant role
that commanders have in the administration of military justice
generally and specifically in cases involving allegations of
sexual assault. The recent action of a convening authority to
disapprove the findings and sentence and to dismiss the charges
of sexual assault after a conviction by a court-martial has
underscored continuing concerns with the role of commanders.
Article 60 of the UCMJ authorizes a convening authority in his
or her sole discretion to modify the findings and sentence of a
court-martial.
Over the years, Congress has preserved the central role of
commanders. However, the role of commanders has been narrowed
numerous times to provide protections for the accused. So it
would be a misreading of the long legislative history of the
UCMJ to put the role of the commander beyond a careful
reexamination.
We must strive for a military justice system that
impartially considers evidence, respects the rights of the
accused and victim alike, punishes the guilty, and reinforces
military discipline. To be effective, members of the military
must have confidence that the military justice system will
treat both accused and victim fairly.
With that in mind, DOD has initiated a number of reviews to
inform Congress and the Secretary of Defense regarding the
advisability of additional changes to the administration of
military justice.
Specifically, Secretary Hagel directed me to ensure that
the panel of independent experts to examine the systems used to
investigate, prosecute, and adjudicate crimes involving
military assault, required by section 576 of last year's NDAA,
considers the role of convening authorities in the military
justice process, including the authority to set aside a court-
martial's findings of guilt. The panel presents an excellent
opportunity to solicit independent advice on the appropriate
role of the convening authority in today's military justice
system, which includes robust rights of appeal.
Proceeding with care and listening to all those affected by
the military justice system and to experts on the
administrative justice under other systems will ensure that
changes to the administration of military justice are
constructive and avoid any unintended negative repercussions.
But care and caution must not be allowed to become an
excuse for inaction where further action is needed. Our men and
women in uniform serve to protect us every day. They put their
lives on the line for us, and for this great country of ours.
We owe them a military in which sexual predators have no part
and sexual assault has no place. Until all sexual assault in
the military is eradicated, it is our duty to ensure that the
victims find support, and we lawyers at this table have a
special obligation to ensure that the military justice system
works effectively to provide justice in every case and to all
involved.
I look forward to your questions. Thank you.
[The prepared statement of Mr. Taylor follows:]
Prepared Statement by Hon. Robert S. Taylor
Chairman Gillibrand, Ranking Member Graham, and members of the
subcommittee, thank you for the opportunity to testify here today.
The Department is determined to combat and prevent sexual assault
in the military. The men and women who put their lives on the line to
protect this country must be assured that they have the opportunity to
serve without fear of sexual assault. Sexual assault in the military is
not only an abhorrent crime that does enormous harm to the victim, but
it is also a virulent attack on the discipline and good order on which
military cohesion depends. We must combat this scourge with all the
resources at our disposal. Secretary Hagel has made it crystal clear to
the senior military and civilian leadership of the Department that
combatting this blight is a major priority for him, and that he demands
results.
The Department is in the process of implementing a multi-faceted
effort to address sexual assault in the military. In the legal arena,
my office, along with the Judge Advocates General (JAGs), the Joint
Service Committee on Military Justice (JSC) are working to improve the
Department's legal policies pertaining to sexual assault. These efforts
are designed to make our judicial, investigative, and support
structures more efficient, effective, and responsive to the rights and
needs of victims, while preserving the rights of the accused.
As an initial matter, the Department has taken decisive steps to
ensure that no victim must deal with the aftermath of a sexual assault
alone. Under the leadership of the Sexual Assault Prevention and
Response Office (SAPRO), we have established a comprehensive system of
victim care and support, including sexual assault response coordinators
(SARCs), victim advocates, and a victim witness assistance program.
This means that every victim has access to a network of professionals
who can ensure that they receive the treatment they need and assistance
in the military justice process. Recent policy changes have created a
victim-advocate legal privilege so that victims can communicate
candidly with victim-advocates assisting them through the process,
without fear that their words could be taken out of context and be used
against them.
The military also allows victims of sexual assault to file a
``restricted report,'' which cannot be used to institute a criminal
investigation, but which does trigger the provision of all the support
services intended to help that victim become a survivor. Ensuring the
availability of support services to all victims is certainly the right
thing to do, and, in addition, by providing those services, we hope to
empower the victim to change the restricted report into an unrestricted
report, and thereby help bring the perpetrator to justice. In December
2011, we instituted a policy that permits victims who file unrestricted
reports of sexual assault to request an expedited transfer, removing
the victim from proximity to the alleged perpetrator and protecting
them from potential harassment.
In the fall of 2011, the Under Secretary of Defense for Personnel
and Readiness also directed each Service to expand the scope of legal
assistance available to the victims of crime, including sexual assault.
Pursuant to that directive, the Services now provide victims of sexual
assault with legal advice on military justice issues, specifically
including: (1) the military justice process, (2) restraining orders,
and (3) the different reporting options available to victims of sexual
assault.
The Department also recently authorized the United States Air Force
to implement a pilot program that assigns Special Victims Counsel (or
SVC) to victims who report a sexual assault. Special victims' counsel
are experienced attorneys who may advocate on behalf of the victim to
commanders, convening authorities, staff judge advocates, trial
counsel, and to the extent authorized by the Manual for Courts-Martial,
military judges. Although the pilot has been operational for just 2
months, I understand that a number of victims have already sought
assistance from such counsel.
We need to evaluate the program's effectiveness and to resolve
questions concerning the proper role of special victims' counsel in the
military justice system. Determining the proper role for special
victims' counsel in the adjudication of sexual assault offenses is
critical to ensuring that this expansion of victims' rights does not
have unintended consequences that could hinder the pursuit of justice.
To that end, I have tasked the Joint Service Committee--military
justice experts from the Judge Advocates General of the Navy, Air
Force, Army and Coast Guard, and the SJA to the Commandant of the
Marine Corps--with evaluating the Air Force Pilot Program, including
the authorities, procedures, and guidance regarding the detail of such
counsel.
Evaluating the various initiatives directed at increasing the level
of support to victims in the legal process will help us determine which
program, or combination of programs, works most effectively. Lessons
learned can inform additional changes to Department and military legal
policies, as appropriate.
In addition to expanding direct assistance to victims, the
Department has also implemented changes to how sexual assault and
related offenses are prosecuted. For example, the Department now limits
the initial disposition authority for the most serious sexual assault
offenses to Special Court-Martial Convening Authorities who are
officers of the grade O-6 and above (colonels and Navy captains). This
ensures that only senior experienced commanders, with ready access to
the advice of judge advocates, have authority over these important
cases. It also reduces the likelihood that the convening authority will
have any pre-existing direct involvement with any of the parties.
Other important initiatives are also in the process of being
implemented. The Military Departments are aggressively developing
special victim capabilities to assist in the investigation and
prosecution of sexual assault cases. These capabilities include
assigning experienced and specially trained prosecutors and
investigators to sexual assault cases. These cases can be complicated,
and can raise difficult issues. Handling those cases effectively
requires well-trained and well-resourced investigators and counsel.
The Department also recently assessed the practicability and
advisability of extending the protections afforded by the Crime
Victims' Rights Act to victims involved in cases tried by court-
martial. Based on that review, DOD Directive 1030.01, ``Victim and
Victim Witness Assistance,'' which was modeled after the Victim Rights
and Restitution Act of 1990, will be updated to ensure that victims
have the ability to be heard during public proceedings and that
proceedings are not unreasonably delayed. Additionally, the Department
continues to study what procedures are used to enforce a victim's
rights in different jurisdictions to determine best practices for
possible implementation within the military justice system.
I believe that all of these changes will be instrumental in
increasing the effectiveness of the military justice system as a venue
for the prosecution of sexual assault.
A longstanding issue of concern is the significant role that
commanders have in the administration of military justice generally,
and specifically in cases involving allegations of sexual assault. The
elevation of the initial disposition authority was one response to this
concern, but the recent action of a convening authority to disapprove
the findings and sentence, and to dismiss the charges of sexual assault
and conduct unbecoming of an officer after a conviction by a court
martial has underscored continued concern with the role of commanders.
Article 60 of the Uniform Code of Military Justice (UCMJ) authorizes a
convening authority, in his or her ``sole discretion,'' to modify the
findings and sentence of a court martial. The origin and history of the
military justice system helps provide context necessary to understand
this authority, and is a starting point for a searching and careful
consideration of whether there should be adjustments to the existing
system, and if so, how extensive those adjustments should be.
As described in the Preamble to the Manual for Courts-Martial,
``the purpose of military law is to promote justice, to assist in
maintaining good order and discipline in the armed forces, to promote
efficiency and effectiveness in the military establishment, and thereby
to strengthen the national security of the United States.'' Unique to
this system is the authority of the military commander over those under
his command and the need for portability in the administration of
military justice throughout the world. The commander's role in the
process of military justice has been directly tied to the need for
maintaining discipline within the ranks, as commanders are accountable
for the good order and discipline of the forces under their command and
are ultimately responsible for what their units do or fail to do.
Commanders in the U.S. military have been responsible for the good
order and discipline of their forces since the establishment of the
United States. Congress enacted the UCMJ on May 5, 1950, in the
aftermath of World War II, with the goal of balancing the need for good
order and discipline against expanded due process rights designed to
protect against the potential capricious exercise of authority by a
commander. Although the UCMJ periodically has been updated to
incorporate additional protections of individual rights, Congress has
preserved the central role of commanders. However, over the long
history of the military justice system, the role of the commander has
been narrowed to provide protections for the accused, making clear that
the role of the commander is not immune from careful re-examination.
Ultimately, we must strive for a military justice system that
impartially considers evidence, respects the rights of accused and
victim alike, punishes the guilty, and reinforces military discipline.
To be effective, members of the military must have confidence that the
military justice system will treat both accused and victim fairly.
With that in mind, the Department has initiated a number of reviews
to inform Congress and the Secretary of Defense regarding the
advisability of additional changes to the administration of military
justice.
Pursuant to the requirements of section 576 of the National Defense
Authorization Act for Fiscal Year 2013, the Department is currently in
the process of establishing the Response Systems Panel. The Panel will
be tasked with conducting an independent review and assessment of the
systems used to investigate, prosecute, and adjudicate crimes involving
sexual assault and related offenses, and to make recommendations on how
to improve such systems.
In response to concerns about the broad discretion afforded a
convening authority under Article 60 of the UCMJ, Secretary Hagel
directed me to ensure that the Panel's charge includes consideration of
the role of convening authorities in the military justice process,
including the authority to set aside a court-martial's findings of
guilt. Reexamination of the way in which this authority is exercised is
appropriate, and the Panel presents an excellent opportunity to solicit
independent advice on the appropriate role of a convening authority in
today's military justice system, which includes robust rights of
appeal.
Pursuant to the direction of Congress, after the Response Systems
Panel completes its review, the Department will also establish a
Judicial Proceedings Panel to conduct an independent review and
assessment of judicial proceedings conducted under the UCMJ involving
sexual assault and related offenses. This Panel will consider, among
other things, the introduction by the defense of evidence of the
victim's prior sexual conduct, the impact such evidence has on the
outcome of cases, and a survey of court-martial convictions for sexual
assault, including the number and description of instances when
punishments were reduced or set aside upon appeal.
In addition to these efforts, I have directed the Joint Service
Committee (JSC), as part of its 2013 Annual Review of Military Justice,
to conduct a fact-gathering review of civilian jurisdictions' handling
of sexual assault cases from the initial complaint to law enforcement
through the prosecution process. This factfinding report should
complement and assist the efforts of both the Response Systems Panel
and the Judicial Proceedings Panel.
As you can see, we have implemented a number of major initiatives
in this area in the last several years, and we are studying a number of
other initiatives that have been suggested by Members of Congress, the
public, and the military. As we move forward, it is worth recalling the
caution of this committee in 1983:
``[P]eriodic adjustments to the UCMJ which are justified, desirable
and necessary [should be made]. . . . But, . . . it can be a
`continuing and difficult task to balance the often competing interest
of the maintenance of military discipline . . . and the protection of
an individual's rights.' Therefore, the committee, Congress, and the
Defense Department have always proceeded carefully and cautiously
before recommending any changes to the rights and procedures embodied
in the UCMJ.''
Proceeding with care and listening to all those affected by the
military justice system, and to experts on the administration of
justice under other systems, will ensure that changes to the
administration of military justice are constructive and avoid any
unintended negative repercussions.
But care and caution must not be an excuse for inaction, where
further action is needed. Our men and women in uniform serve to protect
us every day; they put their lives on the line for us, for this great
country of ours. We owe them a military in which sexual predators have
no part and sexual assault has no place. It is our duty to ensure that
the victims of sexual assault find support, and we lawyers at this
table have a special obligation to ensure that the military justice
system works effectively to provide justice, in every case and to all
involved.
Senator Gillibrand. Thank you.
Vice Admiral DeRenzi.
STATEMENT OF VADM NANETTE M. DeRENZI, JAGC, USN, JUDGE ADVOCATE
GENERAL OF THE U.S. NAVY
Admiral DeRenzi. Thank you. Good afternoon, Madam Chairman,
Ranking Member Graham, members of the subcommittee. Thank you
for this opportunity to appear before you this afternoon to
address the Navy's commitment to fighting sexual assault and
specifically about the Navy's accountability initiatives.
Please let me state upfront this is not just a legal issue.
It is a leadership issue for every one of us, and in
recognition of this, the Secretary of the Navy, the Honorable
Ray Mabus, and the Chief of Naval Operations, Admiral Jonathan
Greenert, implemented a multifaceted approach to combat sexual
assault, including comprehensive training and awareness that
emphasizes active, involved leadership and bystander
intervention.
When an incident does occur, the Navy is dedicated to
ensuring that victims receive full-spectrum and timely support
to include medical treatment, counseling, and legal assistance.
Certainly meeting and listening to the members of the earlier
panel who put a face and a voice to the impact of sexual
violence underscores the importance of victim care.
To that end and consistent with the 2012 NDAA, the Navy is
hiring 66 civilian credentialed, full-time SARCs and 66 full-
time civilian credentialed victim advocates. They will augment
the more than 3,000 Active Duty command victim advocates, and
they will work with specially trained Naval Criminal
Investigative Service (NCIS) investigators and specially
trained JAG Corps officers to form the core of our special
victim capability.
The JAG Corps is intensely focused on upholding the special
trust that is placed in us to provide a fair, effective, and
efficient military justice system. We have implemented several
key initiatives to ensure that our clients, both the Government
and the accused, receive the highest level of advocacy.
In 2007, to improve the overall quality of court-martial
litigation, we established the military justice litigation
career track. JAG Corps officers apply for the designation as
military justice specialists or experts based on their
litigation experience and aptitude. Those selected for the
designation lead trial and defense departments and provide
proven experience in the courtroom, personally conducting,
overseeing, or adjudicating complex cases to include sexual
assault. This program leverages trial counsel, defense counsel,
and judicial experience to enhance the effectiveness of our
court-martial practice for complex cases.
In 2010, we established the trial counsel assistance
programs (TCAP) and defense counsel assistance programs (DCAP),
respectively, led by experts in military justice.
TCAP has delivered trial advocacy training and prosecution
process assessments worldwide. They have conducted outreach
training to improve efforts between prosecutors, investigators,
and other military justice stakeholders. They served as trial
counsel or assistant trial counsel in several complex cases, to
include sexual assault cases. The TCAP deputy director is a GS-
15. She is a former State prosecutor with extensive sexual
assault prosecution experience. She previously served as the
director of the National Center for the Prosecution of Violence
Against Women, and she is a noted author in the field.
DCAP was established to support and enhance the defense
bar, provide technical expertise for case collaboration, and
standardize resources for defense counsel. The office leads
training efforts and consults with detailed counsel through
every phase of the court-martial process worldwide.
In 2012, we hired two highly-qualified experts, one to work
at our headquarters level and another to work in DCAP. They are
channeling significant sexual assault litigation experience
into enhanced litigation skills and practices for prosecution
and defense teams in the field. We are now in the process of
hiring another highly-qualified expert to work in our TCAP.
We provide our litigators with extensive trial advocacy
training throughout the course of their careers. The Naval
Justice School, in conjunction with our Criminal Justice
Division, our TCAP and our DCAP, coordinate specialized
training on litigating complex sexual assault crimes, and they
leverage knowledge from the civilian sector and from our sister
services through cross training. We send career litigators to
civilian post-graduate schools to receive master of law degrees
in trial advocacy.
To further refine our complex litigation capabilities, just
last year, the Navy established an externship program and
assigned two mid-level career officers to work in the sex crime
units in two civilian prosecution offices--one in California
and one in Florida.
What I hope is clear from these and other initiatives that
are described more fully in my statement is that Secretary
Mabus, Admiral Greenert, and the entire Navy leadership team
remain steadfastly committed to getting in front of the problem
and to eliminating sexual assault from our ranks.
For our part, the JAG Corps remains actively engaged in
sexual assault awareness and prevention training, victim
response, and accountability initiatives.
Thank you again for this opportunity, and I look forward to
taking your questions.
[The prepared statement of Vice Admiral DeRenzi follows:]
Prepared Statement by VADM Nanette DeRenzi, USN
Thank you for this opportunity to testify before the committee
about the Navy's commitment to eliminate sexual assault and,
specifically, about the Navy's accountability initiatives.
On behalf of the Honorable Ray Mabus, Secretary of the Navy, and
Admiral Jonathan Greenert, the Chief of Naval Operations, I want to
assure you that the Navy is committed to eliminating the crime of
sexual assault in our ranks. In addition to the toll on individual
victims, sexual assault directly impacts operational readiness and unit
cohesion. This is rightfully recognized as a leadership issue, not just
a legal issue. Exemplifying this commitment, the Navy implemented a
multi-faceted approach to address awareness and training, prevention,
victim response, and investigation and accountability.
Beginning with awareness and training, in 2009, Secretary Mabus
established the Department of the Navy Sexual Assault Prevention and
Response Office (DON SAPRO). Since its inception, DON SAPRO has
conducted leadership discussions, stakeholder interviews, and focus
groups with sailors and marines worldwide. In 2010, DON SAPRO conducted
the first Department-wide educational program for Sexual Assault
Response Coordinators. This educational program was expanded the
following year to include shore installation commanding officers and
senior regional leaders. Collaboration between DON SAPRO and a Navy
training command at Great Lakes in 2011 and 2012 resulted in several
local initiatives that yielded groundbreaking objective evidence of
successful sexual assault prevention in a high-risk population of
sailor students.
Recognizing that a majority of the sexual assault cases in the Navy
involve a perpetrator who is a co-worker or acquaintance of the victim,
and that many involve alcohol use, in October 2011, the Navy began
teaching Bystander Intervention to our enlisted sailors going through
initial skills training. Bystander Intervention is a strategy to
motivate and mobilize people to act when they see, hear, or otherwise
recognize signs of an inappropriate or unsafe situation in order to
prevent harm to another person.
Second, the Navy developed and implemented a dynamic and
interactive training program for leaders entitled Sexual Assault
Prevention and Response Training for Leaders (SAPR-L). This training,
for naval personnel in pay grades E-7 and above, was specifically
developed to focus leaders on sexual assault, and to help them better
understand the complex dynamics of this crime and the negative
behaviors that can foster inappropriate conduct. SAPR-L training has
been completed across the Fleet.
The third part of this training and awareness campaign involves
training the remaining members of the Fleet. Sexual Assault Prevention
and Response Training for the Fleet (SAPR-F) was developed for all
sailors in the grade of E-6 and below and focuses on bystander
intervention, responsible decisionmaking, core values, and de-
glamorizing the irresponsible use of alcohol. The unmistakable intent
of this training is to empower sailors to recognize and assume personal
responsibility to stop inappropriate behavior. Over 243,000 sailors (88
percent) in pay grades E-6 and below, active duty and Reserve, have
completed SAPR-F training to date. The remaining sailors are scheduled
to complete the training by March 31, 2013.
The Department of the Navy Sexual Assault Prevention and Response
Office is developing a Sexual Assault Prevention and Response Training
for Civilians, or SAPR-C, that will be implemented this summer. This
course is intended to complement SAPR-L and SAPR-F by training
Department of the Navy civilian personnel and to fulfill the training
requirement set out in the National Defense Authorization Act for
Fiscal Year 2012.
The Navy Judge Advocate General's Corps (JAG Corps) has been
involved at all levels of the Navy's efforts to eliminate sexual
assault. Judge advocates are actively engaged in the development and
delivery of the Navy's innovative and dynamic training programs,
focused on educating the Fleet at all levels. Judge advocates also
ensured all commanders were fully trained on how to properly address
and respond to allegations of sexual assault. As participants on SAPR-L
training teams, judge advocates trained commanding officers, executive
officers and command master chiefs (our senior enlisted leaders) on
their roles in sexual assault investigations, their responsibilities to
support victims and protect the rights of alleged offenders, the
Uniform Code of Military Justice (UCMJ) Article covering sexual assault
(Article 120), as well as the Secretary of Defense policy that elevates
the initial disposition authority for cases involving the offenses of
rape, sexual assault, forcible sodomy and attempts to commit those
offenses. These training efforts are in addition to the advice judge
advocates provide to their commanders on a routine basis.
Victim response is critical to enable a victim to begin the healing
process. The Navy is dedicated to ensuring victims of sexual assault
receive proper and timely support, to include medical treatment,
counseling, and legal assistance. The Navy is hiring 66 credentialed
sexual assault prevention and response coordinators and 66 full-time
professional, credentialed victim advocates. They will augment the more
than 3,000 active-duty command victim advocates, and will work with
specially-trained Naval Criminal Investigative Service (NCIS)
investigators and JAG Corps prosecutors to form the core of our special
victim capability. Our trained legal professionals also deliver direct
legal assistance to victims. The JAG Corps instituted a Legal
Assistance for Crime Victims conference and has trained more than 150
Navy and Marine Corps attorneys, paralegals, and enlisted personnel to
ensure victims' rights are understood and protected. Victims can
contact counsel, and victims eligible for military legal assistance
services also have access to legal assistance attorneys to help with a
wide variety of legal issues related to being the victim of a crime.
Additionally, Navy prosecutors provide victims with explanations of
victims' rights; the court-martial process; and available Federal,
state, or local victim services and compensation.
The Navy JAG Corps' primary mission within sexual assault
prevention and response resides with accountability. Offender
accountability has both investigative and military justice components.
All allegations of sexual assault are referred to NCIS for
investigation; NCIS agents are specially trained to conduct adult
sexual trauma investigations. Seamless coordination with NCIS is
essential. Judge advocates and NCIS special agents who investigate
sexual assault allegations coordinate directly in a number of ways.
Prosecutors frequently serve as visiting instructors for NCIS courses
at the Federal Law Enforcement Training Center in Georgia, and judge
advocates participate in Mobile Training Teams to instruct special
agents, trial counsel, and paralegals on best practices in sexual
assault investigation and prosecution. This cross-training model will
also be employed with the 66 full-time civilian victim advocates.
The JAG Corps is also conducting a pilot program with the NCIS
Sexual Assault Task Force. The Task Force consists of a small group of
special agents assigned to sexual assault allegation investigations.
The Task Force meets weekly to review specific case progress and
monthly with the senior regional prosecutor and installation Sexual
Assault Response Coordinators. This multi-disciplinary approach allows
investigators, prosecutors, and sexual assault prevention and response
personnel to troubleshoot sexual assault investigations, prosecution,
and victim care issues as they arise. It also promotes early
cooperation between stakeholders to improve quality of practice and
provides the model for our special victim capability. On the east
coast, the Task Force began meeting in November 2012. On the west
coast, the Task Force began meeting in January 2013. The teams have
already identified several means of improving coordination between
investigators, prosecutors, and victim advocates. As the pilot program
develops, leadership will continue to assess best practices for use in
other regions.
Once an NCIS investigation is complete, the case is forwarded to
the appropriate commander to make an initial disposition decision.
Reports of sexual assault must be reviewed by Navy captains (pay grade
O-6) or above who are designated as Special Court-Martial Convening
Authorities. Additionally, Initial Disposition Authorities must consult
with a judge advocate prior to making disposition determinations.
Once an Initial Disposition Authority decides a case should be
prosecuted, the Navy JAG Corps provides prosecutors, defense attorneys,
and military judges to conduct the court-martial, as well as active
duty and Reserve judge advocates with fleet and litigation experience
to serve as Investigating Officers at Article 32 pretrial investigation
hearings. The JAG Corps' mission includes providing a fair, effective,
and efficient military justice system, and we are intensely focused on
upholding the special trust placed upon us in the prosecution, defense,
and adjudication of sexual assault cases. Accordingly, the JAG Corps
has implemented a number of initiatives to ensure the highest level of
advocacy in sexual assault litigation.
In 2007, to improve the overall quality of Navy court-martial
litigation, the JAG Corps established the Military Justice Litigation
Career Track. JAG Corps officers apply for designation as military
justice specialists or experts based on their litigation experience.
Military Justice Litigation Qualified officers are detailed to lead
trial and defense departments at Region Legal Service Offices and
Defense Service Offices, which provide Navy prosecutors and defense
counsel, respectively. These officers provide proven experience in the
courtroom, personally conducting, adjudicating, or overseeing
litigation in sexual assault and other complex cases. The Military
Justice Litigation Career Track program increases the experience levels
of trial and defense counsel and leverages that experience to enhance
the effectiveness of criminal litigation practice.
In 2010, the Navy created Trial Counsel and Defense Counsel
Assistance Programs. These separate programs are led by experts in
military justice who provide direct support to prosecution and defense
counsel. The Navy's Trial Counsel Assistance Program (TCAP) provides
high-quality advice, assistance, support and resources for trial
counsel (the Navy's court-martial prosecutors) worldwide through every
phase of the court-martial process. TCAP counsel may be detailed to
serve as trial counsel or assistant trial counsel and have been so
detailed in several high visibility cases, to include five sexual
assault cases. The TCAP Director is an O-5 Military Justice Litigation
Qualified expert and is a former Naval Legal Service Office commanding
officer and military judge. The TCAP Deputy Director is a GS-15 expert
who specializes in sexual assault prosecution and victims' rights. A
former state prosecutor with extensive experience, she previously
served as the Director of the National Center for the Prosecution of
Violence Against Women and is a noted author in the field. TCAP is also
staffed with an O-4 Military Justice Litigation Qualified specialist
with several years of litigation experience.
During the past 2 years, TCAP provided onsite assistance visits,
delivering trial advocacy training and prosecution process assessments
to all nine Region Legal Service Offices worldwide. Further, TCAP
personnel conducted outreach training using a multi-disciplinary
approach to improve efforts between prosecutors, NCIS agents, military
investigators and other military justice stake-holders, including
Sexual Assault Response Program contributors. TCAP staff conducted
advanced family and sexual violence training at the Federal Law
Enforcement Training Center and training on alcohol-facilitated sexual
assault at the Army JAG Legal Center and School and Air Force Keystone
conference. TCAP personnel are frequent instructors at the Naval
Justice School, including the Trial Counsel Orientation, Basic Trial
Advocacy, Intermediate Trial Advocacy, Senior Trial Counsel, Litigating
Complex Cases, Sexual Assault Investigation and Prosecution, and
Prosecuting Alcohol Facilitated Sexual Assault courses. TCAP
coordinates training and advice closely with Marine Corps TCAP and
leverages expertise from other Services, including Army TCAP, highly-
qualified experts, sexual assault investigators, and special victim
prosecutors.
The UCMJ requires that qualified military defense counsel be
detailed to military members facing trial by special or general court-
martial. The Defense Counsel Assistance Program (DCAP) was created to
support and enhance the proficiency of the Navy defense bar; provide
experienced reach-back and technical expertise for case collaboration;
and develop, consolidate and standardize resources for defense counsel.
The office primarily supports the Navy trial defense bar with active
cases. DCAP personnel are authorized to consult with detailed defense
counsel through every phase of the court-martial process. Although not
typically assigned as detailed defense counsel, DCAP personnel may be
detailed to cases. Like TCAP, the DCAP Director is an O-5 Military
Justice Litigation Qualified expert and former military judge. The
Director is supported by an O-4 Military Justice Litigation Qualified
specialist and a recently hired highly-qualified expert, discussed
further below.
During the past 2 years, DCAP provided military justice policy
advice and routinely coordinated with the defense services of the Army,
Air Force, Marine Corps, and civilian defense organizations to maximize
efficiency and capitalize on expertise. DCAP overhauled the Senior
Defense Counsel course to focus on supervisory counsel responsibilities
and continued to develop the Navy and Marine Corps Defending Sexual
Assault Cases course hosted by the Center for American and
International Law. DCAP personnel routinely present training during
field assist visits, web seminars, and participate as instructors at a
number of courses and seminars. DCAP works closely with civilian
defense organizations to make use of the resources at Federal and state
public defenders' offices.
In 2012, the Navy hired two Highly Qualified Experts (HQEs). One
HQE works at the headquarters level to enhance sexual assault
litigation training, trial practice, and policy. She has nearly 20
years of experience prosecuting sex crimes, domestic violence, and
human trafficking crimes. As part of the JAG Corps' Criminal Law
Division, she coordinates with the Naval Justice School and TCAP to
ensure prosecutors and defense counsel receive specialized training on
prosecuting complex sexual crimes, including the 2012 changes to UCMJ
Article 120 and the intricacies of the rape shield provision under
Military Rule of Evidence 412. The other HQE works with DCAP. He is a
retired Marine Corps Lieutenant Colonel who completed two tours as a
military judge while on active duty and has over 15 years of civilian
experience as an assistant Federal public defender and preeminent
civilian military criminal defense attorney. We are in the process of
hiring a third HQE with significant civilian criminal litigation and
training experience to provide litigation assistance within TCAP.
The Naval Justice School; TCAP or DCAP, as appropriate; and the JAG
Corps' Criminal Law Division coordinate specialized training for Navy
prosecutors and defense counsel on litigating complex sexual assault
crimes. Prosecution of Alcohol-Facilitated Sexual Assaults is a week-
long course taught in conjunction with AEquitas, the Prosecutor's
Resource on Violence Against Women. It focuses on substantive aspects
of prosecuting alcohol-facilitated sexual assaults and includes small-
group practical exercises to hone skills such as conducting direct and
cross examinations of sexual assault nurse examiners, toxicologists,
victims, and the accused. The Naval Justice School also facilitates
Sexual Assault Prosecution and Investigation Mobile Training Teams for
prosecutors and NCIS agents. Defending Sexual Assault Cases provides
defense counsel training on sexual assault litigation and is taught in
conjunction with the Center for American and International Law. The
Navy also sends career litigators to civilian post-graduate schools to
receive Master of Laws degrees in litigation or trial advocacy.
To further refine the JAG Corps' litigation capabilities, in 2012
the Navy established an externship program and assigned two mid-level
career officers to work in the sex crimes units in the Office of the
State Attorney in Jacksonville, FL, and the San Diego District
Attorney's Office in San Diego, CA. These 6-week clinical training
externships enabled the officers to gain valuable practical experience
and insight into how civilian prosecutor's offices manage a high volume
of sexual assault cases.
In summary, the Navy is actively engaged in sexual assault
awareness and training, prevention, victim response, and accountability
initiatives. The Navy's leaders remain steadfastly committed to getting
in front of this problem, eradicating sexual assault within our ranks,
and ensuring that sexual assault cases are processed through a fair,
effective, and efficient military justice system. I look forward to
taking your questions.
Senator Gillibrand. Thank you.
General Ary?
STATEMENT OF MAJ. GEN. VAUGHN A. ARY, USMC, STAFF JUDGE
ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS
General Ary. Thank you. Chairman Gillibrand, Ranking Member
Graham, and members of the subcommittee, thank you for the
opportunity to testify here today.
I must begin by assuring you that Secretary Mabus and
General Amos continue to make the elimination of sexual assault
a top priority in our Department.
Within the Marine Corps, our Commandant is personally
leading this fight not just in words but through actions. In
June 2012, the Commandant issued his Sexual Assault Prevention
and Response Campaign Plan. This plan is a blueprint for
institutional and cultural change within our Corps and sets us
on a course to improve our ability to prevent and respond to
sexual assaults.
In July 2012, our Commandant directed every Marine general
officer to attend a SAPR symposium. This training event
included subject-matter experts who spoke about prevention, the
use of alcohol as a weapon, inadvertent victim-blaming, and
dispelling myths.
Our Commandant also spent much of 2012 traveling around the
world speaking to his leaders in a series of heritage briefs,
making it clear that sexual assault would never be tolerated.
As he recently stated--and I quote--we are determined to
eradicate sexual assault in the Marine Corps. It is a personal
thing to me.
I want to address two main areas today. First, I want to
highlight the progress of the military's initiatives to combat
sexual assault.
During the past few years, there have been significant
statutory and regulatory changes made to the military justice
system that affect SAPR. As we implement these changes, we must
carefully balance three main interests: the commander's
inherent responsibility to maintain good order and discipline,
the constitutional rights of an accused, and our fundamental
obligation to protect and care for victims. Military commanders
are uniquely positioned to balance these three interests and
ensure the military justice system serves and protects each of
them.
Second, I want to address the improvements to our legal
response capability. In 2012, the Commandant directed a
complete reorganization of our legal community, a
reorganization that affected over 49 different commands and
over 800 legal billets. This new organization established four
regional legal service support sections designed to ensure that
we place the right counsel, both trial and defense, with the
appropriate expertise, supervision, and support staff, on the
right case, regardless of location.
Each region has a regional trial counsel office that gives
us a special victims capability. The centerpiece of each office
is a complex trial team composed of experienced senior
prosecutors. These regional offices also contain criminal
investigators, a legal administrative officer, paralegal
support, and highly-qualified experts. Our highly-qualified
experts are experienced civilian prosecutors who provide
training, mentoring, and advice on trial strategy and tactics
to all military prosecutors in the region.
All of these improvements protect victim's interests while
ensuring the accused receives the due process rights guaranteed
by the Constitution.
In addition to increasing the available expertise to
litigate sexual assault offenses, the Commandant expanded the
scope of the Secretary of Defense policy on the disposition
authority for sexual offenses to cover not only penetration
offenses, but also all contact sex offenses, all child sex
offenses, and attempts to commit such offenses. In essence, we
now have a smaller group of more senior and experienced
officers making disposition decisions for all sexual offense
allegations and any related misconduct.
In addition, to gain more visibility and command attention
on this critical issue, the Commandant directed a new 8 day
brief to the first general officer in the chain of command from
the date of the victim's unrestricted report of sexual assault.
This 8 day brief serves as a checklist guaranteeing each
victim's care is supervised by a senior commander.
Elimination of sexual assault is a top priority for our
Corps, and the Commandant's personal leadership and commitment
are making a difference. By using a top-down, comprehensive
approach and by attacking on all fronts from prevention to
prosecution, I truly believe we are making a positive change in
the culture of our Corps.
As we consider additional action in the area of sexual
assault, I believe the Response Systems Panel and the Judicial
Proceedings Panel, established in the NDAA for Fiscal Year 2013
provide an opportunity to analyze any future reforms, and we
look forward to participating.
Again, I thank you for the opportunity to testify here
today, and I welcome your questions.
[The prepared statement of Major General Ary follows:]
Prepared Statement by Maj.Gen. Vaughn Ary, USMC
Chairman Gillibrand, Ranking Member Graham, and members of the
subcommittee, thank you for the opportunity to testify here today.
The Department of Defense (DOD), and specifically the Marine Corps,
has made significant changes to the process of litigating sexual
assault cases, and continues to make tremendous progress in providing
services and care vital for victims of sexual assault. We have taken a
holistic approach to combating sexual assault in the Marine Corps, by
implementing a number of initiatives to improve our ability to respond
to allegations across the entire spectrum of a case, from initial
reporting through trial and post-trial matters. We continue to support
Congress's effort to study the progress that has been made through the
independent reviews and assessments directed by the National Defense
Authorization Act (NDAA) for Fiscal Year 2013.
My testimony will address two major topics. The first major topic
is the progress of the military's initiatives to combat sexual assault.
Our military leaders are constructively focused on the important issue
of sexual assault. As a result, our provision of victim services has
improved and our provision of legal services has undergone significant
change. In the Marine Corps, the Commandant's Sexual Assault Campaign
Plan, including a complete reorganization of the Marine Corps legal
community, highlights the proactive stance we have taken in addressing
this matter. The independent reviews and assessments directed by the
NDAA for Fiscal Year 2013 provide an opportunity for us to evaluate
these changes and determine where additional reform is needed. The
second topic of this testimony is an overview of the military justice
process as it exists today following the many changes that have been
made over the past few years. This overview will highlight the success
we are having in four areas essential to reducing the incidence of
sexual assault: prevention, investigation, victim services, and
prosecution. It will also detail the ongoing efforts to make constant
improvements in each of these areas.
the progress of current sexual assault initiatives in the military
In the area of sexual assault, the Marine Corps today is
significantly different than it was just 1 year ago, and 1 year from
now it will look significantly different simply based on our
implementation of current initiatives and legislative requirements. We
anticipate that these changes will have positive effects on the
prevention of and response to sexual assault, to include more
professional investigation, prosecution, and defense of sexual assault
cases. Initial feedback, whether empirical or anecdotal, indicates that
we have improved the legal processes related to the prosecution and
defense of sexual assault cases, and we are expecting continued
improvement. Prior to discussing the specific improvements to the
litigation of Marine Corps sexual assault cases, it is important to
first analyze the recent legislative and policy changes affecting this
area.
Legislative changes
The NDAA for Fiscal Year 2012 made several changes to the area of
sexual assault. Most notable are the reform of offenses relating to
rape, sexual assault, and other sexual misconduct under the Uniform
Code of Military Justice; the addition of 10 U.S.C. Sec. 1565b
providing victims of sexual assault access to legal assistance and the
services of Sexual Assault Response Coordinators (SARC) and Sexual
Assault Victim Advocates (VA); the addition of 10 U.S.C. Sec. 673
providing for the consideration of applications for permanent change of
station or unit transfer for members on active duty who are the victim
of a sexual assault or related offense; and four other sections on
sexual assault prevention and response.
On June 28, 2012, a new version of the Uniform Code of Military
Justice (UCMJ) sexual assault statute, Article 120, took effect. The
statute it replaced was the 2007 version of Article 120, which
completely rewrote the original Article 120 statute to model it on the
Federal scheme for sexual assault. Among other things, the 2007 statute
made it very difficult to prosecute alcohol-facilitated sexual
assaults, one of the most common types of sexual assaults found in the
military. The 2012 statute adopted an ``offender-centric'' scheme that
focuses on offenders' actions, and not the behavior of the victim, to
determine culpability. Military trial and appellate courts are just
beginning to use the new statute, and it will take time to acquire
measures of effectiveness for the new statute.
The NDAA for Fiscal Year 2013 contains 12 specific sections related
to sexual assault,. The provisions cover all aspects of sexual assault,
to include training, prevention, investigation, and prosecution. Most
notably, the NDAA for Fiscal Year 2013 directs the Secretary of Defense
to establish two independent panels to review and assess the UCMJ and
judicial proceedings related to sexual assault cases.
One of the most important parts of the NDAA for Fiscal Year 2013 is
the act's acknowledgement, in creating these two independent panels,
that changes to military justice involving just one subset of crimes,
or changes that significantly alter the role of the commander in
military justice, should be carefully studied. I cannot overstate my
agreement with this principle. I believe a thoughtful and well-
researched comparison of military and civilian jurisdictions will
provide valuable information for you to make decisions about the
efficacy and viability of the military justice system and the role of
the commander. I believe the role of the commander in all aspects of
military justice is best addressed through deliberate study by the NDAA
for Fiscal Year 2013-mandated panels.
Section 576 of the NDAA for Fiscal Year 2013 creates two panels
that will ``conduct an independent review and assessment of the systems
used to investigate, prosecute, and adjudicate crimes involving adult
sexual assault and related offenses.'' Both panels will specifically
address the role of the commander in military justice. The first panel,
the Response Systems Panel (RSP), may last for up to 18 months and will
contain five members selected by the Secretary of Defense, and two
members selected by both the Senate and House Armed Services
Committees. Specific tasks for the RSP include: an assessment of the
strengths and weaknesses of the UCMJ in prosecuting sexual assaults; a
comparison of military and civilian systems, to include best practices
for victim support; the assessment of advisory sentencing guidelines
for sexual assaults; a comparison of the training level of military
prosecutors and defense counsel compared to Federal and State court
systems; an assessment of military court-martial conviction rates with
Federal and State courts; an assessment of the roles and effectiveness
of commanders at all levels in preventing and responding to sexual
assaults; an assessment of the strengths and weaknesses of proposed
legislative initiatives to modify the current role of commanders in the
administration of military justice; and an assessment of the adequacy
of systems to support and protect victims. The second panel, the
Judicial Proceedings Panel (JPP) will convene upon completion of the
RSP and last for up to 6 months. It will contain five members, two of
whom must have served on the RSP. The JPP will use the information
collected and analyzed by the RSP to complete the following tasks: make
recommendations regarding proposed reforms to the UCMJ; review and
evaluate the adjudication of sexual assault offenses by the military in
criminal and administrative fora, including the punishments determined;
identify trends in punishment by courts-martial compared to Federal and
State courts; review and evaluate sexual assault court-martial
convictions that were reduced or set aside on appeal; review instances
when prior sexual conduct of an alleged victim was considered at an
Article 32 hearing; review instances when the prior sexual conduct of
an alleged victim was introduced by the defense at a court-martial;
assess trends in training of military prosecutors and defense counsel;
monitor the implementation of the NDAA for Fiscal Year 2013 requirement
for a special victim prosecution capability; and monitor the recent
Secretary of Defense decision to withhold initial disposition authority
to a higher level of command for certain sexual assault offenses.
Department of Defense changes
Independent of congressional action in the area of sexual assault,
the Secretary of Defense has made numerous changes in the areas of
sexual assault reporting, investigation, and disposition. On April 20,
2012, the Secretary of Defense issued a memorandum withholding initial
disposition authority for certain sexual assault offenses to the O-6
Special Court-Martial Convening Authority (SPCMCA) level (a disposition
authority that previously could have been exercised by O-5 SPCMCAs). On
October 1, 2012, the Defense Sexual Assault Incident Database (DSAID)
became fully operational. DSAID originated from an NDAA for Fiscal Year
2009 requirement for a centralized, case-level database that collected
and maintained information regarding sexual assaults involving members
of the Armed Forces. On January 22, 2013, the DOD Inspector General
(IG) informed the services' senior judge advocates that he intended to
issue a survey of sexual assault victims to better understand the
effectiveness of current support programs and to help guide
improvements to them. On January 25, 2013, Department of Defense
Instruction (DODI) 5505.18 ``Investigation of Adult Sexual Assault in
the Department of the Defense'' was published. DODI 5500.18
specifically requires Military Criminal Investigative Organizations
(MCIO) to investigate all adult sexual assaults. On February 28, 2013,
the DOD IG released its Investigative Oversight Report ``Evaluation of
the Military Criminal Investigative Organizations' Sexual Assault
Investigation Training.'' This report recommended an MCIO working group
to review the continuum of sexual assault investigation training at the
entry, refresher, and advanced levels.
Service-level changes
Internal to the Marine Corps, there have been four major
developments in the last year that will improve the administration of
military justice. The first development began in June 2012, when the
Commandant issued his Sexual Assault Prevention and Response Campaign
Plan, a three-phase strategy developed by an Operational Planning Team
(OPT) whose members the Commandant personally selected. Chaired by a
general officer and comprised of highly respected senior officers and
enlisted marines, the OPT used the same planning techniques and
processes we use to engage the enemy on the battlefield. The OPT
aggressively analyzed the problem of sexual assault in our ranks,
looking for solutions across the wide spectrum of prevention and
response. The resulting Campaign Plan is a commander-led, holistic
approach that improves our ability to prevent and respond to sexual
assaults. Our goal is to change behaviors--the behavior of marines who
might commit sexual assault, bystanders who can intervene and prevent
sexual assault, and commanders, leaders, and professionals who respond
to sexual assault. In a November 2012 interview, the Commandant said,
``Classes are being held, not by a 21-year-old corporal, but the
General Officer, the Colonel, and the Sergeant Major. So this is a
fight. It won't be won this year or next. Will we get there? We're part
of society. But, we are determined to eradicate sexual assault in the
Marine Corps. It's a personal thing with me.''
To personally deliver the message of the Campaign Plan and ensure
that marines truly understand the need to change our culture regarding
the prevention of and response to sexual assault, the Commandant
traveled around the world speaking to his leaders in a series of
Heritage Speeches. In these speeches, the Commandant discussed the
special trust and respect that marines have earned from the Nation, and
the vast responsibility marines of today have in maintaining that trust
and respect. The Commandant emphasized no matter how successful we are
on the battlefield against our Nation's enemies, the Marine Corps could
lose all of that respect if we as marines did not take care of our
fellow marines--America's brothers and sisters, sons and daughters,
fathers and mothers. The Commandant made it clear that sexual assault
is not acceptable and that he would not tolerate it. He directed his
marines to learn more about the situations that may lead to sexual
assault, prevent those situations from occurring, and if a sexual
assault did occur, to embrace the victim and provide that marine the
support they needed. Attachment A contains a summary of the
Commandant's Campaign Plan initiatives and requirements.
The second development was the Commandant's complete reorganization
of the Marine Corps legal community. Previously, legal centers were
decentralized and operated independently of each other. They were also
limited to their own organic capability to address cases in their
geographic location, regardless of complexity. Based on an analysis of
the growing complexity of case types on the court-martial docket, to
include sexual assaults, the Commandant directed a regionalized model
that could better leverage training and experience to provide the
proper level of expertise on the most complex courts-martial,
regardless of location. This reorganization had an immediate and
tremendously positive impact on the ability of judge advocates to
prosecute complex cases and is discussed in more depth below in the
section on courts-martial.
The third development in the last year involved two statutory
modifications of the authority of Staff Judge Advocate to the
Commandant of the Marine Corps (SJA to CMC). The first statutory change
involved the supervisory authority of the Staff Judge Advocate to the
Commandant of the Marine Corps (SJA to CMC). The NDAA for Fiscal Year
2013 modified 10 U.S.C. Sec. 5046 to codify the SJA to CMC's authority
to provide legal advice to the Commandant and supervise the Marine
legal community. Prior to this statutory change, the SJA to CMC
exercised this authority as delegated to him by regulation. In the
second statutory change, 10 U.S.C. Sec. 806 was modified to grant the
SJA to CMC inspection and supervisory authority over the administration
of military justice within the Marine Corps. These statutory changes
recognize the unique nature of the Marine Corps as a second service
within the Department of the Navy and make the SJA to CMC accountable
for ensuring military justice services are meted out efficiently,
professionally, and effectively.
The fourth development of the last year involved improvements in
the ability to provide transparency and visibility of courts-martial
cases to all levels of command. During fiscal year 2012, the Marine
Corps began a Case Management System (CMS) pilot program with the U.S.
Navy. The Judge Advocate General of the Navy (JAG) determined that CMS
presented the best way forward in order to meet a congressionally-
mandated requirement for the entire department to use a single case
tracking system. Based on the JAG's input, the Secretary of the Navy
selected CMS as the departmental case tracking system. At the close of
fiscal year 2012, the Marine Corps and the Navy were working hand-in-
hand to ensure that the CMS expansion will be completed by July 2013,
the deadline set by Congress.
overview of the marine corps' military justice process for sexual
assaults
An allegation of sexual assault
When a marine alleges that he or she is a victim of sexual assault,
that allegation triggers a comprehensive system of required victim and
legal responses. Commanders, law enforcement, victim advocates, and
judge advocates are all required to comply with their statutory and
regulatory responsibilities in order to respond to victims' needs and
determine appropriate offender accountability.
Victim Response. In accordance with Marine Corps Order (MCO)
1752.5A, ``Sexual Assault Prevention and Response (SAPR) Program,'' a
sexual assault victim has the option of filing a restricted or
unrestricted report. A restricted report affords military victims of
sexual assault the option to make a confidential report to specified
individuals (SARC, VA, Uniformed Victim Advocate (UVA), counselors, and
healthcare providers) without requiring those officials to report the
matter to law enforcement or initiate an official investigation.
Individuals making restricted reports can also utilize the full-range
of victim services received by victims who make unrestricted reports.
Filing an unrestricted report requires that all suspected, alleged, or
actual sexual assaults made known to command or law enforcement be
submitted for formal investigation. An unrestricted report is the first
``trigger'' for a variety of victim and legal responses.
Following an unrestricted report, a Commander is required by MCO
1752.5A to take a number of initial steps. These steps include ensuring
the physical safety and emotional security of the victim; determining
if the victim desires/needs any emergency medical care; notifying the
appropriate MCIO, as soon as the victim's immediate safety is ensured
and medical treatment is provided; to the extent practicable, strictly
limiting knowledge of the facts or details regarding the incident;
taking action to safeguard the victim from any formal or informal
investigative interviews or inquiries, except those conducted by the
appropriate MCIO; ensuring the SARC is notified immediately; collecting
only the necessary information (e.g. victim's identity, location and
time of the incident, name and/or description of offender(s); advising
the victim of the need to preserve evidence (by not bathing, showering,
washing garments, etc.) while waiting for the arrival of
representatives of the MCIO; ensuring the victim understands the
availability of victim advocacy and the benefits of accepting advocacy
and support; asking if the victim needs a support person, which can be
a personal friend or family member, to immediately join him or her;
immediately notifying a VA for the victim; asking if the victim would
like a Chaplain to be notified and notify accordingly; determining if
the victim desires/needs a ``no contact'' order or a Military
Protective Order, DD Form 2873, to be issued, particularly if the
victim and the accused are assigned to the same command, unit, duty
location, or living quarters; ensuring the victim understands the
availability of other referral organizations staffed with personnel who
can explain the medical, investigative, and legal processes and advise
the victim of his or her victim support rights; and listening/engaging
in quiet support of the victim to assure the victim that she/he can
rely on the commander's support.
After making an unrestricted report, a marine can request an
expedited transfer. In accordance with the Commandant's Letter of
Instruction on submitting and processing these expedited transfer
requests, commanding officers ``shall . . . expeditiously process a
request for transfer of a marine who files an unrestricted report of
sexual assault. Every reasonable effort shall be made to minimize
disruption to the normal career progression of marines who seek
transfer . . . '' The letter further mandates expedited processing
timelines, establishes a presumption in favor of transferring the
marine requesting transfer, and establishes a process to appeal a
denial of that request to a general officer. This process allows a
victim to request assignment to a different unit for his or her
physical and/or mental well-being. Since February 28, 2012, 57 marines
have requested expedited transfer and all but one of the requests have
been approved. The one marine who was denied an expedited transfer was
temporarily assigned to a service school when she requested the
expedited transfer. The commander was able to return the marine to her
parent unit, which effectively accomplished the goal of separating her
from the alleged offender.
At this early stage of the process, the Marine Corps also requires
commanders of victims to submit an ``8-day brief'' to the first general
officer in their chain of command, which provides general officers with
valuable data about any trends in sexual assaults in their command and
ensures all relevant victim services are being provided.
This past year, the Marine Corps also implemented 10
U.S.C.Sec. 1565b, which makes legal assistance, assistance by a SARC,
and assistance by a sexual assault victim advocate available to victims
of sexual assault. Additionally, 10 U.S.C.Sec. 1565b requires that
victims of sexual assault be informed of the availability of such
services as soon as practicable after the victim reports the sexual
assault. The Marine Corps uses legal assistance attorneys to provide
victims information about the following areas: (1) the Victim and
Witness Assistance Program (VWAP), including the rights and benefits
afforded the victim, such as the victim advocate privilege; (2) the
differences between the two types of reporting in sexual assault cases
(restricted and unrestricted); (3) the military justice system,
including the roles and responsibilities of the prosecutor, defense
counsel, and investigators; (4) services available from appropriate
agencies or offices for emotional and mental health counseling and
other medical services; (5) the availability of and protections offered
by civilian and military protective orders; and (6) eligibility for and
benefits potentially available as part of the transitional compensation
program. Additionally, prosecutors will explain to victims how their
privacy is protected under the military rape shield rule, Military Rule
of Evidence (M.R.E.) 412.
In addition to the new counseling provided by legal assistance
attorneys, the Marine Corps is also increasing the quality and
professionalism of victim advocate services available to victims of
sexual assault. Per the NDAA for Fiscal Year 2012, all SARCs, VAs, and
UVAs are mandated to complete 40 hours of specialized victim advocacy
training, as part of the new credentialing requirements for Sexual
Assault Prevention and Response (SAPR) personnel. This initiative
reinforces the Marine Corps ability to ensure that SAPR personnel
remain well equipped to establish a close and supportive relationship
with victims, and to help victims understand their legal and privacy
rights.
In response to another NDAA for Fiscal Year 2012 requirement, in
fiscal year 2013, the Marine Corps will hire 47 full-time civilian SARC
and VA billets (25 SARCs and 22 VAs). The 25 new SARCs will greatly
augment our current staff of 17, giving us a total of 42 full-time
SARCs by the end of fiscal year 2013. The 22 new VAs will be exclusive
to the SAPR branch, and will augment the existing 42 VAs who are
supported by the Family Advocacy Program. In addition, there are
currently 67 Command SARCs and 813 UVAs across the Marine Corps. These
new SARC and VA positions represent a move from part-time collateral
duty billet holders to a professionalized cadre of victim service
providers. The Marine Corps will also establish Sexual Assault Response
Teams (SART), which is a collaboration with the Naval Criminal
Investigative Service (NCIS), legal, medical, and other entities,
designed to facilitate a multi-disciplinary approach to victim care,
reduce re-victimization, and to provide a holistic response that
extends beyond the boundaries of any one response service. The SARTs
will also conduct quarterly reviews of regional trends in victim
services.
Determining Offender Accountability. DOD Instruction 5505.18, dated
25 January 2013, directs MCIOs, including NCIS, to initiate
investigations of all offenses of adult sexual assault of which they
become aware that occur within their jurisdiction, regardless of the
severity of the allegation. When NCIS initiates a sexual assault
investigation, it will also investigate threats against the sexual
assault victim, to include minor physical assaults and damage to
property. If an adult sexual assault allegation is referred to another
agency (e.g., local law enforcement or the Marine Corps Criminal
Investigative Division), the reason for the referral must be fully
documented in an investigative report that identifies the agency and
states whether the MCIO will be involved in either a joint
investigative or monitoring capacity. This Instruction also provides
minimum training standards for the primary MCIO investigator assigned
to conduct an investigation of sexual assault and provides standards
for records maintenance.
The Marine Corps is working with the Navy to increase Sexual
Assault Forensic Examination (SAFE) accessibility and the Sexual
Assault Nurse Examiner capability. In addition, NCIS is utilizing the
Adult Sexual Assault Program (ASAP), a surge team response to adult
sexual assault cases to increase efficiency and expedite the handling
of cases. Members of ASAP will receive comprehensive sexual assault
training.
Investigation referred to a colonel commander for a disposition
decision
On April 20, 2012 the Secretary of Defense (SecDef) issued a
memorandum withholding initial disposition authority (IDA) in certain
sexual assault offenses to the colonel, O-6, SPCMCA level. The SecDef
withheld the authority to make a disposition decision for penetration
offenses, forcible sodomy, and attempts to commit those crimes. This
withholding of IDA to a Sexual Assault Initial Disposition Authority
(SA-IDA) also applies to all other alleged offenses arising from or
relating to the same incident, whether committed by the alleged
offender or the alleged victim (i.e., collateral misconduct). On June
20, 2012, the Commandant expanded this withholding to include not just
penetration and forcible sodomy offenses, but all contact sex offenses,
child sex offenses, and any attempts to commit those offenses. The
Marine Corps also made it clear that in no circumstance could the SA-
IDA forward a case down to a subordinate authority for disposition. For
example, if a marine was initially accused of a non-consensual sex
offense, along with orders violations and adultery, but the NCIS
investigation did not substantiate the non-consensual sex offense, the
SA-IDA would still be required to make the disposition decision on the
remaining non-sexual assault offenses, even if those types of offenses
were of the type normally handled at lower levels of command. The
result is that the USMC now has a smaller group of more senior and
experienced officers making disposition decisions for all sexual
offense allegations and any related misconduct.
In accordance with Rule for Court-Martial (RCM) 306(c), prior to
trial, a convening authority (the SA-IDA for sexual assaults) may
dispose of charged or suspected offenses through various means:
``Within the limits of the commander's authority, a commander may take
the actions set forth in this subsection to initially dispose of a
charge or suspected offense,'' by taking: (1) no action, (2)
administrative action, (3) imposing nonjudicial punishment, (4)
disposing of charges through dismissal, (5) forwarding charges to a
superior authority for disposition, or (6) referring charges to a
court-martial.
Before making a decision regarding the initial disposition of
charges, the convening authority must confer with his or her staff
judge advocate (SJA), whose primary duties are to provide legal advice
to commanders. In the Marine Corps model for providing legal services,
the provision of legal services support (i.e. trial and defense
services, review, civil law, legal assistance) is completely divorced
from the provision of command legal advice. Practically, this means the
commander's SJA is not affiliated with the prosecutors who evaluate the
evidence in the case and recommend whether to take a case to trial.
Effectively, this ensures the commander and his SJA receive impartial
advice (in addition to information from NCIS) in order to make an
appropriate and well-informed disposition decision in accordance with
RCM 306.
If a commander decides to proceed with charges against an alleged
offender, the commander will file a request for legal services with the
Legal Services Support Section (LSSS) or Legal Services Support Team
(LSST) that services his or her command. Before a case can go to a
felony-level trial, a general court-martial, the commander must first
send the case to an Article 32 investigation.
According to Article 32, UCMJ, ``[n]o charge or specification may
be referred to a general court-martial for trial until a thorough and
impartial investigation of all the matters set forth therein have been
made.'' A general court-martial may not proceed unless an Article 32
investigation has occurred (or the accused has waived it). Unlike a
grand jury under Federal Rule of Criminal Procedure 6, the proceeding
is not secret and the military accused has the right to cross-examine
witnesses against him or her.
RCM 405 governs the conduct of the Article 32 investigation and
states in its discussion that ``the investigating officer should be an
officer in the grade of major . . . or higher or one with legal
training . . . and may seek legal advice concerning the investigating
officer's responsibilities from an impartial source.'' As a matter of
regulation in the Marine Corps, for a case alleging a sexual assault,
the Article 32 investigating officer (IO) must be a judge advocate who
meets specific rank and experience requirements, in accordance with
Marine Corps Bulletin (MCBul) 5813, ``Detailing of Trial Counsel,
Defense Counsel, and Article 32, UCMJ, Investigating Officers.'' MCBul
5813 was published on 2 July 2012 and ensures that judge advocates who
are detailed as trial counsel (TC), defense counsel (DC), and Article
32 IOs possess the appropriate expertise to perform their duties.
Once the Article 32 investigation is complete, the IO makes a
report to the convening authority that addresses matters such as the
sufficiency and availability of evidence; and that more importantly,
contains the IO's conclusions whether reasonable grounds exist to
believe that the accused committed the offenses alleged and
recommendations, including disposition. Although the rules of evidence
generally do not apply at an Article 32 investigation, it is important
to note that the evidentiary rape shield and all rules on privileges do
apply, providing a level of protection for the victim.
The convening authority again receives advice from his or her staff
judge advocate, and then decides how to dispose of the charges and
allegations. Prior to making a disposition decision, convening
authorities take the victim's preference into consideration. If the
commander decides to move forward, he or she may refer the charges to a
general court-martial or a lesser forum.
Court-martial
Alcohol facilitated acquaintance sexual assaults are one of the
most difficult criminal offenses to prosecute, regardless of
jurisdiction. Within the military, they are also the most common type
of sexual assaults that our investigators and prosecutors confront. Our
analysis of ways to improve sexual assault prosecutions uncovered a
broader overall trend in military justice. We noticed an increase in
complex and contested cases as a percentage of our total trial docket.
We realized that our historical model of providing trial services
needed to be revised to better handle these complex cases, many of
which involve sexual assault. The Commandant, as an example of the
importance of the commander in the administration of military justice,
therefore directed us to reorganize our legal community into a regional
model that gives us the flexibility to better utilize the skills of our
more experienced prosecutors. Practically speaking, our new regional
model, which became fully operational on October 1, 2012, allows us to
place the right prosecutor, with the appropriate training, expertise,
supervision, and support staff, on the right case, regardless of
location.
The legal reorganization greatly increases the legal expertise
(based on experience, education, and innate ability) available for
prosecuting complex cases. The reorganization divided the legal
community into four geographic regions--National Capital Region, East,
West, and Pacific. These regions are designated Legal Service Support
Areas (LSSA) and are aligned with the structure of our regional
installation commands. Each LSSA contains a LSSS that is supervised by
a colonel judge advocate officer-in-charge. Each LSSS contains a
Regional Trial Counsel (RTC) office that is led by an experienced
lieutenant colonel litigator whose extensive experience provides
effective regional supervision over the prosecution of courts-martial
cases. This new construct provides for improved allocation of resources
throughout the legal community and ensures that complex cases, such as
sexual assaults, are assigned to experienced counsel who are better
suited to handle them.
While the Marine Corps does not specifically identify ``special
victim prosecutors,'' this capability resides in the RTC offices
through the use of Complex Trial Teams (CTT). The CTT is assembled for
specific cases and may contain any or all of the following: a civilian
Highly Qualified Expert (HQE), experienced military prosecutors,
military criminal investigators, a legal administrative officer, and a
paralegal. The civilian HQE has an additional role training and
mentoring all prosecutors in the region. The HQEs are assigned to the
RTCs and work directly with prosecutors, where they will have the most
impact. HQEs report directly to the RTC and provide expertise on
criminal justice litigation with a focus on the prosecution of complex
cases. In addition to their principal functions of training and
mentoring prosecutors, the HQEs also consult on the prosecution of
complex cases, develop and implement training, and create standard
operating procedures for the investigation and prosecution of sexual
assault and similarly complex cases. The criminal investigators and the
legal administrative officer in the RTC office provide a key support
role in complex prosecutions. Historically, a prosecutor was
individually burdened with the coordination of witnesses and experts,
the gathering of evidence, background investigations, and finding
additional evidence for rebuttal, sentencing, or other aspects of the
trial. These logistical elements of a trial are even more demanding in
a complex trial; the presence of criminal investigators and the legal
administrative officer allow Marine Corps prosecutors to focus on
preparing their case.
To support our prosecutors further, we created a Trial Counsel
Assistance Program (TCAP) at our Judge Advocate Division Headquarters.
Our TCAP consolidates lessons learned from throughout the Marine Corps
and provides training and advice to our prosecutors in each region. The
TCAP provides specialized training through regional conferences focused
on the prosecution of sexual assaults. These training events include
speakers on law enforcement techniques, victim and offender typology,
expert witnesses, forensics, and the art of persuasion. Our Reserve
judge advocates, who are experienced criminal prosecutors, are made
available to mentor our active duty judge advocates either during
trainings or on specific cases.. Our TCAP also coordinates on a regular
basis with the DOD Sexual Assault and Prevention Office to ensure
Marine Corps initiatives meet DOD requirements. To ensure an adequate
level of experience and supervision not only at the headquarters level,
but also in each LSSS and LSST, we more than doubled the number of
field grade prosecutors we are authorized to have on our rolls from 11
to 25. We also specifically classified certain key military justice
billets to require a Master of Laws degree in Criminal Law.
As I mentioned earlier, any change I recommend to the Marine Corps'
system of dealing with sexual assault must carefully balance our
ability to prosecute sexual assaults with our ability to defend marines
accused of sexual assault. As concerned as I am that I have well-
trained and competent prosecutors, I am equally concerned that each
marine accused receives a constitutionally fair trial that will
withstand the scrutiny of appeal. To that end, last year we established
the Marine Corps Defense Services Organization (DSO), which placed all
trial defense counsel under the centralized supervision and operational
control of the Chief Defense Counsel (CDC) of the Marine Corps. This
change was designed to enhance the independence of the Marine Corps DSO
and the counsel assigned to it, while enhancing the efficiency and
effectiveness of available services. The DSO also established a Defense
Counsel Assistance Program (DCAP) to provide assistance and training to
the DSO on sexual assault and other cases.
During the court-martial process, special care is taken to ensure
that the rights and interests of victims continue to be protected. The
M.R.E. provides the same protections as our Federal and State courts
against the humiliation, degradation and intimidation of victims. Under
MRE 611, a military judge can control the questioning of a witness to
protect a witness from harassment or undue embarrassment. More
specifically for sexual assault cases, the military's ``rape shield''
in MRE 412 ensures that the sexual predisposition and/or behavior of a
victim is not admissible absent a small set of well-defined exceptions
that have survived extensive appellate scrutiny in Federal and military
courts (the exceptions listed in MRE 412 are identical to the
exceptions listed in Federal Rule of Evidence 412). In addition,
victims also have the protection of two special rules on privileges.
Under MRE 513, a patient (victim) has the privilege to refuse to
disclose, and prevent another person from disclosing, a confidential
communication between the patient and a psychotherapist. Under MRE 514,
the military has created a ``Victim advocate-victim privilege'' that
allows a victim to refuse to disclose, and prevent another person from
disclosing, a confidential communication between the victim and a
victim advocate in a case arising under the UCMJ. These two evidentiary
privilege rules ensure that victims have a support network they are
comfortable using and that they do not have to fear that their efforts
to improve their mental well-being will be used against them at a
court-martial.
Convening Authority's Clemency Power
I am aware that the discretion of a convening authority under
Article 60 is an issue of extreme importance to you based on the recent
Air Force case. In that case, the convening authority dismissed a
sexual assault offense after setting aside a guilty finding that was
voted on by a panel of officer members. A commander setting aside a
finding is atypical, and even rarer in cases involving sexual assault
offenses. In order to assess the manner in which today's convening
authorities exercise their clemency power, a 2007 Naval Law Review
article examined 807 Navy and Marine Corps special and general courts-
martial convened between 1999 and 2004. The author found that Convening
Authorities exercised clemency in only about 4 percent of the cases,
and in only about 2 percent of the cases that were convened in 2003 and
2004. A review of the Marine Corps cases over the past 2 fiscal years
revealed similar results. Of the 967 general and special courts-martial
cases in fiscal year 2011 and fiscal year 2012 that resulted in
convictions, findings of guilty were disapproved in only 5 cases--less
than 1 percent of the total amount of cases. None of the findings of
guilty were disapproved for sexual assault offenses. More specifically,
in fiscal year 2012, for 115 general courts-martial (GCM) and 285
SPCMs, no guilty findings were set aside for GCMs and 1 guilty finding
was set aside for a SPCM. In fiscal year 2011, for 154 GCMs and 413
SPCMs, findings were set aside in 3 GCMs and 1 SPCM.
A key reason for the Article 60 clemency authority involves
situations where an accused faces multiple offenses at a general court-
martial, and the most serious offense results in an acquittal. For
example, an accused might face a general court-martial for the offenses
of sexual assault, adultery, and violating an order on underage
drinking. If the accused is acquitted of the sexual assault, he is left
with a felony conviction for adultery and underage drinking. Standing
alone, those two offenses are often handled at a lower misdemeanor
forum, a special court-martial, or with administrative measures. In
this type of situation, the convening authority may use his authority
under Article 60 to dispose of the lower-level offenses in a more
appropriate forum.
The Article 60 clemency authority is also closely linked to the
sentencing aspect of a court-martial. Article 60 provides the authority
to modify the sentence of a court-martial, which is a key component of
the guilty plea process. In our military justice system, an accused can
submit a pre-trial agreement asking for sentencing protection in
exchange for his or her plea of guilty. However, even if the plea
agreement is approved, the military judge or members are unaware of the
protection contained in the agreement and will sentence the accused in
a manner they feel appropriate based on the relevant evidence and facts
and circumstances of the case. After the sentence is announced in
court, the sentencing limitations agreed to by the convening authority
will be honored in the post-trial process, pursuant to the convening
authority's clemency power under Article 60. If the convening authority
lacked this power, there would be no incentive for an accused to plead
guilty, which would greatly hinder judicial economy and slow down the
adjudication of the entire court-martial docket.
Article 60 interfaces with key aspects of the UCMJ and serves an
important role in maintaining a commander's ability to ensure a fair
court-martial process. It is not a stand-alone section of the UCMJ that
can be easily severed without significant effects on other key portions
of the military justice system. Therefore, modifications to Article 60
should involve a thorough analysis by the RSP and JPP.
conclusion
The Marine Corps' ability to successfully prosecute and defend
sexual assaults has never been stronger. We are succeeding in carefully
balancing the commander's responsibility to maintain good order and
discipline, the constitutional rights of the accused, and our
obligation to protect and care for victims. Congress plays an important
role in overseeing the proficiency and fairness of our military justice
process. To this end, we are implementing many of the institutional
changes Congress directed in the past 2 years. As you consider
potential additional action in the area of sexual assault, I believe
your establishment of the RSP and the JPP in the NDAA for Fiscal Year
2013 provides us the best chance to work together to make well-reasoned
assessments and recommendations for any future reforms.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Gillibrand. Major General Patton?
STATEMENT OF MG GARY S. PATTON, USA, DIRECTOR, SEXUAL ASSAULT
PREVENTION AND RESPONSE OFFICE
General Patton. Madam Chairman, Ranking Member Graham, and
members of the subcommittee, thank you for inviting me to
appear today.
First, I would like to thank the sexual assault survivors
who testified earlier today. I appreciate their personal
courage in standing up and speaking out. Their words inspire
all of our efforts and renew my commitment every day to this
cause.
It has been my honor to serve our Nation with
servicemembers just like them over the past 33\1/2\ years, and
during that time, I am no stranger to leading culture change,
to include helping de-stigmatize mental health care for our
combat veterans, more fully integrating women in the Armed
Forces with last year's Department's Women in Service Report,
and also managing the Department's successful repeal of ``Don't
Ask, Don't Tell''. The common denominator in all of these
complex institutional challenges has been an unequivocal
commitment to mission success, readiness of the force, and the
welfare of our men and women in uniform.
As the Director of DOD's SAPR Office for the past 9 months,
I want to say that the Department recognizes that sexual
assault is a terrible crime and more needs to be done in
combating it. It is a national problem in our society, but we
in the military must hold ourselves to a higher standard.
Sexual assault has no place in my Army and no place in my
military. It is an affront to the values that we defend, and it
erodes the cohesion that our units demand.
It is unacceptable that 19,000 men and women servicemembers
in 2010 are estimated to have experienced some form of unwanted
sexual contact. This estimate is based on feedback from a DOD
anonymous survey of the Active-Duty Force. That same year, just
over 2,600 victims of sexual assault took the difficult step of
coming forward and making an official report of these crimes,
ranging from rape to abusive sexual contact. This number, when
compared to the survey estimate, demonstrates the significant
under-reporting of this crime. This under-reporting prevents
victims from receiving the care they need and it limits our
ability to investigate these crimes and hold offenders
appropriately accountable.
As this reporting problem demonstrates, sexual assault is a
complex issue. There is no single, ``silver bullet'' solution.
Our DOD-wide mission is to prevent and respond to this crime in
order to enable military readiness and to reduce, with a goal
to eliminate, sexual assault from the military. Reducing and
eliminating sexual assault requires a multi-pronged approach,
one that leverages a wide range of initiatives and engages
every servicemember to prevent the crime from occurring in the
first place. But when one does occur, effective processes and
expert people are in place to support victims and ensure the
delivery of justice.
Underpinning all our efforts is the need for enduring
culture change, requiring leaders at all levels to foster a
command climate from top to bottom where sexist behavior,
sexual harassment, and sexual assault are not tolerated,
condoned or ignored; a climate where dignity and respect are
core values that we must all live by and define how we treat
one another; where a victim's report is taken seriously, their
privacy is protected, and they are treated with sensitivity;
where bystanders are trained and motivated to intervene and
prevent unsafe behaviors; and finally, a command climate where
offenders know they will be found and held appropriately
accountable for their actions. These climate factors are being
stressed and taught today at multiple levels of NCO and officer
education and training across the force, and we are getting
positive feedback from this training.
I often get asked how we will know when this culture change
has taken hold. My answer relates back to some of my formative
experiences growing up in the Army spanning the past 5 decades.
I believe we will know change has occurred when prevention of
sexual assault is as closely scrutinized as the prevention of a
fratricide or friendly fire. We will know change has occurred
when sexist behavior and derogatory language produce the same
viscerally offensive reaction as hearing a racist slur. We are
not there yet, but we are heading in the right direction and we
need to remain persistent in moving this forward.
The Department's multidisciplinary strategy is organized
along five lines of effort: prevention, investigation,
accountability, victim advocacy, and assessment. All five are
described in detail in my written statement submitted for the
record.
In the interest of time, I will conclude my oral statement
at this time with a few personal observations.
I firmly believe we can turn this around, but it will take
time. It will also take continued emphasis on all five lines of
effort and at all levels. Culture change starts at the top, and
I have seen in my 9 months in this job unprecedented senior and
mid-level leader attention and energy right now focused on SAPR
programs across all the Services. The key now is transferring
this energy and focus from top to bottom across the force
through quality training and strong leadership.
I began my remarks by stating that sexual assault is a
national problem. I will conclude by stating that it is my view
that DOD can and must be a leader in solving this problem for
America.
Thank you for your attention. I look forward to your
questions.
[The prepared statement of Major General Patton follows:]
Prepared Statement by MG Gary S. Patton, USA
Chairman Gillibrand, Ranking Member Graham, and members of the
subcommittee, thank you for the opportunity to provide a statement on
the Department of Defense's (DOD) approach to combating sexual assault
and our progress in eliminating this crime in the Armed Forces. This
statement will provide an update on our strategy, critical policy
changes, Service-wide implementation of recent directives and military-
wide efforts to improve the response and care for the victims and
survivors of sexual assault.
background
Sexual assault is a crime and has no place in the U.S. military. It
is a violation of everything that we stand for and it is an affront to
the values we defend. Our DOD-wide mission is to prevent and respond to
this crime in order to enable military readiness and to reduce--with a
goal to eliminate--sexual assault from the military. Secretary of
Defense Chuck Hagel is committed to this mission and to eradicating
this crime from our Armed Forces.
Sexual assault is a complex problem--in our society, on our college
campuses, as well as in the military environment. There is no single,
``silver bullet'' solution. Reducing and eliminating sexual assault
requires a multi-pronged approach--one that leverages a wide range of
initiatives and engages every servicemember to prevent the crime from
occurring in the first place. But when one does occur, we must have
effective processes and expert people in place to support victims and
ensure the delivery of justice.
Sexual assault is a crime. Under military law, it encompasses a
range of offenses from rape to abusive sexual contact. The Uniform Code
of Military Justice (UCMJ) addresses these crimes by Article 120 (Rape,
Sexual Assault, Aggravated Sexual Contact, and Abusive Sexual Contact),
Article 125 (Forcible Sodomy), and Article 80 (attempts to commit these
crimes).
As you heard in the prior panel, sexual assault can destroy and
disrupt peoples' lives in very personal and very public ways when it is
disclosed. Because of this, both military and civilian victims are not
often willing to make a report of the crime to an authority. Since
victims are reluctant to officially report, how do we determine how
often sexual assault occurs? To answer that question, we must use
scientifically constructed, anonymous surveys. The Department has been
surveying regularly on this topic since 2004. The most recent survey
for which we have data was the Workplace and Gender Relations Survey of
the Active Duty (WGRA) in 2010. In that survey, 4.4 percent of active
duty women and nearly 1 percent of active duty men indicated they
experienced some form of unwanted sexual contact in the year prior to
being surveyed. ``Unwanted sexual contact'' is the survey term for the
crimes that constitute sexual assault under the UCMJ that I just
enumerated. But we wanted to know more than just a percentage rate. We
wanted to know how many people 4.4 percent of active duty women and 1
percent of active duty men represent in the Department. Consequently,
we used those percentage rates for women and men and our official
population statistics, we call ``end strength,'' to develop an
estimated number of victims. Using the 2010 survey rates, we estimated
that just over 19,000 men and women servicemembers may have experienced
some form of unwanted sexual contact in 2010.
You may now want to know how many of those estimated 19,000
servicemembers reported the crime to a DOD authority in 2010. The
answer is just over 2,600 servicemembers. Or, put another way, we were
able to account for about 14 percent of our estimated number of
servicemember victims in the sexual assault reports made to the
Department in 2010. This phenomenon--where reports to law enforcement
fall far short of the number of incidents estimated to actually occur--
is known as ``underreporting.'' Many experts in sexual assault believe
that sexual assault is one of the most underreported crimes in U.S.
society due to the stigma, fear, and shame many victims experience.
Combating a crime that stays mostly hidden from view despite the
terrible toll it takes on the victims requires a coordinated,
Department-wide approach. Our strategy is to apply simultaneous effort
in five areas that we call lines of effort: Prevention, Investigation,
Accountability, Advocacy, and Assessment. The underpinning in all these
efforts is the focus on leaders at all levels and their responsibility
to foster a command climate from top to bottom where sexist behaviors,
sexual harassment, and sexual assault are not tolerated, condoned, or
ignored: a climate where dignity and respect are core values we all
live by and define how we treat one another; where a victim's report is
taken seriously and privacy is protected; where bystanders are trained
and motivated to intervene and prevent unsafe behaviors; and, finally,
a climate where offenders know they will be found and held
appropriately accountable for their actions.
My office, SAPRO, partners with a broad spectrum of Department
entities, exercising authorities given to me by Congress and the
Secretary of Defense. As Director of SAPRO, I oversee implementation of
the comprehensive approach for the DOD Sexual Assault Prevention and
Response program. My office serves as the single point of authority,
accountability, and oversight for the sexual assault prevention and
response (SAPR) program; and provides oversight to ensure that the
military departments properly carry out SAPR program policy. To
facilitate execution of these lines of efforts, we collaborate with a
variety of stakeholders inside and outside the Department, to include:
Department of Defense and senior Service leadership, the military legal
community, the DOD Inspector General and investigative organizations,
victim advocacy organizations, and other executive branch agencies such
as the Department of Justice and the Department of Veterans Affairs.
The latter is particularly important as we strive to ensure there is a
continuous chain of support for servicemembers transitioning to
civilian life. Given the complexity and nature of this problem, both in
the military and civilian society, we know there is no single solution
to eliminate this crime.
The significant underreporting of sexual assault limits the
military's ability to hold offenders appropriately accountable and
prevents victims from receiving the care they need. Therefore, the
Department has put policies in place to bring more victims forward to
report these crimes. However, victims won't come forward unless we can
demonstrate we will treat them with the dignity and respect everyone
deserves. Gaining victims' trust is paramount. We cannot eliminate this
crime without their committed involvement. We gain their trust by
creating a climate where a victim's report is taken seriously, their
privacy is protected, and they are provided the resources and attention
to manage their care and treatment.
In 2005, the Department established two reporting options--
restricted and unrestricted--recognizing the best way to encourage
victims to make a report and get the recovery services they need is by
encouraging them to report in a way that is most comfortable for them.
Restricted reports allow sexual assault victims to confidentially
disclose the assault to specified individuals [i.e., sexual assault
response coordinator (SARC), sexual assault prevention and response
(SAPR) victim advocate (VA), or healthcare personnel], and receive
medical treatment, counseling, and assignment of a SARC and SAPR VA,
without triggering an official investigation. Maintaining privacy is a
prime concern for many victims. The restricted reporting option allows
victims this level of confidentiality. Since the option was first
offered in 2005, over 5,000 men and women have made and maintained a
Restricted Report. We strongly believe that these victims that would
never have come forward but for the option of restricted reporting.
Each year, about a quarter of sexual assault reports made to the
Department are restricted.
An Unrestricted Report allows sexual assault victims to access the
same care and support services, but the sexual assault is reported to
command and law enforcement. By Department policy, only a military
criminal investigative organization may investigate a sexual assault.
Since we introduced the two reporting options in 2005, the number of
reports made to the Department has increased by 88 percent. That is, we
had 88 percent more sexual assault reports in fiscal year 2011 than we
did in 2004. While some may be concerned about a rising number of
reports, the under-reported nature of this crime makes bringing more
victims forward a key objective if we are going to assist victims in
restoring their lives and hold offenders appropriately accountable.
Civilian research shows that more victims participate in care when they
make a report of the crime. As a result, we see a rising number of
reports as beneficial. With more reports, more victims are offered the
care and counseling they need. Receiving more reports also means that
the Department has a greater opportunity to hold offenders
appropriately accountable.
Despite our progress in bringing more victims forward, we have much
more work to do. We need the committed involvement of every
servicemember. Our troops take care of each other on the battlefield
better than any other military in the world--and this same ethos of
care must extend to caring for victims and combating sexual assault
within our ranks.
recent initiatives
Over the past 15 months, the Department has initiated and
implemented a variety of initiatives to fundamentally change the way
the Department confronts sexual assault.
In December 2011, the Department issued guidance that mandated an
increased document retention time for sexual assault reports, which
includes investigative documentation, the sexual assault forensic exam
report, and the victim's Reporting Preference Statement. Under this
guidance, combined with the requirements of the recently enacted
National Defense Authorization Act (NDAA) for Fiscal Year 2013 reports
of sexual assault will be kept for 50 years. This is particularly
useful for veterans as this documentation could be used to support a
benefit claim from the Department of Veterans Affairs. The Department
also issued new policy that provides victims of sexual assault the
option to request a transfer from their current assignment or to a
different location within their assigned installation. This expedited
transfer policy requires that victims receive a response from their
commander within 72 hours of the request. If denied, the victim may
appeal to the first general or flag officer in their chain, who also
has 72 hours to provide a response. From policy implementation in
December 2011 through December 2012, the Services have approved 334 of
336 requests for expedited transfer.
Also in December 2011, the President signed an executive order
adding Military Rule of Evidence 514 into military law. This new
provision creates a privilege for communications between victims and
their victim advocates in sexual assault cases. Providing this
additional layer of confidentiality enhances victim trust by ensuring
that communications between a victim and his or her victim advocate are
protected.
In January 2012, the Secretary of Defense announced the
implementation of the Department of Defense Sexual Assault Advocate
Certification Program (D-SAACP). The Department contracted with a
civilian victim advocacy organization to establish the DOD
certification program in alignment with national standards. This
program is now underway; to date, nearly 4,000 uniformed and civilian
sexual assault response coordinators and victim advocates have met
certification standards. The goal is for all DOD sexual assault
response coordinators and victim advocates to be certified by October
2013. In January 2012, the Department also expanded sexual assault
victim support to cover military spouses and adult military dependents,
and ensured DOD civilians stationed abroad and DOD U.S. citizen
contractors in combat areas receive emergency care after sexual
assault.
In April 2012, the Secretary of Defense transmitted the Leadership,
Education, Accountability and Discipline Act to Congress to further
codify into law specific reforms to advance sexual assault prevention
and response. These six provisions were included in the recently signed
NDAA for Fiscal Year 2013. The new law includes the following
provisions, all of which are now under policy development:
Establish a Special Victims Capability within each of
the Services, to ensure specially trained investigators,
prosecutors, and victim-witness assistance personnel are
available to assist with sexual assault cases and that each
Service has specially trained experts in evidence collection,
interviewing, and interacting with sexual assault victims.
Require all servicemembers to receive an explanation
of all SAPR policies within 14 days of entrance into active
service as a way to educate our newest members on the resources
available if victimized and to immediately underscore that the
military culture does not tolerate sexual assault.
Require records of outcome of disciplinary and
administrative proceedings related to sexual assault be
centrally located and retained for a period of not less than 20
years, in order to allow us to better track our progress in
combating sexual assault and help us identify potential
patterns of misconduct and systemic issues.
Require commanders to conduct an Organizational
Climate assessment within 120 days of assuming command and an
annual assessment thereafter, enabling leaders to measure
whether they are meeting the Department's goal regarding
bystander intervention, command climate, and reducing barriers
to reporting.
Allow Reserve and National Guard personnel who have
alleged to have been sexually assaulted while on active duty to
request to remain on active duty or return to active duty until
a determination is made as to whether the alleged assault
occurred in the line of duty; and
Mandate wider dissemination of SAPR resources,
including victim resources such as the SafeHelpline.
In June 2012, the Secretary of Defense elevated the initial
disposition decision for the most serious sexual assault offenses--
rape, sexual assault, forcible sodomy, and attempts to commit these
offenses--so that, at a minimum, these cases are addressed by a
``Special Court-Martial Convening Authority'' who is in the grade of O-
6 grade (an officer at the Colonel or Navy Captain level) or above.
This ensures that, in consultation with Judge Advocates General,
disposition decisions for cases of sexual assault are made by
experienced commanders. Elevating the initial disposition authority
also ensures these cases remain within the chain of command, so our
leaders retain responsibility and accountability for the problem of
sexual assault.
Also in June 2012, our Safe Helpline was expanded to help
transitioning servicemembers who have experienced sexual assault. The
DOD Safe Helpline is an anonymous and confidential crisis support
service for adult members of the DOD community. It is available 24/7,
worldwide by ``click, call, or text.'' The expanded service offered for
transitioning servicemembers helps smooth the transition from DOD to
the Department of Veterans Affairs. As of February 28, 2013,
www.SafeHelpline.org has received 114,290 unique visits (each computer
is counted once and the unique visits number does not represent sexual
assault victims), and the 8,142 visitors have been helped (completed a
live session).
In September 2012, the Secretary of Defense received the findings
from the pre-command training assessment he ordered in January 2012. My
office, along with training, curriculum, advocacy, and military
education subject matter experts, assessed precommand and senior
enlisted leader training conducted by the Marine Corps, Navy, and Air
Force and reviewed Army's newly developed Sexual Harassment/Assault
Response and Prevention Program training support package for senior
enlisted leaders. Upon reviewing our report, the Secretary directed the
Military Services to take the following steps to improve training
quality and consistency across the Services:
Develop and implement standardized core competencies,
learning objectives, and methods for objectively assessing the
effectiveness of SAPR programs.
Provide a dedicated block of SAPR instruction that
incorporates best practices including interactive instruction
with vignettes, exercises, and classroom discussion.
Provide a quick-reference SAPR ``Commander's Guide''
that personnel can then use in subsequent leadership roles.
Assess commanders' and senior enlisted leaders'
understanding of the key SAPR concepts and skills and develop
and implement refresher training to sustain skills and
knowledge.
These core competencies and learning objectives for precommand
curriculum were developed collaboratively with all the Services and
were published to the field in February 2013.
In September 2012, in response to criminal acts and misconduct at
Joint Base San Antonio-Lackland, the Secretary of Defense ordered a
sweeping review and assessment of all initial military training of
enlisted personnel and commissioned officers. As a result, the Services
reviewed a variety of important elements of their training enterprises:
Selection, training, and oversight of instructors and
leaders who directly supervise initial military training. This
review is specifically considering the potential benefits of
increasing the number of female training instructors;
Manning, including the ratio of instructors to
students and the ratio of leaders in the chain of command to
instructors;
Internal controls in place to identify and prevent
behavior inconsistent with established standards by instructors
and leaders throughout all phases of initial military training;
Student accessibility to SAPR services;
Timing, content, and delivery of SAPR-related
training; and
Timing, content, and effectiveness of student feedback
mechanisms.
The Services submitted their findings and recommendations in
February 2013 and they are currently being reviewed in detail.
In October 2012, the Defense Sexual Assault Incident Database
(DSAID) achieved its full deployment to the field, enhancing our
ability to collect data on sexual assault reports uniformly across the
Department. DSAID has three primary functions: standardization of
reporting, managing victim care, and providing business management for
sexual assault response coordinators. It is a common database that all
Services are using, allowing the Department and each Service to track
every report from beginning to end. Additionally, the system interfaces
with the Services' investigative systems, integrating criminal and case
management data. Reporting preference forms will be maintained in DSAID
for 50 years, which will assist victims seeking disability compensation
for military sexual trauma through the Department of Veterans Affairs.
sapr strategy: five lines of effort
In May 2012, as an integral part of the Department's efforts to
combat sexual assault, the Joint Chiefs of Staff published the
``Strategic Direction to the Joint Force on Sexual Assault Prevention
and Response.'' This strategic direction emphasizes senior leaders'
involvement and ownership in addressing sexual assault among the ranks.
It is an unprecedented ``32-Star'' guidance written to synchronize
Departmental efforts as we combat sexual assault along the previously
described five lines of effort. With this joint guidance as our
foundation, the Department is in the process of revising our DOD-wide
SAPR strategy along these five lines of effort:
Prevention. Our prevention goal is to standardize and
deliver effective prevention methods and programs. It is
critical that our entire military community work together to
preclude criminal behavior from occurring. We have evaluated
and are standardizing every sexual assault prevention and
response training course our Services offer to our commanders,
senior enlisted noncommissioned officers, our newest enlisted
troops and to the Sexual Assault Response Coordinators and
Victim Advocates. We are standardizing this training with best
practices--the best practices within our current training and
from the civilian sexual assault training--and making them
common practices. We are establishing policy to reduce the
impact of high-risk behaviors. We are reaching out to a variety
of sexual assault prevention practitioners and researchers to
ascertain which prevention policies and programs might work.
Each Service has launched enhanced training programs; this new
interactive training prominently features senior leaders, thus
underscoring the importance of creating the right culture and
bystander intervention. Our desired end state is an environment
where the cultural imperatives of mutual respect and trust,
professional values, and team commitment are reinforced to
create an environment where sexual assault is not tolerated.
Investigation. We continue to expand our efforts to
achieve high competence in every investigation of sexual
assault, which begins with an unrestricted report. Our
investigative resources need to yield timely and accurate
results. By DOD Policy, investigations are conducted entirely
independent from the military chain of command. When an
unrestricted report is filed, the case is referred for
investigation to a professionally-trained Military Criminal
Investigative Organization that is independent of the chain of
command. Each military Department has its own MCIO--the Army's
Criminal Investigative Division, the Navy Criminal
Investigative Service, and the Air Force Office of Special
Investigations. The MCIOs are overseen by their Services'
Secretaries and policy oversight is provided by the DOD
Inspector General (IG). In fiscal year 2012, the DOD IG
conducted oversight reviews of closed adult sexual assault
cases and adequacy of training. The Department funded over 400
seats at the U.S. Army Special Victim Investigators Course
through fiscal year 2017 and funded the U.S. Army Criminal
Investigative Laboratory through fiscal year 2017 for 5
additional DNA examiners to keep sexual assault case evidence
processing time under 60 days. We revised the Sexual Assault
Forensic Exam Kit to align DOD evidence collection with
national standards. Finally, we implemented a DOD-wide
directive to keep investigative documentation for 50 years in
unrestricted reports.
Accountability. Holding offenders appropriately
accountable in the military justice system is the objective in
the accountability line of effort. Commanders are a critical
part of this justice system. They are responsible for the
readiness of their unit, as well as the health and welfare of
their assigned servicemembers. To this end, commanders
establish standards of behavior, enforce these standards, and
hold people accountable for meeting them. Inherent in this
responsibility is the authority to address misconduct and
offenses and impose discipline in accordance with the military
justice system. Preventing and responding to sexual assault
should be no different from another crime or offense; offenders
must be held appropriately accountable. It is a common
misstatement that commanders conduct investigations of sexual
assault cases. By DOD policy, sexual assault complaints are
investigated by military criminal investigative organizations
that are independent of the chain of command. The results of
these investigations are provided to commanders, who then are
responsible for taking appropriate actions. Removing
disciplinary authorities from a commander's purview would
jeopardize the good order and discipline of the unit, and
impact unit readiness.
The military justice system provides tools to commanders to
appropriately punish offenders depending on the facts and circumstances
of each case, to include the severity of the misconduct. In developing
a Special Victims Capability, which will enable the Services' ability
to deliver enhanced investigation and prosecution of sexual offenses,
child abuse, and serious domestic violence, we are establishing
training programs so that investigators, prosecutors, judge advocates,
victim witness assistance personnel, and paralegals, are specially
trained in the latest technologies, policies, and emerging trends. The
Special Victims Capability program will enable sexual assault
practitioners to better investigate and prosecute, as appropriate,
these complex and challenging cases.
Advocacy. Victim care has been central to our approach
since our office was established. Our goal is to standardize
and deliver effective victim support, response, and reporting
options, so that we instill confidence, restore resilience, and
inspire victims to report--from the initiation of a report
through case disposition in the justice system to victim
recovery. When our victims report a sexual assault, they are
provided a safe environment and receive medical care,
counseling, legal assistance, and victim witness assistance.
Because sexual assault is such an underreported crime, it is
imperative that our program inspire victim confidence and
motivate victim reporting--a necessary bridge to greater victim
care and increased offender accountability. To this end, we
implemented policy that provides for an expedited transfer for
victims and a Certification Program for SARCs and Victim
Advocates. We expanded emergency care and support services to
DOD civilians stationed abroad and DOD U.S. citizen contractors
in combat areas. We expanded the DOD Safe Helpline to help
transitioning servicemembers who have experienced sexual
assault. To ensure policymaking is informed by the voices of
victims, we conducted a recent Survivor Summit where victims
shared their experiences and insights with policy leaders.
Assessment. We aim to effectively standardize,
measure, analyze, and assess sexual assault prevention and
response program progress in our final line of effort.
Assessment is an enduring process of data collection and
analytics designed to improve program effectiveness and is
embedded within each of the other four lines of effort. This
effort includes valuable feedback from servicemembers in the
form of surveys and also includes feedback from commanders,
victims, and victim advocates. Our goal is to incorporate
responsive, meaningful, and accurate systems of measurement and
evaluation into every aspect of our programs in order to
determine the impact we are having on reducing and eliminating
sexual assault. We have initiated more frequent Department-wide
surveys--now every 2 years, instead of 4--and we have placed
sexual assault prevention and response questions on the climate
surveys that are available to commanders. Administered in the
tens of thousands each month, these climate assessments provide
invaluable feedback to commanders on the climate in the unit,
servicemember propensity to report, and the barriers to
reporting that exist within individual units.
In conclusion, I do not submit this statement or speak before the
U.S. Senate Committee on Armed Services in an effort to minimize the
problem of sexual assault in the military. In the Department of
Defense, we fully recognize we have a problem and we will continue to
confront the brutal realities until this problem is solved. I am here
to report that the Department is firmly committed to this goal and that
we remain persistent in confronting this crime through prevention,
investigation, accountability, advocacy, and assessment so that we can
reduce, with a goal of eliminating, sexual assault from the military.
Senator Gillibrand. Thank you all.
We have a number of statements for the record, including
statements from Nancy Parrish, President of Protect our
Defenders; Lisa Maatz of the American Association of University
Women; Mr. Ben Klay; and from the victim of the Aviano Air Base
sexual assault case. If there is no objection, these and other
statements we receive will be included in the record of this
hearing.
[The prepared statements follow:]
[Please see Annexes A through F at the end of the hearing]
Senator Gillibrand. I would now like to turn the
proceedings over to our chairman, Chairman Levin.
Senator Levin. Madam Chairman, first thank you for your
leadership in holding this hearing, and to all of those who
have joined in this effort, it is a major effort. It is a huge
initiative. It is vitally important.
I very much appreciate your recognizing me for a few
moments, and I want to thank our colleagues as well who have
been here waiting to ask questions, and this will just take a
few moments.
First of all, Mr. Taylor, I want to thank you. I wrote you
a letter asking you for the legislative history of Article 60,
and as of, I believe, just today, you responded to my letter
with your own letter, and included in that letter is a fairly
lengthy legislative history, which I would ask you, Madam
Chairman, to incorporate in the record.
Senator Gillibrand. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Levin. Then I just have a couple questions for Mr.
Taylor.
The legislative history that you provided indicates that
the authority of a convening authority under Article 60 of the
UCMJ dates back to the Articles of War adopted by the
Continental Congress in 1775.
Now, at the time that that authority was established, did a
servicemember convicted by a military court-martial have the
ability to appeal his conviction to a higher military court?
Mr. Taylor. No, sir.
Senator Levin. Now, given that a servicemember can now
appeal their conviction to the Air Force Courts of Criminal
Appeals, in the case we are talking about, and into the U.S.
Court of Appeals for the Armed Forces, is there any reason now
to allow convening authorities to overturn a court-martial
conviction on the basis of legal errors at trial?
Mr. Taylor. There have been many developments since 1775 to
get us where we are today.
The robust appellate procedures provided by today's UCMJ do
raise a very serious question about whether the authority
provided by Article 60, which was most recently dealt with by
Congress in 1983--whether the unlimited authority of the
commander to dispose of a finding of a court-martial is any
longer required or continues to serve a vital purpose. We are
going to look into that very thoroughly with very much of an
open mind. But the change in the robustness of appellate
procedures over time, designed to protect the accused makes
this a very different question certainly than existed in 1775.
Senator Levin. Thank you very much, Mr. Taylor.
I want to thank all of our witnesses, and again, thank you,
Madam Chairman, for your leadership here and for the others who
have joined with you. Again, I thank my colleagues and you for
allowing me just a few minutes upfront.
Senator Gillibrand. Thank you, Mr. Chairman.
I am now going to allow Senator Graham to ask his questions
because he has a time constraint. Senator Graham?
Senator Graham. Thank you, Madam Chairman. Just indulge me
a bit here and I will try to be as quick as possible, but I do
have a Budget Committee markup.
I want to thank you for holding the hearing. I think it has
been very informative to all of us.
Convening authority statistics regarding setting aside
findings. From the Marine perspective, you gave us data from
2010 to 2012. There were 1,768 special and general courts-
martial resulting in findings of guilty. In 7 cases out of
those 1,768, the convening authority took action to disprove
findings of guilty. None involved sexual assault. That is .4
percent. Does that sound right, General?
General Ary. Yes, it does.
Senator Graham. Okay. The Air Force. In the last 5 years,
the convening authority disapproved findings of guilt in 1.1
percent of cases, 40 out of 3,713. Five of the 40 were sexual
assault cases. Does that sound right, General?
General Harding. Yes, sir. That is correct.
Senator Graham. The Navy does not have a tracking system
for Article 60 disposition, but you will get one, will you not?
[Laughter.]
Okay, good.
But you have been able to go around to your regional
commands and collect evidence from those who have been involved
in reviewing cases, and what we have from the Navy is we found
one known case where the convening authority took action to
disapprove the findings. That one case was a sexual assault
case.
In the Army, since 2008, there have been 4,603 cases that
went to court-martial with some conviction. In 68 cases, the
convening authority either dismissed all specifications or
disapproved the findings of guilt, 1.4 percent. No Army
convening authority has disapproved the findings and sentence
of a soldier who committed a sexual assault. Does that sound
right for the Army?
General Chipman. It does, Senator.
Senator Graham. The reason I bring that up is I want to
make sure that people understand one case has to be put in
terms of the whole system. The convening authority, General
Harding, for a general court-martial (GCM) is at what rank
usually?
General Harding. For the Air Force, that would be an O-9,
lieutenant general is the usual rank of a GCM convening
authority. A special court-martial (SCM) convening authority
would be normally an O-6.
Senator Graham. What about the Army?
General Chipman. Sir, our GCM convening authority,
typically an O-8 or an O-9; special court, O-6.
Senator Graham. Navy?
Admiral DeRenzi. Typically, sir, for a GCM it is a one- or
a two-star, an O-7 or an O-8, and for a SCM, typically an O-6.
Senator Graham. Marine Corps?
General Ary. One-, two-, and three-star generals, sir,
typically.
Senator Graham. Army?
General Patton. Sir, I think General Chipman gave you the
Army.
I am representing the SAPR Office.
Senator Graham. Okay, I am sorry. I apologize. I should
have paid better attention.
Coast Guard? You are always last. That is not fair.
Senator Gillibrand. I called on him first.
Senator Graham. I know. Good for you, changing tradition
here.
Admiral Kenney. Well, thank you, Senator. To answer the
question, in the Coast Guard, general court-martial convening
authority are one-, two-, or three-star admirals. Special
court-martial convening authorities can range from O-3
lieutenant to O-6 captain.
Senator Graham. If there is a case generated at a local
unit--let us say, a squadron or a flight--the person reviewing
that case, General Harding, is quite a distance away from the
instant in terms of command. Is that correct?
General Harding. That is correct, Senator.
Senator Graham. This concern that this is a buddy-buddy
system, I just want the public to understand that the convening
authority, particularly for general courts-martial that would
involve a case of rape or some serious sexual assault, is a
distance away from the unit in question, just from the way the
system works.
Now, the history of Article 60--and people in the civilian
community may wonder why does a convening authority have the
ability to set aside a punishment. You do have a robust appeals
system. So if there is a legal error in a case, the accused has
the right to appeal all the way to the Supreme Court if
necessary to correct legal errors. But we still have the
convening authority in the decisionmaking role about setting
aside findings.
When you go back to the history of this concept, you do
start with the Continental Army.
But General Eisenhower testified to the House Armed
Services Committee before the Olston Act, which is the
predecessor to the UCMJ of 1950, that in his opinion, it is
necessary that the person in the chain of command have the
power to take final action on courts-martial. He opposed a
proposal to move the power to mitigate or remit certain types
of sentences from the commanders to the JAG.
You had another general, Collins, who offered similar
testimony. He was the commander at Guadalcanal. He believed
that the commander must have power to initiate and review
charges in order to effectuate good order and discipline.
So there are legal error problems that can be corrected by
the appellate system, but when it comes to good order and
discipline of a command, we have generally held the view that
the one person that has the power to determine good order and
discipline and to make sure it is present is the military
commander.
Could each of you give me an opinion as to whether or not
that concept is still viable and relevant in 2013?
General Harding. Senator, if I could, I will start.
I think it is incredibly viable. It is part of the reason
why we succeed in the Nation's armed conflicts. Over the course
of 238 years, we have largely been successful in armed
conflict. It is because we bring more things to every fight. We
bring the best people. We are an All-Volunteer Force. We give
them the best training. That is the second element. Third is we
bring the very best equipment. Congress helps us in that
regard. Those are three legs of a four-legged table. The table
wobbles and falls without the fourth, and that is discipline.
Command and control is an important element in discipline. It
ties all those things together. The convening authority's
ability to exercise some accountability on every aspect of an
airman's, soldier's, sailor's, marine's behavior is incredibly
important, creating a responsive disciplined force.
It was incredibly important in 1775, and the reason why we
stayed in the field for 8 years and bested the best army on the
planet at the time. It is still important today.
Senator Graham. Could you indulge me?
Senator Gillibrand. Sure.
Senator Graham. From the Army's point of view, do you
concur?
General Chipman. Senator, I would add this. In the cases
where we have set aside findings or the entire case by the
convening authority, it has typically been where we have a
greater result to achieve by doing so. So, for example, a very
light sentence on what was charged initially as a very severe
set of crimes--the light sentence was such that it was
equivalent to non-judicial punishment. Therefore, we set aside
those findings in return, for example, a post-trial resignation
in lieu of court-martial to get the greater good of getting the
offender out of our service.
Senator Graham. I want people to understand the convening
authority cannot increase the sentence.
General Chipman. That is correct, sir, but he can, in fact,
take an action in a post-trial----
Senator Graham. In lieu of it.
General Chipman. In lieu of. That is correct.
Senator Graham. In the Navy's point of view, does this
command authority resonate in 2013?
Admiral DeRenzi. Yes, sir, I believe it does. Commanders
are responsible for life and death decisions, the safety,
welfare, well-being, and good order and discipline of those
under their charge. My experience has been that these convening
authorities and these commanders take these decisions to heart.
They strive day-in and day-out to do the right thing. They are
people of integrity. They are advised by well-qualified and
well-trained legal counsel.
Having said that, the military justice process has matured
greatly since the last time Article 60 was reviewed, and there
are lawyers at every stage of that process now, trial counsel,
defense counsel, staff judge advocates, and it is a good time
to look at Article 60 again in light of those changes but ever
mindful of the second- and third-order effects of adjusting or
restricting somehow the convening authority's authority.
Senator Graham. Is it the Navy's position that the
convening authority should not have this power and it should be
placed into someone else's hands?
Admiral DeRenzi. No, sir, that is not our position at all.
Senator Graham. What about the Marine Corps?
General Ary. Sir, thank you for the opportunity to talk on
this issue.
I think for so long as we hold our commanders accountable
for everything that a command does or fails to do, then they
must have these types of authorities. They are responsible for
setting command climate. They are responsible for the culture,
and it is their leadership that we have to hold accountable.
They need to be able to hold everyone in their unit accountable
to preserve that good order and discipline to accomplish their
missions.
Senator Graham. The Coast Guard?
Admiral Kenney. Thank you, Senator.
As the Coast Guard is the smallest of the Armed Forces, our
units tend to be smaller as well, and that commander is the
embodiment of leadership and discipline within those small
units, and to maintain that discipline, I concur with my
colleagues.
I would add that we have also reviewed our past court-
martial practice to determine if a commander has ever
overturned, in the last 4 years, a charge or specification
involving sexual assault, and of the over 200 courts-martial
convened in the Coast Guard, there have been three instances
where a specification, a part of a finding, was overturned, but
that was always on the advice of a judge advocate who had found
plain legal error.
Senator Graham. Now, what I will do, I will just wrap up
here very quickly. I think that the hearing today shows the
need for Congress to be involved. I think these programs that
you are coming up with have a great possibility to pay
dividends. But it is a cultural problem and it has to be
changed. All I would urge my colleagues to do is if there has
been a longstanding tradition in the military of allowing the
commander this authority for the reasons just cited better than
I could ever articulate.
General Harding, I would like in private for you to offer
to brief the members of the committee about the Aviano case.
You briefed me. It is quite an interesting case, and I would
just ask every member of the committee to spend some time, if
you could, being briefed about the facts of that particular
case.
But as to the climate in the military, the fact that
victims feel they cannot come forward, clearly this has to be
addressed. I want to thank you, Madam Chairman, for bringing
this up to the Nation's attention, to the committee's
attention, and I look forward to finding a way to continue the
progress that seems to be made.
Senator Gillibrand. Thank you, Senator Graham.
I am extremely disturbed, based on the last round of
question and answer, that each of you believes that the
convening authority is what maintains discipline and order
within your ranks. If that is your view, I do not know how you
can say that having 19,000 sexual assaults and rapes a year is
discipline and order. I do not understand how you can say that
of those 19,000 cases, to only have approximately 2,400 even
reported because the victims tell us that they are afraid to
report because of retaliation and the blame they will get and
the scorn they will get from their colleagues is order and
discipline. I really cannot understand how 2,400 cases, only
240 of which go to trial, can result in you believing that that
authority is giving you discipline and order. It is the exact
opposite of discipline and order.
I am very grateful for all of the changes that have been
made. Each of you gave opening testimony that was very strong
and thoughtful about the kinds of changes you are making, and I
appreciate it that I heard from each of you that there is zero
tolerance. I appreciate that I hear from each of you about the
training that you are giving your lawyers and the training that
you are giving your prosecutors and training that you are
giving your advocates. That is all well and good.
But if the convening authority is the only decisionmaker of
whether a case goes to trial or proceeds and the only
decisionmaker about whether to overturn a case, well, then all
that training and all those excellent lawyers and prosecutors
you have do not mean a difference. It does not make a
difference because the person with the authority is not the one
who has that years of training in terms of legal ability and
prosecutorial discretion and the understanding of the nature of
a rape, that it is a violent crime. It is not ``ask her when
she is sober.'' That is not what this issue is about.
I appreciate the work you are doing. I honestly do. But it
is not enough, and if you think you are achieving discipline
and order with your current convening authority framework, I am
sorry to say you are wrong. Every victim that has come in front
of this committee and every story we have heard over the weeks
and months shows that we have not even begun to address this
problem.
Lieutenant General Harding, let us talk about the Aviano
case. Do you think justice was done in that case?
General Harding. I think that the convening authority
reviewed the facts and made an independent determination. That
was his obligation as given to him by this body. Granted, it
was 65 years ago, but he fulfilled a statutory obligation, and
he did so with integrity.
Senator Gillibrand. Do you think the five senior officers
that were the jury in that trial did not do justice?
General Harding. I cannot say that they did not, ma'am. I
think both the jury and the convening authority did their duty.
Senator Gillibrand. Well, as they reached the opposite
decision, in one instance justice was not done. Which instance
do you believe justice was not done?
General Harding. I cannot say. I am not going to conclude
that justice was or was not done. What I will conclude is that
all parties did their job. From my review, all parties did what
they were asked to do by the law.
Senator Gillibrand. Well, one of the parties was wrong. If
you are the victim in that case, to have gone through 8 months
of testimony, of providing evidence, I can assure you she does
not believe justice was done.
I would like to move towards some questions concerning how
we can evaluate a stronger system. Mr. Taylor, what do you
think of the Aviano case?
Mr. Taylor. I am very concerned about the message received
as a result of that case.
To back up just a little bit, each of the people at this
table gave a response to Senator Graham's question except for
me. I believe that we have to look very carefully about whether
there is a continuing value to the authority provided to the
convening authority to throw out the findings, to reject
findings of a military trial, of a court-martial. As Senator
Levin indicated, there is a very robust system of appellate
rights that are available to protect the accused, and I think
we have to very carefully reconsider whether there needs to be
changes to Article 60, whether there needs to be further
guidance on how Article 60 is to be employed.
But the Secretary has charged me to take a thorough and
open and searching look into the continued need for Article 60
as it exists today, and I intend to do so. It will be informed
certainly by the experience of these very fine lawyers and
leaders and by others to make sure that we do not do damage to
good order and discipline. But there is something that seems
odd about the power to reject findings that came out of a jury
in the absence of some major obvious problem.
I am concerned by the message that is received. I think we
have to redouble our efforts to make sure that victims are
willing to come forward and are willing to trust the military
justice system. I think we need to redouble our efforts to
ensure that victims feel supported and respected and honored
for the service that they are doing by coming forward and
saying no.
Senator Gillibrand. Thank you.
I have many other questions that I will submit for the
record for each of you.
Our next Senator is Senator Blumenthal.
Senator Blumenthal. First of all, let me thank Senator
Gillibrand not only for the focus on this issue in convening
this hearing, but also for the passion and commitment that she
brings to this issue, which I share.
Let me begin by saying that you have all given very
thoughtful and informed answers and, if I may say, very lawyer-
like answers, which is to say cautious and careful. This issue
really demands immediate action and not just tinkering around
the edges.
In my first visit to Afghanistan--I have been there three
times--my mission was to find out what could be done to protect
our military men and women against the IEDs that continue to
cause more than half of all our casualties. We have since dealt
with that problem more effectively through a combination of
body armor, better equipment to detect them, a range of
actions.
When I first visited Camp Leatherneck, I was shown what the
Marine Corps was doing in the absence of the body armor and all
the other measures that took time to do. They had rigged up a
10-foot long pole with what looked like the end of a coat
hanger, which they used very effectively to detect roadside
bombs because they could not wait.
This problem is the equivalent of an IED in every unit in
the Armed Forces. It is the equivalent of an immensely
destructive force which the Aviano case has brought to the
public's attention in a very dramatic way, much like the
photograph of a roadside bomb going off in Iraq or Afghanistan
would be. But I think it is equally potentially destructive to
the good order and discipline and most especially to
recruitment, to retention of the best and the brightest and the
bravest that you now have. I could not agree more, Lieutenant
General Harding, that all of those elements are necessary, but
people ultimately are our greatest asset in the military. As I
said this morning--I do not know how many of you were here--I
truly believe we have the best and the brightest and the
bravest now and the next greatest generation in the military,
and we need to continue to attract and retain them, which is
why this issue is so important and why the lack of effective
action will be the equivalent of an IED for our Armed Forces.
My view is we need to do more than tinkering around the
edges of the system and we need to do reform right away.
Chairman Levin asked a very thoughtful question about the
convening authority's power to overturn a conviction. Even if
we were to remove that power, in my view it would not really
deal with some of the systematic shortcomings of this system,
which are not your doing. In part, they are our doing because
one of those shortcomings is the lack of sufficient resources.
I know as a prosecutor to gain a conviction, you need evidence.
For sufficient evidence that is conviction beyond a reasonable
doubt, which is by no means an easy standard, you need really
expert investigative elements. We have an obligation to provide
you with those resources, as well as to assist you in dealing
with this issue by helping to reform that system.
I want to begin by asking you, Mr. Taylor. You have the
panel. You have various ideas. You have said you are
considering them. What is your timetable?
Mr. Taylor. The Secretary has directed me to provide a
preliminary assessment of the need for change in Article 60 and
the nature of any such changes by March 27.
The panel is necessarily on a much longer timeframe. It is
a panel that is mandated by the 2013 NDAA. Four members of the
panel are to be appointed by the chairman and ranking of the
Senate Armed Services Committee and the House Armed Services
Committee. It will be subject to Federal Advisory Committee Act
I believe. It is on a much more extended timeframe.
We will do an internal effort, and then there will be this
external, independent panel effort. Then, of course, the
timeframe ultimately is up to you.
Senator Blumenthal. Is your assessment something that you
can share with us at the end of this month? I assume it is
March 27 of this year.
Mr. Taylor. Yes, it is. That, of course, would be up to the
Secretary.
Senator Blumenthal. Well, I would like to make a request on
my behalf--others may join--in asking that it be made available
on March 28 or as soon thereafter as possible. I know I do not
have authority to issue subpoenas the way I did when I was a
prosecutor, but I hope that the Secretary of Defense will share
the sense of urgency that we have in moving forward as quickly
as possible.
You have been asked about the rates convictions are
overturned. Do you have numbers on the rates of conviction
where courts-martial are convened on sexual assault cases?
Mr. Taylor. I believe that each of the Service TJAGs
provided that during the answer, and I did not write it down.
But it is very low specifically in cases involving sexual
assault.
Senator Blumenthal. Can you give me an explanation--
unfortunately, my time has expired, but I have one last
question for you and I will have others that I want to submit
for the record--as to why the rates of conviction are so low?
Mr. Taylor. The rates of conviction--sexual assault can be
a difficult charge to prove beyond a reasonable doubt. I think
that many of the efforts that you heard about in improving the
professionalism and the resources available for sexual assault
cases, the creation of special victims prosecutors and that
capability, the increased support to victims may result in an
improvement in the conviction rate, but it can be hard to
prove.
Senator Blumenthal. My time has expired, and I will submit
these questions. But I would respectfully suggest that that
issue be part of your preliminary assessment submitted to the
Secretary of Defense and then to us.
I thank you all for your extraordinary service to our
Nation. None of this is personal to you or to the military, as
I hope you understand. I firmly believe that you will solve
this problem because you have been so effective at solving
similar issues, whether they are cultural or strictly
logistical or otherwise military, in our history. Thank you for
your service.
Senator Gillibrand. Senator Hirono.
Senator Hirono. Thank you, Madam Chairman.
Thank you to all the witnesses.
We heard from witnesses this morning, and I am sure you may
have been in the audience listening to the testimony from them
where they described going through a very difficult process
even reporting their sexual assaults. You have testified this
afternoon about the various programs, training, education, your
efforts to change the culture in the military.
My question is, do you know whether all of this focus to
change the culture, to provide the kind of support, education,
whether that is working? Do you ask the victims, the survivors
whether these programs are working for them?
General Patton. Ma'am, I will take that first, if that is
okay with my colleagues.
I direct the SAPR Office, and I do talk to survivors on a
regular basis. We also have other informal mechanisms of
hearing from them and other people on the issue, such as an
anonymous Safe Helpline which we have had tens of thousands of
calls into over the 2 years that it has been in effect.
One of the things that we have been hearing fairly recently
in those sorts of informal feedback is that they are encouraged
by the reforms, the initiatives, and the programs that are
being put in place. But it is something that we need to remain
persistent on.
We have also got very positive feedback on the training
that has been essentially revamped in the past year. The
PowerPoint slides and things we heard about this morning are
done. They are over. There is no training that solely consists
of PowerPoint slides. They are interactive. They involve, in
some cases, victim testimony, scenario-driven discussions,
videos that are presented, ethical decision scenarios that are
presented. I mean, I have been a part of training at multiple
different levels on different bases, and this is revamped
training that we are getting good feedback on and it is having
some effect in terms of pushing this interest, awareness, and
education not only at the top level, but pushing it down
through the ranks to the very bottom, to the influence leaders
that we really truly need to affect if we are going to make
this an enduring culture change.
Senator Hirono. I would say that that is probably a very
long process.
In the meantime, we also heard a suggestion today that we
should take out the decision to prosecute, to investigate from
the chain of command and go to an impartial kind of an
adjudicatory system and decisionmaking. I would like to ask you
if you can briefly comment on--do you foresee major problems
with going that route? Because countries such as Great Britain
and Canada have gone that route.
General Patton. I will answer it first and if I can pass it
down the row. I am the only non-lawyer sitting at the table,
but I have commanded infantry units for 7\1/2\ years. So I am
speaking from a command perspective on this answer.
My point of view would be that we want commanders involved
in the process. We want commanders paying attention to victims.
We want commanders caring for them, taking their report
seriously. We want commanders paying attention to crimes and
other acts of indiscipline and harassment and derogatory
language and all these things along the continuum of harm. We
want commanders paying attention to that. We want commanders
setting standards for what is acceptable and unacceptable in a
unit where dignity and respect are the only standard in how we
treat one another. We want commanders doing that.
As a commander, I am responsible for the health and welfare
of my men and women in my unit. I take that as my ultimate
responsibility and take it very seriously. I have led men and
women in combat with that same responsibility.
We expect and hold commanders accountable for establishing
standards in their unit and then holding people accountable
that do not meet those standards, whether they be standards of
performance or standards of behavior. As a commander, I want to
know who that offender and perpetrator is of this crime because
that person is degrading the readiness of my unit, and it is
also committing a crime against another human being in my unit.
So I feel we need commanders very involved in this.
Senator Hirono. I think they should be involved, but on the
other hand, should they be basically judge and jury? I think
that is the question that we are confronted with.
General Chipman. Senator, if I could add at this point. I
visited my counterparts that run those systems in the UK, in
Canada, and in Australia. I visited every one of the JAGs from
those respective Armed Forces. That model that they have is not
a model to which we should aspire. Moreover, they are not
comparable in any way, shape, or form to the size, the length,
the frequency of our deployments of U.S. military forces. When
we have 300,000 soldiers in two theaters of operations in
Afghanistan and Iraq, we need a system that punishes swiftly,
visibly, and locally and not independent of the chain of
command, not an independent adjudicative authority, but under
the direction, control, and focus of that responsible commander
in the theater.
Senator Hirono. Well, that is just it because we have a
huge number of people who are serving and thousands and
thousands of them are being assaulted according to information
from the Pentagon. So this continues. I would say that we do
need to acknowledge and face some facts. I do commend all of
you for the work that you are doing to address what is a large
issue. In fact, one of the testifiers mentioned that getting
the convictions or pursuing sexual assault cases are very
difficult because often it becomes `she said, you said, or he
said he said,' that kind of situation.
I have some experience in having to actually change a law
in Hawaii when I was in the State legislature where the law
allowed for the victims and the survivors to be revictimized,
which is what we are hearing time and time again from our
testifiers this morning. I think that this is a situation,
another situation, where the actual underlying law and the
authority probably needs to be addressed.
Mr. Taylor, I think I heard you say that this authority of
the convening officer to be able to just undo a decision, a
court-martial decision, that you think that in the situation
where we do have a robust appellate process available to
defendants in the military, that perhaps this kind of an
ultimate authority to overturn a decision should not rest in
one person's hands who may not even have any kind of legal
training because that is what we are talking about. These are
legal results. These are legal processes. In my view, anybody
who is going to overturn a legal process should have a legal
background, and that is not the case. I am glad that this does
not happen frequently, which just says to me that perhaps we
can eliminate this particular authority on the part of the
convening authority.
Do you want to comment?
Mr. Taylor. Yes, ma'am. We will take a very hard look at
that. We are absolutely committed to doing so and directed by
the Secretary to do so, and we will. As I indicated, I have a
deadline imposed on me by the Secretary of March 27th to give a
preliminary assessment.
Senator Hirono. Thank you.
Madam Chairman, my time has expired. Thank you.
General Harding. Sorry. If I could add, we also have a
deadline set by the Secretary of Defense to the Secretary of
the Air Force of the 20th. We have 1 week to let him know what
our thoughts are on the very same subject.
Senator Hirono. Thank you.
Senator Gillibrand. Senator Ayotte?
Senator Ayotte. Thank you, Madam Chairman.
I want to thank the witnesses for being here today on this
very important issue which we have to address. It is
undermining, as you mentioned, our readiness, our military. It
is totally unacceptable and it is not consistent with the
greatest military on Earth.
I want to ask about a GAO report that was issued in
January. Mr. Taylor, the GAO report found that military health
care providers do not have a consistent understanding of their
responsibilities in caring for sexual assault victims because
the Department has not established guidance for the treatment
of injuries stemming from sexual assault and that there are
certainly specific steps of care if someone is a victim. Steps
that have to be taken to protect their confidentiality, and
also in some instances, steps that need to be taken to preserve
evidence that may be needed if they choose to report. We,
obviously, hope that they are able to do that, report their
victimization and the crime that has been committed against
them.
So where are we in light of this GAO report? Do you have
any established guidance from DOD for the treatment of injuries
that could be transmitted to medical providers so that they
properly treat victims of sexual assault in the military?
Mr. Taylor. Senator, I believe that General Patton would be
in a better position to answer this question.
Senator Ayotte. General?
General Patton. Yes, ma'am. We have a standing Department
of Defense Instruction (DODI) and it is very close to being
reissued with the revised instruction. I expect that to be out
by the end of this month. The revised instruction addresses in
detail some of the inconsistencies that were found in the GAO
report. I personally have read the GAO report and then looked
at both the two enclosures, number 7 and 8. I have brought them
with me here, if you are interested in having those. But these
are enclosures in the revised instruction, the policy, that
will be promulgated and which will address some of the very
specific points that you were mentioning, specifically how
restricted reports, victims, and survivors who make restricted
reports--how they are to be dealt with confidentiality and with
regard to the other procedures that our medical practitioners
must afford and the counseling that must be available and the
examinations that must be given and those sorts of things.
Equally, I think one of the gaps determined by the GAO
report was the gap between unrestricted care and the gap with
the restricted reports. Those points are specifically addressed
in the revision of policy which, again, has completed the OMB
and interagency coordination. I expect they will be promulgated
here within the next couple weeks.
But like any policy, a policy is only as good as the paper
it is on. It has to be promulgated and it has to be enforced,
and there has to be training that is based on that policy. Then
the medical community--I know our Assistant Secretary for
Health Affairs has conferred with the Surgeon Generals in all
the Services, and they are focused on addressing that point and
ensuring that those changes to the policy are promulgated and
put in action as soon as possible.
Senator Ayotte. General, in formulating the policy, before
being in the Senate, I was an Attorney General. For example, in
my State there was specific guidance issued from the Attorney
General's office after having brought together stakeholders,
including physicians, victims, law enforcement, basically all
stakeholders and formulating these guidelines to make sure that
they were appropriate, that they were thorough, and that this
was not just something from the top down, but it came from
really getting the stakeholders who are involved in it to make
sure that they are right.
How did the process that you undertook to put these
together--what did that involve? Who did you consult? There are
very good models for this even in the civilian sector, and I
wondered if you consulted any of those.
General Patton. Ma'am, it was a very collaborative process.
All the Services were involved, their medical experts were
involved in this particular portion of the policy. Our Health
Affairs staff was involved. We do confer with the experts in
the field. I know one of the women on my staff has been
involved in victim advocacy and has been working side by side,
really on the front lines of victim advocacy and care for
victims for most of her adult life. Another woman involved in
the formulation of policy was the SARC of the Year for the Air
Force and has a lot of hands-on experience in dealing with
victims and getting them through not only the difficult step of
coming forward and going through the reporting step, but then
also into the medical system as well. So I am pretty
comfortable that it has been a broad and collaborative process.
Like I said, the inconsistencies that were identified in
the GAO report--I have made a comparative look between the GAO
report and then what we have in our revised DODI and I believe
that it does cover all those areas.
Senator Ayotte. So when will this be issued, and then also,
what are the implementation plans? I mean, one of the biggest
issues we heard this morning from the panel of victims was the
culture issue. This is only one component of the culture issue,
but how do you implement these guidelines to make sure that
victims are also receiving the proper treatment and respect
within the medical system?
General Patton. The first step is the policy. Like I said,
we expect to have this back from the Office of Management and
Budget and promulgated by the end of this month. So that is the
first step.
But then DOD policy has to be taken by the Services and
then promulgated in some fashion. On this case, being a
medical--just take the medical component out. I would expect
that the Surgeon Generals would be issuing guidance and
reinforcing guidance on those aspects of the policy then within
their Service.
Education programs then have to be based on the changes in
the policy so people can be educated and they know the new
standards of performance in terms of medical practice and care
for all type of survivors.
Then lastly, there is an assessment step, which is to say
we should be out there and we need to be out there identifying
how these policies are being applied by the medical
practitioners. I know that Dr. Woodson, our Assistant Secretary
of Defense for Health Affairs, has a plan that he has shared
with me. I do not know the timeline, but he does have a plan
that once this policy is promulgated and education in place and
so forth, to go out and audit various medical communities to
ensure that these standards are being applied and our victims
are being cared for as they demand.
Of course, we also hear from the survivors, and they tell
us things. I had a summit of survivors in my office several
weeks ago, and one of the survivors shared with me a very
difficult tale of how she was treated in an emergency room in a
military hospital. Those types of inputs are very important to
how we go about this.
Senator Ayotte. Thank you, General. I would ask that you
provide that policy to the committee, and I would also ask that
you provide us with the action implementation plan so that we
can follow up on this issue. Thank you for being here, I
appreciate it.
[The information referred to follows:]
In response to your request for:
1. The policy:
Attached is the revised Department of Defense Instruction (DODI)
6495.02 ``Sexual Assault Prevention and Response Program Procedures,''
dated 28 Mar 2013.
2. The action implementation plan:
Next is the Assistant Secretary of Defense (Health Affairs)
memorandum tasking the Services to report annually to Health Affairs on
the status of the availability of sexual assault medical forensic
examiners and to review the new instruction (DODI 6495.02) and provide
written implementation plans, including target dates for implementation
of updated program elements.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
General Patton. Yes, ma'am.
Senator Gillibrand. Senator McCaskill?
Senator McCaskill. Thank you.
After meeting with many of you and many of your colleagues,
I have gotten much more familiar with the UCMJ. In fact, on the
advice of one of the Army JAGs, I actually downloaded it on my
iPad and now have it as an app.
I keep coming back to the structure that is very strange
the more I think about it. I have tried every kind of criminal
case there is from a low-level shoplifting burglary to a
capital murder death penalty case. In the criminal justice
system, we build a fence around the fact finders, and we make
sure that the evidence they hear is relevant and judges are in
charge of making sure that the evidence is relevant and that
the rules are followed. Generally in our system, the only
people that can overturn the fact finders are people who have
also heard the witnesses unless there is a legal problem with
how the trial was actually conducted.
Now, your system is much different. In your system, a
defendant can refuse to take the stand, which is certainly
their right, and therefore their character does not come into
evidence because the only way someone's character comes into
evidence is if they place it in evidence. So the fact finders
do not get to hear what a great guy someone is. They are
listening just to the facts of the case.
It is bizarre to me that when that is over, you begin a
clemency process. I am going to read the quote from the victim
in Aviano about the clemency process. ``The clemency process
was a travesty. The vast majority of the statements were
personal attacks on the judge, the prosecutors, and me. A few
were actual clemency letters stating their relationship with
Wilkerson. Please think of his family, et cetera. Many of them,
especially the ones from the pilot community and their wives,
wrote caustic, vitriolic letters alleging that the judicial
system is corrupt and that the trial was not legitimate. They
claimed the prosecutors were bullies and unethical. The panel
was biased because they weren't pilots. The judge made bad
decisions. I am a slut, a liar, unprofessional.''
This information goes to this general and he is to look at
that contemporaneously with supplanting his judgment for the
fact finders. There is no good reason for that. I cannot think
of one, and I would love it if one of you would tell me why--in
our system, after the appeal is finished, then there is an
opportunity for clemency by an executive authority to commute a
sentence, to pardon someone, but not prior to a decision on
whether the case was, in fact, conducted legally. How can
someone's judgment about the factual determination in a case be
clear if they are being bombarded with evidence of character of
the defendant who had not taken the stand for an opportunity of
the fact finders for his character to be cross examined for bad
acts? I would like some explanation from you as to how good
order and discipline is enhanced by the ability of the mixing
of those two very different deliberations.
General Chipman. Senator, I would like to try first on that
question.
I think we have two distinct aspects to this, the convening
authority's authorities on findings and those authorities on
the sentence, because I can see that clemency, of course,
extends also to sentence revision. In some cases, for example,
a convening authority might delay the imposition of forfeitures
that were part of the sentence to provide continued support
financially to the accused's family, dependent spouse and
children. So that is one aspect where clemency would be
appropriate from the outset.
In some cases, clemency might be appropriate to address a
legal error that was identified either by the judge during the
course of the trial, by the staff judge advocate on his or her
review that we know will be taken care of by the appellate
court, but why not go ahead and clean that error up with the
action by the convening authority?
Senator McCaskill. I understand the point you made, but I
think that there will have to be a stronger argument than that
for me not to come down on the side that clemency belongs at
the end of a legal determination, not in the middle of it. I am
not somebody who believes that somebody who has not heard the
evidence presented should be making a determination on who was
telling the truth. A transcript never tells the full story as
to who was telling the truth. That is why we have trials. To
supplant that judgment for the people who actually heard the
testimony, particularly in these cases because these cases are
``he said/she said.'' These cases are all about the
believability of the witnesses. Juries are very good at
sniffing out who is telling the truth.
I am not sure a general, far removed with no legal training
looking at a stack of clemency matters contemporaneously with a
dry transcript, is given the right information to make the kind
of decision that is going to be for the good order and
discipline of the whole.
So that is one issue.
Another issue I have is that if this power, this amazing
power that is given this one individual, is about the good of
the whole--and we talked about this, General, in my office with
General Welsh--it appears to me that the Aviano general has
really failed because if this decision is because you want them
to have the ability of looking at the good of the whole, I do
not think anybody is going to argue that this decision has been
terrible for the whole. This decision has turned the military
on its ear as it relates to the criminal justice system that is
contained therein. He was not looking at the good of the whole.
He was looking at this individual case.
The irony is the very power he has is because of the good
of the whole, but yet he is narrowly looking at the facts in
evidence in a stack of clemency matters, in this case, and
making a decision that sets the Air Force back. We may be all
the way back to Tailhook at this point in terms of all the work
you have tried to do to move the Air Force forward.
Mr. Taylor, could you comment on that as to whether or not
these cases are really being decided on an individual basis or
whether or not this good of the whole is being considered
because I think Senator Gillibrand's point is a really good
one. If it is about the good of the whole, I do not know that
we are doing a very good job since this problem is as pervasive
as it is and is getting worse and not necessarily better.
Mr. Taylor. Senator, I think you have a very good point. It
is entirely possible that there is a disconnect between the
rationale for this authority, which is the good of the whole,
and how it has come to be utilized. That is one of the things
that I will need to consider in making my preliminary
assessment, but it is a serious issue and it requires a very
serious response and hard thinking. I commit to you that I will
think hard about that. I think it is a very good point.
Senator McCaskill. My time is out. Let me first just make
sure. Has everybody seen ``The Invisible War'' on the panel?
[No verbal response.]
Senator McCaskill. General Ary, I would certainly like from
you later what, if any, action for the good order and
discipline of the whole unit happened to any command at the
military barracks here in Washington as a result of the
incident. You do not have to tell me now. But I am dying to
know what commander was relieved, what commander was dismissed.
Clearly, the facts around that case have serious implications
beyond the sexual assault that is alleged. I will never look at
the Friday night evening parades the same way again after
seeing that movie. On behalf of the Marines, I would think that
there would be a deep desire to clean that up and show that it
is a new day at the Washington barracks.
General Ary. Yes, ma'am. We will get you that response.
[The information referred to follows:]
``The Invisible War'' is a feature length documentary about sexual
assault in the U.S. Military. The documentary includes stories from
military sexual trauma survivors, including two female Marine officers
who were stationed at Marine Barracks Washington at two different times
between 2006 and 2010. The documentary, however, fails to present the
investigative and adjudicative actions that occurred in both of those
cases, leaving the viewer with the impression that both reports of
sexual assault went unanswered. That is not the case. Both reports were
fully investigated by the Naval Criminal Investigative Service and
appropriate action was taken on the alleged offenders based on the
evidence adduced during those investigations, including a general
court-martial for one of the alleged offenders.
The Marine Corps has made significant changes to the process of
litigating sexual assault cases, and continues to make tremendous
progress in providing services and care vital for victims of sexual
assault. We have taken a holistic approach to combating sexual assault
in the Marine Corps, by implementing a number of initiatives to improve
our ability to respond to allegations across the entire spectrum of a
case, from initial reporting through trial and post-trial matters.
In the area of sexual assault, the Marine Corps today is
significantly different than it was just 1 year ago, and 1 year from
now it will look significantly different simply based on our
implementation of current initiatives and legislative requirements. We
anticipate that these changes will have positive effects on the
prevention of and response to sexual assault, to include more
professional investigation, prosecution, and defense of sexual assault
cases. Initial feedback, whether empirical or anecdotal, indicates that
we have improved the legal processes related to the prosecution and
defense of sexual assault cases, and we are expecting continued
improvement.
Senator McCaskill. Finally, I have a long list of others
about investigators and their specialized training.
Senator Gillibrand. We will have another round.
Senator McCaskill. Okay, great. I will wait then. Thank you
very much.
Senator Gillibrand. Thank you, Senator McCaskill.
We are going to take a second round because there is
interest by the Senators sitting here.
Mr. Taylor, we have talked a little bit about how other
nations have addressed their previous practices of having a
convening authority, Britain, Canada, Australia. Have you had
an opportunity to study what they did in those jurisdictions
and whether it had any beneficial effect on increasing the
amount of reporting, increasing the amount of prosecutions? Did
it have any effect on unit cohesion, unit morale, on
discipline, on order? Did they see a loss in discipline and
order by removing convening authority?
Mr. Taylor. I have done a little reading on the topic. But
as I understand it, the rationale for the action taken in
Canada and in Great Britain and some other countries has been
focused really on protecting the accused, and it is to provide
a further layer of insulation for the benefit of the accused.
Whether it has had any impact at all on sexual assault cases I
do not know. I plan to be talking with counterparts and try to
gather some of that information over time, not for the 27th.
Senator Gillibrand. I want to talk with each of you about
this real challenge of under-reporting. Anecdotally listening
to the testimony this morning, each of the victims said if I
had an advocate early on to tell me what my rights were, to
stand by them, to have some authority, if I knew that I could
be transferred immediately or the perpetrator could be
transferred immediately, that might give me the courage to
withstand the 30, 60, 90 days it would take to have a case
reviewed. They said if I knew my allegations would be taken
seriously and I had a real chance that this perpetrator could
be convicted and he would be held accountable, I might have
been willing to report.
So I would like each of the Services to tell me their view
of why do you think there is so little under-reporting. If it
is literally 19,000 and more than half are sexual assaults
against men and if only 2,400 are actually unrestricted
reported, that is a terrible reporting rate. What do you think
the reasons are? Are the things that are being implemented
now--will they begin to address it? What do you think the most
important reform in your mind is there to increase the number
of reports that are made for the sexual assaults? Lieutenant
General Harding, you can start there and we will go across.
General Harding. Well, that is one of the reasons, ma'am,
that we structured that SVC program.
The majority, at least the survey tells us, of our sexual
assaults are not reported. We believe that if victims believe
that there is somebody on their side, as they go through this
complicated process that can be very exhausting, that we will
see more of them come forward. That is our hope in part.
Also, when we looked at fiscal year 2011, the last batch of
statistics we gave you, we noticed that in the unrestricted
reporting side, that we had 29 percent of our victims who had
said I want to cooperate with law enforcement, walk away, and
refuse to cooperate before they got to the courthouse door. In
the Air Force's case, 96 victims. So we believe that that helps
us encourage and embolden them as well to get through that
process and to feel less like they have been revictimized by
that process when they have somebody there to explain why
things are happening the way they are.
I believe there are multiple reasons. Our surveys have
shown multiple reasons why people do not report. We know that
one of them is the belief that this is a difficult process to
get through. That is not the only reason.
I think I would turn it over to Major General Patton to let
you know what the survey revealed and told us among the various
reasons why people do not report.
Senator Gillibrand. Lieutenant General Chipman?
General Chipman. Senator, I think to follow on what General
Harding said, these are the most difficult kinds of allegations
to share with anyone. These are the intimate details of our
personal lives, our bodily integrity. I think there is a
natural reluctance there. I think there is a great desire for
privacy on the part of these victims to avoid general knowledge
among unit members, the community of the kinds of things that
have been inflicted upon them.
Finally, I think what is different about military service
is this idea that you take on this member of a team, cohesion,
esprit, good order, discipline. I think that was shown very
well in the documentary that you asked us if we had seen. One
of the biggest crimes was, first, the assault, but second the
attitude of the military when it was reported, the lack of
support that those victims received, and that sort of violation
of the fundamental belief that they were part of the team that
would take care of them that would not allow this to happen. So
I think that still plays out in the underreporting.
Senator Gillibrand. Vice Admiral?
Admiral DeRenzi. Yes, ma'am. I agree with General Chipman
and with General Harding as well.
I think it comes down to victims knowing that they will be
responded to, supported, cared for through the process. We are
in the process of hiring professional, full-time victim
advocates, which is different than having a lawyer serve as a
victim advocate. We are striving to form a core relationship
between prosecutors, investigators, and the victim advocate to
work with the victims who come forward in a constructive,
cohesive way. We are watching with interest the Air Force pilot
on what a SVC role could be within the system where we do not
have one very well defined, but they would not supplant a
victim advocate.
We have all instituted expedited transfer. Last year, the
Navy approved 79 of them--none were disapproved--within 72
hours. If a command declines, the request goes to the next flag
in the chain. There were no declinations.
I think the training that we have devised, informed in
large part by the experiences shared so powerfully in ``The
Invisible War,'' are helping at the deck plate fleet level to
understand the resources that are available, what actually
happens when an allegation is made. Commanders do not
investigate these allegations. That is given immediately to
NCIS. Commanders support the victims. They need to be mindful
of the due process rights of the accused. They need to initiate
an investigation.
The training has gone to great lengths to dispel myths
about this crime, to ensure that people understand that it is a
crime that involves men, as well as women, to ensure that we
protect the most vulnerable among us, that we have the proper
training for investigators, for lawyers, for first responders.
We have hotlines that can be reached through text, through
phone, through email.
Restricted reporting is something that I know is difficult
for people to completely understand. I think the truth is we
are trying to give people options to come forward. Ideally we
want people to come forward to us and make an unrestricted
report so that we can pursue accountability aggressively. But
not everyone will--as we heard this morning, it is so difficult
to come forward, the courage to come forward, the trust to come
forward. We are working to earn that. Until we do and until an
individual finds that courage, supported by the people around
them, they have the ability to make a restricted report which
allows them to get medical care, counseling, and victim support
without going through the accountability process. It is our
hope that with that support, they will find the courage to
change into an unrestricted report.
Senator Gillibrand. My time has expired. So I am going to
turn now to Senator Graham.
Senator Graham. Thank you.
This is an emotional topic, so I will be pushing back a bit
to some of the things said. But having said that, please do not
mistake the push-back for an understanding that sexual assault
in the military needs to be addressed and we need to improve
upon the current system because what we have today is not
working.
But in terms of whether or not we have a good ordered and
well disciplined military, I would say the answer is yes. The
answer is yes because you see it in the way they conduct
themselves in battle. The enemies of this Nation have never
faced a finer military force than exists today, and we have
problems. There are human beings involved in our military, and
there is no justification when people act badly and poorly. But
I want America to know that the best test of discipline is when
the flag or the balloon goes up. We are the best in the world.
Now, this idea that fighter pilots take care of fighter
pilots. We are going to talk about that a little bit. General
Harding, do you know the convening authority?
General Harding. I do, yes, sir.
Senator Graham. Is there any suggestion that he set aside
the findings because of the career field he was in or a
personal relationship with the accused?
General Harding. Absolutely not. As a matter of fact, he
does not know the accused.
Senator Graham. I just want to set this straight. You may
not agree with what the general did, but I actually know these
people. They take this job very seriously of sending people
into combat. They take their job very seriously as a convening
authority to make sure that in their view for the units in
question, justice was rendered. We are talking about a handful
of convening authority actions, given thousands of cases.
Please do not over-indict the system.
Mr. Taylor, I want you, if you could, to have people in
your office to review every convening authority in the military
in terms of special court-martial, general court-martial
convening authority, and see if you can find somebody who is
not up to the task because I believe, ladies and gentlemen,
that our commanders who get to this rank have been chosen for a
reason.
[The information referred to follows:]
In the Air Force, convening authorities are commanders who have
been chosen for their position based upon their demonstrated leadership
abilities, character, and judgment as well as professional expertise.
These senior leaders are experienced officers with many years of
military service.
Senator Graham. Now, the problem of reporting sexual
assault in the military. General Patton, is it any greater a
problem in the military than it is in the civilian community?
General Patton. Sir, I believe they are on par in both
sectors.
Senator Graham. I would say that what happens in the
civilian community in this area is probably duplicated in the
military. ``On par'' may be the right word, but I promise you
this. There is no city, there is no State, there is no county
that is going to take it more serious than the men and women
before you.
When it comes to defending somebody in the military, I have
been a defense counsel and I have been a prosecutor in the
civilian world and in the military world. The one thing I never
had to worry about defending a military member is cost. I got
every witness I ever wanted. I did not have any overhead to
pay, and I did not have hundreds of cases. As a military
prosecutor, I spent an inordinate amount of time preparing a
case that our civilian colleagues would envy. Are there
district attorneys out there not bringing cases they should?
Absolutely. Sometimes the system fails. But I just want people
to understand in the military justice arena, it is a focused
effort to get this right, that the defense counsels are an
independent chain.
I was on 60 Minutes once trying to take the drug labs down
that the Air Force had created that I thought was producing
false positives, and we voided 60,000 results because the
system worked. My boss had my back, and the military judge was
a real hero.
The only thing I can say is that the purpose of this
hearing is a good purpose. People are not feeling comfortable
with telling what is going on in that unit regarding sexual
assault. But the idea, quite frankly, that convening
authorities are the problem is not what I see here. I see the
system broken.
I do believe that if you are going to give a man or woman
the power to send someone in battle and to literally go and
die, that we should trust their judgment when it comes to
disciplining that unit. Now, that is just my personal bias.
Having said that, I think there is a tremendous amount to
build on here. Mr. Taylor, I look forward to working with you
and the administration to try to find ways to make this system
work better.
Madam Chairman, this is a difficult issue, but let us
please not--I want you to read, if you can, a summary of the
Aviano case. You may not come out where the convening authority
did, but I just do not believe that he did it in a cavalier
fashion. I just do not believe that.
[The information referred to follows:]
Please see the attached letter to Secretary Donley from Lieutenant
General Franklin, dated March 12, 2013.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Graham. So, finally, Mr. Taylor, as we go forward,
what can we do in terms of sequestration? I mean, we are
talking as if nothing else is going on out there. Everybody is
doing more with less. There are less lawyers. There is more
responsibility. Please tell us what you need in terms of
budgets to enhance these programs, and I think everybody on
this committee--and, Senator McCaskill, you have been terrific
about focusing on this. Let us find out what we need to
resource that is not being resourced and make this a priority
because I will end with this thought.
[The information referred to follows:]
Standing up the Special Victims' Counsel (SVC) Program drives a
resource bill for the Air Force, estimated at this time to be about 65
positions and $2.2 million a year. To the extent we are required to
repurpose existing positions at installations for the SVC Program, we
will have to proportionally reduce legal services to commanders and to
our airmen.
Senator Graham. If women in the military--and men are
victims too. But if you really believe that there is no place
for you to go and you are being abused, that has to be the
worst possible feeling in the world. I would not want one
member of my family to ever have to live under those
conditions. This command climate I think is beginning to
change. But how did we get here? These cases were a nuisance.
Nobody wanted to talk about it. Nobody wanted to embarrass the
command. They wanted to shove this stuff under the rug. There
is no other answer for it to get this out of hand.
I believe a new day is here, and all I ask is that when we
find this new way forward, that we still preserve the ability
of the system to judge every individual case based on the
individual facts, that we do not paint with a broad brush
everybody is guilty.
Thank you very much.
Senator Gillibrand. Senator McCaskill?
Senator McCaskill. Well, first, I certainly agree with
Senator Graham, especially the first part of his statement. I
am compelled to be passionate about this because I agree with
him. We are the best in the world.
My comment about the overall health and good order and
discipline of the unit is based on what I believe is a military
that is grappling with a problem that the military knows you do
not have under control. I do not think I am saying anything
that most of you do not agree with. I think you know we need to
do better. I think there are women out there that feel because
of the particular facts and circumstances of their military
service, their ability to get a piece of justice is limited. I
know you all want them to. I do not think there is a
significant disagreement between Senator Graham and me about
that.
I just think that some of the convening authority's power
does not appear to be rational to me, particularly the way it
is currently set up in terms of the order of things and the
ability, which I think most of you are uncomfortable with the
notion that the rules say this can be done for no reason at
all. As General Welsh, I think said to me, we are not in a time
where you are dragging people out of prison to put them on the
front lines because we need the warm body. Some of these rules
date from that time when you did not have to give any reason at
all. I think you explained to me why it said no reason at all.
It came from the mouth of General Eisenhower in a hearing like
this or something to that effect.
Let me talk about a couple of things that I wanted to get
to. It is my understanding that if a member of the military
needs to update their security clearance, they must self-report
counseling around their sexual assault, and they do not have to
report counseling for combat-related issues, grief, or family
matters. Is that true, Mr. Taylor?
Mr. Taylor. It generally is true. It is question 21. There
are different interpretations, but generally that is accurate.
I think there are serious issues with question 21, and I would
just like to say that the issues are not limited to those who
are receiving the care that we want them to receive. That is
true whether the need for care is a result of sexual assault or
something else. I personally am very concerned about question
21 and would like to see some action on it.
Senator McCaskill. Well, I think we need to really take a
look at that because if you are looking at someone's mental
health, what you are really saying is if your mental health
issues come from combat or a problem in your family, that does
not impact your security clearance, but if you have been a rape
victim, it does. I cannot imagine any of you agree with that
outcome. Does anybody think that is right or fair?
Okay. So be sure and let us know if you have a problem with
us looking at that because I want to get that changed right
away. If I was a woman in the military and I had been raped and
I had a security clearance, that sure would impact my
willingness to come forward. It sure would impact my
willingness in terms of giving up my career.
What about the suggestion I made earlier? If we have
probable cause based on a sound criminal investigation and the
JAGs are recommending to the convening authority that we go to
a general court-martial proceeding, why are we so focused about
moving the victim? Why are we not moving the perpetrator at
that point?
General Chipman. Senator, we do have the authority to move
a perpetrator to another command, installation, or unit. That
is within the discretion of the chain of command, so that is an
available option. It would make it a little more tedious in the
sense of the proceedings that have to go forward with the
article 32 investigation, any motions hearings. So you might
have to move that accused back and forth to the installation
that is holding the court-martial. But certainly it is an
option within the chain of command's authority.
Senator McCaskill. As tedious as it would be for the victim
in terms of potentially having--although, I guess you would say
that the defense lawyers could go to her wherever she is for
interviews?
General Chipman. That is correct, Senator.
Senator McCaskill. Well, to me once you have crossed the
line of probable cause, after a competent criminal
investigation, the least disruption should occur to the victim,
not to the alleged perpetrator. That certainly is the way it is
in the civil system. We arrest him and they have to bail out
and be reporting to an authority, a pretrial, or they are held
in jail to stay away from the victim. The notion that a victim
and an alleged perpetrator are working shoulder to shoulder
during this particular period of time I think is going to
impact the quality of your cases and your ability to get sound
prosecutions.
How soon in the process for each branch of the military do
your criminal investigators have contact with the prosecutors
that would be responsible for trying the case? If you would go
down the line and just tell me. If you do not know, say that.
If you know it is within 30 days or within a week or if there
is some requirement that they check in with them immediately or
maybe never, I would like some sense from each branch how
closely dovetailed are the investigative efforts with the
advice and counsel of a prosecutor who is going to direct the
evidence in trial.
Admiral Kenney. Thanks, Senator.
In the case of the Coast Guard, that contact is almost
immediate because of the way our reporting system works. It
actually will come, in many cases, up the same chain that a
significant search and rescue case, or a major oil spill will.
Those communication networks are used, and CGIS, as well as our
attorneys and our district legal offices or our area legal
offices, are notified through that communication network
immediately.
General Harding. Ma'am, it is about the same for the Air
Force. It is pretty quick. When I was in that role at base
level, we knew a report within 24 hours. The lash-up with the
investigators is immediate. We provide them a proof analysis, a
list of elements that they need. We walk hand in hand. They
report back to us as the investigation is ongoing. Then later,
we fold in one of our senior trial counsels, our most
experienced. We have eight of them that are dedicated to
prosecuting sexual assault cases. So the lash-up is immediate
and constant.
General Chipman. Senator, recall that part of our special
victim capability is the SVP and the sexual assault
investigator. The best practice for us is to have our SVP
actually located in the CID offices so that there is that
immediate lash-up and case coordination that is so critical to
perfecting these cases from the outset.
Admiral DeRenzi. Yes, ma'am, we have the immediate lash-up
as well with our agents and our prosecutors.
Senator McCaskill. Marines?
General Ary. It starts at day one, and then our complex
trial teams also have investigators embedded with them that
continue to work the liaison as they develop the theory of the
case and the evidence, ma'am.
Senator McCaskill. Thank you for your patience, Madam
Chairman.
I have one last question, and that is if any of you have a
good reason why there should be a different period of time that
you would keep a restricted report versus a non-restricted
report.
I would like all of you, for the record, to let us know
what attempts are made formally--when you get a new report on
an alleged perpetrator, what attempts formally are made to go
back and look at reports and re-contact victims on restricted
reports with the news that there has been another victim and
have they changed their mind. You do not need to do that now,
but I want that for the record because I know that from
experience that when a woman knows there has been someone else
victimized after her, it changes her perspective about the
importance of stepping forward. I want to make sure we have a
system in place that is accessing those records quickly and
getting back to those victims as quickly as possible and
securing their cooperation and moving forward against the
defendants.
[The information referred to follows:]
General Chipman. When a victim makes a restricted report, the
Victim Advocate or Sexual Assault Response Coordinator (SARC) does not
question the victim about the nature or circumstances of the offense
and does not enter any personally identifying information about the
victim or the offender into the Defense Sexual Assault Incident
Database (DSAID). The Army's system of record notice for the Sexual
Assault Data Management System, published 18 Mar 10 in the Federal
Register, prohibits the collecting of personally identifying
information on either the victim or the offender, in accordance with
DOD policy. Thus, there is no system in place to inform investigators
or victims in restricted reports if another victim subsequently makes
an unrestricted report against the same offender.
The Army is committed to ensuring victims of sexual assault are
protected, treated with dignity and respect, and provided support,
advocacy and care. Army policy strongly supports effective command
awareness and prevention programs, and law enforcement and criminal
justice activities that will maximize accountability and prosecution of
sexual assault perpetrators. To achieve these dual objectives, the Army
prefers complete reporting of sexual assaults to activate both victims'
services and accountability actions. However, recognizing that a
mandate of complete reporting may represent a barrier for victims to
access services when the victim desires no command or law enforcement
involvement, there is a need to provide an option for confidential
reporting.
Admiral DeRenzi. The primary reason for Restricted Reporting is to
protect the privacy of the victim while enabling the victim to receive
medical and Victim Advocacy services. Under the recently implemented
DOD Instruction governing Sexual Assault Prevention and Response (SAPR)
procedures, Restricted Reports (DD Form 2910 and DD Form 2911) are kept
for a period of 5 years; however, at the request of a servicemember who
files a Restricted Report, the DD Forms 2910 and 2911 filed in
connection with the Restricted Report will be retained for 50 years,
the same as an Unrestricted Report.
Regarding attempts to re-contact victims who file Restricted
Reports when another sexual assault takes place; Restricted Reports of
sexual assault, by their very nature, are not shared with NCIS or the
other military criminal investigative organizations (MCIOs). NCIS thus
has no knowledge of the victim's identity, or of any alleged
perpetrator. In general, SAPR support services are victim-centric, and
SARCs and Victim Advocates (VAs) avoid interviewing victims about the
details of assault circumstances or specific perpetrator identities.
With regard to most Restricted Reports, there is simply no record of
perpetrator information to compare with subsequent cases, and no
knowledge beyond the individual SARC of the victim's identity. The
basic concept of Restricted Reporting thus obviates victim ``reach
back'' or perpetrator follow-up.
Victims who file a Restricted Report have the option of changing
from a Restricted Report to an Unrestricted Report. The Restricted
Reporting option gives victims additional time and increased control
over the release and management of their personal information and
empowers them to seek relevant information and support to make more
informed decisions about participating in the criminal investigation. A
victim who receives support, appropriate care and treatment, and is
provided an opportunity to make an informed decision about a criminal
investigation is more likely to develop increased trust that the
victim's needs are of concern to the command. As a result, this trust
may eventually lead the victim to decide to pursue an investigation and
convert the Restricted Report to an Unrestricted Report. The decision
to convert is left entirely up to the victim.
In Restricted Report cases where a Sexual Assault Forensic
Examination (SAFE) Kit was conducted, the SARC will contact the victim
1 year after the report was made to inquire whether the victim wishes
to change their reporting option to Unrestricted. This is the only
instance where the option to change reporting status is initiated by
the SARC.
If the victim does not change to Unrestricted Reporting, the SARC
will explain to the victim that the SAFE Kit, DD Form 2910, and the DD
Form 2911 will be retained for 5 years from the time the victim signed
the DD Form 2910 (electing the Restricted Report) and will then be
destroyed. The SARC will emphasize to the victim that his or her
privacy will be respected and he or she will not be contacted again by
the SARC. The SARC will stress it is the victim's responsibility from
that point forward, if the victim wishes to change from a Restricted to
an Unrestricted Report, to affirmatively contact a SARC before the 5-
year retention period lapses. However, at the request of the victim,
the DD Forms 2910 and 2911 filed in connection with the Restricted
Report shall be retained for 50 years.
If, before the expiration of the 5-year retention period, a victim
changes his or her reporting preference to the Unrestricted Reporting
option, the SARC shall notify the respective MCIO, which shall then
assume custody of the evidence pursuant to established chain of custody
procedures.
General Harding. There is neither a formal requirement nor a
prohibition that a SARC notify a restricted victim that his or her
alleged offender has been named in an unrestricted report. In practice,
the SARC makes such a notification in certain circumstances. For
example, if victim 1 makes a restricted report and victim 2 makes an
unrestricted report, then the SARC will let victim 1 know that an
independent report against the accused has been made by victim 2.
General Ary. Restricted Reporting allows servicemembers and
military dependents who are adult sexual assault victims to
confidentially disclose the assault to specified individuals (SARC,
Sexual Assault Prevention and Response Victim Advocate (SAPR VA), or
healthcare personnel) and receive healthcare treatment and the
assignment of a SARC and SAPR VA. When a sexual assault is reported
through Restricted Reporting, the victim still receives support. First,
a SARC shall be notified. The SARC will then respond to the victim or
assign a SAPR VA. Additionally, the victim will be offered healthcare
treatment and a SAFE.
In cases where a victim elects Restricted Reporting, the SARC, SAPR
VA, and healthcare personnel may not disclose confidential
communications or the Sexual Assault Forensic Exam and the accompanying
Kit to DOD law enforcement or command authorities, either within or
outside the DOD, except as provided in the exceptions designated in DOD
Instruction 6495.02 (SAPR Program Procedures).
One such exception is when ``[n]ecessary to prevent or mitigate a
serious and imminent threat to the health or safety of the victim or
another person; for example, multiple reports involving the same
alleged suspect (repeat offender) could meet this criteria.''
Accordingly, the framework for such a disclosure exists under
current regulation. However, most victims who elect the Restricted
Reporting option have historically declined to provide the name of the
alleged offender when submitting a Restricted Report. Therefore, in
order to effect a process whereby victims who file Restricted Reports
are later notified that the alleged offender in their case has been
accused of committing a subsequent sexual assault, the reporting
requirements to the SARC would need to be amended to require entry of
the offender's name into the Defense Sexual Assault Incident Database.
Additionally, victims should be given the opportunity to elect whether
or not they would like to be notified in the future if their alleged
offender re-offends.
Admiral Kenney. If a SARC, Victim Advocate, or the Sexual Assault
Prevention and Response Program Manager become aware that prior victims
have the same offender and restricted reports were filed, the SARC will
reach out to the victim(s) to let them know that there are other
victim(s). This is accomplished in a sensitive and empathetic manner
intended not to negatively impact the victim(s) or make them feel
responsible for not filing an unrestricted report, but allows for the
opportunity to reflect and decide on a course of action moving forward.
Often victims will decide to go forward with an unrestricted report if
they are aware of other victims who were allegedly offended by the same
perpetrator.
Senator McCaskill. I know you all are trying hard, and I
know even the general who made the decision in Aviano, I
absolutely do not think he did that maliciously or cavalierly.
But I think it is time to take a hard look at whether or not
the rules of the road can be adjusted to still give the unique
aspect to military justice that it deserves. I am not saying it
should be like the civil criminal system, but there do seem to
be some things that make absolutely no sense. I hope rather
than getting a push-back from the military, we will get your
cooperation and support in making some of those changes. Thank
you all very much.
Thank you, Madam Chairman.
Senator Gillibrand. Thank you all for your testimony today.
I am very grateful for your determination to solve this
problem. I think there is no problem the military cannot solve
if it puts its mind to it. So thank you for your commitments
today, and thank you for working with this committee going
forward.
The hearing is adjourned.
[The prepared statement of Ms. Parrish follows:]
ANNEX A: Prepared Statement by Ms. Nancy J. Parrish, President of
Protect our Defenders
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[The prepared statement of Ms. Maatz follows:]
ANNEX B: Prepared Statement by Ms. Lisa Maatz, Director of Public
Policy and Government Relations of the American Association of
University Women
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[The prepared statement of Mr. Klay follows:]
ANNEX C: Prepared Statement by Mr. Ben Klay
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[The prepared statement of a victim from the Aviano Air
Base follows:]
ANNEX D: Prepared Statement by Aviano Air Base Sexual Assault Victim
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[The prepared statement of The American Civil Liberties
Union follows:]
ANNEX E: Prepared Statement by The American Civil Liberties Union
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[The prepared statement of The American Legion Veterans
Affairs and Rehabilitation Commission follows:]
ANNEX F: Prepared Statement by The American Legion Veterans Affairs and
Rehabilitation Commission
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator Jeanne Shaheen
career impact of sexual assault
1. Senator Shaheen. General Patton, as testified by the Panel I
witnesses from this hearing and as captured in the film, The Invisible
War, military sexual assault influenced the victims' decision to leave
the military. In order to assess the overall career impact, do you have
metrics that capture the number of sexual assault victims who remain in
the military versus those who choose to discontinue service because of
military sexual assault?
General Patton. No, we do not have any metrics that capture the
number of sexual assault victims who remain in the military versus
those who choose to discontinue service because of military sexual
assault. The discharge process and associated documentation does not
identify or code a person's sexual assault history. In addition, since
most victims don't report the sexual assault, the Department would not
have records on whether separating servicemembers had experienced a
sexual assault while serving. Therefore, this is not a question that
can be easily answered with a records review.
According to the Department's Workplace and Gender Relations Survey
(2012) of the active Force, data suggests that the experience of sexual
assault may impact a person's plans to stay in the military:
In fiscal year 2012, of the female active duty
population who did not experience unwanted sexual contact (USC)
\1\ in the past year, 61 percent indicated they were likely to
stay in the military. This is a higher percentage than those
women who had experienced USC (52 percent).
---------------------------------------------------------------------------
\1\ Unwanted sexual contact is the survey term for the contact
sexual crimes between adults prohibited by military law, ranging from
Rape to Abusive Sexual Contact (e.g. crimes such as groping).
---------------------------------------------------------------------------
In addition, 36 percent of female active duty members
who had experienced USC reported they were unlikely to stay in
the military. This is a higher percentage than those women who
had not experienced USC in the last 12 months (26 percent).
No such differences were noted between men who
experienced USC in the past year and men who had not
experienced USC.
This survey item is provided to all respondents to answer, without
identifying ``why'' they are or are not likely to stay in the military.
Please note that this survey item does not specifically ask respondents
if their experience of USC impacts their plans to make a career. The
survey also does not measure whether the person actually stays in the
military or not.
2. Senator Shaheen. General Patton, victims of sexual assault can
request an expedited transfer, which allows them to be moved from the
command they were assigned at the time of the incident. It is my
understanding that the victim's decision to move is at his/her own risk
because the military makes no guarantee about the possible career
impact that move might have. Therefore; if someone elects to move from
an assignment, especially if it happened to be one critical for career
progression, then this victim could lose out on future career
opportunities. Is this your understanding? If so, are there plans in
place to ensure that the careers of sexual assault victims are
protected should the request for expedited transfer cause a disruption
to their normal career pipeline?
General Patton. The expedited transfer policy is in place for
sexual assault victims/survivors who file an unrestricted report. These
victims/survivors may request a transfer if they no longer feel
comfortable in their unit or environment. The Department of Defense
Instruction (DODI) 6495.02 (dated March 28, 2013) mandates that every
military department shall make every reasonable effort to minimize
disruption to the normal career progression of a victim of sexual
assault. The DODI also requires commanders to directly counsel the
servicemember to ensure he or she is fully informed regarding
reasonable foreseeable career impact. We see this counseling as an
important step in the process which is why it is spelled out in the
DODI.
3. Senator Shaheen. General Patton, as noted in your testimony, the
Sexual Assault Response Coordinator (SARC) and Sexual Assault
Prevention Response Victim Advocate (SAPR VA) are readily available to
assist victims of sexual assault to ensure the member's health, well-
being, and privacy once the assault occurs; but it is less clear as to
what happens if the member requires long-term care or is unable to
continue in the performance of his/her current duties due to military
sexual trauma. Is the member given the opportunity to change career
paths to one that he/she can perform given the new set of circumstances
brought on by this traumatic experience?
General Patton. Military sexual trauma is a term used by the
Department of Veterans Affairs that covers both sexual harassment and
sexual assault. Within the Department of Defense (DOD), we do not use
the inclusive term and issues of sexual harassment are addressed
through the Equal Opportunity Program with sexual assault program
falling under my authority. Each is a separate and unique program; I
can address the Department's sexual assault program.
Long-term care is addressed for any wound, injury or illness under
the DOD's Recovery Coordination Program (RCP). This program is governed
by DODI 1300.24, dated December 1, 2009. Victims/Survivors of sexual
assault who experience Post-Traumatic Stress Disorder may self-refer to
RCP or be referred by their command, medical care provider, Military
Department Wounded Warrior program, or the Wounded Warrior Resource
Center.
Whether a servicemember is provided the opportunity to change
career paths depends on a number of factors to include the abilities,
limitations and aptitudes of the servicemember, taken together with the
needs of the Service and specific job and occupational specialty
requirements. Accordingly, retraining and reclassification may be an
option and remains an individual Service function done in concert with
individual servicemembers.
sexual assault training
4. Senator Shaheen. General Patton, your testimony highlights the
numerous training initiatives undertaken in recent years. How do you
evaluate the overall effectiveness of this training to determine if
what is being done is truly the best course of action in changing
military culture?
General Patton. DOD uses two surveys to measure the effectiveness
of Sexual Assault Prevention and Response training. The Defense
Manpower Data Center surveys the active duty workforce utilizing the
Workplace and Gender Relations Survey of Active Duty Members and the
Defense Equal Opportunity Management Institute surveys the active duty
work force utilizing the Defense Equal Opportunity Climate Survey
(DEOCS). The Air Force utilizes its specific Unit Climate Assessment
survey.
The results of the surveys are assessed to help determine the
effectiveness of training and prevention programs. For example, the
recent DEOCS and Air Force Unit Climate Assessment surveys indicate
growing servicemember propensity to intervene in situations at risk for
sexual assault, which we attribute, in part, to focused sexual assault
prevention training programs.
Additionally, DOD has initiated a variety of measures to
standardize and enhance the training provided to prevent and respond to
sexual assault across the Services. The Department has assessed the
existing training and collaborated with the Services to establish
standardized learning objectives to ensure consistent training
outcomes. The focus of training enhancement has been to improve its
effectiveness through greater emphasis on small group discussion and
interaction, analysis of scenarios, and role-playing exercises. Each
Service has established methods to gather data on the effectiveness of
this training, and ongoing collaboration with the Department's SAPR
Office will ensure best practices become common practices across the
Services.
On September 25, 2012, the Secretary of Defense mandated
standardized Sexual Assault Prevention and Response training for all
Pre-Command and Senior Enlisted Leaders, as well as a standardized
assessment of the effectiveness of the training. Over the last 6 months
DOD SAPRO, in conjunction with the Services, developed standardized
core competencies, learning objectives and methods for assessing the
training. As of April 1, 2013, all of the Services have implemented
these improved and standardized learning objectives for all Pre-Command
and Senior Enlisted Leader training courses.
Of note, the Department has focused significant effort in the
assessment, standardization and enhancement of the training provided to
sexual assault responders who provide care to victims. With the passage
of Public Law 112-81, the National Defense Authorization Act (NDAA) for
Fiscal Year 2012, SARCs are required to complete a certification
program, including a pre-requisite 40-hour training course, 32 hours of
continuing education, and establishment and adherence to an ethical
charter, the DOD Standards for Victim Assistance Services. The
Department has partnered with National Organization for Victim
Assistance to certify our advocates while also assisting in ensuring
the training provided meets national standards.
discharging sex offenders
5. Senator Shaheen. General Chipman, General Harding, General Ary,
and Admiral Kenney, Service Women's Action Network, noted that 1 in 3
convicted sex offenders remain in the military and that of the Services
only the Navy discharges all convicted sex offenders. What is your plan
to prevent the continued service of those who commit these violent
crimes?
General Chipman. The statistic cited by SWAN is incorrect and is
not supported by Army data. In calendar year 2012, there were 192
soldiers convicted of an offense that required registration as a sex
offender. Those offenses include all penetrative and contact offenses
under Article 120, possession of child pornography, and indecent
assault. Of those 192 soldiers convicted, 174 (91 percent) received a
punitive discharge as part of their approved sentence. The remaining 18
soldiers were subject to Army Regulation 635-200 that requires
commanders to process soldiers for separation who were convicted of a
sexually violent offense but did not receive a punitive discharge as
part of their sentence. This regulation, in place since 2005, provides
for a more comprehensive requirement than the NDAA for Fiscal Year
2013, which required initiation of separation after conviction on the
penetrative offenses (rape, sexual assault, sodomy) only. An Army
officer, working as an interagency fellow at the U.S. Marshal Service
National Sex Offender Targeting Center, is responsible for ensuring
that soldiers released from military confinement facilities or
administratively separated from the Army comply with state registration
requirements. The Army is committed to identifying, tracking, and
separating sex offenders from active duty.
General Harding. Section 572(a)(2) of the NDAA for Fiscal Year
2013, signed into law on 2 January 2013, required the Secretary of each
military department to establish policies to require administrative
separation processing for servicemembers who are convicted of a sexual
assault offense but do not receive a punitive discharge. The Air Force
is currently staffing a proposed interim change to its administrative
separation instructions to implement this provision of the NDAA for
Fiscal Year 2013.
General Ary. The Marine Corps and the Navy follow the same policy.
A Secretary of the Navy memorandum published in 2008 states: ``Navy or
Marine Corps members who are convicted of a sex offense while on active
duty or in a Reserve status and who are not punitively discharged shall
be processed for administrative separation.'' ``Processed for
administrative separation'' does not mean an automatic discharge; no
service has such a policy.
Admiral Kenney. Members convicted of a sexual assault at court-
martial and sentenced to a punitive discharge will be separated from
the service by operation of law upon completion of the member's term of
confinement and the appellate review process.
By policy, the Coast Guard will initiate administrative discharge
proceedings against members convicted of a serious offense at a
civilian criminal trial or court-martial where no punitive discharge is
imposed (Military Separations, COMDTINST M1000.4). Moreover, discharge
from the Coast Guard for a serious offense does not require
adjudication by judicial proceedings. An acquittal or finding of not
guilty at a judicial proceeding does not prohibit discharge proceedings
for serious misconduct. However, the offense must be established by a
preponderance of the evidence. Police reports and reports of
investigation may be used to make the determination that a member
committed a serious offense.
In addition, Coast Guard policy mandates that any applicant
convicted of a felony or a domestic violence offense is ineligible for
enlistment or commission (Coast Guard Recruiting Manual, Commandant
Instruction M1000.2E).
6. Senator Shaheen. Mr. Taylor and General Patton, what role will
you play in aligning the Services discharge policy for sex offenders?
Mr. Taylor. In DOD, administrative discharge policy is established
by the acting Under Secretary of Defense for Personnel and Readiness. I
and my staff will support and provide legal advice to the acting Under
Secretary and her staff on discharge policy for sex offenders.
General Patton. Servicemembers who have been convicted of a sexual
assault are not allowed to continue to serve. Existing Service policies
require that an individual convicted at courts-martial for a qualifying
sexual offense who did not receive a punitive discharge (Bad Conduct
Discharge or Dishonorable Discharge) be processed for administrative
separation. Now, in addition to our policy requirements mandating
separation, the NDAA for Fiscal Year 2013 requires all servicemembers
convicted of a sexual assault offense at courts-martial be processed
for separation.
The oversight of discharge policy for sexual offenders is within
the authority of the Under Secretary of Defense for Personnel and
Readiness and my office continues to monitor progress in implementing
policies to comply with this provision of the NDAA for Fiscal Year
2013.
______
Questions Submitted by Senator James M. Inhofe
adjudication of military sexual assault
7. Senator Inhofe. Mr. Taylor, General Chipman, Admiral DeRenzi,
General Ary, General Harding, General Patton, and Admiral Kenney, is
the military justice system, as established by Title 10, U.S. Code, the
Uniform Code of Military Justice (UCMJ), adequate for the mission of
providing efficient, effective, and fair adjudication of sexual
assaults?
Mr. Taylor. I believe that it is. That said, no system is perfect
and the military justice system should remain subject to continuing
review, and amended as necessary to make it better. The Joint Service
Committee (JSC) on Military Justice in DOD conducts annual reviews of
the military justice system, and when appropriate proposes changes to
the UCMJ and the Manual for Courts-Martial. In addition, Congress
directed the Secretary in section 576 of the NDAA for Fiscal Year 2013
to establish an independent panel to take a comprehensive look at the
military justice system and the crime of sexual assault. That review
will be thorough and searching, and it will be informed by experience
within and outside the existing military justice system.
General Chipman. The UCMJ, established under title 10, U.S.C., is
more than adequate for the mission of providing efficient, effective
and fair adjudication of sexual assaults. The system, in existence and
evolving since the 1950s is focused and well resourced. All involved in
the system are intent on doing what is right and cognizant of the
necessary scrutiny we receive every day.
We have a modern, comprehensive offender-focused sexual assault
statute that recognizes constructive force as it exists in the military
hierarchy and provides for the prosecution of drug or alcohol-
facilitated assaults. The UCMJ criminalizes a broad range of
misconduct, including the precursor behaviors to sexual assault such as
sexual harassment and indecent language, allowing commanders to hold
offenders accountable for what is considered non-criminal behavior in
the civilian community. The UCMJ also provides a wide range of
disposition options, allowing commanders to address the entire spectrum
of sexual misconduct and to hold offenders accountable in
administrative proceedings when the evidence does not merit a court-
martial.
Military commanders, responsible for good order and discipline,
form the core of our system and have the authority necessary to punish
misconduct locally, visibly and quickly. These commanders are trained
in their responsibilities from commissioning through senior commands.
Prior to assuming brigade command, officers attend Senior Officer Legal
Orientation courses at The Judge Advocate General's Legal Center and
School (TJAGLCS) with a focus on sexual assault cases. General officers
receive individual instruction at the TJAGLCS on the same topics.
Army Judge Advocates are provided with an integrated, synchronized
training model that takes them from initial entry through senior
military justice assignments. Many of the courses focus on sexual
assault as those often complex factual scenarios raise the entire
spectrum of evidentiary issues while presenting advocacy challenges.
The core of our prosecution program for sexual assault offenses are the
Special Victim Prosecutors. Hand-selected at the Department of the Army
level for their courtroom skill and experience and their proven ability
to work with victims, these counsel are involved in every allegation of
sexual assault. Special Victim Prosecutors complete an intense and
comprehensive training program prior to assuming their duties including
nationally-recognized career prosecutor courses and on-the-job training
with a civilian special victim unit in a major metropolitan city.
Special Victim Prosecutors confer early and often with specially
trained investigators from the U.S. Army Criminal Investigation Command
to ensure a thorough and professional investigation while providing
compassionate support to victims. Full-resourcing requires that the
Army provide commensurate funding and resources to the defense bar that
represents accused soldiers.
The military justice system is well equipped to meet the challenges
of crime and indiscipline in the Army, especially the crime of sexual
assault, and will hold offenders appropriately accountable, protect the
due process rights of accused soldiers, and provide justice and support
for victims.
Admiral DeRenzi. Yes, the UCMJ and accompanying Manual for Courts-
Martial provide a military justice system with guarantees for an
efficient, effective, and fair adjudication of any criminal allegation,
including those involving sexual assault.
Offender accountability has both investigative and military justice
components. An unrestricted report of sexual assault triggers a full
investigation. The Naval Criminal Investigative Service (NCIS)
investigates all allegations of sexual assault and has agents who are
specially trained to conduct adult sexual assault investigations.
Once an NCIS investigation is complete, the case is forwarded to
the appropriate commander to make an initial disposition decision.
Reports of the most serious sexual assaults must be reviewed by Navy
captains (pay grade O-6) or above who are designated as Special Court-
Martial Convening Authorities. Those Initial Disposition Authorities
must consult with a judge advocate prior to making disposition
determinations. Lesser forms of sexual assaults, including sexual
contact offenses, are also independently investigated by NCIS and
provided to command for appropriate disposition, to include advice from
a judge advocate prior to final operational reporting on all sexual
assault allegations.
Once the appropriate commander decides a case should be prosecuted,
the Navy JAG Corps supports the commanders and provides prosecutors,
defense attorneys, and military judges to conduct the court-martial, as
well as Active Duty and Reserve judge advocates with fleet and
litigation experience to serve as Investigating Officers at Article 32
pretrial investigation hearings. The JAG Corps' mission includes
providing a fair, effective, and efficient military justice system, and
we are intensely focused on upholding the special trust placed upon us
in the prosecution, defense, and adjudication of sexual assault cases.
The commander's role in military justice is vital to maintaining
good order and discipline, including holding offenders accountable. The
support provided by judge advocates to commanders in exercising that
vital role ensures the fair, efficient and effective administration of
justice for the accused as well as the victim.
General Ary. The military justice system, as established by the
UCMJ, is adequate for this mission. We are constantly looking at ways
to improve the UCMJ and the practice of law. Consequently, the Marine
Corps has members on the JSC for Military Justice, which is a standing
committee that is charged (through DOD Directive) with conducting an
annual review of the Manual for Courts-Martial (MCM) in light of
judicial and legislative developments in civilian and military
practice. The JSC reviews proposed amendments with a few basic goals in
mind: (1) conformity with Federal practice to the extent possible,
except where the UCMJ requires otherwise or where specific military
requirements render such conformity impracticable; (2) usefulness to
military law practitioners (military and civilian) and non-lawyers; and
(3) workability across the spectrum of circumstances in which courts-
martial are conducted, including combat conditions. By continuously
reviewing the MCM, the JSC regularly looks for ways to improve its
efficiency, effectiveness, and fairness.
General Harding. Yes, with one caveat. The Air Force fully supports
Secretary Hagel's direction to prepare a legislative proposal to amend
Article 60.
General Patton. Yes, it is. As it does for all offenses in the
UCMJ, the military justice system ensures that sexual assault cases are
appropriately and fairly adjudicated. Further, the military justice
system recognizes the distinct role of commanders. Commanders are
responsible for the readiness of their unit and the health and welfare
of their assigned servicemembers. To this end, they establish standards
of behavior enforce these standards and hold people accountable for
meeting them. Inherent in this responsibility is the authority to
address misconduct and offenses and impose discipline in accordance
with the military justice system. Finally, in June 2012, the Secretary
of Defense withheld the initial disposition authority from all
commanders who are not at least special court-martial convening
authorities and in the grade of O-6 (colonel or Navy captain) for the
most serious sexual assault offenses (rape, sexual assault, forcible
sodomy and attempts to commit theses offenses). This policy ensures
cases of sexual assault receive a high level of command attention and
scrutiny from more seasoned, experienced commanders.
Admiral Kenney. The military justice system apparatus--with
specific rules of procedure, evidentiary court rules, professionalized
practitioners, and independent judicial bodies--has more in common with
the Federal civilian courts than differences. The U.S. military justice
system today is one of the best, most fair and just systems in the
world. However, we should not take the status quo for granted. While
the system works well, it is not perfect. There should be, and there
is, a never-ending quest to improve it.
improvements for processing sexual assaults
8. Senator Inhofe. Mr. Taylor, General Chipman, Admiral DeRenzi,
General Ary, General Harding, General Patton, and Admiral Kenney, what
legislative changes, if any, do you recommend to improve the military
justice system to improve processing of sexual assault cases?
Mr. Taylor. Although I have no specific recommendations to make at
this time, I believe that a review of the military justice system is
appropriate, because every system can be improved. That review should
not be limited to cases regarding allegations of sexual assault,
however, but should include all alleged criminal acts. In the
Department, the JSC on Military Justice conducts annual reviews of the
military justice system, and proposes changes to the UCMJ and the
Manual for Courts-Martial. In addition, the Independent Panel directed
in the NDAA for Fiscal Year 2013 will begin this summer, and will
review the military justice system in detail. Together, these efforts
should provide us with important recommendations to improve military
justice.
General Chipman. For the past 6 years, the NDAA has legislated
important and comprehensive changes to the military justice system and
improvements to the Services' efforts to prevent and combat sexual
assault crimes. The Services have also implemented innovative and
profound changes to regulations, policies and the way we investigate
and prosecute these offenses to affect a change in culture. The Army
needs time to fully explore and evaluate the effectiveness of all of
these changes and the second- and third-order effects on our system.
The JSC with Judge Advocate representatives from each Service is
tasked by the President to provide an annual assessment of the UCMJ.
The JSC is responsible for studying, drafting, and submitting any
amendments to the UCMJ, the Rules for Court-Martial, and the Military
Rules of Evidence. Issues for study are tasked by the Office of the
General Counsel, the public, or the individual Services. This enduring
collective mechanism for evaluating and improving the military justice
system provides an ongoing joint forum to review potential issues and
challenges and make appropriate recommendations.
The Army is convinced that our focus on the Special Victim
Capability and the constant training and education of soldiers,
commanders, investigators, and judge advocates will help create a
command climate that will allow military victims to feel safe and
confident in reporting misconduct, the critical first step in
effectively processing sexual assault cases.
Admiral DeRenzi. The Services are currently reviewing possible
modifications to a Convening Authority's (CA) authority to change the
findings and sentence of a court-martial under Article 60 of the UCMJ.
The Navy is receptive to appropriate changes in this authority, and
DOD is taking a deliberate approach to reviewing proposals to ensure
there are no unintended negative consequences to the UCMJ or the
military justice process.
Other changes to the military justice system, to include
legislative changes, are regularly proposed, studied by the JSC on
Military Justice, and submitted to Congress when appropriate. We have
had a number of legislative changes over the past several years, and it
is important to provide run time for these initiatives and then assess
them before making continuous change in this area. The Navy believes
study by the newly passed Systems Response Panel is a good avenue to
assess recent changes and provide recommendations for improvement.
General Ary. The Marine Corps supports the legislative changes
proposed by the Secretary of Defense. Specifically, the Secretary has
directed the acting General Counsel of the DOD, in coordination with
the Secretaries of the Military Departments, to prepare a legislative
proposal that would amend Article 60 to eliminate the discretion of the
convening authority to change the findings of a court-martial except
for certain minor offenses. Additionally, the legislative proposal will
require the convening authority to explain in writing any modifications
made to court-martial sentences, as well as any changes to findings
involving minor offenses.
General Harding. The JSC on Military Justice has been tasked to
study several initiatives that have been proposed to improve processing
of sexual assault cases. The Air Force also fully supports Secretary
Hagel's direction to prepare a legislative proposal to amend Article 60
of the UCMJ. I also support legislation stating that in court-martial
proceedings, when a victim has a right to be heard, the victim also has
a right to be heard through counsel; the victim may seek to enforce
this right to be heard through seeking a writ of mandamus through
military appellate courts and military courts have authority to issue a
mandamus order to the trial court.
General Patton. The NDAA for Fiscal Year 2013 established two
independent panels to review and assess the systems to investigate,
prosecute, and adjudicate cases involving adult sexual assault
offenses. The first panel will review and assess the UCMJ response
systems used to investigate adult sexual crimes under Article 120 for
the purpose of providing recommendations on how to improve the
effectiveness of such systems. The second panel will review and assess
judicial proceedings under the UCMJ involving adult sexual offenses
since the amendments passed in the NDAA for Fiscal Year 2012.
I believe it prudent to allow the panels to perform their duties,
as prescribed in law, to inform new legislation.
Admiral Kenney. This nation can be proud of its military justice
system. The modern system embraces the appropriate balance between
maintaining good order and discipline within the ranks and protecting
the civil liberties of those individuals accused of a crime. Since its
inception, the UCMJ has been modified and amended, and it will continue
to change in order to adapt to our evolving democratic and diverse
nation. The modern military justice system has achieved legitimacy as a
fair judicial process measured by its treatment in Supreme Court
decisions and opinions of servicemembers. Nevertheless, current aspects
of military justice are worthy of robust examination and debate.
However, it is important that serious thought goes to how the UCMJ
should be changed, as to what should be changed.
With this aim in mind, the NDAA of 2013 creates two independent
panels--the Response System Panel and the Judicial Proceedings Panel--
that will provide an empirical data-driven study to assess criminal
justice systems used to investigate, prosecute, and adjudicate crimes
involving adult sexual assault and related offenses. This deliberate
and thoughtful study is an appropriate method to consider possible
changes to the UCMJ.
The Coast Guard supports the Secretary of Defense's recent decision
to seek legislative changes to Article 60 by eliminating a convening
authority's ability to grant clemency on a courts-martial findings,
except for certain minor offenses that would not ordinarily warrant
trial by court-martial; and by requiring a convening authority to
explain in writing any changes made to a court-martial sentence, as
well as any changes to findings involving minor offenses.
resourcing for military justice
9. Senator Inhofe. General Chipman, Admiral DeRenzi, General Ary,
General Harding, and Admiral Kenney, do you have an adequate number of
judge advocates, enlisted legal clerks and technicians, and civilian
staff to meet requirements for military justice?
General Chipman. The Army has an adequate number of Judge
Advocates, enlisted legal clerks and technicians and civilian staff to
meet the requirements for military justice. The Personnel, Plans, and
Training Office is responsible for ensuring adequate numbers of Judge
Advocates and appropriate assignments to meet all of the missions of
the Judge Advocate General's Corps.
Continued, predictable resourcing of our robust training program
will ensure that practitioners, both prosecution and defense, are
prepared to execute their duties professionally and with well-honed
advocacy skills.
Admiral DeRenzi. The JAG Corps community is adequately manned to
meet military justice requirements. We continue to carefully monitor
manning and evaluate requirements to meet current and future missions.
Additional JAG Corps mission requirements or changes in funding for
billets would require reevaluation of manning requirements.
General Ary. Yes. Before reorganizing our legal community last
year, we conducted an in-depth, wholesale, requirements-based analysis
of each legal billet and each unit with legal personnel in the Marine
Corps. This analysis included gathering statistics of legal support
requirements and operational planning teams made up of senior judge
advocates, enlisted personnel, and legal administrative officers. After
months of planning, the Commandant of the Marine Corps directed this
reorganization, which became operationally capable on 1 October 2012.
Therefore, the Marine Corps has recently validated its legal personnel
requirements within this new model for the provision of legal services.
General Harding. Yes. However, standing up the Special Victims'
Counsel (SVC) Program will drive a resource bill. Because military
justice is required by statute and is integral to good order and
discipline, we will continue to devote the resources needed to meet all
military justice requirements. To the extent, though, that we are
required to re-purpose existing resources for the SVC Program, we will
have to reduce legal services in other practice areas. See the answer
to question .
Admiral Kenney. With the current criminal caseload levels, the
Coast Guard maintains an adequate number of judge advocates and legal
support staff to fulfill its military justice requirements.
To meet its legal service requirements, the Coast Guard has
approximately 195 officers designated as judge advocates serving on
active duty, of whom 150 are serving in legal billets and 45 are
serving in ``out-of-specialty'' billets. Fourteen Staff Judge Advocates
advise seventeen officers exercising general court-martial
jurisdiction. Those fourteen SJAs as well as three additional
independent duty SJAs at training centers advise approximately 350
officers exercising special court-martial jurisdiction. Responsibility
for detailing trial and defense counsel to general and special courts-
martial rests with the Chief, Office of Legal and Defense Services, a
staff office reporting to the Deputy Judge Advocate General charged
with providing defense and personal legal services to Coast Guard
members. Pursuant to an inter-service memorandum of understanding, the
U.S. Navy provides trial defense counsel for all Coast Guard courts-
martial. In return, at least four Coast Guard attorneys are assigned to
full time duty, typically for 1-year or 2-year assignments, at one or
more Navy Defense Service Offices or Regional Legal Service Offices.
The Coast Guard has one general courts-martial judge and eight
collateral-duty special courts-martial judges. The Coast Guard plans to
reduce the number of collateral-duty special courts-martial judges to
six by July 2013.
The Office of Military Justice at Coast Guard Headquarters is
responsible for representing the United States in all courts-martial
appeals and providing support to staff judge advocates and trial
counsel (prosecutors) throughout the Coast Guard. The office is also
responsible for developing military justice policy for the Coast Guard,
including participation on the JSC on Military Justice. The Office of
Legal and Defense Services is responsible for defense appellate
representation.
end strength
10. Senator Inhofe. General Chipman, Admiral DeRenzi, General Ary,
General Harding, and Admiral Kenney, what is your projected fiscal year
2013 end strength of officers, enlisted, and civilians?
General Chipman. The Army Judge Advocate General's Corps is
projected to have 1,975 officers, 104 warrant officers, and 1,708
enlisted personnel on active duty at the end of fiscal year 2013. Under
the qualifying authority of The Judge Advocate General of the Army, we
anticipate a fiscal year 2013 end strength of approximately 575
civilian attorneys, which is a subset of the approximately 1,390
civilian attorneys employed throughout the Department of the Army.
These attorneys provide support to all legal practice areas, but are
generally concentrated within the civil law practice. In legal offices
under TJAG's technical control, the non-attorney civilian employees
belong to local commanders and are not centrally-managed. We estimate a
fiscal year 2013 end strength of approximately 625 non-attorney
civilian paraprofessionals in legal offices under TJAG's technical
control. This is a total of 4,987 personnel.
Admiral DeRenzi.
Active Duty
The fiscal year 2013 projected end strength is 825 officers, 416
legalmen, and 437 civilians.
The legalman end-strength is below the number of authorized
billets, but the JAG Corps will close this gap by the end of fiscal
year 2014.
Reserve
The fiscal year 2013 projected end strength is 451 officers and 174
legalmen.
General Ary. The estimated fiscal year 2013 end strength for legal
personnel (including patients, prisoners, trainees, and transients or
``P2T2'') is 635 judge advocates, 18 legal administrative officers, 542
enlisted legal services support specialists, and 71 civilians (does not
include Departmental attorneys who do not provide direct support to the
Marine Corps).
General Harding. Projected as of the end of this fiscal year, the
authorized funded positions for active (versus Air Reserve component)
forces in The Judge Advocate General's Corps are: 1,234 officers, 899
enlisted, and 885 civilians (GS, or equivalent, and SES). Projected as
of the end of the fiscal year, authorized funded positions for the Air
Reserve component are 930 officers and 414 enlisted.
Admiral Kenney. Officers - 6,803; Chief Warrant Officers - 1,668;
Enlisted Members - 32,635; and Civilians - 8,305.
role of reserve component for military justice
11. Senator Inhofe. General Chipman, Admiral DeRenzi, General Ary,
General Harding, and Admiral Kenney, what is the role of the Reserve
component in the military justice system?
General Chipman. The Army Judge Advocate General's Corps is
projected to have 1,975 officers, 104 warrant officers, and 1,708
enlisted personnel on active duty at the end of fiscal year 2013. Under
the qualifying authority of The Judge Advocate General of the Army, we
anticipate a fiscal year 2013 end strength of approximately 575
civilian attorneys, which is a subset of the approximately 1,390
civilian attorneys employed throughout the Department of the Army.
These attorneys provide support to all legal practice areas, but are
generally concentrated within the civil law practice. In legal offices
under TJAG's technical control, the non-attorney civilian employees
belong to local commanders and are not centrally-managed. We estimate a
fiscal year 2013 end-strength of approximately 625 non-attorney
civilian paraprofessionals in legal offices under TJAG's technical
control. This is a total of 4,987 personnel.
Admiral DeRenzi. Navy Reserve component judge advocates are
involved in all phases of the military justice process. Many Reserve
judge advocates have extensive State and Federal criminal law expertise
developed through civilian employment as prosecutors, defense
attorneys, and judges, and that expertise is utilized when performing
active duty service.
The Reserve Law Program includes nine Navy Reserve Region Legal
Service Office units (NR RLSOs) and two Navy Reserve Defense Service
Office units (NR DSOs). Judge advocates assigned to NR RLSOs typically
provide prosecution assistance and command services to sea and shore
commands. Reserve judge advocates also serve as UCMJ Article 32
pretrial investigation officers. Judge advocates assigned to NR DSOs
provide defense services relating to courts-martial and administrative
separations. In addition to NR RLSOs and DSOs, the Reserve community
has five units which provide specialized military justice support:
The NR Navy-Marine Corps Appellate Review Activity
(NAMARA)/Military Justice unit supports the Office of the Judge
Advocate General (OJAG) Criminal Law Division oversight of
military justice in the Department of the Navy, including
policy, administration, and support to practitioners in the
field and also supports the Deputy Assistant Judge Advocate
General for Military Law and Assistant Judge Advocate General
for Military Justice in reviewing courts-martial and petitions
for new trials.
The NR NAMARA Defense Unit supports the OJAG Appellate
Defense Division in the representation of servicemembers before
the Navy and Marine Corps Court of Criminal Appeals, U.S. Court
of Appeals for the Armed Forces, and the U.S. Supreme Court.
The NR NAMARA Government Unit supports the OJAG
Appellate Government Division in representing the Government in
all criminal appeals.
The NR Appellate Judiciary Activity supports the OJAG
Appellate Judiciary. Reserve Appellate Military Judges receive
the same training as their active duty counterparts, in
addition to any training they receive as civilian attorneys.
The NR Trial Judiciary Activity supports the OJAG
Trial Judiciary. Reserve Trial Military Judges receive the same
training as their active duty counterparts, in addition to the
training they receive as civilian attorneys. Approximately one
third of the mission of the trial judiciary is met by the
Reserves.
General Ary. The role of the Reserve component is to provide
Reserve legal services to the total force to support active and Reserve
requirements. reservists provide continuous, effective Reserve legal
support, across all core functional areas, including military justice,
in support of Headquarters Marine Corps, the operating forces, and the
supporting establishment, in garrison and deployed. The Reserve
component does so in order to facilitate and ensure mission
accomplishment, unit readiness, maintenance of good order and
discipline, and protection of the rights of the accused and the
interests of victims.
The Marine Corps Reserve legal community is currently undergoing a
reorganization to closely mirror the active duty legal reorganization.
The guiding principle for this reorganization is placing the right
counsel, at the right place, at the right time, with the right support
and supervision. This Reserve legal reorganization will ensure that the
SJA to CMC has control of assignments of all legal support providers.
Such support includes force augmentation that provides Reserve
leadership to the legal services support sections and teams and ensures
that the active component has sufficient assets to provide general
support to all Marine Corps units and organizations.
Many Marine Corps Reserve judge advocates are assistant U.S.
attorneys, district attorneys, or criminal defense attorneys in their
civilian careers. Consequently, the Marine Corps draws on their
experience to supplement the active component when necessary. These
Reserve judge advocates supervise and train less experienced judge
advocates, and also try cases.
General Harding. Our legal professionals in the Air Force Reserve
and Air National Guard play a significant role in our military justice
system. In addition to fulfilling their roles, where appropriate, as
staff judge advocates under the UCMJ, our Air Reserve component members
also participate in non-judicial punishment and court-martial actions
in both the active duty and Reserve contexts as part of their regular
training. Air Reserve component judge advocates frequently serve as
Article 32 investigating officers, and reservists serve as military
judges at both the trial and appellate levels. In addition to utilizing
their excellent substantive legal work, our Corps takes advantage of
the significant litigation experience found in our Air Reserve
component members--reservists and Guardsmen alike--by facilitating
their training of our more junior active duty judge advocates. This
training is accomplished through instruction sponsored by The Judge
Advocate General's School, through a traveling advocacy instruction
program called the ``TRIALS team'' (Training by Reservists in Advocacy
and Litigation Skills), and through on-the-job training and mentorship.
Admiral Kenney. Coast Guard Reserve Legal Program is a key provider
of legal services, particularly during contingency operations such as
the Deepwater Horizon Incident or the aftermath of Hurricane Katrina.
The role individual Reserve judge advocates play in the military
justice system often depends on their prior training and experience, as
well as their civilian legal specialty.
Last year, Coast Guard Director of Reserve and Military Personnel
approved a reorganization plan of the Coast Guard Reserve Legal Program
by creating deployable Reserve legal teams that would maximize the
delivering of quantifiable and quality legal services during incidents
of national significance, as well as allowing Reserve judge advocates
and enlisted personnel to provide augmentation support to Coast Guard
servicing legal offices. The reorganization plan offers structured
training to Reserve judge advocates to provide command advice in the
military justice context. While the training, itself, does not provide
them with the requisite knowledge to act as government or defense
counsel in a court-martial, it does provide the legal skills necessary
to provide military justice advice to Incident Commanders during a
contingency operation and also to assist in initiating low-level
disciplinary action for uniquely military-type offenses or minor
misdemeanor type-crimes that are typically resolved at summary court-
martial and non-judicial punishment. However, some Reserve attorneys
possess significant military justice experience gained from active duty
service.
12. Senator Inhofe. General Chipman, Admiral DeRenzi, General Ary,
General Harding, and Admiral Kenney, what is the role of the Reserve
component in the prosecution and defense of sexual assault cases?
General Chipman. Army Reserve Judge Advocates advise commanders and
criminal investigators, and they consult with Special Victim
Prosecutors regarding the prosecution and defense of sexual assault
cases. Currently, all cases involving an allegation that a Reserve
component soldier has attempted or committed an unlawful sexual act or
sexual contact must be reported to the Commanding General of the U.S.
Army Reserve Command (CG, USARC) prior to disposition.
If court-martial is appropriate, the case will normally be referred
to an Active Component General Court-Martial Convening Authority.
However, Army Reserve Judge Advocates will continue to assist their
Active component counterparts, as necessary, by helping to finalize the
investigation, drafting the charge sheet and prosecution brief,
participating in the Article 32 investigation, and participating in the
actual court-martial.
If court-martial is not appropriate, the CG, USARC, may take
appropriate administrative or disciplinary action against the accused
soldier himself, or he may release the authority to dispose of the
allegation to an O-6 commander at the brigade level or higher, who is
required to obtain advice from his servicing Judge Advocate before
taking action.
Admiral DeRenzi. Due to the time required for criminal litigation
and the typically limited duration of Reserve orders, Reserve judge
advocates do not often serve as lead prosecutors or defense counsel in
sexual assault cases. Drawing upon their civilian expertise, Reserve
judge advocates frequently assist their active duty counterparts by
providing substantive advice when particular issues arise in the
context of these cases. This reachback capability is not limited to
drill weekends but is available on demand through flexible and
incremental drilling programs established by the Chief of Navy Reserve.
It is quite common for Reserve judge advocates with criminal law
experience, and especially those with experience in sexual assault
cases, to assist on particular cases outside of the normal drill
weekend.
General Ary. As stated in Question 11, the Reserve component plays
an important role in the prosecution and defense of many complex cases,
including sexual assault cases. Reserve prosecutors provide expert
advice, assistance, and training on military justice matters, including
trial and appellate advocacy, strategy, and ethics, and they also try
cases when the complexity of the case so demands. On the defense side,
senior Reserve defense counsel assist the active duty regional defense
counsel, provide mentoring advice and assistance, and provide
professional guidance and support to assigned Active Duty and Reserve
defense counsel. Other Reserve defense counsel represent marines and
sailors in the appellate courts. Therefore, the Marine Corps leverages
the experience that the Reserve community provides and uses Reserve
component trial and defense counsel to lead, mentor, and train Active
component judge advocates, which increases the level of competence and
professionalism of counsel who prosecute and defend clients in sexual
assault cases.
General Harding. Air Reserve component judge advocates play an
active and visible role in our Corps' handling of sexual assault cases.
At Joint Base San Antonio-Lackland, for example, our Military Training
Instructor Prosecution Task Force has been led by two judge advocate
colonels in the past year, both of whom are Reserve colonels. Other
personnel on that task force included three Reserve judge advocates and
two Reserve paralegals, all of whom have volunteered to serve on long-
term orders in support of this effort. The duties of these individuals
include, among other things, case evaluation, drafting of charges and
specifications, and trial. More generally, Air Reserve component judge
advocates participate actively as Article 32 investigating officers and
as trial counsel. reservists are also assigned as appellate government
and appellate defense counsel.
Admiral Kenney. Coast Guard Reserve Legal Program is a key provider
of legal services, particularly during contingency operations such as
the Deepwater Horizon Incident or the aftermath of Hurricane Katrina.
The role individual Reserve judge advocates play in the military
justice system often depends on their prior training and experience, as
well as their civilian legal specialty. For the most part, however,
Reserve judge advocates do not play a role in the prosecution or
defense of criminal cases.
Last year, Coast Guard Director of Reserve and Military Personnel
approved a reorganization plan of the Coast Guard Reserve Legal Program
by creating deployable Reserve legal teams that would maximize the
delivering of quantifiable and quality legal services during incidents
of national significance, as well as allowing Reserve judge advocates
and enlisted personnel to provide augmentation support to Coast Guard
servicing legal offices. The reorganization plan offers structured
training to Reserve judge advocates to provide command advice in the
military justice context. While the training, itself, does not provide
them with the requisite knowledge to act as government or defense
counsel in a court-martial, it does provide the legal skills necessary
to provide military justice advice to Incident Commanders during a
contingency operation and also to assist in initiating low-level
disciplinary action for uniquely military-type offenses or minor
misdemeanor type-crimes that are typically resolved at summary court-
martial and non-judicial punishment. However, some Reserve attorneys
possess significant military justice experience gained from active duty
service.
impact of redeployment on military justice caseload
13. Senator Inhofe. Mr. Taylor, General Chipman, Admiral DeRenzi,
General Ary, General Harding, General Patton, and Admiral Kenney, as
troops are redeployed to garrison as a result of the administration's
announced plan to reduce U.S. forces in Afghanistan, do you anticipate
an increase in the overall rate of military justice cases and what
plans are you taking in anticipation of any such increase?
Mr. Taylor. We redeployed a significant number of troops from Iraq,
and are now redeploying troops from Afghanistan. I believe in the men
and women in our armed forces and do not anticipate a significant
increase in the military justice caseload based solely on
redeployments. The Military Services plan, program, and budget to meet
expected requirements including requirements for implementation of an
effective military justice system.
General Chipman. As troops are redeployed to garrison as a result
of the administration's announced plan to reduce U.S. forces in
Afghanistan and as the Army expects to draw down the number of troops,
we do not expect an appreciable change in the overall rate of military
justice cases. The Army Judge Advocate General's Corps (JAGC) is well-
prepared for any potential increases or decreases in the numbers of
courts-martial. The Personnel, Plans, and Training Office is
responsible for ensuring adequate numbers of Judge Advocates and
appropriate assignments to meet all mission requirements of the JAGC.
At each installation, the local Staff Judge Advocate has the ability to
assign individual Judge Advocates to each division within the office to
ensure all the missions are adequately resourced.
Admiral DeRenzi. No. Given the nature of Navy forces and
assignments, we do not anticipate an increase in the overall rate of
Navy military justice cases as a result of planned reductions in
Afghanistan.
General Ary. Overall the number of courts-martial has decreased
over the last decade, but there is little empirical data to suggest
that caseloads might increase as deployed forces return to garrison.
Regardless, the Marine Corps maintains a cadre of trained and
experienced litigators, supervisory counsel, and judges to effectively
and efficiently meet the demands of the military justice system,
including the prosecution and defense of complex cases. The 2012 legal
reorganization has positioned the Marine Corps legal community to
successfully meet these demands.
General Harding. While it is true that the rate of UCMJ offenses
historically increases during peacetime, the Air Force does not
anticipate an increase significant enough to warrant changing the
current infrastructure to deal with criminal misconduct.
General Patton. Each of the Services maintains a cadre of trained
and experienced litigators, supervisory counsel, and judges to
effectively and efficiently meet the demands of the military justice
system, to include the prosecution and defense of complex cases.
Additionally, consistent with NDAA for Fiscal Year 2012 and
Department policy, the staffing of full-time SARCs and Victim Advocates
is being expanded across the Services at the brigade or equivalent
level. This expansion will provide more awareness and ensure dedicated
support and case management for victims of sexual assault.
Additionally, the DOD Safe Helpline has been established as the sole
DOD hotline for crisis support services. The Safe Helpline is available
24/7 worldwide for anonymous and confidential support and can be
accessed by visiting www.safehelpline.org or by calling 1-877-995-5247.
Admiral Kenney. While Coast Guard military men and women have
deployed abroad to support Operating Enduring Freedom, because of the
small number of expected redeploying members, the Coast Guard does not
anticipate an increase in the overall rate of military justice cases.
statutory authority for victim input
14. Senator Inhofe. General Chipman, Admiral DeRenzi, General Ary,
General Harding, and Admiral Kenney, does any Article of the UCMJ
codify the ability of the victims of crime to provide information for
consideration by the convening authority, prior to action on the
results of courts-martial under Article 60?
General Chipman. There is no statutory authority for victims of
crime to provide information for consideration by the convening
authority, prior to taking action on the results of courts-martial
under Article 60, UCMJ.
Under Rule for Court-Martial (RCM) 1107(3)(B), the convening
authority may review the record of trial. The record of trial would
typically contain the victim's testimony on findings and sentencing.
Under RCM 1107, the convening authority may also review any other
matters as the convening authority deems appropriate. However, if the
convening authority considers matters adverse to the accused from
outside the record, without the accused's knowledge, the accused shall
be notified and given an opportunity to rebut.
The JSC with Judge Advocate representatives from each Service is
responsible for studying, drafting, and submitting any RCM amendments
to the President. The JSC is currently considering amendments to the
post-trial processing rules, including RCM 1007, to provide the victim
the right to be heard without jeopardizing the due process rights of
the accused.
Finally, the nine civilian members appointed to the Response
Systems Panel, mandated by the NDAA for Fiscal Year 2013 are already
tasked with comparing military and civilian justice systems for sexual
assault offenses, including the adequacy of systems and procedures to
support victims. The Response Systems Panel will provide another source
of expertise to examine current rules and recommend appropriate
amendments.
Admiral DeRenzi. Article 36 of the UCMJ delegates to the President
the power to prescribe pretrial, trial, and post-trial procedures.
Article 60(d) of the UCMJ enables the President to prescribe those
matters that shall be included in the Staff Judge Advocate's
recommendation, which a convening authority (CA) must consider prior to
taking post-trial action in a case.
Rules for Courts-Martial 1106, ``Recommendation of the Staff Judge
Advocate,'' and 1107, ``Action by the Convening Authority,'' permit
consideration of additional matters deemed appropriate and 1107 states,
``[b]efore taking action the convening authority may consider . . .
such other matters as the convening authority deems appropriate.''
Although the rule does not state with specificity that a victim can
provide information for consideration by the CA, the rule does allow
the CA to consider any such information. However, any adverse matter
presented to the CA outside the record of trial would require
additional opportunity for review and rebuttal by the accused prior to
the CA taking action.
General Ary. There is currently no statutory authority for a victim
of a crime to provide information for consideration by the convening
authority prior to action on the results of courts-martial under
Article 60. However, pursuant to DODD 1030.1 (Victim and Witness
Assistance), ``court-martial convening authorities and clemency and
parole boards may consider victim statements on the impact of crime.''
General Harding. No. However, while the ability of victims of crime
to provide victim impact statements to the convening authority is not
currently codified in the UCMJ, nothing prevents a victim from
providing such information for the convening authority's consideration
and many victims choose to do so. It is not uncommon in the Air Force
for the victim to be given the opportunity to submit a written
statement to the CA as part of the SJA's recommendation to the CA on
action. The Air Force is currently revising AFI 51-201, the military
justice instruction, to formalize the opportunity for victims to
provide victim impact statements as part of our post-trial process.
Admiral Kenney. There are no provisions in the UCMJ that specify
that a victim of a crime may provide information to a convening
authority after trial and prior to action. There is also no provision
in the UCMJ that precludes a victim from submitting documentation to
the convening authority. However, if the convening authority considers
potentially adverse matters regarding the accused from outside the
record of trial, the accused must be notified and provided an
opportunity to respond.
At a contested trial, a victim may testify during the presentation
of the government's case on the merits, and again during the sentencing
phase to present evidence of aggravation directly relating to or
resulting from the offenses of which the accuses has been found guilty.
Matters of aggravation include providing testimony on the impact of the
crime, such as financial, social, psychological, and medical harm
experienced by the victim. This testimony is captured in the verbatim
transcript and may be provided to convening authority as a matter to
consider in clemency decisions.
authority for victim input; post-trial
15. Senator Inhofe. Mr. Taylor, General Chipman, Admiral DeRenzi,
General Ary, General Harding, General Patton, and Admiral Kenney,
should the UCMJ include authority for victims of crime to provide
information for consideration by the convening authority, prior to
action on the results of courts-martial under Article 60? Or would a
change to the Manual for Courts-Martial, perhaps to modify Rule 1107 be
the more appropriate method to provide victims this opportunity to be
heard?
Mr. Taylor. I personally believe that a very strong argument can be
made that victims of all crimes should be afforded the opportunity to
present information to the convening authority after a court-martial.
The convening authority could then consider that information in
deciding what action to take on the court-martial. I do not believe
that a change to either the UCMJ or the Manual for Courts-Martial would
be required legal1y to effect such a policy; the Secretary of Defense
could do so. Whether it would be best to do so in law, in Executive
Order, or in Department policy is an issue worthy of additional review.
General Chipman. The preferable method for providing authority for
victims of crime to provide information for consideration by the
convening authority prior to action is to amend the Rules for Court-
Martial (RCM), rather than amendment of Article 60 UCMJ.
The JSC with Judge Advocate representatives from each Service is
responsible for studying, drafting and submitting any RCM amendments to
the President. The JSC is currently considering amendments to the post-
trial processing rules, including RCM 1007 to provide the victim the
right to be heard without jeopardizing the due process rights of the
accused. The JSC members are the subject matter experts on the military
justice system and will appropriately consider the second- and third-
order effects any change to the post-trial rules will have on the due
process rights of the accused and the efficient administration of
military justice.
Finally, the nine civilian members appointed to the Response
Systems Panel, mandated by the NDAA for Fiscal Year 2013 are already
tasked with comparing military and civilian justice systems for sexual
assault offenses, including the adequacy of systems and procedures to
support victims. The Response Systems Panel will provide another source
of expertise to examine current rules and recommend appropriate
amendments.
Admiral DeRenzi. The Navy is receptive to appropriate changes to
provide this right to victims, and DOD is taking a deliberate approach
to reviewing proposals to ensure there are no unintended negative
consequences to the military justice process. The JSC on Military
Justice has recently undertaken review of recommended revisions to the
DOD Directive on victims' rights as well as whether victims should be
able to provide information to the Convening Authority. Therefore, the
Navy does not believe there is a need to legislate this authority; it
can be addressed through Departmental and Service policies and
instructions or Rule 1107.
General Ary. The JSC for Military Justice is currently working on a
proposal to incorporate language into Article 60 and Rule 1107 that
would allow victims of crime to provide information for consideration
by the convening authority, prior to action on the results of courts-
martial. The Marine Corps supports such an amendment to Article 60. The
statute would include general language and the rule would provide
further guidance on the timeline and content for a victim's written
submission.
General Harding. The Air Force supports providing the victims the
opportunity to be heard throughout the military justice process. We
believe either method could be appropriate.
General Patton. The NDAA for Fiscal Year 2013 established two
independent panels to review and assess the systems to investigate,
prosecute, and adjudicate cases involving adult sexual assault
offenses. The first panel will review and assess the UCMJ response
systems used to investigate adult sexual crimes under Article 120 for
the purpose of providing recommendations on how to improve the
effectiveness of such systems. The second panel will review and assess
judicial proceedings under the UCMJ involving adult sexual offenses
since the amendments passed in the NDAA for Fiscal Year 2012.
I believe it prudent to allow the panels to perform their duties,
as prescribed in law, to inform any potential changes to the UCMJ.
Admiral Kenney. The military justice process should provide an
affirmative legal process affording victims an opportunity to submit
written materials to the convening authority before they take final
action on a court-martial case. Either an amendment to Article 60 or a
change to the Manual for Courts-Martial would have the force of law.
However, due process considerations should be studied to ensure than
any changes in the rules do not adversely affect the due process rights
of the accused.
The JSC on Military Justice is currently studying the authorities
and rules regarding post-trial processes, including drafting procedural
rules to provide an opportunity for victims to submit post-trial
matters to convening authorities without exposing cases to appellate
relief. In addition, the Response Systems Panel, which is statutorily
mandated under the NDAA for Fiscal Year 2013 to conduct a comparison
study of military and civilian justice systems, will review the issue
regarding the capacity of the military justice system to provide an
appropriate voice to victims of sexual assault.
manual for courts-martial authority for victim input; post-trial
16. Senator Inhofe. Mr. Taylor, General Chipman, Admiral DeRenzi,
General Ary, General Harding, General Patton, and Admiral Kenney,
should the Manual for Courts-Martial be modified to provide authority
for victims of crime to provide information for consideration by the
convening authority, prior to action on the results of courts-martial?
Mr. Taylor. I personally believe that a very strong argument can be
made that victims of all crimes should be afforded the opportunity to
present information to the convening authority after a court-martial.
The convening authority could then consider that information in
deciding what action to take on the court-martial. I do not believe
that a change to either the UCMJ or the Manual for Courts-Martial would
be required legally to effect such a policy; the Secretary of Defense
could do so. Whether it would be best to do so in law, in Executive
order, or in Department policy is an issue worthy of additional review.
General Chipman. The preferable method for providing authority for
victims of crime to provide information for consideration by the
convening authority prior to action is to amend the Rules for Court-
Martial (RCM), rather than amendment of Article 60 UCMJ.
The JSC with Judge Advocate representatives from each Service is
responsible for studying, drafting and submitting any RCM amendments to
the President. The JSC is currently considering amendments to the post-
trial processing rules, including RCM 1007 to provide the victim the
right to be heard without jeopardizing the due process rights of the
accused. The JSC members are the subject matter experts on the military
justice system and will appropriately consider the second- and third-
order effects any change to the post-trial rules will have on the due
process rights of the accused and the efficient administration of
military justice.
Finally, the nine civilian members appointed to the Response
Systems Panel, mandated by the NDAA for Fiscal Year 2013 are already
tasked with comparing military and civilian justice systems for sexual
assault offenses, including the adequacy of systems and procedures to
support victims. The Response Systems Panel will provide another source
of expertise to examine current rules and recommend appropriate
amendments.
Admiral DeRenzi. The JSC on Military Justice has recently
undertaken review of recommended revisions to the DOD Directive on
victims' rights as well as whether victims should be able to provide
information to the Convening Authority. Therefore, the Navy does not
believe there is a need to legislate this authority; it can be
addressed through Departmental and Service policies and instructions or
Rule 1107.
General Ary. The JSC for Military Justice is currently working on a
proposal to incorporate language into Article 60 and Rule 1107 that
would allow victims of crime to provide information for consideration
by the convening authority, prior to action on the results of courts-
martial. The Marine Corps supports such an amendment to Article 60. The
statute would include general language and the rule would provide
further guidance on the timeline and content for a victim's written
submission.
General Harding. The Air Force supports providing the victims the
opportunity to be heard throughout the military justice process.
General Patton. The NDAA for Fiscal Year 2013 established two
independent panels to review and assess the systems to investigate,
prosecute, and adjudicate cases involving adult sexual assault
offenses. The first panel will review and assess the UCMJ response
systems used to investigate adult sexual crimes under Article 120 for
the purpose of providing recommendations on how to improve the
effectiveness of such systems. The second panel will review and assess
judicial proceedings under the UCMJ involving adult sexual offenses
since the amendments passed in the NDAA for Fiscal Year 2012.
I believe it prudent to allow the panels to perform their duties,
as prescribed in law, to inform any potential changes to the UCMJ.
Admiral Kenney. The military justice process should provide an
affirmative legal process affording victims an opportunity to submit
written materials to the convening authority before they take final
action on a court-martial case. Either an amendment to Article 60 or a
change to the Manual for Courts-Martial would have the force of law.
However, due process considerations should be studied to ensure that
any changes in the rules do not adversely affect the due process rights
of the accused.
The JSC on Military Justice is currently studying the authorities
and rules regarding post-trial processes, including drafting procedural
rules to provide an opportunity for victims to submit post-trial
matters to convening authorities without exposing cases to appellate
relief. In addition, the Response Systems Panel, which is statutorily
mandated under the NDAA for Fiscal Year 2013 to conduct a comparison
study of military and civilian justice systems, will review the issue
regarding the capacity of the military justice system to provide an
appropriate voice to victims of sexual assault.
air force special victims counsel pilot program
17. Senator Inhofe. General Harding, the Air Force recently created
a unique pilot program to establish Special Victims Counsel for victims
of sexual assault. In your statement you cited fiscal year 2011 sexual
assault statistics, and noted that 96 victims, who originally agreed to
participate in the prosecution of their alleged offender, changed their
minds before trial and declined to cooperate with law enforcement
personnel and the prosecution. These 96 victims represented 29 percent
of the Air Force victims of sexual assault who had filed an
unrestricted report of sexual assault. What measures of effectiveness
will the Air Force use to evaluate this pilot program?
General Harding. The SVC Program is conducting an impact evaluation
(IE) of the program over the course of the 1-year pilot phase. The IE
will study two prongs to assess the program: (1) victim impact to
assess the experiences of victims in the military justice process, and
(2) Air Force impact to assess the effectiveness of the program from
the perspectives of Commanders, SARCs, and their Family Advocacy
Program counterparts, and Air Force Office of Special Investigation
agents. The results of the IE will be included in a broader report
delivered at the 1-year mark of SVC Program implementation (28 Jan
2014). In addition to the results of the IE, the SVC Program Report
will also include: (1) an overview of the SVC Program, including
training, outreach, workload, program successes, and lessons learned;
(2) a summary of case law developed based on SVC litigation and a
survey of the military justice landscape; (3) recommended policy
changes to the SVC Program; (4) any recommended changes to Air Force
and DOD policies and the Manual for Courts-Martial; and (5) any
recommended legislative changes.
resourcing implications of special victims counsel program
18. Senator Inhofe. General Chipman, Admiral DeRenzi, General Ary,
General Harding, and Admiral Kenney, if the Air Force Special Victims
Counsel pilot demonstrates its effectiveness, what resourcing would be
required to implement it, within current and projected end strength, in
each branch of the armed services?
General Chipman. Implementation of additional victim advocacy
services akin to the Air Force Special Victims Counsel pilot program
would significantly strain current Army legal assistance resources.
Representation of sexual assault victims is going to be very labor
intensive, especially if services are expanded to include participation
during interviews and any Article 32 or court-martial hearing.
Additional resources will be needed.
The Air Force pilot program is staffed with 60 Judge Advocates. The
Army, as the largest Service, has a significantly higher case load. A
comparison of court-martial data indicates that the number of Air Force
Special Victim cases is approximately one third of the Army's total.
Using the Air Force pilot as a model and the ratio of Air Force to Army
special victim cases, the Army would require an additional 180 Judge
Advocates (or a combination of Judge Advocates and civilian attorneys).
Army Legal Assistance Offices provide a wide range of services to
our clients. These include estate planning, family law, consumer law,
landlord-tenant issues, immigration/citizenship and taxes. Army Legal
Assistance Attorneys also provides representation in a number of
adverse military actions, to include rebuttals to determinations of
financial liability and appeals of adverse fitness evaluations. The
other Services provide these services through their Defense Counsel.
Our largest Legal Assistance practice area has been the legal readiness
of deploying soldiers, followed closely by family law matters.
Unfortunately, we have also had to provide legal assistance to
surviving families in casualty support cases. Many of our Legal
Assistance Offices are already forced to turn clients away due to lack
of resources. For example, in fiscal year 2012, 1 office reported
seeing 5,466 clients, while turning away another 1,086 clients due to
lack of available resources.
Army Legal Assistance Attorneys already provide the full scope of
services set forth in the 17 October 2011 Under Secretary of Defense
for Personnel and Readiness Memorandum ``Legal Assistance for Victims
of Crime.'' In addition to traditional legal assistance services, these
include consultation regarding: the Victim Witness Assistance Program;
the difference between restricted/unrestricted reporting in sexual
assault cases; explanation of the Military Justice system; the
availability of health and mental health services; the availability of
and protections offered by restraining orders; and eligibility for
transitional compensation and other benefits. They will also assist
sexual assault victims in applying for protections/benefits, to include
expedited transfer.
Admiral DeRenzi. The Air Force pilot is just one of the approaches
being taken by the Services to support sexual assault victims. Like any
pilot, it will serve to identify issues and alternatives.
The Navy continues to develop and implement initiatives to focus on
sexual assault prevention, response, and accountability with particular
attention paid to the rights of victims. While the Navy does not intend
to implement a similar pilot program, we are closely monitoring the Air
Force pilot and will study the results of the pilot with the other
Services.
The Navy JAG Corps could not implement a program similar to the Air
Force pilot without a significant increase in manpower and resources.
As the Air Force pilot program is still in its early stages, any
estimate of requirements would be speculative. The Air Force--a Service
of similar size to the Navy--is currently using 60 attorneys, plus
support staff, on a part-time basis. The Air Force plans to move to 25
full-time attorneys and 10 paralegals this summer, with the option of
increasing full-time attorney manning to 45 if there is sufficient
demand (e.g., 450 clients). The Navy JAG Corps would need to evaluate
the Air Force pilot to determine the manning model most appropriate for
the Navy.
General Ary. The use of victim's counsel warrants study by the JSC
on Military Justice before service-wide or DOD-wide implementation. The
Marine Corps does not plan on instituting a victim's counsel at this
time. The comprehensive system of victim services currently provided by
SARCs, Victim Advocates, legal assistance attorneys, and trial counsel
in the Marine Corps meets the needs of all crime victims. The recent
changes and improvements to our program of victim's services needs to
be observed and evaluated before incorporating a dramatic change on the
level of a victim's counsel program. If a SVC program was mandated in
all the Services, we would also need to evaluate how to integrate the
SVC program into the existing military justice system as well as look
at resourcing issues.
General Harding. As mentioned in the answer to question #9,
standing up the Special Victims' Counsel Program will drive a resource
bill for the Air Force, estimated at this time to be about 65
positions. To the extent we are required to re-purpose existing
resources at installations for the SVC Program, we may have to reduce
legal services in other legal practice areas, such as administrative
law, claims, contract law, environmental law, labor law, operations and
international law, and legal assistance. For example, it is possible we
will need to scale back our Legal Assistance Program, eliminating types
of services we currently provide Airmen and their families (e.g., tax
assistance), as well as categories of clients (retirees and/or family
members).
Admiral Kenney. Implementation of a special victim counsel modeled
after the Air Forces pilot program would significantly stretch the
Coast Guard's current legal resources. In fiscal year 2013, the Coast
Guard had 141 unrestricted reports of sexual assault. In fiscal year
2011, there were 83 unrestricted reports. The Office of the Judge
Advocate General is closely monitoring the Air Force program and
considering its options to implement a Coast Guard Special Victim's
Course/Program with available resources.
19. Senator Inhofe. General Chipman, Admiral DeRenzi, General Ary,
General Harding, and Admiral Kenney, is there a requirement that the
capability similar to the Air Force Special Victims Counsel must be a
lawyer or could this capability, if it moves from pilot program, be
effective with appropriately trained non-lawyers?
General Chipman. There is no requirement that the capability
similar to the Air Force Special Victims Counsel pilot program must be
a lawyer and the capability could be effective with appropriately
trained paralegals serving as Victim Witness Assistance Personnel/
Victim Witness Liaison (VWL).
The impetus behind the Air Force's program is to ensure that
victims are educated about their rights and the military justice
process and are, therefore, less likely to drop out of the process and
refuse to cooperate with an investigation and prosecution. These
concerns do not require a separate victim's attorney to be addressed.
First and foremost, the responsibility to protect the rights of the
victim and to keep the victim informed and actively participating in
the accountability process is the charter of the prosecutor. The
relationship between the prosecutor and the victim is the foundation of
every sexual assault prosecution, and the success or failure of each
case rests on the strength of this relationship. The Air Force Special
Victim Counsel could in fact create an adversarial relationship between
the prosecutor and the victim. This will probably have the unintended
and unfortunate effect of decreasing the Army's ability to hold
offenders accountable.
Army VWLs are currently educating and assisting the victim in
navigating some of the more difficult aspects of the adjudication
process. Army VWLs, typically civilian paralegals assigned to the Staff
Judge Advocate office, receive annual specialized training in working
with victims of crime. As civilian paralegals, they are less likely to
move on to a new position or installation than active duty Judge
Advocates, providing valuable stability and continuity. Army VWLs
educate victims about their rights and the military justice process,
provide referrals and support throughout the process, will accompany
victims to interviews if requested, arrange child care or
transportation for court appearances, and sit with the victim during
trial to answer questions about the proceedings. Army VWLs work with
victims after the court-martial to ensure notification of changes in
confinement status or parole of an incarcerated soldier and assist
victims with preparing victim impact statements for future parole
hearings. The Army VWL at the Army Court of Criminal Appeals notifies
victims when the case is considered on appeal and provides victims with
opportunities to attend hearings or arguments. Feedback from victims
and their families regarding the services of the Army VWLs is
overwhelmingly positive.
The Army is looking to further integrate the VWLs into the Special
Victim Capability mandated by the NDAA for Fiscal Year 2013 and to
improve and increase the amount of training VWLs attend. The Army
believes that a cooperative, team approach to assisting the victim,
with the prosecutor and the VWL working together, is the best approach
to balancing the needs and interest of the victims with the Army's
interest in holding offenders accountable.
Admiral DeRenzi. The Navy believes it can be effective with non-
lawyers. While the Navy is dedicated to ensuring victims of sexual
assault are provided their full rights, an expansion of standing to a
counsel representing a victim's interest in a criminal proceeding needs
careful thought and review prior to implementation. It is the Navy's
understanding that the Air Force pilot program is designed to help the
Air Force determine the optimal way to assist sexual assault victims
throughout the investigation and prosecution process. The Air Force
pilot is just one of the approaches being taken by the Services.
The Navy is dedicated to ensuring victims of sexual assault receive
proper and timely support, to include medical treatment, counseling,
and legal assistance. The Navy is hiring 66 credentialed sexual assault
prevention and response coordinators and 66 full-time professional,
credentialed victim advocates. They will augment the more than 3,000
active-duty command victim advocates, and will work with specially-
trained NCIS investigators and JAG Corps prosecutors to form the core
of our special victim capability. Our trained legal professionals also
deliver direct legal assistance to victims. The JAG Corps instituted a
Legal Assistance for Crime Victims conference and has trained more than
150 Navy and Marine Corps attorneys, paralegals, and enlisted personnel
to ensure victims' rights are understood and protected. Victims can
contact counsel, and victims eligible for military legal assistance
services also have access to legal assistance attorneys to help with a
wide variety of legal issues related to being the victim of a crime.
Additionally, Navy prosecutors provide victims with explanations of
victims' rights; the court-martial process; and available Federal,
State, or local victim services and compensation.
General Ary. The Marine Corps believes appropriate victim services
and support, for all crime victims, can be provided by SARCs, Victim
Advocates, legal assistance attorneys, and trial counsel. The Marine
Corps is currently utilizing this comprehensive approach and will
observe and evaluate the effectiveness of recent changes and
improvements to our program of victim's services before considering a
dramatic change on the level of a victim's counsel program. At a
minimum, the use of victim's counsel warrants study by the JSC on
Military Justice before DOD-wide implementation.
General Harding. In the Air Force program, Special Victims' Counsel
must be an attorney. SVCs enter into an attorney-client relationship
with victims protected by a confidentiality privilege in the same way
that Area Defense Counsels enter into an attorney-client relationship
with the accused. SVCs provide legal advice to victims of sexual
assault and advise them of their legal rights under Federal law,
particularly the UCMJ and the Military Rules of Evidence. Due to their
familiarity with, and expertise in, military justice, SVCs also help
victims understand the court-martial process and facilitate resolution
of problems with prosecutors, defense counsel, judges, and law
enforcement. Non-lawyers would not be able to provide the same level of
support, nor could they offer protected/privileged confidential
communication with a victim.
Admiral Kenney. As presently devised, the Air Force Special Victims
Counsel enters into an attorney-client relationship, makes legal
representation on the victim's behalf, and promotes the individual
interests of the victim without regard to how their legal actions
affect the institutional interest of the military. Under this model,
the Air Force's program requires a lawyer. However, if the purpose
behind the program is to educate the victim on the military justice
process, facilitate access to victim services, and build resiliency of
the victim to endure the criminal process, then a trained non-lawyer
could be used.
special victims counsel; balancing government and defense
20. Senator Inhofe. Mr. Taylor, General Chipman, Admiral DeRenzi,
General Ary, General Harding, and Admiral Kenney, what concern, if any,
do you have that establishing Special Victims Counsel could be
perceived as improperly undermining the necessary balance between the
government and defense in the military justice system?
Mr. Taylor. As a pilot program, the Air Force's Special Victims
Counsel program needs time to operate before any fair and thorough
evaluation can be accomplished. The evaluation criteria will include
the effect of the program on the rights of the accused, the trial
counsel, the criminal investigators, and the convening authority.
Ensuring that the program does not undermine the necessary balance
between the government and defense in the military justice system is
critical, both to ensure that that balance is maintained and to ensure
that the program does not have the unintended effect of undercutting
the prosecution of those who should be held to account.
General Chipman. The Services currently provided to sexual assault
victims by Victim Advocates, SARCs, Victim-Witness Liaisons, Legal
Assistance Attorneys, and Special Victim Prosecutors, among others, are
comprehensive and readily accessible. These services are well-resourced
and fully capable of meeting all of the legitimate needs of victims.
The Army defense bar believes that any proposal to establish the Air
Force Special Victims Counsel pilot program, although well-intentioned,
is unnecessary and could have a detrimental impact on the
administration of military justice. The participation in the court-
martial process by Special Victim Counsel could be disruptive,
complicate proceedings, and undermine a servicemember's right to a fair
trial. It would produce uncertainty on matters of discovery, inevitably
delay cases, and inject confusion into the court-martial process.
Admiral DeRenzi. In the absence of clearly defined roles,
responsibilities, and procedures, establishing special victims counsel
could result in disparities in services provided to victims, procedural
errors in courts-martial, encroachment on the rights of the accused,
and possible adverse impact on prosecutions.
Such an initiative must address how a victim's statutory rights
conflict with the constitutional rights of the accused. The relative
priorities of the victim's and the accused's rights need to be
delineated so that courts-martial are not forced to make ad hoc
determinations.
A victim's counsel's zealous representation could interfere with
the necessarily direct relationship between the government counsel and
the victim and/or cause the victim to perceive government counsel as a
party-opponent who is not protecting his or her interests. Victim's
counsel may complicate prosecution efforts; at worst, victim's counsel
may impede prosecution efforts and run counter to initiatives intended
to be more sensitive to a victim's rights.
Professional responsibility rules could also be implicated by such
an initiative. Prosecutors and victim's counsel need to have clear
guidance to ensure compliance with applicable ethical rules.
General Ary. There are three main components to the military
justice system that must be carefully balanced in order to achieve a
fair and just system: the commanders' inherent responsibility to
maintain good order and discipline, the constitutional rights of an
accused, and the moral obligation to protect and care for victims. The
Marine Corps is committed to caring for victims of sexual assault, yet
is also responsible for ensuring that all marines accused of crimes
receive a constitutionally fair trial that will withstand the scrutiny
of appeal. The maintenance of this balance is another factor for the
JSC to consider when studying the efficacy of the Special Victims
Counsel program. If not carefully balanced, there is a potential
concern that accused will be facing what could be perceived as two sets
of Government counsel during a sexual assault prosecution.
General Harding. The SVC Program is a critical element of the Air
Force's ``response'' piece of the Sexual Assault Prevention and
Response program. The SVC Program is a robust, and we believe
necessary, expansion of legal assistance provided to victims of crime
by statute in the NDAA for Fiscal Year 2012. The SVC Program does not
expand the rights of victims in the military justice process, but
rather gives a greater voice to and explanation of those rights.
Victims have always been free to hire civilian counsel to represent
them in the military justice process. An important note is that victims
are not parties to a court-martial and do not have the same
entitlements as parties under the UCMJ. If I believed there was no way
that we could guarantee due process and other constitutional rights to
accuseds in courts-martial and also provide attorneys to victims, I
would not have recommended implementing an SVC program, and instead, I
would have opposed standing up an SVC program. However, after great
study and almost 3 months of experience in executing our SVC program, I
am even more convinced that we can guarantee an accused's
constitutional rights and provide counsel to victims in our UCMJ
practice.
Admiral Kenney. The Air Force Pilot Program has been in effect for
less than 3 months. During this short period, the nascent program
continues to evolve and adjust. To ensure that the program has the
intended effect of assisting victims through the military justice
process and facilitating prosecution of cases, further evaluation is
required. Once sufficient information is received with regard to the
program's efficacy, the Coast Guard will determine the best course of
action on how to proceed.
In addition, the statutorily mandated Response Systems Panel is
charged with comparing civilian and military jurisdictions, including
best practices for providing support services to victims of sexual
assault. Evaluation of this in-depth and thoughtful study will be
helpful in proposing further implementation and avoiding unintended
appellate law consequences. In the meantime, the Coast Guard is
committed to providing the victims with professional support and
services where victims and witnesses feel safe to come forward and
report sexual assault.
A significant potential issue is whether Special Victim Counsel can
or ought to have any role in court. Adding a Special Victims Counsel to
the personnel of a court-martial (see Rule for Court-Martial 501(d)),
could pose a variety of potential challenges, including suitability of
existing trial procedures, confusion of court-martial members, and
perceived or actual unfairness to the accused. The Coast Guard has
reviewed the case of LRM v. Kastenberg, Misc. Dkt. No. 2013-05 (A.F.
Ct. Crim. App. Apr. 2, 2013), where the Air Force Court of Criminal
Appeals ruled that victim's Special Victims Counsel had no standing to
compel production of evidence. We are monitoring this case closely to
determine its potential impact on a Coast Guard Special Victim Course
program.
victim support and advocacy programs
21. Senator Inhofe. General Patton, how does the Special Victims
Counsel pilot work to complement other victim support and advocacy
programs throughout DOD?
General Patton. Implemented on January 28, 2013, the Air Force
Special Victims Counsel program is well underway with 60 specially
trained attorneys providing legal representation. As of April 9, 2013,
approximately 235 clients have been served by this program.
Under this program, legal assistance attorneys represent victims in
a confidential, attorney-client relationship, throughout the
investigation and prosecution processes. In addition to the case
management and victim support functions provided by SARCs and Victim
Advocates, these attorneys provide legal assistance to their clients
with respect to the military justice process. The Air Force is closely
reviewing all aspects of the program implementation, studying what
guidelines may be needed, assessing the feedback from victims and
studying the program impact on the outcome of cases.
The Air Force Special Victims Counsel program is currently a pilot
program that will help inform the way ahead for DOD in this critical
area of sexual assault victim advocacy.
abolishing article 60
22. Senator Inhofe. Mr. Taylor, General Chipman, Admiral DeRenzi,
General Ary, General Harding, and Admiral Kenney, some have suggested
that the authority of convening authorities under Article 60, UCMJ
should be abolished. Is there a continued basis in military due process
for the unfettered authority of convening authorities in Article 60?
Mr. Taylor. The commander plays a vital role in ensuring his or her
command is ready to accomplish all assigned missions. An essential part
of a command's readiness is maintaining a high degree of good order and
discipline. Good order and discipline are present when members of the
command follow the law, comply immediately with lawful orders, and
treat one another with dignity and respect. When a member of the
command does something wrong, the commander is responsible for holding
the member accountable. Thus, I believe that there is a continuing need
for a commander-centric military justice system. However, I am open to
evaluating whether the current role that the commander plays in each
part of the military justice system should be modified. Regarding
Article 60, I am open to evaluating whether the commander, as convening
authority, should continue to have the broad discretion that he or she
currently exercises. Much has changed in military justice since Article
60 was enacted, the convening authority's role under Article 60 has
been modified and limited in the past, and I am open to assessing
whether it should be modified again.
General Chipman. The authority of the convening authority under
Article 60, UCMJ should not be abolished. Any changes to Article 60
must carefully balance the role of the commander with the need to
protect the rights of victims and accused soldiers. There is a
continuing basis in military due process for the central role of the
commander. The commander is responsible for all that goes on in a
unit--health, welfare, safety, morale, discipline, training, and
readiness to execute the mission. The commander's ability to punish,
including the post-trial authority to grant clemency, is essential to
maintaining discipline in units. The commander's authority under
Article 60 also has practical applications including the ability to
reduce sentences in compliance with pre-trial agreements for guilty
pleas, to correct legal error prior to appeal, to modify outlier
sentences between co-accused and to set aside convictions of minor
offenses when the charged major offenses have resulted in acquittals.
The ``unfettered authority of convening authorities'' to take post-
trial action in favor of accused soldiers has been part of the military
tribunal system since before the birth of the Nation. It is clearly an
element of military due process enunciated in U.S. v. Clay, 1 C.M.R. 74
(1951) and the importance of post-trial clemency was confirmed by the
Court of Military Appeals in U.S. v. Wise, 20 C.M.R. 188 (1955) and
U.S. v. Boatner, 43 C.M.R. 216 (1971). The Rules for Courts-Martial
(RCM), first adopted in 1985, detail the responsibilities of the
convening authority to consider defense submissions before taking
action in a case (RCM 1107). This is a crucial check on any potential
unfairness in the findings or sentence, including unlawful command
influence. The clemency authority of convening authorities in Article
60, UCMJ, is part of the careful balancing of interests enshrined in
the UCMJ that ensures the overall integrity and fairness of our
military justice system.
Admiral DeRenzi. Unfettered, no. However, continued basis for the
authority still exists. Commanders must have authority commensurate
with their responsibility to maintain good order and discipline. To
achieve this end, Congress ``intended to grant to the convening
authority an exceedingly broad power to disapprove a finding or a
sentence.'' United States v. Prince, 36 C.M.R. 470, 472 (C.M.A. 1966).
The rationale underlying continued basis for a CA's authority to
take action on findings and sentence is that commanders need the
flexibility to deal with any exigencies that may arise in the unique
military environment, including during combat operations.
General Ary. A key reason commanders need this authority is to be
able to disapprove ``minor offenses,'' which comes into play when an
accused faces multiple offenses at a GCM and is found not guilty of the
serious offenses. For example, an accused might face a GCM for the
offenses of sexual assault and adultery. If the accused is found not
guilty of sexual assault, he is left with a GCM conviction for
adultery. In this situation, the convening authority should have the
authority to dispose of the lower-level offenses (e.g., adultery) in a
more appropriate forum. Additionally, Article 60 provides the authority
for a convening authority to enforce the terms of a pre-trial agreement
(PTA) that was approved by the convening authority prior to trial
(e.g., if a convening authority agrees to disapprove all confinement in
excess of 2 years, and the adjudged sentence was 2 years and 6 months,
the convening authority needs Article 60 authority to disapprove the
additional 6 months of confinement in accordance with the PTA).
General Harding. The Air Force fully supports Secretary Hagel's
direction to prepare a legislative proposal to amend Article 60
pursuant to his letter dated Apr 8, 2013.
Admiral Kenney. Convening authorities have had the authority to
approve or disapprove guilty findings, as well as to grant clemency on
sentences, of military members convicted by courts-martial since the
Revolutionary War. Ostensibly, the power was provided to commanders
because there were no appellate courts to review court-martial cases,
and thus the review and action by the convening authority provided some
post-trial substantive protection to a convicted servicemember.
Although the modern UCMJ introduced appellate review, it preserved the
historical function of the convening authority to review a case as well
as consider clemency.
On April 8, 2013, Secretary of Defense directed that new
legislation be prepared for Congress to amend Article 60 in two ways;
first, by eliminating the discretion for a convening authority to
change the findings of court-martial, except for certain minor offenses
that would not ordinarily warrant trial by court-martial; and second,
by requiring the convening authority to explain in writing any changes
made to court-martial sentences, as well as any changes to findings
involving minor offense. As indicated by the Secretary, the Service
Secretaries, the Joint Chiefs of Staff, and the Service Judge Advocates
General, including the Judge Advocate General of the Coast Guard,
support these changes.
The JSC on Military Justice is further evaluating the underlying
assumptions of the convening authority's post-trial powers and options
for modifying Article 60 power, and the Coast Guard has been actively
involved in these discussions. In addition, the congressionally-
mandated panels directed under the NDAA of 2013 provides a process for
a holistic review of the military justice system. These review
processes will generate well-informed and evidenced-based policy
reforms regarding the UCMJ.
23. Senator Inhofe. General Chipman, Admiral DeRenzi, General Ary,
General Harding, and Admiral Kenney, if Article 60, UCMJ, were
abolished, eliminating the convening authority's power to review and
take action on the results of trial, what would be the impact to the
right of an accused to seek clemency in a timely manner?
General Chipman. Article 60, UCMJ, is not an isolated statutory
provision. It is a component of an overall system to provide justice to
servicemembers who have been charged with offenses triable by court-
martial. In the opinion of the Army defense bar, abolition of Article
60, UCMJ, would seriously compromise the right of a servicemember to
seek clemency in a timely manner. In addition, it would call into
question the authority of the convening authority to enter into
pretrial agreements. It would also impact the ability of convening
authorities to disapprove, reduce, suspend, or defer automatic or
adjudged forfeitures for the benefit of the servicemembers' dependents.
The abolishment of Article 60 would also prevent the local and more
immediate correction of legal errors in trials by summary courts-
martial (that never receive review in Courts of Criminal Appeals), and
those special courts-martial not reviewed by the Courts of Criminal
Appeals under Article 66.
Admiral DeRenzi. The authority to modify a sentence as a matter of
clemency is a traditional and important exercise of command discretion
by the convening authority. It serves as a means by which the convening
authority maintains good order and discipline in the ranks and ensures
that our fighting force maintains essential capabilities. This
authority is also critical for purposes of giving effect to plea
bargains, and the second- and third-order effects, were the authority
abolished, would be very damaging.
Were the authority abolished, clemency would be delayed, and the
ability to effect pretrial agreements would be affected and eliminated
in its current form. In all courts-martial, the convening authority
must take action under Article 60 within 120 days of the completion of
trial or justify exceeding that timeline requirement. Should the
opportunity for clemency under Article 60 be eliminated, an accused
would have to wait for review under Article 66 or Article 69 or review
by the Naval Clemency and Parole Board. For cases which require Article
66 review by the Navy and Marine Corps Court of Criminal Appeals, a
decision is to be rendered within 18 months of docketing the case. The
Naval Clemency and Parole Board conducts an initial clemency review of
the cases of all eligible servicemembers within approximately 11 months
from the first day of confinement.
General Ary. An accused currently has the ability to seek clemency
through the post-trial process before the convening authority acts on
the findings and sentence. However, if Article 60 were abolished, an
accused would not have the ability to seek clemency before the
convening authority's action. Therefore, the first level of post-trial
review would be through the Courts of Criminal Appeals through Article
66, UCMJ. Only cases in which the accused has an approved sentence of a
punitive discharge or confinement for 1 year or more are eligible for
automatic appellate review. Also, marines are eligible for clemency
consideration through the Navy Clemency and Parole Board (NC&PB);
however, the initial clemency review by NC&PB could be up to 60 days
after the offender's clemency review eligibility date (the ``clemency
review eligibility date'' is 10 days after CA's action for those whose
approved sentence includes less than 12 months confinement or 9 months
from the day confinement began for those whose approved sentence
includes 12 or more months of confinement).
General Harding. If Article 60 were abolished, other aspects of the
UCMJ and MCM would have to be amended to retain non-clemency components
of the post-trial process, to include PTAs, and deferment of components
of a sentence like forfeitures and confinement. However, there is no
Constitutional right to CA clemency. If Article 60 were abolished, the
accused would still be able to seek relief through the judicial process
(CCAs, CAAF, S.Ct.), Article 69, and Article 74. The Air Force fully
supports Secretary Hagel's direction to prepare a legislative proposal
to amend Article 60 pursuant to his letter dated Apr 8, 2013, and we do
not recommend abolishing Article 60.
Admiral Kenney. The Court of Appeals for the Armed Forces has
frequently noted that an accused's best chance of relief rests with the
convening authority' power to grant clemency. See e.g. United v. Davis,
58 M.J. 100, 102 (C.A.A.F. 2003). Despite the recent attention to
Article 60 power, convening authorities rarely exercise this authority
as applied to findings. The Coast Guard Court of Criminal Appeals can,
however, adjust sentences sua sponte on a finding of legal error.
Military appeal courts, whether it is the Coast Guard Court of
Criminal Appeals or Court of Appeals for the Armed Forces, are not
statutorily authorized to engage in exercises of clemency.
Once appellate review is complete, Article 74(a) grants the
Secretary the authority to remit or suspend the unexecuted portions of
any sentence. This authority has been delegated to the Coast Guard
Commandant. Under Article 74(b), the Secretary may, for good cause,
substitute an administrative form of discharge for a punitive discharge
or dismissal executed in accordance with the sentence of a court-
martial.
Without the authority vested in Article 60, the accused would have
no viable opportunity to clemency with regard to findings, and the
power to grant clemency to an adjudged sentence would be narrowed to
those unexecuted portions by the Commandant, and as well as authorizing
only discharge upgrades by the Secretary for good cause.
impact of prosecution initiatives on military justice defense
24. Senator Inhofe. General Chipman, Admiral DeRenzi, General Ary,
General Harding, and Admiral Kenney, each branch of the armed services
has taken steps to improve the professional training and oversight of
the prosecution function. Has the pendulum swung too far in favor of
the prosecution and what concerns, if any, do you have about the impact
of these initiatives on the rights of accused in the military justice
system?
General Chipman. Improvements to the Army's professional training
and oversight of the prosecution function have been accompanied by
improvements to the professional training and oversight of the defense
function. Combined, these initiatives have improved the overall quality
of military justice practice and been a very welcome development.
Historically, the UCMJ has represented a careful balancing of the
individual servicemember's rights and interests of the command in good
order and discipline, augmented by its investigative and prosecutorial
resources. Any amendments to the UCMJ must be carefully considered to
preserve the protections provided to accused soldiers or we risk losing
the confidence of our ranks in the integrity and fundamental fairness
of our military justice system.
Admiral DeRenzi. The Navy's leaders remain steadfastly committed to
ensuring that cases are processed through a fair, effective, and
efficient military justice system. This commitment is exemplified in
Navy JAG Corps training and reach-back capabilities. The Navy is
committed to ensuring victims' rights are protected, as well as an
accused's right to a fair trial. To ensure that both the government and
the defense are adequately resourced and have the best training, we
have implemented changes to improve our litigation capability, but have
always done so with equal emphasis on the prosecution and defense
capabilities.
In 2007, to improve the overall quality of Navy court-martial
litigation, the JAG Corps established the Military Justice Litigation
Career Track. JAG Corps officers apply for designation as military
justice specialists or experts based on their litigation experience.
Military Justice Litigation Qualified officers are detailed to lead
trial and defense departments at Region Legal Service Offices and
Defense Service Offices, which provide Navy prosecutors and defense
counsel, respectively. These officers provide proven experience in the
courtroom, personally conducting, adjudicating, or overseeing
litigation in sexual assault and other complex cases. The Military
Justice Litigation Career Track program increases the experience levels
of trial and defense counsel and leverages that experience to enhance
the effectiveness of criminal litigation practice.
In 2010, the Navy created Trial Counsel and Defense Counsel
Assistance Programs. These separate programs are led by experts in
military justice who provide direct support to prosecution and defense
counsel. The Navy's Trial Counsel Assistance Program (TCAP) provides
high-quality advice, assistance, support and resources for trial
counsel (the Navy's court-martial prosecutors) worldwide through every
phase of the court-martial process. TCAP counsel may be detailed to
serve as trial counsel or assistant trial counsel and have been so
detailed in several high visibility cases, to include five sexual
assault cases. The TCAP Director is an O-5 Military Justice Litigation
Qualified expert and is a former Naval Legal Service Office commanding
officer and military judge. The TCAP Deputy Director is a GS-15 expert
who specializes in sexual assault prosecution and victims' rights. A
former state prosecutor with extensive experience, she previously
served as the Director of the National Center for the Prosecution of
Violence Against Women and is a noted author in the field. TCAP is also
staffed with an O-4 Military Justice Litigation Qualified specialist
with several years of litigation experience. During the past 2 years,
TCAP provided on-site assistance visits, delivering trial advocacy
training and prosecution process assessments to all nine Region Legal
Service Offices worldwide. Further, TCAP personnel conducted outreach
training using a multi-disciplinary approach to improve efforts between
prosecutors, NCIS agents, military investigators and other military
justice stake-holders, including Sexual Assault Response Program
contributors. TCAP staff conducted advanced family and sexual violence
training at the Federal Law Enforcement Training Center and training on
alcohol-facilitated sexual assault at the Army JAG Legal Center and
School and Air Force Keystone conference. TCAP personnel are frequent
instructors at the Naval Justice School, including the Trial Counsel
Orientation, Basic Trial Advocacy, Intermediate Trial Advocacy, Senior
Trial Counsel, Litigating Complex Cases, Sexual Assault Investigation
and Prosecution, and Prosecuting Alcohol Facilitated Sexual Assault
courses. TCAP coordinates training and advice closely with Marine Corps
TCAP and leverages expertise from other Services, including Army TCAP,
highly-qualified experts, sexual assault investigators, and special
victim prosecutors.
The UCMJ requires that qualified military defense counsel be
detailed to military members facing trial by special or general court-
martial. The Defense Counsel Assistance Program (DCAP) was created to
support and enhance the proficiency of the Navy defense bar; provide
experienced reach-back and technical expertise for case collaboration;
and develop, consolidate and standardize resources for defense counsel.
The office primarily supports the Navy trial defense bar with active
cases. DCAP personnel are authorized to consult with detailed defense
counsel through every phase of the court-martial process. Although not
typically assigned as detailed defense counsel, DCAP personnel may be
detailed to cases. Like TCAP, the DCAP Director is an O-5 Military
Justice Litigation Qualified expert and former military judge. The
Director is supported by an O-4 Military Justice Litigation Qualified
specialist and a recently hired Highly Qualified Expert, discussed
further below.
During the past 2 years, DCAP provided military justice policy
advice and routinely coordinated with the defense services of the Army,
Air Force, Marine Corps, and civilian defense organizations to maximize
efficiency and capitalize on expertise. DCAP overhauled the Senior
Defense Counsel course to focus on supervisory counsel responsibilities
and continued to develop the Navy and Marine Corps Defending Sexual
Assault Cases course hosted by the Center for American and
International Law. DCAP personnel routinely present training during
field assist visits, web seminars, and participate as instructors at a
number of courses and seminars. DCAP works closely with civilian
defense organizations to make use of the resources at Federal and state
public defenders' offices.
In 2012, the Navy hired two Highly Qualified Experts (HQEs). One
HQE works at the headquarters level to enhance sexual assault
litigation training, trial practice, and policy. She has nearly 20
years of experience prosecuting sex crimes, domestic violence, and
human trafficking crimes. As part of the JAG Corps' Criminal Law
Division, she coordinates with the Naval Justice School and TCAP to
ensure prosecutors and defense counsel receive specialized training on
prosecuting complex sexual crimes, including the 2012 changes to UCMJ
Article 120 and the intricacies of the rape shield provision under
Military Rule of Evidence 412. The other HQE works with DCAP. He is a
retired Marine Corps Lieutenant Colonel who completed two tours as a
military judge while on active duty and has over 15 years of civilian
experience as an assistant Federal public defender and preeminent
civilian military criminal defense attorney. We are in the process of
hiring a third HQE with significant civilian criminal litigation and
training experience to provide litigation assistance within TCAP.
The Naval Justice School; TCAP or DCAP, as appropriate; and the JAG
Corps' Criminal Law Division coordinate specialized training for Navy
prosecutors and defense counsel on litigating complex sexual assault
crimes. Prosecution of Alcohol-Facilitated Sexual Assaults is a week-
long course taught in conjunction with Aequitas, the Prosecutor's
Resource on Violence Against Women. It focuses on substantive aspects
of prosecuting alcohol-facilitated sexual assaults and includes small-
group practical exercises to hone skills such as conducting direct and
cross examinations of sexual assault nurse examiners, toxicologists,
victims, and the accused. The Naval Justice School also facilitates
Sexual Assault Prosecution and Investigation Mobile Training Teams for
prosecutors and NCIS agents. Defending Sexual Assault Cases provides
defense counsel training on sexual assault litigation and is taught in
conjunction with the Center for American and International Law. The
Navy also sends career litigators to civilian post-graduate schools to
receive Master of Laws degrees in litigation or trial advocacy.
General Ary. There are three main components to the military
justice system that must be carefully balanced in order to achieve a
fair and just system: the commanders' inherent responsibility to
maintain good order and discipline, the constitutional rights of an
accused, and the moral obligation to protect and care for victims. The
Marine Corps is committed to caring for victims of sexual assault, yet
is also responsible for ensuring that all marines accused of crimes
receive a constitutionally fair trial that will withstand the scrutiny
of appeal. New military justice initiatives should first be evaluated
for their constitutionality and whether or not they promote a fair and
just process. When the primary stated goal of a new initiative is to
achieve more convictions, that initiative should be critically
evaluated to ensure it does not upset the careful balance built into
the military justice process.
General Harding. We must always remain mindful of maintaining a
military justice system in which the rights of the accused are
zealously protected. While the Air Force has made great strides in
improving the methods by which we ensure a victim's rights are
protected, these efforts have not disadvantaged Air Force accused.
While criminal litigation in the military is rightfully an intensely
adversarial process, our prosecutors are encouraged to focus on justice
as opposed to blind advocacy. Furthermore, aspects of our military
justice system such as, more protective rights advisement, early access
to government provided defense counsel, open discovery, opportunities
to attend Article 32 pretrial investigations and cross-examine
witnesses and offer evidence, an opportunity to request clemency from
the convening authority, and automatic appeal to the Air Force Court of
Criminal Appeals for certain sentences, ensure that the recent
enhancements to our ability to prosecute cases and protect victims'
rights do not come at the expense of compromising an accused's right to
a fair trial.
Admiral Kenney. The UCMJ establishes the foundation of expected
standards of conduct for all servicemembers, and creates the legal
options by which commanders enforce those standards. Thus, the steps
taken to enhance training and oversight of the prosecutorial function
were not only appropriate, they were absolutely necessary. Rape and
sexual assault are not compatible with a disciplined military service,
and cannot be tolerated in the Coast Guard. The sexual assault programs
and military justice reforms reinforce the Coast Guard's core values
that each person in the military must be treated with respect and
dignity and each servicemember will be held responsible for their
actions.
The recent initiatives were important for increasing awareness of
rape and sexual assault, providing greater response services to
victims, requiring trained law enforcement agents to investigate such
crimes, and providing trial counsel greater advocacy knowledge to
prosecute sex crimes. However, these initiatives do not suggest that
discipline should be summarily dispensed because commanders refer cases
to court-martial. Courts-martial are, and continue to be, instruments
of justice. The military justice system empowers independent judicial
entities to safeguard constitutionally protected individual rights. The
military justice system presumes the accused innocent and guilt must be
proved beyond a reasonable doubt. The military justice system provides
the necessary procedural checks and balances to prevent abuse of
punitive powers. Maintaining the balance between the protection of
fundamental Constitutional rights and the maintenance of military
discipline is a challenging one. Therefore, any critical review of the
UCMJ must ensure that the military justice system continues to render
justice fairly and impartially and guard against the erosion of
individual rights and due process of all servicemembers who wear the
uniform.
[Whereupon, at 4:30 p.m., the subcommittee adjourned.]
[all]