[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

                               __________

         Printed for the use of the Committee on Armed Services









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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

                              ----------                              


                       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



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    [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



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    [The prepared statement of Mr. Klay follows:]

              ANNEX C: Prepared Statement by Mr. Ben Klay



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    [The prepared statement of a victim from the Aviano Air 
Base follows:]

  ANNEX D: Prepared Statement by Aviano Air Base Sexual Assault Victim



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    [The prepared statement of The American Civil Liberties 
Union follows:]

   ANNEX E: Prepared Statement by The American Civil Liberties Union



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    [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



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    [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]
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