[Senate Hearing 113-320]
[From the U.S. Government Publishing Office]
S. Hrg. 113-320
PENDING LEGISLATION REGARDING SEXUAL ASSAULTS IN THE MILITARY
=======================================================================
HEARING
before the
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JUNE 4, 2013
__________
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COMMITTEE ON ARMED SERVICES
CARL LEVIN, Michigan, Chairman
JACK REED, Rhode Island JAMES M. INHOFE, Oklahoma
BILL NELSON, Florida JOHN McCAIN, Arizona
CLAIRE McCASKILL, Missouri JEFF SESSIONS, Alabama
MARK UDALL, Colorado SAXBY CHAMBLISS, Georgia
KAY R. HAGAN, North Carolina ROGER F. WICKER, Mississippi
JOE MANCHIN III, West Virginia KELLY AYOTTE, New Hampshire
JEANNE SHAHEEN, New Hampshire DEB FISCHER, Nebraska
KIRSTEN E. GILLIBRAND, New York LINDSEY GRAHAM, South Carolina
RICHARD BLUMENTHAL, Connecticut DAVID VITTER, Louisiana
JOE DONNELLY, Indiana ROY BLUNT, Missouri
MAZIE K. HIRONO, Hawaii MIKE LEE, Utah
TIM KAINE, Virginia TED CRUZ, Texas
ANGUS KING, Maine
Peter K. Levine, Staff Director
John A. Bonsell, Minority Staff Director
(ii)
C O N T E N T S
__________
CHRONOLOGICAL LIST OF WITNESSES
Pending Legislation Regarding Sexual Assaults in the Military
june 4, 2013
Page
Dempsey, GEN Martin E., USA, Chairman of the Joint Chiefs of
Staff; Accompanied by BG Richard C. Gross, USA, Legal Counsel
to the Chairman of the Joint Chiefs of Staff................... 10
Odierno, GEN Raymond T., USA, Chief of Staff of the Army;
Accompanied by LTG Dana K. Chipman, JAGC, USA, Judge Advocate
General of the U.S. Army....................................... 12
Greenert, ADM Jonathan W., USN, Chief of Naval Operations;
Accompanied by VADM Nanette M. Derenzi, JAGC, USN, Judge
Advocate General of the U.S. Navy.............................. 23
Amos, Gen. James F., USMC, Commandant of the Marine Corps;
Accompanied by Maj. Gen. Vaughn A. Ary, USMC, Staff Judge
Advocate to the Commandant of the Marine Corps................. 31
Welsh, Gen. Mark A., III, USAF, Chief of Staff of the Air Force;
Accompanied by Lt. Gen. Richard C. Harding, JAGC, USAF, Judge
Advocate General of the U.S. Air Force......................... 42
Papp, ADM Robert J., Jr., USCG, Commandant of the Coast Guard;
Accompanied by RADM Frederick J. Kenney Jr., USCG, Judge
Advocate General of the U.S. Coast Guard....................... 49
Martin, COL Donna W., USA, Commander, 202nd Military Police Group 127
Coughlin, CAPT Stephen J., USN, Commodore, Destroyer Squadron Two 128
King, Col. Tracy W., USMC, Commander, Combat Logistics Regiment
15............................................................. 130
Leavitt, Col. Jeannie M., USAF, Commander, 4th Fighter Wing...... 131
Parrish, Ms. Nancy, President, Protect Our Defenders............. 163
Bhagwati, Ms. Anu, Executive Director and Co-Founder, Service
Women's Action Network......................................... 180
Altenburg, MG John D., Jr., USA, Retired, Chairman, American Bar
Association Standing Committee on Armed Forces Law............. 185
Morris, COL Lawrence J., USA, Retired, General Counsel, Catholic
University..................................................... 187
(iii)
PENDING LEGISLATION REGARDING SEXUAL ASSAULTS IN THE MILITARY
----------
TUESDAY, JUNE 4, 2013
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 9:35 a.m., in
room SH-216, Hart Senate Office Building, Senator Carl Levin
(chairman) presiding.
Committee members present: Senators Levin, Reed, Nelson,
McCaskill, Udall, Hagan, Manchin, Shaheen, Gillibrand,
Blumenthal, Donnelly, Hirono, Kaine, King, Inhofe, McCain,
Sessions, Chambliss, Wicker, Ayotte, Fischer, Graham, Blunt,
and Cruz.
Committee staff members present: Peter K. Levine, staff
director; Travis E. Smith, chief clerk; and Leah C. Brewer,
nominations and hearings clerk.
Majority staff members present: Jonathan D. Clark, counsel;
Jonathan S. Epstein, counsel; Gabriella E. Fahrer, counsel; and
Gerald J. Leeling, general counsel.
Minority staff members present: John A. Bonsell, minority
staff director; Steven M. Barney, counsel; William S. Castle,
general counsel; Samantha L. Clark, associate counsel; Allen M.
Edwards, professional staff member; Anthony J. Lazarski,
professional staff member; Daniel A. Lerner, professional staff
member; and Natalie M. Nicolas, staff assistant.
Staff assistants present: Jennifer R. Knowles, Kathleen A.
Kulenkampff, and John L. Principato.
Committee members' assistants present: Carolyn Chuhta,
assistant to Senator Reed; Jeff Fatora, assistant to Senator
Nelson; Jason Rauch, assistant to Senator McCaskill; Casey
Howard, assistant to Senator Udall; Christopher Cannon,
assistant to Senator Hagan; Mara Boggs, assistant to Senator
Manchin; Chad Kreikemeier, assistant to Senator Shaheen; Moran
Banai, Brook Gesser, Brooke Jamison, and Kathryn Parker,
assistants to Senator Gillibrand; Ethan Saxon, assistant to
Senator Blumenthal; Marta McLellan Ross, assistant to Senator
Donnelly; Nick Ikeda, assistant to Senator Hirono; Karen
Courington, assistant to Senator Kaine; Steve Smith, assistant
to Senator King; Paul C. Hutton IV and Elizabeth Lopez,
assistants to Senator McCain; Lenwood Landrum, assistant to
Senator Sessions; Todd Harmer, assistant to Senator Chambliss;
Joseph Lai, assistant to Senator Wicker; Brad Bowman, assistant
to Senator Ayotte; Peter Schirtzinger, assistant to Senator
Fischer; Craig Abele, assistant to Senator Graham; Charles
Prosch, assistant to Senator Blunt; and Jeremy Hayes, assistant
to Senator Cruz.
OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN
Chairman Levin. Good morning, everybody. The committee
meets today to receive testimony on pending legislation
regarding sexual assaults in the military.
Before we begin our hearing, we note with sadness the
passing of our friend Frank Lautenberg, who was the last World
War II veteran serving in the Senate.
Seven bills relating to sexual assault have been introduced
in the Senate beginning in March and are now pending before the
committee.
Senate bill 538, introduced by Senator McCaskill and others
on March 12th.
Senate bill 548, introduced by Senator Klobuchar and others
on March 13th.
Senate bill 871, introduced by Senator Murray and others on
May 7th.
Senate bill 964, introduced by Senator McCaskill and others
on May 15th.
Senate bill 967, introduced by Senator Gillibrand and
others on May 16th.
Senate bill 992, introduced by Senator Shaheen and others
on May 21st.
Senate bill 1041, introduced by Senator Blumenthal on May
23rd.
More than 40 Senators have sponsored or cosponsored one or
more of these bills. There is good reason for this legislative
activity. The problem of sexual assault is of such scope and
magnitude that it has become a stain on our military.
Last year, for the fourth year in a row, there were more
than 3,000 reported cases of sexual assault in the military,
including 2,558 unrestricted reports and an additional 816
restricted reports. Restricted meaning that in accordance with
the victim's request, they were handled in a confidential
manner and not investigated.
A recent survey conducted by the Department of Defense
(DOD) indicates that the actual number of sexual offenses could
be considerably higher, as 6.1 percent of active duty women and
1.2 percent of active duty men surveyed reported having
experienced an incident of unwanted sexual contact in the
previous 12 months.
Even one case of sexual assault in the military is one too
many. No one who volunteers to serve our country should be
subjected to this kind of treatment by those with whom they
serve. The problem is made much worse when the system fails to
respond as it should, with an aggressive investigation that
brings the perpetrators to justice.
The recent documentary ``The Invisible War'' has provided
tragic and heartbreaking examples of some of these system
failures. Every member of this committee wants to drive sexual
assault out of the military. The question for us is how can we
most effectively achieve this objective?
We have previously--in some cases as recently as last
year's National Defense Authorization Act (NDAA)--taken a
number of steps to address the problem of sexual assault in the
military to ensure the aggressive investigation and prosecution
of sexual offenses and to provide victims of sexual assault the
assistance and support that they need and should have.
For example, in the area of training, we have required
sexual assault training for servicemembers at each level of
military education, sexual assault training of new recruits
within the first 2 weeks after entrance on active duty, and
enhanced training for new and prospective commanders.
In the area of prevention, we have required regular
assessments of command climate and regular surveys of gender
relations, and we have prohibited the military from granting
waivers to individuals with criminal convictions for sexual
offenses to allow them to serve in the military.
In the area of victim protection, we have established
requirements for legal assistance for victims of sexual
assault, provided for expedited transfers for victims of sexual
assault, and required general or flag officer review of any
involuntary separation of a victim of sexual assault when
requested by the victim to ensure that the victim is not
victimized a second time.
In the area of reporting, we have authorized restricted
reporting of sexual assaults that enables victims to maintain
confidentiality when they choose to do so. We have required
that each brigade or equivalent unit have its own full-time
trained and qualified Sexual Assault Response Coordinator
(SARC) and sexual assault victim advocate. We have established
strong recordkeeping requirements for reports of sexual
assault.
In the area of investigation, prosecution, and penalties,
we have required DOD investigative agencies establish special
capabilities for investigating and prosecuting sexual offenses,
and we have required that any servicemember convicted of a
sexual offense be processed for administrative separation when
the court-martial punishment does not include a discharge.
Some of these steps being recent, their effectiveness is
not yet determined. But we know more needs to be done. The
bills now before the committee propose a wide variety of
additional actions for us to consider.
These include the following: amending the Uniform Code of
Military Justice (UCMJ) to limit the authority of a convening
authority to modify the findings and sentence of a court-
martial, requiring that special victims' counsel be provided to
victims of sexual assault, as the Air Force has been doing on a
test basis since January.
Bills before us would put into statute the existing
regulatory requirement that commanders who receive reports of
sexual misconduct offenses submit them to criminal
investigators.
Bills before us would require commanders who receive
reports of such sexual misconduct to submit them to the next
higher officer in the chain of command, would direct the
Secretary of Defense to establish a separate legal authority
outside the chain of command to determine whether and how to
proceed with a case. That would take the place of the
commander, who now serves as the initial disposition authority
under current law.
Bills before us would amend the UCMJ to establish a
separate convening authority outside the chain of command to
appoint courts-martial for serious offenses.
Bills before us would modify the manual for courts-martial
to remove the character of the accused as one of the factors to
be considered in deciding how to proceed with a case and would
require that all substantiated sexual-related offenses be noted
in the personnel records of the offender.
Now as important as some of these additional protections
and procedural changes may be, we cannot successfully address
this problem without a culture change throughout the military.
Discipline is the heart of the military culture, and trust is
its soul. The plague of sexual assault erodes both the heart
and the soul.
We expect our men and women in uniform to be brothers and
sisters in arms, to be prepared to take care of each other in
the toughest of situations in the face of the enemy. That
requires a level of trust that is rarely matched in civilian
life, trust sufficient that our soldiers, sailors, airmen,
marines, and Coast Guard personnel are ready to put their lives
in their comrades' hands.
That trust is violated when one servicemember sexually
assaults another and can only be restored when we have
decisively restored discipline and addressed this plague.
The key to cultural change in the military is the chain of
command. The Military Services are hierarchical organizations.
The tone is set from the top of that chain. The message comes
from the top, and accountability rests at the top.
But addressing a systemic problem like sexual assault
requires action by all within that chain and especially by the
commanders of the units. Only the chain of command can
establish a zero tolerance policy for sexual offenses. Only the
chain of the command has the authority needed to end problems
with command climate that foster or tolerate sexual assaults.
Only the chain of command can protect victims of sexual
assaults by ensuring that they are appropriately separated from
the alleged perpetrators during the investigation and
prosecution of a case. Only the chain of command can be held
accountable if it fails to change an unacceptable military
culture.
The chain of command has achieved cultural change before.
For example, two generations ago when we faced problems with
racial dissension in the military and, more recently, with the
change to the ``don't ask, don't tell'' policy. The chain of
command can do it again.
The men and women of our military deserve no less. Our sons
and daughters contemplating a career in the military and their
parents also deserve that commitment.
We have today three panels of witnesses to help us in our
review of these issues. We have asked each of them for their
views on the bills that are before us. We are very appreciative
of their presence here today.
I will introduce our first panel after Senator Inhofe makes
his opening statement.
Senator Inhofe.
STATEMENT OF SENATOR JAMES M. INHOFE
Senator Inhofe. Thank you, Mr. Chairman.
Today, we will address the legal and moral foundation of
our Nation's military readiness, the UCMJ. Under the
Constitution, Congress has the unique responsibility to make
rules to govern and regulate our military. This responsibility
is particularly important as we evaluate the effectiveness of
the UCMJ in the context of combating sexual assault.
Last year, we created the Independent Panel to Review the
UCMJ and Judicial Proceedings of Sexual Assault Cases, under
section 576 of the NDAA for Fiscal Year 2013. This panel was
tasked with assessing the response systems used to investigate,
prosecute, and adjudicate crimes involving sexual assault and
related offenses, and to develop recommendations on how to
improve the effectiveness of those systems. The work of that
commission, as I said yesterday on the Senate floor, has only
just begun, and we have to allow it an opportunity to do what
it was created to do.
Over the last decade, Congress has passed a number of laws
to better equip the Services to combat sexual assault,
including 10 provisions in last year's NDAA alone. I am not
going to read those and I ask that they be included in the
record as part of my statement.
Chairman Levin. They will be.
[The information referred to follows:]
subtitle h--improved sexual assault prevention and response in the
armed forces
Sec. 570. Armed Forces Workplace and Gender Relations Surveys.
Sec. 571. Authority to retain or recall to Active Duty Reserve
component members who are victims of sexual assault while on active
duty.
Sec. 572. Additional elements in comprehensive Department of
Defense policy on sexual assault prevention and response.
Sec. 573. Establishment of special victim capabilities within the
military departments to respond to allegations of certain special
victim offenses.
Sec. 574. Enhancement to training and education for sexual assault
prevention and response.
Sec. 575. Modification of annual Department of Defense reporting
requirements regarding sexual assaults.
Sec. 576. Independent reviews and assessments of Uniform Code of
Military Justice and judicial proceedings of sexual assault cases.
Sec. 577. Retention of certain forms in connection with Restricted
Reports on sexual assault at request of the member of the Armed Forces
making the report.
Sec. 578. General or flag officer review of and concurrence in
separation of members of the Armed Forces making an Unrestricted Report
of sexual assault.
Sec. 579. Department of Defense policy and plan for prevention and
response to sexual harassment in the Armed Forces.
Senator Inhofe. Our commanders haven't had time right now
to implement the most recent changes, and some think we need to
change things again. I guess what I am saying here is we have
made these suggestions. We have 10 changes that are out there
that we are evaluating right now. They are doing it as we
speak, Mr. Chairman, and they have time to get this done.
As we consider additional changes to the law in this year's
NDAA, we should keep three things in mind. First, and
fundamentally, we cannot abolish sexual assault by legislation
alone. As you point out, eliminating sexual assault requires
commanders to drive cultural change and achieve accountability.
Second, we must allow our commanders an opportunity to
address those recent changes in the law and to monitor and
assess their effectiveness.
Third, while I share Chairman Levin's concerns that we
should not delay considering things that could make immediate,
positive changes, I strongly believe that we must be deliberate
in making fundamental changes to the UCMJ. I have had several
confidential conversations with other members. That is a
general agreement.
There is a risk of unintended consequences if we act in
haste without thorough and thoughtful review. Rushing to change
the law, yet again, could prove counterproductive to our
ultimate objective of providing a sound, effective, efficient,
and fair military justice system.
Over the past few weeks, several of my colleagues have
introduced bills that propose significant changes to the UCMJ.
I thank them for their commitment in combating sexual assault
in the military and look forward to working collaboratively
with them on these efforts. I am opposed to any provision that
would remove commanders from their indispensable role in the
military justice.
One of the things, as Senator Ayotte has been talking
about, is to maintain this authority in the commanders and even
advance that to a higher command. We must remember that the
military is, by necessity, uniquely separate from the civilian
society. Military Service requires those who serve to give up
certain rights and privileges that civilians enjoy. Those of us
who have been in the military understand that.
Those who volunteer to serve must, at times, subordinate
their will to that of the commanders appointed over them, under
the authority of the Constitution and the UCMJ. The UCMJ forms
the foundation of command authority and military readiness.
Sexual assault is an enemy to morale and to readiness. But
it is more than just that. It is an affront to the dignity of
its victims. The men and women of our military must often
tolerate arduous duty, separations from loved ones, and
loneliness, but they must not tolerate sexual assault.
Some have criticized our commanders and the military
justice system because of a recent case in which a court-
martial was set aside. But if you take time and look at the
statistics, you will see that commanders have only set aside
findings of guilt in extraordinarily rare circumstances, in
about 1 percent of the cases. Again, specific details are in my
statement.
There is also a suggestion that commanders haven't done a
good job of preserving good order and discipline, or
effectively overseeing the conduct of their forces. But the
record does not reflect this.
The Defense Legal Policy Board released a report on
military justice in combat zones just last week. This is brand
new. A lot of us haven't had a chance to look at this yet. I am
encouraged that the main theme of the Defense Legal Policy
Board report validates my longstanding position concerning the
central role of the joint commander in the administration of
justice in deployed theaters of operations.
It states, and I quote, ``While good order and discipline
is important and essential to any military environment, it is
especially vital in the deployed environment. The military
justice system is the definitive commanders' tool to preserve
good order and discipline, and nowhere is this more important
than in a combat zone.''
Further, still quoting, ``A breakdown of good order and
discipline while deployed can have a devastating effect on
mission effectiveness. The joint commander is ultimately
responsible for the conduct of his forces. As such, the
subcommittee has determined that the joint commander must have
the authority and apparatus necessary to preserve good order
and discipline through the military justice system.''
My request is for you to respond to this to see if there is
general agreement to this statement, which I have just quoted
that just came out last week.
Just how critical this military justice system is to our
commanders is demonstrated by the frequency of its use. This
report states that since 2001, the Army alone has conducted
over 800 courts-martial in deployed environments. The Navy and
Marine Corps conducted 8 courts-martial in Afghanistan and 34
in Iraq. The Air Force conducted three courts-martial in Iraq
and three in Afghanistan.
We must never take this vital readiness tool from our
commanders. It is vitally important that we make sexual assault
culturally unacceptable, as the chairman said, in our military.
But no change is possible without commanders as agents of that
change.
Mr. Chairman, I look forward to this hearing.
[The prepared statement of Senator Inhofe follows:]
Prepared Statement by Senator James M. Inhofe
I thank Chairman Levin for convening this important hearing.
Today, we will address the legal and moral foundation of our
Nation's military readiness, the Uniform Code of Military Justice
(UCMJ). Under the Constitution, Congress has the unique responsibility
to make rules to govern and regulate our military. This responsibility
is particularly important as we evaluate the effectiveness of the UCMJ
in the context of combating sexual assault.
Last year we created the Independent Panel to Review the UCMJ and
Judicial Proceedings of Sexual Assault Cases, under section 576 of the
National Defense Authorization Act (NDAA) for Fiscal Year 2013. This
panel was tasked with assessing the response systems used to
investigate, prosecute and adjudicate crimes involving sexual assault
and related offenses and to develop recommendations on how to improve
the effectiveness of those systems. The work of that commission has
only just begun and we must allow it the opportunity to do what it was
created to do.
Over the last decade, Congress has passed a number of laws to
better equip the Services to combat sexual assault, including 10
provisions in last year's NDAA alone. Those changes from the NDAA for
Fiscal Year 2013 include the following:
Section 523 eliminates accession waivers for
individuals convicted of felony sexual offenses, including
``rape, sexual abuse and sexual assault.''
Section 571 allows continuation of a member of the
Reserve component who is an alleged victim of sexual assault
while on active duty for the purpose of making a line of duty
determination.
Section 572, requires the Secretary of Defense to
modify the revised comprehensive policy for the sexual assault
prevention and response program to establish additional
requirements to retain records of dispositions of allegations
of sexual assault; to require Services to establish policies to
require administrative discharge processing for individuals who
are convicted of rape, sexual assault and forcible sodomy whose
final approved punishment does not include a punitive
discharge; to conduct command climate assessments within 120
days of assuming command; and at least annually, for the
purpose of preventing and responding to sexual assaults, to
proactively provide information about resources available to
report and respond to sexual assaults; and to establish a
general education campaign to notify servicemembers of the
authorities available for correction of military records when a
member experiences any retaliatory personnel action for making
a report of sexual assault or sexual harassment.
Section 573 requires the Secretary of Defense to
prescribe regulations for the Service Secretaries to establish
special victim support and defense capabilities for sexual
offenses and other offenses.
Section 574 establishes enhanced commanders' training
for sexual assault prevention and response.
Section 575 modifies annual Department of Defense
(DOD) reporting requirements regarding sexual assaults, to
include requiring case synopses if an individual is
administratively separated or allowed to resign in lieu of
court-martial; identify whether a member accused of committing
a sexual assault was ever previously accused of a substantiated
sexual assault or allowed to enter the service under a moral
waiver with respect to prior sexual misconduct, and a statement
of the nature of the punishment in cases where a sexual assault
case results in nonjudicial punishment.
Section 576 established a panel to conduct and in-
depth review and assessment of judicial proceedings under the
UCMJ, with focus on sexual assault and related offenses.
Section 577 establishes retention requirements for
restricted reports of sexual assault.
Section 578, requiring general or flag officer review
of proposed involuntary separation of any servicemember who
made an unrestricted report of sexual assault, recommended for
separation within 1 year of making the report, and where the
member believes the involuntary separation was initiated in
retaliation for making the report.
Section 579 modifies DOD policy and plan for
prevention and response to sexual harassment.
Our commanders haven't had enough time to implement the most recent
changes and now some think we need to change things again. I think that
would be a mistake to legislate initial demands on the Department and
the Services until they have had an opportunity to assess the
effectiveness of these recent legislative requirements.
As we consider additional changes to the law in this year's
National Defense Authorization Act, we should keep three things in
mind: First, and fundamentally, we cannot abolish sexual assault by
legislation alone. Eliminating sexual assault requires commanders to
drive cultural change and achieve accountability. Second, we must allow
our commanders an opportunity to address those recent changes in the
law and to monitor and assess their effectiveness. Third, while I share
Chairman Levin's concerns that we should not delay considering things
that could make immediate, positive changes, I strongly believe we must
be deliberate in making fundamental changes to the UCMJ. There is a
risk of unintended consequences if we act in haste without thorough and
thoughtful review. Rushing to change the law yet again could prove
counterproductive to our ultimate objective of providing a sound,
effective, efficient and fair military justice system.
Over the past few weeks, several of my colleagues have introduced
bills that propose significant changes to the UCMJ. I thank them for
their commitment to combating sexual assault in the military and look
forward to working collaboratively with them on these efforts. But I'm
opposed to any provision that would remove commanders from their
indispensable role in the military justice process.
As we take up our responsibility we must not forget that the
military is, by necessity, uniquely separate from the civilian society.
Military service requires those who serve to give up certain rights and
privileges that civilians enjoy. Those who volunteer to serve must, at
times, subordinate their will to that of the commanders appointed over
them, under the authority in the Constitution and the UCMJ.
The UCMJ forms the foundation of command authority and military
readiness. The Supreme Court observed that the Armed Forces depend on a
command structure that at times must send forces into combat, not only
at risk to their lives but ultimately involving the security of the
Nation itself. Such a command structure cannot exist and cannot succeed
without commanders. Our Nation entrusts our commanders to lead our
forces to fight and win our Nation's wars. Those commanders voluntarily
take an oath to defend the United States against all enemies, foreign
and domestic. Sexual assault is such an enemy to morale and readiness.
But it is more than that: it is an affront to the dignity of those who
are its victims. The men and women of our military must often tolerate
arduous duty, separations from loved ones, and loneliness. But they
must not tolerate sexual assault.
Some have criticized our commanders and the military justice system
because of a recent case in which a court-martial was set aside. But if
you take time to look at the statistics you will see commanders have
only set aside findings of guilt in extraordinarily rare circumstances,
about 1 percent of cases. Specifically:
Marine commanders only set aside findings in 7 cases
out of 1,768 or 0.4 percent from 2010 to 2012.
Air Force commanders only set aside findings in 40 of
3,713 cases over 5 years. That is 1.1 percent.
Army commanders set aside findings in only 68 of 4,603
cases since 2008, or about 1.4 percent
Navy says its commanders only set aside findings in 4
of the 16,056 cases they have tried from 2002 to 2012. That
would be 0.0001 percent.
There is a suggestion that commanders haven't done a good job of
preserving good order and discipline or effectively overseeing the
conduct of their forces. But the record does not reflect this. The
Defense Legal Policy Board released a report on military justice in
combat zones just last week. I am encouraged that the main theme of the
Defense Legal Policy Boards' report validates my longstanding position
concerning the central role of the joint commander in the
administration of justice in deployed theaters of operations. The
following excerpt from this report is important as we consider
legislation concerning military justice matters:
While good order and discipline is important and essential in any
military environment, it is especially vital in the deployed
environment. The military justice system is the definitive commanders'
tool to preserve good order and discipline, and nowhere is this more
important than in a combat zone. A breakdown of good order and
discipline while deployed can have a devastating effect on mission
effectiveness. The Joint Commander is ultimately responsible for the
conduct of his forces. As such the subcommittee has determined that the
Joint Commander must have the authority and apparatus necessary to
preserve good order and discipline through the military justice system.
Just how critical this military justice system is to our commanders
is demonstrated by the frequency of its use. This report states since
2001, the Army alone has conducted over 800 courts-martial in deployed
environments. The Navy and Marine Corps conducted 8 courts-martial in
Afghanistan and 34 in Iraq, and the Air Force conducted 3 courts-
martial in Iraq and 3 in Afghanistan.
We must never take this vital readiness tool from our commanders.
It is vitally important that we make sexual assault culturally
unacceptable in our military. But, no change is possible without
commanders as agents of that change.
I look forward to our witnesses' testimony today.
Chairman Levin. Thank you very much, Senator Inhofe.
We now welcome our first panel. General Martin E. Dempsey,
Chairman of the Joint Chiefs of Staff and the legal counsel to
the Chairman, Brigadier General Richard C. Gross.
General Raymond T. Odierno, Army Chief of Staff, and
Lieutenant General Dana K. Chipman, Judge Advocate General of
the Army.
Admiral Jonathan W. Greenert, Chief of Naval Operations,
and Vice Admiral Nanette M. DeRenzi, Judge Advocate General of
the Navy.
General James F. Amos, Commandant of the Marine Corps, and
Major General Vaughn A. Ary, Staff Judge Advocate to the
Commandant of the Marine Corps.
General Mark A. Welsh, Chief of Staff of the Air Force;
Lieutenant General Richard C. Harding, Judge Advocate General
of the Air Force.
Admiral Robert J. Papp, Commandant of the Coast Guard, and
Rear Admiral Frederick J. Kenney, Judge Advocate General of the
Coast Guard.
I have asked the witnesses on this panel for one opening
statement per Service by the Service Chief, and we have asked
all of our witnesses to limit their opening statements to 5
minutes.
I have asked General Odierno to take a little extra time to
describe, in some detail, the current process in the Army for
addressing allegations of serious offenses, including to whom a
victim can report an offense, who is informed of the offense
once it is reported, how they are informed, who conducts the
investigation, who decides what offenses to charge, and who
decides how to deal with the offenses, whether they are handled
by court-martial or by some other means.
I invite our other witnesses in other Services to include
any clarifying remarks about the process in their own Service
so that we can all understand how allegations are handled now
and what could change if some of the proposed legislation under
consideration by this committee is adopted.
General Dempsey, again, we thank you and your colleagues
for being here today, for your service to our Nation, and we
will start with your opening statement.
STATEMENT OF GEN MARTIN E. DEMPSEY, USA, CHAIRMAN
OF THE JOINT CHIEFS OF STAFF; ACCOMPANIED BY
BG RICHARD C. GROSS, USA, LEGAL COUNSEL TO THE CHAIRMAN OF THE
JOINT CHIEFS OF STAFF
General Dempsey. Thank you, Chairman Levin, Ranking Member
Inhofe, members of the committee. Thank you for this
opportunity to discuss our commitment to eliminating sexual
assault from the Armed Forces of the United States.
The risks inherent to military service must never include
the risk of sexual assault. It is a crime that demands
accountability and consequences. It betrays the very trust on
which our profession is founded.
We are acting swiftly and deliberately to change a climate
that has become a bit complacent. We know that lasting change
begins by changing the behaviors that can lead to sexual
assault. Therefore, we are taking a comprehensive approach that
focuses on prevention, victim advocacy, investigation,
accountability, and assessment. All is part of our solemn
obligation to safeguard the health of the force.
But we can and must do more to protect victims while
preserving the rights of the accused, to prevent and respond to
predatory and high-risk behaviors, and to ensure a dignified
and respectful work environment. We remain open to every idea
and option to accelerate meaningful institutional change.
Legal reform can and should continue to be part of our
campaign to end sexual assault. Like my fellow chiefs, I have
been attentive to every piece of legislation. There are many
reasonable recommendations on the table. In fact, I recently
conveyed in writing to the chairman and to the ranking member
my sincere interest in further considering many of them.
For example, I see the merit in initiatives to prohibit
those convicted of sexual assault from joining our ranks in the
first place, to oblige administrative discharge for those
convicted of sexual assault, to require commanders to report
sexual offenses to the next higher commander in a prompt
manner, and to increase transparency and accountability of
commanders' actions and decisions.
It is my expectation that the panel established under
section 576 of the NDAA for Fiscal Year 2013 will take up these
and many other initiatives, and we need it to fully assess all
the options and all the potential consequences, both intended
and unintended.
As directed by Secretary Hagel, we need the panel to
deliberate and to deliver on a more accelerated timeline. We
won't be idle while giving time for this due diligence. We will
be actively implementing my strategic direction on preventing
sexual assault and DOD's new Sexual Assault Prevention and
Response Plan.
In addition to completing a force-wide stand-down by the
1st of July, we are moving out on nearly 90 near-term actions
to catalyze change. Over the next several months, we will
assess units for command climate, conduct refresher training
for response coordinators and victims' advocates, improve
victim counsel and treatment, and much more. We welcome the
opportunity to update you regularly on our progress.
As we consider further reforms, the role of the commander
should remain central. Our goal should be to hold commanders
more accountable, not render them less able to help us correct
the crisis.
The commander's responsibility to preserve order and
discipline is essential to effecting change. They punish
criminals, and they protect victims when and where no other
jurisdiction is capable of doing so or lawfully able to do so.
Commanders are accountable for all that goes on in a unit, and
ultimately, they are responsible for the success of the
missions assigned to them.
Of course, commanders and leaders of every rank must earn
that trust and, therefore, to engender trust in their units.
Most do. Most do not allow unit cohesion to mask an
undercurrent of betrayal. Most rise to the challenge of
leadership every day, even under the most demanding physical
and moral circumstances.
Our force has within it the moral courage to change course
and reaffirm our professional ethos. Working together, we can
and will restore trust within the force and with the American
people.
Thank you.
[The prepared statement of General Dempsey follows:]
Prepared Statement by GEN Martin E. Dempsey, USA
Chairman Levin, Ranking Member Inhofe, members of the committee,
thank you for giving us this opportunity to discuss our commitment to
eliminating sexual assault from the Armed Forces of the United States.
The risks inherent to military service should never include the
risk of sexual assault. Sexual assault is a crime that demands
accountability and consequences. It betrays the very trust on which our
profession is founded.
The Joint Chiefs and our Senior Enlisted Leaders are committed to
correcting this crisis. We are acting swiftly and deliberately to
change a culture that has become too complacent. We know that lasting
change begins by changing the behaviors that lead to sexual assault.
The Joint Chiefs have spent the last year leading a campaign
focused on prevention, investigation, accountability, advocacy, and
assessment--all as part of our enduring commitment to the health of the
force. The additional actions recently directed by Secretary of Defense
Hagel serve to strengthen our efforts.
We can and must do more. We must protect victims while preserving
the rights of the accused. We must prevent and respond to predatory and
high-risk behaviors. We must ensure a professional work environment
predicated on dignity and respect.
We must be open to every idea and option to accelerate meaningful,
institutional change.
Legal reform has been and should continue to be part of this
campaign. Previously, we elevated initial disposition authority in
certain cases to O-6 commanders with Special Court-Martial Convening
Authority. More recently, I endorsed Secretary Hagel's proposed
amendments to Article 60 of the Uniform Code of Military Justice.
Should further reform be needed, I urge that military commanders
remain central to the legal process. The commander's ability to
preserve good order and discipline remains essential to accomplishing
any change within our profession. Reducing command responsibility could
adversely affect the ability of the commander to enforce professional
standards and ultimately, to accomplish the mission.
Of course, commanders and leaders of every rank must earn trust to
engender trust in their units. Most do. Most do not allow unit cohesion
to mask an undercurrent of betrayal. Most rise to the challenge of
leadership even under the most demanding physical and moral
circumstances.
Our men and women in uniform have within them the moral courage
needed to change course and reaffirm our professional ethos. Working
together, we can and will restore trust within our Force and with the
American people. Thank you.
Chairman Levin. Thank you very much, General Dempsey.
Now let me call on General Odierno.
STATEMENT OF GEN RAYMOND T. ODIERNO, USA, CHIEF OF STAFF OF THE
ARMY; ACCOMPANIED BY LTG DANA K. CHIPMAN, JAGC, USA, JUDGE
ADVOCATE GENERAL OF THE U.S. ARMY
General Odierno. Thank you, Chairman Levin, Ranking Member
Inhofe, and other distinguished members of the committee, for
allowing us to testify today.
As we all know, today the Army has a serious problem. We
are failing in our efforts to fully protect our people from
sexual assault and sexual harassment.
As the Chief of Staff of the Army, as a former commander of
forces at every level, and as a parent of two sons and a
daughter, the crimes of sexual assault and sexual harassment
cut to the core of what I care most about, the health and
welfare of American sons and daughters. These crimes violate
everything our Army stands for, and they simply cannot be
tolerated.
Our military profession is built on the bedrock of trust,
the trust that must inherently exist among soldiers and between
soldiers and their leaders in order to accomplish the difficult
mission in the chaos of war. Recent incidents of sexual assault
and harassment demonstrate that we have violated that trust
because we have failed to address these crimes in a
compassionate, just, and comprehensive way.
Two weeks ago, I told my commanders that combating sexual
assault and sexual harassment within our ranks is our number-
one priority. I said that because, as chief, my mission is to
train and prepare our soldiers for war.
These crimes cut to the heart of the Army's readiness for
war. They destroy the very fabric of our force, soldier and
unit morale. We will fix this problem.
Our actions now and in the future will be guided by five
imperatives. First, we must prevent potential offenders from
committing sexual crimes. But when a crime has been committed,
we must provide compassionate care and protect the rights of
survivors.
Second, every allegation of sexual assault and harassment
must be professionally investigated and appropriate action
taken.
Third, we must create a climate and an environment in which
every person is able to thrive and achieve their full potential
without concern of retaliation or stigma if they report a
crime.
Fourth, it is imperative that all entities understand their
responsibilities--individuals, units, and organizations--and
specifically, commanders and leaders. We expect them to create
an environment and uphold standards consistent with our Army's
and our Nation's values. If not, they will be held accountable.
Fifth, it is imperative that the chain of command is fully
engaged and at the center of any solution to combat sexual
assault and sexual harassment. Command authority is the most
critical mechanism for ensuring discipline, accountability, and
unit cohesion.
Our military justice system was deliberately designed to
give commanders the tools to reinforce good order by
prosecuting misconduct with a variety of judicial and
nonjudicial punishments so that commanders can not only
prosecute crimes, but also punish minor infractions that
contribute to indiscipline.
The UCMJ allows us to punish misconduct on any scale
quickly, visibly, and locally anywhere in the world, but it is
clear we must implement a system of checks and balances to
ensure our commanders and their legal advisers reinforce one
another's mutual responsibilities to administer the UCMJ.
Military commanders have a far wider range of options
available to them than civilian law enforcement, from four
levels of court-martial, nonjudicial punishment, administrative
discharge, and nonpunitive measures. These options allow
commanders to address the entire spectrum of sexual misconduct
from verbal harassment up to and including rape.
It allows commanders to prosecute multiple crimes at the
same time, sexual or otherwise, which is essential to the
commander's effort to build the right climate within a unit. It
allows commanders to prosecute crimes with the full backing of
the U.S. Army.
Take the recent example of a victim who was sexually
assaulted by a soldier off post in Colorado. Civilian law
enforcement conducted an initial investigation but determined
they did not have enough sufficient resources to investigate or
prosecute the case.
The local commander directed Army Criminal Investigation
Division (CID) to further investigate this dormant case. They
uncovered three additional victims that were sexually assaulted
or battered by the accused in several locations across Colorado
and Texas. The soldier's chain of command referred the case to
court-martial, where the accused was convicted of numerous
sexual assault offenses and sentenced to 35 years and a
dishonorable discharge.
This case illustrates the flexibility of UCMJ to prosecute
multiple crimes committed across multiple civilian
jurisdictions. If the commander had been removed from this, his
or her central role in administering justice for sexual assault
case, it could have prevented justice in this particular case.
If I believed that removing commanders from their central
role of responsibility in addressing sexual assault would solve
these crimes within our ranks, I would be your strongest
proponent. But removing commanders, making commanders less
responsible and less accountable will not work.
It will undermine the readiness of the force. It will
inhibit our commanders' ability to shape the climate and
discipline of our units. Most importantly, it will hamper the
timely delivery of justice to the very people we wish to help,
the victims and survivors of these horrific crimes.
Let me just take a few moments to explain how the Army
responds to a sexual assault. Our process consists of five
basic elements.
First, the Army offers victims two options for reporting: a
restricted report, which allows a victim to access counselors,
medical support, and legal services; and an unrestricted
report, which triggers an independent law enforcement
investigation.
There are nine ways a victim can make an unrestricted
report outside of the chain of command: to uniformed or
civilian victim advocates, uniformed or civilian SARCs,
military or civilian law enforcement to include 911 calls,
military or civilian hospital staff, chaplains, the Office of
the Inspector General, Judge Advocates, hotlines managed by DOD
and local installations, and several Web sites for online
reporting.
Following a report, victims are assigned a victim advocate
and are offered legal services. Commanders are also required to
protect the care of victims. They must transfer a victim to
another unit, if requested; keep the victim informed monthly on
the status of the investigation; and offer support services to
ensure both victim and unit safety.
Second, every sexual assault allegation must be subject to
a thorough investigation. Every allegation must be investigated
by the CID, the Army's felony-level detectives. Our CID agents
do not work for the commander, and commanders cannot shape or
advise an investigation.
Third, Judge Advocates, including special victim
prosecutors which were implemented in 2009, provide legal
advice to the investigators and the commanders. They must track
every allegation and are responsible for protecting the rights
of victims.
When an investigation is complete, a Judge Advocate
provides a legal opinion on whether an allegation should be
founded or unfounded based upon the evidence presented. An
unfounded allegation becomes part of the permanent record,
while an allegation that is founded is brought to the commander
to consider the options available.
Fourth, every allegation must be tracked on a daily crime
blotter, through the installation's Monthly Sexual Assault
Review Board, and is provided to Congress in an annual report
on sexual assault in the military.
Fifth, the disposition of these cases is reserved for
senior commanders with the advice of the Judge Advocate. The
relationship between the commander and legal adviser is unique.
The commander has the authority to decide the case disposition,
while Article 34 UCMJ requires the Judge Advocate to provide
written advice before charges may be referred to a court-
martial.
If a Judge Advocate encounters a commander unwilling to
follow his or her advice to take an allegation to trial, the
Judge Advocate may elevate the case through Judge Advocate
channels or to the next superior commander.
Although the Army's process for reporting disposition of
victim care provides a sound base and although the UCMJ
provides the commander a powerful tool to shape climate and
impose discipline, it is obvious that it hasn't been working
correctly to prevent and prosecute sexual crimes in the Army. I
am aware of a number of legislative proposals that contemplate
changes to the role of the commander and to the UCMJ. I welcome
candid and vigorous discussion about how we can improve our
military justice system.
In my written testimony, I offer a number of suggestions on
how we can improve the UCMJ and DOD policy. My experience leads
me to believe that the majority of problems we are seeing are
not the results of failures within our military justice system,
but rather the failure of some commanders and leaders to
administer that system correctly, to act in compliance with the
UCMJ, or current DOD policies.
We must take a hard look at our system from start to finish
to ensure that commanders and Judge Advocates are subject to
appropriate checks and balances, all while protecting the
interests of the victim and due process rights of accused
soldiers. I propose a number of such checks and balances in my
written statement.
If we find these checks and balances to be insufficient and
determine that changes to the UCMJ are required, we must move
in a very deliberate fashion to preserve what is good with the
system while correcting inadequacies. I am in full support of a
response systems panel to determine what changes should be made
to law and policy.
I understand that the credibility of the Armed Forces and
the credibility of the Army are at stake, but we cannot simply
legislate our way out of this problem. Without equivocation, I
believe maintaining the central role of commander in our
military justice system is absolutely critical to any solution.
The Army and the military, working with Congress, have
contributed to positive social changes throughout our Nation's
history, from racial integration through repeal of ``don't ask,
don't tell.'' Although we have struggled in our efforts to get
these issues right in the beginning, we always worked through
them until we got it right, and commanders were essential to
that success.
Sexual assault and sexual harassment are no different. We
can and will do better. We must take deliberate steps to change
the environment. We must restore our people's confidence by
improving our system of accountability.
It is up to every one of us--civilian, soldier, general
officer, to private--to solve this problem within our ranks.
Over the last 12 years of war, our Army has demonstrated
exceptional competence, courage, and resiliency in adapting the
force to the demands of war. We will take on this problem and
adapt as well and with the same resolve, we will fix it.
Thank you, Mr. Chairman and distinguished members of the
committee, for the opportunity to speak with you today.
[The prepared statement of General Odierno follows:]
Prepared Statement by GEN Raymond T. Odierno, USA
Thank you, Chairman Levin, Ranking Member Inhofe, and other
distinguished members of the committee for allowing us to testify
today.
It is clear to me that the Department of Defense and specifically
the Army has a serious problem. We have failed in our efforts to date
to fully protect our soldiers, civilians, and family members from
sexual assault and sexual harassment within our ranks. Sexual assault
and harassment are like a cancer within the force--a cancer that left
untreated will destroy the fabric of our force. It's imperative that we
take a comprehensive approach to prevent attacks, to protect our
people, and where appropriate, to prosecute wrongdoing and hold people
accountable. This is about inculcating a culture that is in line with
our Army values, specifically treating all with dignity and respect.
In 1976, I entered into an Army that was rife with disciplinary
problems across the force. Over the course of my 37-year career, I have
commanded at every level, including division, corps, and theater
command in combat. I know what it takes to prepare this Nation's sons
and daughters for war and the discipline that must exist at every level
of command to ensure an effective fighting force. As the Chief of Staff
of the Army, as a commander of forces at every level, and as a parent
of two sons and a daughter, sexual assault and harassment cut to the
core of what I care most about--the health and welfare of America's
sons and daughters.
Our profession is built on the bedrock of trust--the trust that
must inherently exist among soldiers, and between soldiers and their
leaders to accomplish their mission in the chaos of war. Recent
incidents of sexual assault and sexual harassment demonstrate that we
have violated that trust. In fact, these acts violate everything our
Army stands for and they will not be tolerated.
On May 16, I sent a message to our 1.1 million soldiers and 266,000
Department of the Army civilians via email and several social media
channels to address the issue of sexual assault and harassment within
our ranks. Since its release, I have been taken aback by the emotional
responses I have received--hundreds of messages from victims, from
sexual assault response coordinators, and from leaders about their
personal experiences dealing with sexual assault and harassment. It is
clear that we have lost the confidence of some of our people because we
have failed them--we have failed to address previous incidents in a
just, compassionate, and comprehensive way.
In a video conference with Army commanders on May 17, I told my
commanders that combating sexual assault and sexual harassment within
our ranks is now the Army's #1 priority. The actions we will take to
get after this problem will be guided by five imperatives.
First, we must prevent potential offenders from committing sexual
crimes and when a crime has been committed, we must provide
compassionate care and protect the rights of survivors, particularly
their right to privacy.
Second, we must ensure that every allegation of sexual assault and
harassment is thoroughly and professionally investigated and that
appropriate action is taken.
Third, we must create a climate and an environment in which every
person is able to thrive and achieve their full potential. Leaders must
take action to establish and sustain standards at every level. Leaders
must develop systems to ``see'' their units and themselves in order to
understand the extent to which their leadership promotes a positive
command climate. Every soldier must believe that when they report an
incident of sexual assault or harassment the chain of command will
respond quickly and will protect the victim. Part of building a
positive command climate is reducing the stigma associated with
reporting these crimes.
Fourth, it is imperative that we hold individuals, units and
organizations, and commanders accountable for their behavior.
Commanders are ultimately responsible for ensuring an environment of
mutual respect, trust and safety. We must take a deliberate approach to
implementing the necessary checks and balances that will ensure
commanders and their legal advisors reinforce their mutual
responsibilities to administer the Uniformed Code of Military Justice.
At the same time every individual--leaders, peers, and subordinates
alike--must be compelled to report sexual misconduct to eliminate the
bystander mentality.
Fifth, it is imperative that we keep the chain of command fully
engaged and at the center of any solution to combat sexual assault and
sexual harassment. Command authority is the most critical mechanism for
ensuring discipline and accountability, cohesion and the integrity of
the force. Increased commander involvement and accountability is
essential to instituting a change of culture in our Army, restoring the
trust of our soldiers, and is necessary to comprehensively solve this
problem.
the military justice system
It is my belief that soldier discipline is the foundation of any
well-trained force capable of winning our Nation's wars. Discipline is
built, shaped and reinforced over a soldier's career by commanders with
authority. The commander is necessarily vested with ultimate authority
because he or she is responsible for all that goes on in a unit--
health, welfare, safety, morale, discipline, training, and readiness to
execute a mission in wartime and in times of peace. The commander's
ability to punish quickly, visibly, and locally is essential to
maintaining discipline in all its forms within a unit. The Uniform Code
of Military Justice (UCMJ) is the vehicle by which commanders can
maintain good order and discipline in the force. Without equivocation,
I believe maintaining the central role of the commander in our military
justice system is absolutely critical.
I also believe that the military justice system, based upon the
UCMJ, is well equipped to meet the challenges of crime and indiscipline
in the Army, to include the crimes of sexual assault and sexual
harassment. Commanders have a wide range of disposition options
available to them, from four levels of court martial, non-judicial
punishment, punitive administrative discharge, adverse administrative
action, to imposing non-punitive measures. 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. At the same time, I also believe that there are
additional checks and balances that can be added to the UCMJ that will
both assist commanders and ensure that they are following the
appropriate procedures. This is where we must work together.
Sexual assault and harassment are unacceptable problems within our
military and our society. We cannot, however, simply prosecute our way
out of this problem. Sexual assault and harassment are issues of
discipline that require a change in our culture. I need our commanders
to instill that culture change as they continue to train our soldiers
to prevent and to respond to issues of sexual assault and harassment. I
am certain that removing a commander's role in military justice will,
unfortunately, undermine a commander's ability to effect these culture
changes. It will adversely affect discipline, and may result in an
increase to the problems we seek to resolve.
the army's sexual assault reporting, response, and disposition process
The Army's system for receiving and processing reports of sexual
assault consists of five basic elements: reporting options and victim
care, independent investigation, legal review, tracking mechanisms, and
the disposition decision. As detailed in our regulations, the Army's
policies regarding sexual assault are intended to provide a series of
checks and balances to ensure that once a report of sexual assault is
made, there is accountability, visibility, and transparency in our
system. We are taking a hard look at each of the steps detailed here so
that we ensure we have the tools in place to ascertain full compliance
with Army policies, and identify any gaps and areas for improvement.
First, victims must have a variety of options by which they can
reach out for help and make a report. Understanding the intensely
personal nature of these crimes, the Army provides victims with two
types of reports for sexual assault victims in the Army. An
unrestricted report, preferred by Army policy, can be made to any
source and triggers immediate victim support and an independent law
enforcement investigation. A restricted report can be made only to
select individuals, and will allow a victim to obtain counseling,
medical and advocacy services. Restricted reports may be made only to a
Victim Advocate, Sexual Response Coordinator, and healthcare personnel,
and this is commonly known to our soldiers. A restricted report does
not trigger a law enforcement investigation; however, a victim who
chooses to make a restricted report is able to convert to an
unrestricted report at any time. The choice to make a restricted or
unrestricted report is left to the discretion of the victim.
Soldiers may make unrestricted reports to multiple sources,
including: uniformed or civilian victim advocates, uniformed or
civilian Sexual Assault Response Coordinators, military or civilian law
enforcement (including 911), military or civilian hospitals, chaplains,
the inspector general's office, judge advocates, hotline numbers
managed by the Department of Defense and local installations that
accept phone calls and texts, websites for on-line reporting and any
member of the victim's chain of command. These sources are considered
`first responders' and are specially trained to respond and support
victims. A friend or family member of the victim may report to any of
these sources which may also trigger a law enforcement investigation if
the report is unrestricted. Every officer or noncommissioned officer
within the chain-of-command who receives or learns of an allegation of
sexual assault in their unit is obligated to report that crime to law
enforcement. Failure to do so may be considered a dereliction of duty.
As soon as a report is made, victim care responsibilities are
triggered. Throughout the reporting, investigative and prosecution
process, victim care is an essential and ongoing element of the
program. Victims are assigned a victim advocate, their primary point of
contact, from the initial report. Victims are offered the services of
legal assistance attorneys, who provide confidential advice within the
privileged context of an attorney-client relationship, on victim's
rights, options and the military justice system. Victim witness
liaisons assist with educating victims about their rights and the
military justice process and provide compassionate, direct assistance
that includes accompanying victims to interviews and proceedings.
In addition to victim service providers, commanders are required to
protect and care for victims. Commanders must transfer a victim to
another unit if requested; must keep the victim informed monthly about
the status of the investigation; must ensure that victim afforded
support services; and must take action to ensure victim and unit safety
are maintained, to include issuing a no-contact order. The commander's
role in protecting and caring for the victim is integral to promoting
faith and trust in the military justice system and is another reason
why commanders must be involved in the process. Victim support services
continue until he or she elects to reduce or change support
requirements.
Second, every sexual assault allegation must be subject to a
thorough and professional investigation. Every source that receives an
unrestricted report of sexual assault is required to notify law
enforcement immediately. Every sexual assault allegation, from an
unwanted touch over the clothing to rape, is required to be
investigated by the specially-selected and trained agents of the
Criminal Investigation Division (CID), the Army's felony level
detectives. CID agents do not work for the commander, and the commander
has no role in shaping or advising the investigation. 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 State and
Federal law enforcement agencies.
Third, qualified judge advocates, including our specially trained
and selected special victim prosecutors (SVPs), provide legal advice to
the investigators and the commanders and protect the rights of victims.
SVPs are hand-selected at the Department of the Army level for their
skill and experience in the courtroom and their ability to work with
victims. SVPs receive an intense 3-month training prior to assuming
their duties that includes on-the-job experience with a civilian
Special Victim Unit in a major metropolitan city and the National
District Attorney's Association Career Prosecutor's course. The SVP
works hand-in-hand with the CID agents to develop these investigations.
SVPs are notified of and track every allegation of sexual assault. The
SVP trackers are provided monthly to the Office of The Judge Advocate
General Criminal Law Division and the Trial Counsel Assistance Program
for oversight. SVPs are also 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.
When the CID investigation is complete, a judge advocate must
provide a legal opinion that the allegation should be ``founded'' or
``unfounded'' based on the requirement that there be evidence of every
element of the offense. This process, an agreement between the
investigator and the prosecutor, comports with civilian jurisdiction
practice, in which the police and district attorney make collaborative
decisions about the sufficiency of evidence. If the allegation is
determined to be ``unfounded,'' the commander is notified and the
record becomes a permanent law enforcement record. If the allegation is
determined to be ``founded,'' the judge advocate will take the case to
the commander for discussions and recommendations on disposition
options.
Fourth, every allegation is tracked using several reporting methods
to provide visibility and transparency. Every sexual assault allegation
is entered on the daily crime blotter that is circulated to all
leadership personnel with a need to know on that military installation,
to include each level of command up to the Commanding General, usually
within 24 hours of the initial report. Every investigation is evaluated
by a judge advocate for the sufficiency of evidence. Every
investigation, no matter the outcome, results in a permanent law
enforcement record associated with the offender. The progress of the
investigation and the disposition of every case is monitored by the
installation and unit Sexual Assault Response Coordinators and
discussed monthly at the Sexual Assault Review Board, chaired by the
senior commander on the installation. Finally, the disposition and
description of every allegation of sexual assault is provided to
Congress in the Annual Report on Sexual Assault in the Military.
Fifth, the disposition of sexual assault allegations are Reserved
for senior, seasoned and trained commanders relying on the advice of
judge advocates. Due to the complexities of sexual assault crimes, the
disposition of the most serious, penetrative offenses is withheld to
the Special Court Martial Convening Authority, a brigade commander 0-6
(colonel) with a dedicated legal advisor. These officers have over 20
years of experience in the Army, command units of approximately 3,000-
5,000 soldiers and have been trained in their responsibilities under
the military justice system repeatedly, to include a specialized, sex
assault focused Senior Officer Leader Orientation at the Army Judge
Advocate General's Legal Center and School. The non-penetrative sexual
assault offenses are withheld for disposition to the Summary Court
Martial Convening Authority, a battalion commander with an average of
20 years of experience who commands a unit of approximately 500
soldiers.
The disposition process is a continuation of the investigative
process in that the same people are advising the command: the
investigator and the legal advisor. The relationship between the judge
advocate legal advisor and the commander is unique. The commander has
the authority, but that commander relies on his or her judge advocate
for advice and recommendation. Commanders do not make disposition
decisions without judge advocate advice, and Article 34, UCMJ, requires
that the judge advocate provide written advice before charges may be
referred to a court-martial. In the event that a judge advocate
encounters a commander unwilling to follow advice to take an allegation
to trial, the judge advocate may take the same allegation to the
superior commander, who can essentially pull the case up to the next
level.
Although these policies for reporting, disposition and victim care
provide a sound base, I believe the Army must take a hard look at our
system, from start to finish to ensure that the central role of the
commander is subject to appropriate checks and balances, all while
protecting the interests of the victim and the due process rights of
accused soldiers.
military justice system improvements
I am aware of a number of legislative proposals that contemplate
changes to the role of the commander and to the UCMJ. I welcome candid
and vigorous discussion about how we can improve our military justice
system. Below are detailed some of the changes we should consider to
improve our current system:
Commander Response Certification. I believe we should
implement a process of checks and balances to ensure commanders
and their legal advisors are reinforcing their mutual
responsibilities to administer the UCMJ properly. Although our
commanders participate in our monthly Sexual Assault Review
Boards held at the local level to review sexual assault cases
and ensure effective victim support is provided, we believe the
Army can do more to improve our response services and
responsibilities. For example, we are considering whether to
create a new system to formally track all commanders' actions
after a report of sexual assault has been received. Army
Regulation 600-20 lists the actions required by the commander,
as well as the actions that must be taken by Sexual Assault
Response Coordinators, CID, and staff judge advocates in the
event of a reported sexual assault. These actions apply equally
to reports made through the chain of command and those made
outside the chain of command. However such actions are not
formally tracked until an investigation is initiated by
military law enforcement. In order to ensure the proper
responsibility for and accountability of all command actions,
we will consider the best ways in which to strengthen and
codify these checks and balances.
Article 60, UCMJ Limitations. I support the Secretary
of Defense's position and the DOD's proposed amendment to
Article 60 which would limit a commander's ability to
disapprove a finding of guilt and would require a commander to
justify any sentence reduction in writing. I also believe that
the commander's role in the post-trial process should generally
be preserved, particularly for the purpose of ensuring fairness
to an accused when an appellate process may not be available.
Trainee Sexual Abuse. I support proposals that would
criminalize sexual activity between trainers and trainees as
well as recruiters and recruits. I also believe that the
definition of a ``trainer'' should be interpreted broadly to
include training cadre and other supporting personnel.
General Court Martial Referral for Rape. I support
proposals which would require that all penetrative sexual
offenses (for rape, sexual assault, forcible sodomy and
attempts to commit those crimes) be referred to a General Court
Martial only, rather than a Special Court Martial or a Summary
Court Martial, due to the severity of these crimes. To
implement this proposal, however, we will need to consider
several technical amendments to ensure the UCMJ functions
properly in practice.
Bar to Service. I support a bar to service for any
person who has been convicted of a sexual offense or who has
been separated from military service due to any previous sexual
misconduct.
Mandatory Administrative Separation. I support the
mandatory administrative separation of any person required to
register as a sex offender. Registration requirements for sex
offenders are already set forth in Federal law, State law, and
Department of Defense policy, and the Army is in compliance.
Expanded Legal Assistance Training. The Army has 300
well-trained legal assistance attorneys in the field right now.
We are carefully watching the Air Force pilot program and
adopting their best practices by incorporating specialized,
victim-oriented training for our counsel. Along with this
effort, we are fielding the National Defense Authorization Act
(NDAA) for Fiscal Year 2013-mandated ``Special Victim
Capability'' (SVC) which includes the following four specially
trained personnel: Special Victim Prosecutor (SVP), Sexual
Assault Investigator, Victim-Witness Liaison, and Paralegal.
The Army's SVP program, in place since 2009, has dramatically
improved the overall handling and prosecution of sexual offenses. For
the past 3 years, the feedback we have received from victims and their
families attest to the dedicated, compassionate assistance provided by
the specially-selected and trained Special Victim personnel. In
addition, the number of courts-martial for sexual assault and domestic
violence has steadily increased, reflecting a justice system that is
increasingly focused on this problem. The robust training programs
created to support that mission are now being multiplied to specially
train the rest of the Special Victim Capability personnel. In addition,
our legal assistance attorneys are receiving similar training so they
are prepared to adequately represent victims' needs and privacy
interests.
Response System Panel. I am in full support of the
NDAA for Fiscal Year 2013, section 576, creation of a Response
Systems Panel (RSP) and the Judicial Proceedings Panel (JPP) to
study the reporting, investigating, and prosecuting of sexual
offenses under military and civilian jurisdictions and to
determine what changes should be made to law and policy.
It is my view that any changes to the UCMJ--even if we agree that
change is required--not be made in a piecemeal fashion. I agree that
improvements can and should be made, but I recommend a measured
approach. The UCMJ system created in 1950 was carefully crafted by
Congress over the course of 2 years after numerous hearings, testimony
from lawyers and non-lawyers, and carefully drafted legislation. Since
that time, Congress has made major changes to the Code on only one
occasion, when it enacted the Military Justice Act of 1968 after months
of hearings and testimony. Any proposed statutory and policy changes
should be made as part of RSP panel and not implemented until the panel
is complete.
By taking a deliberate and thoughtful approach, we can ensure that
the UCMJ remains a first class piece of legislation, but also ensure
that unforeseen or unanticipated consequences do not adversely affect
our military legal system. Any changes to our system must be done with
a full appreciation for the second- and third-order effects on our pre-
trial, post-trial, and appellate process.
addressing sexual assault and harassment
There are a number of existing and new initiatives underway at the
institutional level and across our operational force, and within our
military justice system to get after the problems of sexual assault and
sexual harassment.
Institutional Initiatives
The Army's Sexual Harassment/Assault Response and Prevention
(SHARP) program takes a comprehensive approach to preventing and
responding to both sexual assault and harassment because research
demonstrates that sexual assault is often preceded by sexual
harassment. The Army's SHARP strategy is consistent with the Strategic
Direction to the Joint Force on Sexual Assault Prevention and Response
Memorandum dated 7 May 2012, DOD policy, and it is being updated to
meet NDAA for Fiscal Year 2013 legislative requirements.
Due to the criticality and priority of this mission, I support
exempting all SHARP program personnel from the civilian furlough and
the hiring freeze so that we may continue to interview and hire
additional Sexual Assault Response Coordinators (SARC), Victim
Advocates, investigators, lab examiners and trainers through the end of
fiscal year 2013.
On 10-11 June 2013, I will host a 2-day SHARP Summit with all of
the Army's senior commanders and command sergeants major. The
conference will bring together Army leaders, Congressional
representatives, and civilian subject matter experts to discuss sexual
assault and harassment related concerns. For example, conference
participants will discuss the status of compliance with Army policies
and any challenges implementing the current Army SHARP Campaign Plan
and new requirements as outlined by the Secretary of Defense in his 6
May 2013 Sexual Assault Prevention and Response and 17 May 2013 Stand-
down directives. The conference will provide the opportunity for Army
civilian and military leaders and survivors to share their lessons
learned and develop best practices across the force.
CSA SHARP Panel. I am in the process of establishing a
SHARP panel of experts to provide Army senior leaders with a
critical, independent review of the Army's current programs
that will be used to inform any changes to the Army's policies
and procedures. The panel will be composed of civilian
government, legal, and academic experts, military commanders,
and sexual assault survivors so that they can share their
experiences and help to identify areas for improvement and
increased responsiveness. In addition, the Sergeant Major of
the Army will chair a junior enlisted SHARP panel to provide a
more diverse view from across the force on sexual assault and
harassment issues.
Department of Defense Standards for SHARP Personnel.
The Army oversees 32 SHARP training courses that span from
initial entry up through command sergeants major and pre-
commissioning to general officer. For example, the Army created
and runs the SHARP 80-hour certification course which has been
approved by the National Organization for Victim Assistance and
is required for all personnel who respond to victims of sexual
assault. To date, more than 20,000 Army personnel have
completed the course.
In support of Army commanders, the Army will resource 902 military
and civilian full-time positions, which includes 829 full-time Sexual
Assault Response Coordinators (SARC) and Victim Advocates (VA) at
brigade level as well as 73 full-time SHARP 80-hour Certification
Course Trainers at Division level and higher Army organizations. Army
Command and Headquarters Department of the Army level organizations.
There are approximately 9,010 personnel with collateral duty positions
at battalion and below units.
The Army also continues to increase its number of female drill
sergeants. As of 22 May 2013, the Army is authorized 494 female drill
sergeants, currently has 478 on hand and expects to add an additional
51 personnel (for a total of 529) within the next 3 months.
Training and Education Programs. We are in the process
of updating all Professional Military Education training
programs on sexual assault and harassment from new recruit
through general officer level and the Civilian Education System
training. Program updates are based upon new legislation,
revised DOD guidance, and changes to the Army's sexual
harassment/assault prevention campaign efforts.
At their pre-command course, commanders receive mandatory SHARP
training modules on current trends, cultural considerations, and the
commander's role in establishing a climate and culture that does not
tolerate sexual misconduct. In addition, an Army sexual assault Highly
Qualified Expert (HQE) instructs commanders on their roles and
responsibilities as Special/General Court Martial Convening
Authorities.
Consistent with the NDAA for Fiscal Year 2013, the Army
indoctrinates new recruits and first-term soldiers on SHARP training
with in the first 14 days of basic combat training and offers support
to soldiers who self-disclose a pre-service history of sexual assault.
In training facilitated by sexual assault subject matter experts,
recruits participate in a second course consisting of interactive skits
dealing with dating, consent, and sexual assault to foster
understanding about the nature and impact of interpersonal violence.
Reserve Officer Training Corps (ROTC) cadets receive a 3 hour
introductory course on SHARP early in their common core training
program. A comprehensive curriculum at the U.S. Military Academy
includes lessons on sexual harassment and sexual assault topics during
the cadets' basic training as well as additional SHARP instruction
throughout the 47-month cadet experience.
Increasing Investigator, Lab Examiner, and Prosecutor
Capacity. Since 2012, the Army has served as the Executive
Agent for the Special Victims Unit Investigation 80-hour Course
that trains all the Military Services' investigators and
prosecutors at the U.S. Army Military Police School.
Approximately 250 personnel were trained in fiscal year 2012.
The U.S. Army Criminal Investigation Laboratory supports all
Military Services and the laboratory's DNA processing meets all
Congressionally mandated timelines of under 60 days. The Army
maintains a Special Victims Unit capability through 70 CID
units worldwide, which includes 22 Sexual Assault Investigators
at 19 Army installations; an additional 8 Sexual Assault
Investigators will be hired in fiscal year 2014.
In addition to these programs, the Army has hired or assigned
the following added personnel to increase capacity for
investigations and prosecutions:
Four Criminal Investigation Division (CID)
highly-qualified experts
Six (of seven) civilian lawyers who are
highly-qualified experts in the field of sexual assault
20 (of 23) Special Victim Prosecutors
(remaining filled by summer 2013)
32 Lab Examiners whose express purpose and
focus is sexual assault
Medical Command (MEDCOM). Every Army Military
Treatment Facility has a Sexual Assault Care Coordinator,
Sexual Assault Clinical Provider, and a Sexual Assault Response
Coordinator (SARC) who train other healthcare providers and
healthcare personnel on their requirements regarding the
preservation of restricted reports, in addition to providing
support to victims of sexual assault. There are a total of 304
designated health care providers and 398 SHARP trained
personnel who support MEDCOM efforts.
Actions across the Operational Force
Unit Training. The Army will continue to require
training and improve our ability to conduct realistic,
pertinent, interactive training with our operational units. We
have mandatory annual training for all personnel, which
includes small-group, interactive training and a self-study
module on sexual assault and harassment prevention and
response. This includes leader and soldier videos as well as
scenario-based role playing to discuss how Soldiers, leaders,
and commanders make choices in situations dealing with sexual
harassment and sexual assault.
As part of the Army's SHARP Stand-down in June, commanders will
conduct refresher training for all unit Sexual Assault Response
Coordinators, Victim Advocates, recruiters, drill sergeants and AIT
platoon sergeants. Commanders will also lead interactive, discussion-
based unit training on: the duties and responsibilities for SARCs, VAs,
recruiters, drill sergeants and AIT platoon sergeants; how professional
ethics, the Warrior Ethos, and the Army Values relate to the subject of
sexual harassment and sexual assault; and how sexual harassment and
sexual assault affect Army readiness.
Commander Review of All SHARP Personnel. Consistent
with the Secretary of Defense Memorandum on Sexual Assault
Prevention and Response Stand-down dated 17 May 2013, the Army
is in the process of conducting a review of all Army Sexual
Assault Response Coordinators, Victim Advocates, and recruiters
and will initiate a similar review of all drill sergeants and
advanced individual training (AIT) platoon sergeants. In
addition to the review, the Army is considering methods of
enhancing its selection criteria for these positions which may
include enhanced background checks and face-to-face, behavioral
health screening. The file review will be complete by 1 July
2013 in the Active component and 1 September 2013 in the
Reserve component.
As part of our review, the Secretary and I have directed that every
commander ensure that these positions are filled by the best qualified
individuals of the highest moral character. We must ensure that every
soldier or civilian in each of these positions is mature, well-trained
and passes a rigorous background check, records review and selection
process.
Command Climate Surveys. The Army currently meets the
NDAA for Fiscal Year 2013 requirement for conducting command
climate surveys. Commanders conduct annual organizational
climate assessments at 30 days, 6 months and annually
thereafter, after assuming command. The Secretary of Defense
has directed that the results of command climate surveys be
provided up to the next level in the chain of command, which
will be implemented by 31 July 2013. We are also considering
whether to require that commanders develop an action plan to
address any issues or concerns that are discovered during the
course of the survey and its resulting analysis.
Sensing sessions. In support of the Army's SHARP
Stand-down, all Army Commands, Army Service Component Commands
and Direct Reporting Units will develop a leader engagement
plan to discuss sexual assault and harassment with all soldiers
and civilians across the Army. These engagements are intended
to be commander-led, small-group discussions that facilitate
greater understanding among leaders, peers, and subordinates
about one another's experiences with sexual assault and
harassment. At a minimum, commanders should discuss: the Army's
SHARP program and the Army's I. A.M. (Intervene, Act, and
Motivate) Strong Sexual Harassment/Assault Prevention Campaign;
individual responsibility for maintaining a climate of dignity
and respect; the Army values and how they relate to sexual
assault and harassment; and how sexual assault and harassment
affect the readiness of the Army.
In this effort, we still have much work to do. I understand that
the credibility of the Armed Forces and the credibility of the Army are
at stake. Our soldiers, their families, and the American people are
counting on us to lead the way in solving this problem within our
ranks. It is my responsibility; it is our responsibility to ensure that
every service man, service woman, and civilian is able to serve the
Nation in an environment of mutual respect, trust, and safety.
This problem will not be solved quickly because it requires us to
take deliberate steps to change our culture. It requires that we
restore our people's confidence by improving our system of
accountability. It is up to every one of us, civilian and Soldier,
general officer to private, to solve this problem within our ranks. To
do so, our commanders must play a central role in changing our culture
because it is they who are responsible and accountable for every
soldier's health and welfare, unit discipline, and the readiness of our
forces in times of war or peace.
Over the last 12 years of war, our Army has demonstrated great
competence, courage, and resiliency in adapting to the demands of war.
The Army and the military have contributed to positive social change
throughout our history--through racial integration, the integration of
women across all Services, and the elimination of discrimination on the
basis of sexual orientation. The Army has faced difficult problems
before and succeeded. We will put our minds to this task. I am
absolutely confident that we can and we will ensure will eliminate the
scourge of sexual assault and sexual harassment within our ranks.
I am grateful for our continued dialogue and partnership with
Congress to ensure that together, we identify and implement the best
ways possible to get after the crimes of sexual assault and sexual
harassment in our Army, in our military, and in our society writ large.
Thank you Mr. Chairman and other distinguished members of the committee
for the opportunity to speak with you today. I look forward to your
questions.
The strength of our Nation is our Army
The strength of our Army is our soldiers
The strength of our soldiers is our families.
This is what makes us Army Strong!
Chairman Levin. General Odierno, thank you so much.
Admiral Greenert?
STATEMENT OF ADM JONATHAN W. GREENERT, USN, CHIEF OF NAVAL
OPERATIONS; ACCOMPANIED BY VADM NANETTE M. DERENZI, JAGC, USN,
JUDGE ADVOCATE GENERAL OF THE U.S. NAVY
Admiral Greenert. Thank you, Chairman Levin, Ranking Member
Inhofe, and distinguished members of the committee. I want to
thank you for the opportunity to testify today about addressing
this deeply troubling issue.
I am grateful for your involvement and for your continued
interest in providing our commanders and sailors the tools to
help stamp out the crime of sexual assault from within our
ranks. Sexual assault is a serious offense. It is contrary to
everything that we stand for, and it is not who we are.
For me, this represents a significant safety issue and is
an existential threat to our core values. It is a defining
challenge for our time.
Our sailors deserve a safe environment in which to serve
their Nation, and I am outraged and I find it inconceivable
that a shipmate would assault another shipmate, someone with
whom they stand watch and trust their lives at sea and with
whom they will go into combat.
However, my outrage alone is not enough. We need
thoughtful, deliberate, relentless, and effective action. We
need to dig into the root causes and establish and put in place
sustained improvements that can be institutionalized and
assessed over the long term. At a minimum, our current and
future readiness are at stake.
Three years ago, we began a sustained effort to improve our
prevention and response programs. One outcome was the
development and integration of a pilot program that we
instituted at our training command in Great Lakes, Illinois.
We chose an environment that we felt we could more readily
control, a school environment. The results over 2 years have
been sustained and substantial reduction in the prevalence of
sexual assaults and conduct violations.
Based on these positive results, we have instituted similar
programs at the aviation training command in Pensacola, the
Naval Academy, and Naval Station San Diego. Further, we will be
implementing these programs in Naples, Italy, and Yokosuka,
Japan, within the next 6 months.
Initial feedback from sailors in San Diego thus far has
generally been positive. Again, reduction in conduct violations
and sexual assault reports and more confidence in their
security environment. The foundation of these pilots has been
focused and engaged leadership at every echelon of the command.
Now these are just a snapshot of initiatives to improve
command climates, to weed out perpetrators, and to create an
environment that dissuades these crimes from occurring. We have
much more work to do in this area.
Our sailors must be confident in our reporting process.
Sailors inform us that simple, multiple, reliable, and readily
available means of discreetly reporting a sexual assault imbues
confidence in the reporting process for sexual assault.
All our sailors need to know how to do this, and in April,
we completed the training for every sailor in the Navy. We
reinforced that there are multiple options available in every
unit to report an assault.
For example, sailors can report a sexual assault to victim
advocates, a SARC, the DOD safe line by Web or phone, medical
personnel, the chain of command, Judge Advocates, 911 or base
police, a Naval Criminal Investigative Service (NCIS) agent, or
the chaplain. We hired additional professional credentialed
response coordinators and victim advocates to augment the
existing 3,500 trained active duty advocates that we have
today.
In addition to numerous efforts in prevention and victim
support, we recognize our military justice system and processes
may need to evolve. Previous challenges, such as drug abuse in
the 1970s and the early 1980s, demonstrated that the UCMJ must
be able to adapt to better serve our sailors and to provide
adequate support for our commanders.
Accordingly, as with DOD's Article 60 proposal, we have to
ensure that our proposed modifications to the military justice
system are deliberate, they consider second-order effects, and
do not ultimately adversely impact the best interests of
justice, the victim's rights, and due process rights of the
accused.
Further, the unit commander's authority and role as the
singular individual accountable for the welfare of his or her
sailors should be preserved such that the commander is able to
carry out his or her mission. I believe that for complex and
comprehensive changes, those that propose structural changes to
the military justice system and the UCMJ, particularly the role
of the commander, the response systems panel created by section
576 should be given the opportunity to complete an independent
assessment.
It is clear that preventing and responding to sexual
assault is not just a legal issue. It is assuredly a leadership
issue and fundamentally embedded in what we call the ``Charge
of Command.'' The commanding officer is responsible and
accountable for everything that happens in his or her ship,
squadron, or unit, and we expect our commanders to create a
safe environment founded on dignity and respect, one that
reinforces our core values of honor, courage, and commitment.
To reinforce this concept, each sexual assault report is
briefed by the unit commander to the first flag in the chain of
command, focusing on root causes, location, environment, and
the means for future avoidance. I review the collation of these
results quarterly with my Navy four-star commanders, focusing
on trends, progress, and a framework for further action.
Now we have found that successful, effective, and permanent
changes in our military are best done through our commanders,
the chain of command. I believe this is true for the military
justice process as well. From initial disposition through
convening authority to post trial review, the chain of command
should be involved.
Recently, in the interest of improving the military justice
process in cases of the commission of or the attempt to commit
rape, sexual assault, or forcible sodomy, DOD elevated the
disposition authority to the O-6 level to enhance seniority,
experience, and the objectivity in this important element of
the military justice process.
Navy commanders are often required to make independent
decisions far from shore in uncertain or hazardous conditions.
Given the unique nature of their responsibility and the
authority and accountability we bestow on them for the welfare
of their crew and mission accomplishment, I believe it is
essential that our commanders be involved in each phase of the
military justice process.
Mr. Chairman, we know there is more to do. We remain
committed to preventing these crimes, to weeding out
perpetrators and to providing compassionate, coordinated
support for sexual assault victims, to holding commanders
accountable, and to ensuring that sexual assault cases are
processed through a fair, effective, and efficient military
justice system.
Thank you for the opportunity to testify today.
[The joint prepared statement of Admiral Greenert and Vice
Admiral Derenzi follows:]
Joint Prepared Statement by ADM Jonathan W. Greenert, USN, and VADM
Nanette M. Derenzi, USN
Chairman Levin, Ranking Member Inhofe, distinguished members of the
committee; thank you for the opportunity to testify today about our
efforts to address sexual assault and how we can work together to
improve our ability to prevent and respond to sexual assaults, support
victims, and hold offenders accountable.
Sexual assault is a crime. It is an attack on a shipmate, violates
the Navy's Core Values and tarnishes everything we stand for. Sexual
assault threatens the safety of our sailors, and degrades the readiness
of our ships and squadrons. The Navy and our commanders are committed
to eradicating this crime from our ranks; we owe this to our people and
our Nation. I am deeply concerned by the extent to which this crime
continues impact the Navy and undermine the trust our sailors and the
American people place in our military. This isn't who we are. However,
I cannot afford to simply be outraged. I have to, and I am committed
to, working each and every day to solve this problem.
We began a sustained and focused effort to improve our prevention
of and response to sexual assault 3 years ago with the Department of
the Navy's Sexual Assault Prevention Summit. This effort has expanded
and evolved as we have learned more, particularly in the past year. We
started with what became a successful pilot program instituted at our
training command in Great Lakes, Illinois. Over the last 2 years, this
initiative substantially reduced the prevalence of sexual assaults
through a tailored approach combining training, safety and security
measures in housing areas, peer monitoring, direct engagement with
local business and civil authorities, and regulated liberty. Armed with
these insights, we recently implemented regionally-focused pilot
programs in additional Fleet Concentration Areas--San Diego, Naples,
Italy and Yokosuka, Japan. So far progress in these areas is positive:
feedback from sailors; reduction in conduct violations (including
sexual assault); and increased reporting of past sexual assaults in
these Fleet Concentration Areas indicates awareness of, and confidence
in, our reporting processes. The foundation of our efforts is focused
and engaged leadership at every echelon of command, to include
quarterly meeting I hold with my Navy four-star commanders.
We see some clear trends regarding sexual assault in the Navy which
enable us to focus our efforts. Most sexual assaults are sailors
assaulting other sailors; most victims and offenders are junior
sailors; more than half of incidents occur on base or on ship; and
alcohol is a factor in the majority of sexual assaults that occur
outside of the workspace. Using these insights I see the greatest
opportunity for future success in three main areas:
Disrupting the factors that contribute to sexual
assault--We continue to focus, in particular, on alcohol as a
factor in sexual assault. This year we fielded alcohol
detection devices in the fleet to help educate sailors on their
alcohol use. We are also addressing command climate and how it
contributes to sexual assault, particularly the impact of
sexual harassment and how it contributes to a culture that may
enable sexual violence. As described below, we implemented
improvements to our leadership development programs and put in
place processes to better evaluate and hold leaders accountable
for their efforts to keep their sailors safe and for shaping
proper command climate--the way their commands treat their
people and the environment in which their sailors work. Since
most incidents occur in areas we control, our commanders
implemented more aggressive security measure in on-base housing
areas including patrols by senior personnel, security cameras
and improved lighting. Since most victims and offenders are
junior sailors, our training is targeted to those sailors, and
we support peer groups such as Coalition of Sailors Against
Destructive Decisions who train, mentor, and sponsor awareness-
raising events for fellow junior sailors.
Fielding A Special Victim Capability--Specially
trained investigators, victim advocates, prosecutors, and
paralegals form the core of our special victim capability to
respond to incidents of sexual assault. We established
dedicated Naval Criminal Investigative Service (NCIS) agent-
teams in Norfolk, San-Diego, Bangor, and Okinawa that
exclusively handle adult sexual assault investigations. NCIS is
expanding this model during fiscal year 2013 to Yokosuka,
Japan, Hawaii and Mayport, Florida. To improve the overall
quality of Navy court-martial litigation, the JAG Corps
established the Military Justice Litigation Career Track.
Military Justice Litigation Qualified judge advocates 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 leverages trial counsel, defense counsel, and
judicial experience to enhance the effectiveness of complex
court-martial practice. We also increased the seniority of
commanders authorized to decide the disposition of sexual
assault cases and required that commanders consult judge
advocates in making disposition decisions. These and other
improvements are discussed in further detail below.
Support for victims--The Navy is in the process of
hiring 66 full-time credentialed Sexual Assault Response
Coordinators (SARCs) and 66 full-time, professional,
credentialed victim advocates (VAs) to augment the
approximately 3,000 existing trained active duty command VAs.
We will have these SARCs and VAs at every one of our Fleet
Concentration Areas and major overseas bases, with additional
positions added proportionally to areas with larger
populations. Complementing the support provided by SARCs and
VAs, Navy prosecutors and legal assistance attorneys provide
victims' with an understanding of their rights, the military
justice process, and assistance with wide variety of issues
related to being the victim of a crime.
proposed changes to the military justice system
A critical aspect of our focused efforts is ensuring a fair,
efficient, and effective military justice system. Consistent with
previous challenges such as drug abuse in the 70s and early 80s, the
UCMJ and Manual for Courts Martial (MCM) must be able to evolve. We
recently endorsed a significant change to Article 60 of the Uniform
Code of Military Justice (UCMJ) to prohibit a convening authority from
setting aside the findings of a court-martial except for a narrow group
of qualified offenses (those ordinarily addressed through non-judicial
punishment or adverse administrative action) and require a convening
authority to explain any sentence reduction in writing. The process the
Secretary of Defense followed in proposing an amendment to Article 60
of the UCMJ ensured a careful and full evaluation of the proposal both
in terms of accomplishing intended objectives and avoiding unintended
second- and third-order effects.
As with the Department's Article 60 proposal, we must ensure that
other proposed changes to the military justice system do not adversely
impact the interests of justice, the rights of crime victims, and the
rights afforded the accused. To maintain the proper balance of these
interests and ensure the system remains constitutionally sound and
responsive in peace and war we must continue to evaluate proposed
changes to the UCMJ by carefully assessing their overall impact.
The Response Systems Panel created by section 576 of the National
Defense Authorization Act for Fiscal Year 2013 should be given the
opportunity to conduct an independent assessment of the systems used to
investigate, prosecute, and adjudicate sexual assaults prior to the
adoption of sweeping structural changes to those systems. I look
forward to the opportunity to work with Congress now and in the future
to ensure our commanders have the right tools to help them prevent and
respond to sexual assault. In addition to the Secretary of Defense's
proposed amendment to Article 60 of the UCMJ, we should carefully
consider other proposals, including: enhanced protection for recruits
and members of the armed forces in entry-level processing and training
environments; prohibition against military service for any person with
a conviction for sexual assault; enhanced authority for commanders to
temporarily reassign or remove from a position of authority a member
alleged to have committed a sexual assault offense; and elimination of
the 5-year statute of limitations applicable to sexual assault offenses
other than rape.
sexual assault reporting
In the Navy, there are two reporting options for victims of sexual
assault: restricted and unrestricted. There are multiple means
available for sailors to make reports at all commands--afloat or
ashore. Sexual assault reports can be made to personnel as described
below inside or outside the victim's command and can be confidential,
as desired by the victim.
Restricted reports are kept confidential; an investigation is not
initiated, and the command is notified that an assault has occurred
with no identifying information regarding the victim or suspect.
Victims can make restricted reports to SARCs, VAs, medical personnel,
or by contacting the DOD SafeHelpline by phone (877-995-5247) or online
(https://www.safehelpline.org/), 24 hours per day, 7 days a week.
SARCs, VAs, and SafeHelpline personnel ensure victims understand their
reporting options and available resources. Victims who make restricted
reports will still receive medical treatment, including a Sexual
Assault Forensic Examination, counseling services, victim advocacy
support, chaplain support, and legal assistance as they desire.
Unrestricted reports provide victims the same support services as
restricted reports. These reports are investigated by the NCIS and
reviewed for prosecution by a commander with the rank of O-6 or above
with disposition authority for sexual assault cases. Victims who desire
to make an unrestricted report are encouraged to report sexual assaults
to a SARC or VA, medical personnel, command leadership, judge advocate,
base police, master at arms, NCIS or civilian law enforcement as soon
as possible after the incident. The decision to make a restricted or
unrestricted report rests with the victim; a victim can make a
restricted report and later change to an unrestricted report. Once a
victim files an unrestricted report, investigation and reporting
requirements are mandated. The Navy trained every sailor on reporting
procedures during our Sexual Assault Prevention and Response for
Leaders and Fleet training completed in April 2013. The Navy also
implemented policies to ensure victim safety and support following an
unrestricted report of a sexual assault. For example, victims may
request an expedited transfer to another command or duty station.
Additionally, commanders may issue military protective orders to order
a military suspect to have no contact with the victim, temporarily
transfer the accused pending resolution of the case, or place the
accused in pretrial confinement.
Whether a victim chooses to make a restricted or unrestricted
report of sexual assault, command SARCs and VAs are specially trained
to respond quickly to victims; provide information; accompany victims
to medical, investigative interviews, and legal proceedings as the
victim desires; make referrals for military and community assistance;
and help victims through this potentially life altering event. The Navy
is in the process of hiring 66 full-time credentialed SARCs and 66
full-time, professional, credentialed VAs to augment the approximately
3,000 existing trained active duty command VAs. This will be complete
by June 2013. We will have these SARCs and VAs at every one of our
Fleet Concentration Areas and major overseas bases, with additional
positions added proportionally to areas with larger populations. By
hiring these credentialed professionals, we are improving not only our
capacity for victim support, but also program continuity and quality.
The Navy's legal professionals support sexual assault victims. The
Navy has trained more than 150 Navy and Marine Corps attorneys,
paralegals, and enlisted personnel to provide legal assistance to crime
victims in order to ensure victims' rights are understood and
protected. Navy prosecutors contact victims to provide them with
explanations of victims' rights; the court-martial process; and
available Federal, State, or local victim services and compensation.
Additionally, active-duty and dependent victims are eligible for
military legal assistance services and may contact or be directed by
VAs or prosecutors to legal assistance attorneys to receive help
pertaining to victims' rights, understanding the court-martial process,
and a wide variety of legal issues related to being the victim of a
crime.
sexual assault investigation and adjudication
Prompt, thorough investigation is critical to the effective
prosecution of sexual assault cases. Every unrestricted report of
sexual assault triggers an independent investigation by NCIS. This
includes sexual contact offenses, such as groping someone over their
clothes. From the outset of an investigation, NCIS works closely with
Navy trial counsel (prosecutors) in order to ensure a thorough
investigation sufficient to make an appropriate charging
recommendation. To facilitate the prompt collection of evidence, the
Navy will equip and certify all Medical Treatment Facilities and
operational units to perform Sexual Assault Forensic Exams by the
September 2013. To ensure appropriate care, each Navy unit with women
sailors has at least one female corpsman or physician. In the past 2
years, NCIS established specially-trained teams around the country and
overseas that investigate only sexual assault cases. These NCIS agent
teams better enables NCIS to effectively investigate each case of
sexual assault. In Norfolk, for example, these teams reduced the
average time to investigate sexual assaults from 300 days to about 80
days.
Once an NCIS investigation is complete, the case is forwarded to
the accused's commander. In accordance with Secretary of Defense
policy, the initial disposition decision for reports of rape, sexual
assault, forcible sodomy, and attempts to commit these offenses must be
made by Sexual Assault Initial Disposition Authorities (SA-IDAs), who
are Navy Captains (pay grade O-6) or above designated as Special Court-
Martial Convening Authorities. If the accused's commander is not an SA-
IDA, the commander must forward the case to the appropriate SA-IDA in
the chain of command for the initial disposition decision. SA-IDAs must
consult with a judge advocate prior to making disposition decisions,
ensuring that appropriate legal considerations for these major offenses
are fully evaluated and balanced with good order and discipline. Having
received legal advice from a trained and experienced staff judge
advocate and/or prosecutor, based on the nature of the offenses and an
analysis of the evidence available, the SA-IDA may recommend that the
suspect face charges at a general court-martial. The SA-IDA also has
the option, when appropriate, to send charges to a special court-
martial, summary court-martial, or non-judicial punishment and may also
process the suspect for administrative separation. If the SA-IDA does
not recommend general court-martial, the SA-IDA can also return the
case to the suspect's commanding officer for disposition deemed
appropriate by that commanding officer, based on the nature of the
offenses and an analysis of the evidence available, including special
court-martial, summary court-martial, non-judicial punishment, or
administrative separation processing.
Once charges are preferred (sworn to), the suspect becomes ``the
accused'' and is provided a military attorney. The charges can
immediately be referred to a summary court-martial or special court-
martial. However, before a case can be referred to a general court-
martial, the accused has the right to have the charges considered at an
Article 32 pre-trial investigation.
An Article 32 investigation is similar to a civilian preliminary
hearing, and a victim may have to appear and testify at the hearing.
The accused will be present at the Article 32 hearing along with the
defense counsel who may cross-examine the victim. In the Navy, judge
advocates serve as Article 32 investigating officers for sexual assault
offenses. The Article 32 investigating officer will hear the evidence
and write a report, which will include the investigating officer's
determination as to whether there are reasonable grounds to believe
that the accused committed the offenses charged and, if so, a
recommendation on the forum for disposition of the charges. After
considering the investigating officer's report and the recommendation
of a staff judge advocate, the SA-IDA may decide to recommend to a
general court-martial convening authority (generally an O-7 or above)
that he or she convene a general court-martial, or the SA-IDA may send
the accused to a special court-martial, summary court-martial, impose
NJP or, if appropriate, dismiss the charges. The accused may also be
processed for administrative separation. In the alternative, the SA-IDA
may return the case to the suspect's commanding officer for appropriate
disposition.
If the charges are referred to a general or special court-martial,
the accused has the right to choose to be tried by a military judge
alone or by a panel of servicemembers who serve as jurors (or
``members'' in a court-martial). To convict a servicemember, a two-
thirds majority of the court-martial panel members, or the military
judge if the case proceeds with the military judge alone, must be
convinced of the accused's guilt beyond a reasonable doubt. If the
accused is found guilty, the case will proceed to the sentencing phase
and the military judge or members decide what punishment to apply.
During a sentencing hearing, both sides may again call witnesses to
help determine an appropriate sentence. The victim can testify about
the impact of the sexual assault, which may include the emotional,
physical, and financial suffering the victim experienced.
Post-trial appeal and review processes under Articles 64, 66, and
69 of the UCMJ occur after the court martial proceedings. Article 66
reviews apply to cases in which a punitive discharge or sentence of
confinement for 1 year or more was approved; those convicted are
assigned appellate defense counsel, and cases on appeal are decided by
senior judge advocates serving as Navy and Marine Corps Court of
Criminal Appeals appellate judges or by civilian judges of the U.S.
Court of Appeals for the Armed Forces. Article 69 reviews apply to
general courts-martial where a punitive discharge or confinement for 1
year or more was not approved; the records of trial are reviewed by the
Office of the Judge Advocate General. Article 64 reviews are conducted
for all other courts-martial cases and are submitted to a judge
advocate who must respond to any allegation of error made by the
accused.
Throughout the legal process, the victim has certain basic rights.
For example, a victim has the right to communicate his or her position
about the disposition of the case and plea negotiations. Although the
convening authority is not bound to dispose of the case as the victim
desires, the victim's views must be carefully considered. In addition
to the general guidance Navy prosecutors provide, victims can contact
counsel, and active-duty and dependent victims also have access to
legal assistance attorneys to provide information on the military
justice process, victim's rights, and help with a wide variety of legal
issues related to being the victim of a crime.
Under the Victim and Witness Assistance Program (VWAP), the victim
has certain basic rights throughout a court-martial, including:
Being treated with fairness and respect for the
victim's dignity and privacy;
Being reasonably protected from the accused;
Being notified of court proceedings;
Being present at all public court proceedings related
to the offense, unless the investigating officer or military
judge determines that the victim's testimony would be
materially affected if he or she heard other testimony at the
pretrial investigation or at trial;
Conferring with the trial counsel;
Receiving available restitution, if appropriate; and
Being provided information about the conviction,
sentencing, imprisonment, and release of the offender.
the role of the commander
Preventing and responding to sexual assault is not just a legal
issue--it is a leadership issue. The performance, safety and climate of
a unit begin and end with the commander. As described in the ``Charge
of Command'' that all Navy officers sign in the presence of their
reporting senior upon taking command, the commanding officer is
responsible and accountable for everything that happens in their ship,
squadron or unit. By virtue of experience, skill and training, our
commanders are the best assessors of their people and are the key to
sustaining the readiness of their unit. If we want to implement
effective, permanent change in our military, we must do so through our
commanders.
From our analysis of sexual assault reports and cases, we know many
of the factors surrounding the majority of sexual assaults. The
commander is responsible to address these factors by fostering an
appropriate command climate of dignity and respect for everyone and
ensuring a safe workplace and living areas. Overall, the commanding
officer is responsible for good order and discipline of the unit and
the well being of his or her sailors.
The responsibility, authority, and accountability we repose in the
commander requires that we provide him or her tools to maintain
appropriate readiness and safety every day. Military justice is one of
those tools. The fundamental structure of the military justice system
and UCMJ, centered on the role of the commander as the convening
authority, is sound. Navy commanders are often required to make
independent decisions far from shore, in uncertain or hazardous
conditions. In this environment, it is essential that our commanders be
involved in each phase of the military justice process, from the report
of an offense through adjudication under the UMCJ.
the importance of accountability
The Navy continues to evaluate the tools we provide commanders to
ensure they can execute their charge of command. In particular, we are
focused on improving the development of leadership and character in our
leaders on their way to command. Today, all of our leaders complete
high-quality, tailored training on sexual assault prevention and
response. This training, provided by professional mobile training
teams, is designed to help leaders identify factors and environment
that surround or contribute to sexual harassment or sexual assault, and
understand the response requirements when a sexual assault occurs.
While tailored to sexual assault prevention and response, this
training is not enough to fully prepare commanders to create an
appropriate command climate. The Navy recently instituted a concerted
leader development program to guide young officers and enlisted
personnel to be effective commanders and senior enlisted leaders. Over
the next year, we will advance this program as a cornerstone of our
training for future commanders and Senior Enlisted Advisors and
leaders.
Because of the inherent responsibility of our commanders, our
screening processes to select them are rigorous. They include:
a formal command qualification program reviewed and
approved by each community flag officer leader (normally, a
Vice Admiral)
professional qualification standards for each selected
commander
an oral qualification board for each candidate in
front of former commanders
a command screen board, led by flag officers
full training on, and acknowledgement of, the ``Charge
of Command''
Despite the rigors of the selection and training process, we
inevitably have failures and must hold commanders accountable for their
command climate, their efforts to maintain a safe work environment of
dignity and respect, and the good order and discipline of their
commands. Today, we do this by requiring commanders to assess their
organizational climate at regular intervals, while requiring those with
multiple commands under their leadership to monitor the climates of
subordinate commands. We also evaluate our commanders (and all
officers) in their regular fitness reports (performance evaluations
used for determination of advancement) in three areas: Command Climate/
Equal Opportunity, Leadership and in written summary, where
documentation of poor command climates would be listed. We hold our
commanders responsible and accountable when they do not meet acceptable
standards.
There are 1,254 command positions in the Navy. In 2012, Navy
relieved 11 commanders for personal misconduct and 8 commanders were
relieved for failure to provide effective leadership; 4 of these 8 were
relieved for poor command climate. This year, we have relieved five
commanders for failure to provide effective leadership, two of whom
were relieved for poor command climate.
As part of the Navy's accountability process, commanders are
required to brief their Immediate Superior in Command and the first
flag officer in the chain of command on each sexual assault incident
occurring in their command. Commanders evaluate the command climate of
the suspect's command, as well as the factors surrounding the sexual
assault, such as location and environment surrounding the incident,
demographics, and the role of alcohol. Means to prevent further
incidents are discussed.
Our Navy four-star flag officers reinforce accountability for
command climate by reviewing these ``first flag'' reports. I meet with
my four stars every quarter to review ``first flag reports'': trends,
demographics, common features and environments and best practices to
prevent sexual assaults. We apply the insights from the reports to
ongoing initiatives, particularly our regionally-focused programs in
Great Lakes, San Diego, Japan and Europe.
conclusion
We remain steadfastly committed to eradicating sexual assault
within our ranks and ensuring that sexual assault cases are processed
through a fair, effective, and efficient military justice system.
Sexual assault is a crime that threatens the safety of our sailors,
is utterly inconsistent with our Core Values, and impacts the ability
of the Navy to execute our mission. We must more effectively prevent
and respond to sexual assault, or our readiness and credibility as a
fighting force will suffer.
The Navy is making progress in areas where we empowered commanders
to undertake regionally-focused approaches that address the factors
surrounding sexual assault. Our efforts must continue to focus on
providing commanders the appropriate tools to remain effective,
accountable leaders, and hold these commanders accountable for the
safety and well being of all their sailors. I look forward to working
with Congress on a deliberate, thoughtful review of the systems used to
investigate, prosecute, and adjudicate sexual assaults.
Chairman Levin. Thank you very much, Admiral Greenert.
General Amos.
STATEMENT OF GEN. JAMES F. AMOS, USMC, COMMANDANT OF THE MARINE
CORPS; ACCOMPANIED BY MAJ. GEN. VAUGHN A. ARY, USMC, STAFF
JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS
General Amos. Chairman Levin, Ranking Member Inhofe,
members of the committee, thank you for calling today's hearing
on this most critical issue.
Let me begin by saying that sexual assault is criminal
behavior that has no place in your U.S. Marine Corps. It
violates the bedrock of trust that marines must have in one
another, the legendary trust that we have always had in one
another. It is shameful, it is repulsive, and we are
aggressively taking steps to eradicate it.
While there are cases of mixed and same-gender attacks,
sexual assault within the Marine Corps is predominantly a male-
on-female crime. That said, it is important to note that our
data shows that the crime of sexual assault is being committed
by roughly 2 percent of our Marine population. Clearly, and
importantly, the remaining 98 percent of your marines are
keeping their honor clean.
Since June of last year, we have tackled the sexual assault
problem head on and have seen measurable improvements in three
specific areas: prevention, reporting, and offender
accountability. I am encouraged by these positive changes and
believe we have momentum on our side.
I testify before you today to let you know that eradicating
sexual assault from within our ranks is a top priority with the
senior leadership of the entire U.S. Marine Corps. But talking
about this issue is not enough. Direct action and a uniform
strategy is required.
Our history over the last century is replete with examples
where we have changed the Marine Corps as an institution.
Following World War II, we knocked down racial barriers, paving
a clear road of racial equality in our Corps.
Following Vietnam, as a young lieutenant, I saw firsthand
how we attacked a rampant drug problem. We solved this
discipline and illegal behavior problem from the top down. We
were successful through determined leadership and a combination
of education and strict legal actions.
Over time, the Corps changed. Drug users and drug pushers
became viewed as what they truly were, pariahs. We exiled them
from our ranks. During that time, we pushed separation
authority down to commanding officers to enforce discipline
standards and to effect swift judgment against offenders. It
was our commanders who drove the change.
Today, I have seen how the Marine Corps is tackling our
alcohol problem through leadership and deglamorization of
irresponsible behavior. While we are far from complete in these
efforts, DUIs and other alcohol infractions are no longer
acceptable behavior for a professional corps of marines.
I have watched us change over the past decades in this
regard. What was deemed acceptable behavior for Lieutenant and
Major Amos is simply not condoned today. It is the evolution of
behavior, and it is good for us.
Accountability in the Marine Corps begins and ends with me.
Sexual assault prevention within our ranks is front and center
with me and at the top of my priorities. Our senior officers
and staff noncommissioned officers are all in. They are
focusing on making the necessary changes to prevailing
conditions and attitudes to create the environment that the
American people not only expect, but demand from their marines.
Over the last year, we have implemented an aggressive
three-phase campaign plan that strikes at the heart of this
issue. Its goal is complete elimination of sexual assault
within our Marine Corps.
As we launched our plan last spring, the Sergeant Major of
the Marine Corps and I traveled to every base and station
throughout the world to look our marines in the eye, to remind
them of their rich heritage, and to remind them who they are
and who they are not. We spoke of the importance of maintaining
the spiritual health of the Corps.
Just as I expect to be held accountable for everything the
Marine Corps does and fails to do, I, in turn, hold my
commanding officers accountable for everything their units do
or fail to do. Our commanding officers are the centerpiece of
the Marine Corps' effectiveness and professional and
disciplined warfighting organization.
Commanding officers are charged with establishing and
training to standards and uniformly enforcing those standards.
A unit will rise or fall as a direct result of the leadership
of its commanding officer. Commanding officers never delegate
responsibility. They should never be forced to delegate their
authority.
As such, as Congress responsibly considers changes to the
commanders' authority under the UCMJ, I plead with you to do it
sensibly and responsibly. As strongly as I support the
authority of the commanding officer, I reject the status quo in
other areas to military justice and policy.
I have reviewed current legislative proposals related to
sexual assault and military justice, and I believe there is
merit to many of the proposals. I am committed to being an
equal partner as we engage in serious debate about the best way
to eliminate sexual assault from within our ranks.
Thank you again for holding this important hearing on such
a critical issue. I am prepared to take your questions.
[The prepared statement of General Amos follows:]
Prepared Statement by Gen. James F. Amos, USMC
introduction
Sexual assault is criminal behavior that has no place in our Corps
and my institution is aggressively taking steps to prevent it. Over the
past 12 months, we have attacked sexual assault and have seen
encouraging, and in some areas, measurable improvements in three
specific areas--prevention, reporting, and offender accountability.
There is more work to do, much more work, but we are seeing indicators
that tell us we are on the right track.
Leadership is an essential element of our profession. We must be
cautious, however, with changes that will undercut a commanding
officer's ability to ensure obedience to orders. When commanding
officers lose the ability to take action under the Uniform Code of
Military Justice (UCMJ), we risk losing the enforcement mechanism
needed to maintain the world's most effective fighting force.
My written testimony is composed of three main sections. First, I
will discuss the importance of the military commanding officer
generally. Any discussion of the role of the commanding officer in the
military justice process must start with overall responsibilities and
duties of a commanding officer to fight and win on the battlefield.
Second, I will speak to the progress we have experienced in the last
year under our Campaign Plan in the areas of prevention and response.
Central to this discussion is the importance of top-down, commanding
officer leadership that will bring about the culture change necessary
to end sexual assaults, and the preconditions that lead to it in our
Marine Corps. Finally, I will discuss our new Complex Trial Teams (CTT)
that came online and began prosecuting complex cases in October 2012.
the role of the commanding officer
Sexual Assault Prevention within our ranks is ever front and center
in my mind and at the top of my priorities. Our senior officers and
staff noncommissioned officers have steadfastly focused on making the
necessary changes to prevailing conditions and attitudes to create the
environment that the American people not only expect but demand from
their marines. Sexual assault is a crime against individual marines
that reverberates within a unit like a cancer undermining the most
basic principle we hold dear--taking care of marines. Our unit
commanding officers are our first line of action in implementing
aggressive policies and changing the mindset of the individual marine.
The commanding officer of every unit is the centerpiece of an
effective and professional warfighting organization. Marine commanding
officers are chosen through a rigorous selection process, based on
merit and a career of outstanding performance. They are entrusted with
our greatest asset, the individual marine. Commanding officers are
charged with building and leading their team to withstand the rigors of
combat by establishing the highest level of trust throughout their
unit. Unit commanding officers set the command climate, one in which
the spirit and intent of the orders and regulations that govern the
conduct of our duties will be upheld. There are a number of leadership
styles, but the result of any of them must be a group of marines and
sailors that have absolute trust in their leaders, a level of
professionalism derived from competence and confidence. Trust in the
commanding officer and fellow marines is the essential element in
everything we do. Developing this trust, dedication, and esprit de
corps is the responsibility of the commanding officer. Commanding
officers do this by setting standards, training to standards, and
enforcing standards. This defines the good order and discipline
required by every Marine unit. Marines expect this.
Whether it is rewarding success or correcting failure, the
commanding officer remains the common denominator. Commanding officers
may delegate certain tasks, but they can never delegate their
accountability for their unit. This is the essence of good order and
discipline. A unit with good order and discipline meets and exceeds
standards, works together to continually improve, follows orders,
trains new members, expects constant success, seeks challenges, and
does not tolerate behavior that undermines unit cohesion.
As the Nation's Crisis Response Force, the Marine Corps must be
ready to answer the Nation's call at a moment's notice. Accordingly,
good order and discipline is required at all times . . . wherever a
unit is and regardless of what that unit has been tasked to do.
Commanding officers cannot delegate this responsibility.
I have repeatedly referred to these duties as maintaining the
``spiritual health'' of the Marine Corps from a holistic sense. This
theme was the genesis of the 27 briefings the Sergeant Major of the
Marine Corps and I delivered to marines all around the world last year.
My intent was to re-emphasize the heritage of our Marine Corps . . .
who we are, and who we are not. Our heritage is one that is guided by
our principles of honor, courage, and commitment and described by our
motto . . . Semper Fidelis--Always Faithful.
I expect marines to have a unified sense of moral and righteous
purpose, to be guided by what I refer to as ``true north'' on their
moral compass. I will aggressively pursue and fight anything that
destroys the spiritual health of the Marine Corps and detracts from our
ability to fight our Nation's wars. That includes sexual assault. A
single sexual assault in a unit can undermine everything that a
commanding officer and every marine in that unit has worked so hard to
achieve.
After more than 43 years of service to our Nation, it is
inconceivable to me that a commanding officer could not immediately and
personally--within applicable regulations--hold marines accountable for
their criminal behavior. That is the sacred responsibility of
commanding officership. I expect to be held accountable for everything
the Marine Corps does and fails to do. That is my task under U.S. law.
I, in turn, will hold my commanding officers accountable for everything
their units do and fail to do.
Commanding officers never delegate responsibility and
accountability, and they should never be forced to delegate their
authority. We cannot ask our marines to follow their commanding officer
into combat if we create a system that tells marines to not trust their
commanding officer on an issue as important as sexual assault. In May
2012, I wrote a personal letter addressed to ``All Marines'' regarding
sexual assault; I told them ``[o]ur greatest weapon in the battle
against sexual assault has been and will continue to be decisive and
engaged leadership.'' My opinion has not changed.
While our efforts in confronting sexual assault have been
expansive, they have not eliminated this behavior from our ranks. I
have been encouraged by our progress, but I acknowledge today, as I
have told Members of Congress in previous testimony, that we have a
long way to go. Changing the mindset of an institution as large as the
Marine Corps always takes time, but we remain firmly committed to
removing sexual assault from our Corps. We continue to work to ensure
that our leaders gain and maintain the trust of their marines, as well
as ensuring that marines can likewise trust their chain of command when
they come forward. We are not there yet. Where the system is not
working as it should, we are committed to fixing it, and to holding
commanders accountable for what is happening in their units. I pledge
that we will work with Congress, as well as experts in the field, as we
eliminate sexual assault with our ranks.
I have reviewed the current legislative proposals related to sexual
assault and military justice, and I believe there is much merit in many
of the proposals. We should continue to engage in a serious debate
about the best way to administer military justice. I want to
specifically identify some encouraging trends in prevention, response
and offender accountability. I believe these are based on substantial
changes made in our Sexual Assault Prevention and Response (SAPR)
Campaign Plan, and in the complete legal re-organization of our trial
teams, both instituted mid-year 2012. These changes are showing
measurable improvements and demonstrate that a commanding officer-led
model of military justice can be successful. My Service will continue
to work tirelessly in our fight to bring about the culture change that
will combat sexual assault.
prevention and response
Our Sexual Assault Prevention and Response Campaign Plan was
launched a year ago with the stated purpose of reducing--with the goal
of eliminating--incidents of sexual assault through engaged leadership
and evidenced based best practices. Essential to this goal, as stated,
is the commanding officer's responsibility to establish a positive
command climate, reflecting our core values of honor, courage, and
commitment. Commanding officers must instill trust and confidence that
offenders will be held accountable and that victims receive the
supportive services that preserve their dignity and safety. Sexual
assault is an under-reported crime both inside the military and out,
with an estimated 85 percent-90 percent of sexual assaults remaining
unreported according to the Department of Defense. We must ensure, for
those marines who do come forward, that we provide the support they
need with compassion and determination. Last year we saw a 31 percent
increase in reporting, which speaks directly to the confidence that
marines have in their commanding officer and the Marine Corps.
Reporting is the bridge to victim care and accountability remains the
final litmus test for measuring our progress in our mission to
eradicate this crime from our ranks. This sharp increase in reporting
from last year is continuing into this year; I fully expect that we
will exceed the rate of reporting of last year. I realize that on the
surface an increase in reporting can be viewed as a negative outcome,
however, I view it as an encouraging sign that our victims' confidence
in our ability to care for them has increased markedly.
To supplement the ongoing work of the SAPR program and leadership
in the field, we chartered a task force in April 2012, which produced
our SAPR Campaign Plan and fed my subsequent Heritage Briefs. My
intention was to reinvigorate our SAPR efforts program and implement
large-scale prevention initiatives across the Marine Corps. With a
culture change, a renewed emphasis on engaged leadership, and the
message that it is every marine's inherent duty to step-up and step-in
to prevent sexual assaults. The efforts of the Campaign Plan and my
Heritage Briefs are aligned with the Secretary of Defense's five lines
of effort: Prevention, Advocacy, Investigation, Accountability, and
Assessment. Currently we have seen an increase in reporting of sexual
assaults that went unreported in the previous year. Initial feedback
from the field indicates that the surge efforts inspired victims to
come forward because the message received was the Marine Corps takes
sexual assault seriously and that it will not be tolerated.
Our Campaign Plan is comprised of three phases. The first phase
consisted of 42 initiatives across the Marine Corps, resulting in an
unprecedented call to action to address the prevalence of sexual
assault within our ranks. Initiating a top-down approach, the SAPR
General Officer Symposium (GOS) was held 10-11 July 2012 for 2 full
days of training, where every General Officer in our Corps came to
Marine Corps Base Quantico. We did the same thing in August during our
2012 Sergeants Major Symposium. Specifically convened to address the
prevention of sexual assault, the 2-day training event for all Marine
Corps General Officers included subject matter experts who spoke on
topics relevant to prevention, including the effects of alcohol,
inadvertent victim blaming, dispelling myths, and other related
subjects. Ethical Decision scenarios were introduced. This video-based
training initiative, involving sexual assault based scenarios, was
designed to evoke emotion, stimulate discussion, and serve as another
training tool that would resonate with marines of all ranks. This
renewed focus on senior leadership was deemed a critical turning point
for the Marine Corps. According to the 2012 Workplace and Gender
Relations Survey of Active Duty Personnel (WGRA), 97 percent of marines
received training within the past 12 months, which was an increase from
2010. These training efforts remain ongoing, as approximately 30,000
new marines are brought in annually. Sixty-two percent of the Marine
Corps population is between the ages of 18 and 24--a high risk
demographic for sexual assault.
To further cement leadership engagement, Command Team Training was
given to all commanding officers and sergeants major, and was designed
to bring forth a desired end state in which all leaders through are
proactively engaged on the problem of sexual assault within the Corps.
The program consisted of 1 day of training presented in the form of
guided discussion, case studies, Ethical Decision scenarios and SAPR
Engaged Leadership Training. SAPR Engaged Leadership Training,
specifically, provided command teams in-depth practical knowledge of
their responsibilities, the importance of establishing a positive
command climate, the process of Victim Advocate (VA) selection,
critical elements of bystander intervention and prevention. Bystander
intervention, an evidence-based practice, is a central focus of all of
our training programs. The 2012 WGRA Survey showed that 93 percent of
female and 88 percent of male marines indicate that they would actively
intervene in a situation leading to sexual assault. I am encouraged by
that data. Command Team Training was completed by 31 August 2012.
In Phase I of the Campaign Plan, all SAPR training was revitalized
and standardized Marine Corps-wide. Specific Phase I training
initiatives included ``Take A Stand'' bystander intervention training
for all noncommissioned officers and SAPR training for every single
marine. To achieve long-term cultural change, this training will be
sustained through re-crafting the curricula in all of our professional
schools, customizing the training based on the rank and experience of
the individual marine.
The second phase of the Campaign Plan, Implementation, is presently
underway. This phase is focused on victim care, with the major
initiative being the creation of the Sexual Assault Response Team
(SART). SARTs are multidisciplinary teams of first responders that are
designed to respond proficiently to the many concerns of victims,
ensuring efficient investigative practices, forensic evidence
collection, victim advocacy and care. A SART will include, at a
minimum, the following personnel: Naval Criminal Investigative Service
(NCIS), Military Police, Sexual Assault Response Coordinator (SARC)/VA,
Judge Advocate/Trial Counsel, mental health services representative and
Sexual Assault Forensic Examiner. For those installations where an
immediate SART response capability is not available, the SART can
include; community representatives, local law enforcement, rape crisis
centers, district attorneys, Federal task forces, existing civilian
SARTs, or nongovernmental organizations specializing in sexual assault.
Each SART is coordinated by the installation SARC.
The SART initiative coincides with the parallel efforts to increase
the number of SAPR personnel in the field and intensify the training
requirements. All SAPR personnel now receive 40 hours of focused sexual
assault advocacy training and go through an accreditation process
administered by the National Organization for Victim Assistance (NOVA).
The addition of credentialed subject matter experts in the field
enhances our victim care capabilities. Forty-seven new fulltime
positions have been added in support of the nearly 100 highly trained,
full-time civilian SARCs and VAs and nearly 1,000 collateral-duty SARCs
and Unit Victim Advocates (UVAs). SAPR personnel are handpicked by
commanding officers and serve as the victim's liaison for all
supportive services to include counseling, medical, legal, chaplain and
related support.
Phase II, Prevention, efforts also include further development of
the SAPR training continuum, encompassing bystander intervention
training for junior enlisted marines, the development of eight
additional Ethical Decision Games and the implementation of customized
SAPR training for all marines.
Phase III, the Sustainment Phase, will focus on providing
commanding officers at all levels the requisite support and resources
to effectively sustain SAPR efforts and progress. It includes the
initiative to support Marine Corps Recruiting Command's implementation
of a values-based orientation program, focused on the ``whole of
character'' for young adults who are members of the Delayed Entry
Program and have not yet attended recruit training. In addition to
sexual assault, the program will specifically address all non-
permissive behaviors such as sexual harassment, hazing, alcohol abuse,
and other high-risk behaviors that tear at the fabric of the Corps.
The efforts of our Campaign Plan and Heritage Briefs have had many
positive effects to include an increase in reporting. The Marine Corps
portion of the fiscal year 2012 Annual Report shows a 31 percent
increase in sexual assault reports involving marines and shows that
this spike occurred largely in the second half of 2012 . . . coinciding
with implementation of our Campaign Plan and training and education
efforts. As previously stated, I view increased reporting is a positive
endorsement of our efforts to deepen the trust and confidence in our
leadership and response system, as well as speaks to the courage of
those marines most impacted by this crime. In time, and with continued
focus, marines will increasingly understand and see that we have put in
place a response system that provides the necessary care for victims
while holding offenders accountable.
The 2012 WGRA indicated a greater number of female marines aware of
the number of options available to them to include the DOD Safe
Helpline, expedited transfers and restricted reporting. Seventy-seven
percent of those females, who reported some form of unwanted sexual
contact, also told us they had a positive experience with the advocacy
support provided to them.
reporting
A victim of sexual assault can initiate SAPR services through
various avenues and have two reporting options: unrestricted and
restricted reporting. For both, our goal is to connect victims with
Victim Advocates, who serve as the critical point of contact for
information and support. Victim Advocates will provide support from the
onset of the incident to the conclusion of needed care.
Unrestricted reporting triggers an investigation by NCIS as well as
notification of the unit commanding officer. To make an unrestricted
report, victims have several access points. Options include calling the
Installation 24/7 or the DOD Safe Helplines, making a report to a
civilian Victim Advocate (VA), Uniformed Victim Advocate (UVA), Sexual
Assault Response Coordinator (SARC), medical/healthcare provider, law
enforcement, or the chain of command. A victim may also make a report
to a legal assistance attorney or a chaplain. All access points are
funneled to the Victim Advocate to track and support the victim. Victim
Advocates ensure that a Sexual Assault Forensic Examination (SAFE) is
offered to the victim, counseling and/or chaplain services are offered
to the victim, and liaison services with legal assistance are
initiated. Victims are counseled early on in the proceedings that legal
assistance is available through a Victim Witness Liaison Officer who
provides information and assistance through the legal phase of this
continuum. In addition, victim advocates keep the victim informed
throughout the continuum of services.
There are many instances where commanding officers are made aware
of incidents of sexual assault by third parties. In those instances,
commanding officers are obligated to contact NCIS to initiate an
investigation, as they would for any report of a crime that is brought
to their attention. These reports are classified as unrestricted
reports and all SAPR services are offered to victims in those
instances.
Sexual assault cases and the completed NCIS independent
investigation are automatically elevated to the first O-6 in the chain
of command who, in close consultation with their legal advisors,
decides which legal avenue to pursue. This decisionmaking process also
includes a discussion with the first General Officer in the chain of
command to decide whether the case will be pulled up to his or her
level.
Commanding officers are responsible for providing for the physical
safety and emotional security of the victim. A determination will be
made if the alleged offender is still nearby and if the victim desires
or needs protection. They will ensure notification to the appropriate
military criminal investigative organization (MCIO) as soon as the
victim's immediate safety is addressed and medical treatment procedures
are in motion. To the extent practicable, a commanding officer strictly
limits knowledge of the facts or details regarding the incident to only
those personnel who have a legitimate need-to-know. Commanding officers
are in the best position to immediately determine if the victim desires
or needs a ``no contact'' order or a military protective order issued
against the alleged offender, particularly if the victim and the
alleged offender are assigned to the same command, unit, duty location,
or living quarters.
Victims are advised of the expedited transfer process and the
possibility for a temporary or permanent reassignment to another unit,
living quarters on the same installation, or other duty location.
Commanding officers ensure the victim receives monthly reports
regarding the status of the sexual assault investigation until its
final disposition.
The Defense Sexual Assault Incident Database (DSAID) is a central
data system managed by the Department of Defense (DOD) Sexual Assault
Prevention and Response Office (SAPRO). DSAID is a DOD-wide service
requirement that allows for the standardization of data collection and
management, which is critical for improving case oversight, meeting
reporting requirements, and informing SAPR Program analysis, planning,
and future efforts to care for victims. In addition to providing
consistency across the services in reporting, DSAID is electronically
linked to the data system used by NCIS, facilitating timely and
accurate coordination within the investigative process. Full migration
to DSAID was completed in October 2012.
In October 2012, the Marine Corps implemented SAPR 8-Day Briefs, an
additional tool designed to guarantee leadership engagement at the
onset of each case. For all unrestricted reports of sexual assault, the
victim's commanding officer must complete a SAPR 8-Day Brief to ensure
that victim care resources are being provided. Eight-day briefs include
the commanding officer's assessment and a timely way ahead, and are
briefed within 8 days to the first general officer in the chain of
command. The reports are briefed quarterly to the Assistant Commandant
of the Marine Corps. The analysis of the data compiled utilizing SAPR
8-Day Briefs also provides us with a more immediate assessment and
surveillance opportunity, helping us to identify trends to further
inform our prevention and response efforts. A victim's commanding
officer stays engaged in the process from beginning to end by attending
monthly case management group meetings and coordinating with the SARC
to ensure the appropriate level of victim care and support are being
provided.
Restricted reporting is another reporting option for victims. This
option is a critical resource for those in need of support. Restricted
reporting does not trigger an official investigation but does allow for
confidentiality and time to process the impact of the incident without
the visibility that comes with immediate reporting to law enforcement
officials and commanding officers. Victims are able to get a SAFE.
Evidence recovered from a SAFE can be held for 5 years, should the
victim opt to convert their report to an unrestricted status. Through a
restricted report, victims can also receive general medical treatment,
counseling services, and the full support of the Victim Advocate and
Sexual Assault Response Coordinator.
There are many reasons why a victim of sexual assault would not
report an incident, the perceived stigma about being revictimized
remains a powerful deterrent to reporting for marines. Restricted
reports can be taken by specified individuals (i.e., SARCs, VAs/UVAs,
or healthcare personnel). Restricted reporting allows those victims to
take care of themselves emotionally and physically. Victims who make
restricted reports often comprise the population who might otherwise
remain silent. Restricted reporting increased by over 100 percent in
the fiscal year 2012 Annual Report and serves as an initial indicator
that our messaging about the reporting options has been effective.
assessment
The Marine Corps is developing ways to monitor victim care and
services more closely through SARC engagement in an effort to improve
and better utilize all resources available to victims and to help keep
victims engaged in the process. A victim survey is being developed to
accomplish that task and will assess all levels of services provided.
I have just recently approved and directed new command climate
surveys. These surveys are mandatory within 30 days of a commanding
officer taking command and also at the commanding officer's 12-month
mark in command. Giving commanding officers this tool and holding them
accountable for the overall health and well-being of their command will
help us mitigate the high-risk behaviors that tear at the fabric of the
Corps. The results of the command climate surveys will be forwarded to
the next higher headquarters in the chain of command. It is important
to keep in mind however that the command climate surveys are just one
assessment tool.
the investigation
Before the commanding officer is confronted with a decision about
what to do with an allegation, the commanding officer will receive
significant advice and information from three different sources. By
current Marine Corps practice, once NCIS is notified of a sexual
assault, there is coordination between a prosecutor and the
investigating agent(s). This practice enables unity between the
investigative and prosecutorial functions of the military justice
system. It also ensures that the commanding officer's evaluation of the
alleged crime is fed by two distinct and independent professional
entities--NCIS and the military prosecutor. Additionally, the
commanding officer is advised by his Staff Judge Advocate (SJA) during
this stage. The SJA is an experienced judge advocate, well versed in
the military justice system, and able to advise the commanding officer
on what actions to direct during the investigation, such as search
authorizations.
As a critical component of our Campaign Plan, I directed that our
legal community completely reorganize into a regional model, which
gives us the flexibility to better utilize the skills of our more
experienced litigators. Practically speaking, our new regional model,
which became fully operational late last year, allows us to place the
right prosecutor, with the appropriate training, expertise,
supervision, and support staff, on the right case, regardless of
location. These prosecutors not only represent the government at the
court-martial, but they work with NCIS to develop the case and advise
the commanding officer and his or her SJA about the status of the case.
I directed this reorganization because an internal self-assessment
of our military justice docket uncovered 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 involved
sexual assault. More specifically, within the alleged sexual assault
cases, we noticed a significant number of alcohol associated sexual
assaults, which are difficult cases to prosecute, thus I wanted our
more seasoned trial attorneys available for use by our commanding
officers.
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 Legal Services Support
Section (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. After our
reorganization, we have increased the experience level in our trial bar
by over 20 percent from the previous year.
The Marine Corp's ``Special Victim Capability'' resides in the RTC
offices through the use of CTT. The CTT is assembled for a specific
case 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 is an experienced civilian sexual assault
prosecutor who 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, 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 other 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.
Our Reserve Judge Advocates, who are experienced criminal
prosecutors, are brought on active duty and made available to mentor
our active duty Judge Advocates either during training or on specific
cases. To ensure an adequate level of experience and supervision not
only at the headquarters level, but also in each LSSS, 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
supervisory military justice billets to require a Master of Laws degree
in Criminal Law.
the disposition decision
When NCIS completes its investigation, the commanding officer must
make a disposition decision. Essentially, the commanding officer must
decide if the case should go to court-martial or some lesser forum.
There are two important points to cover at this stage. First is the
type of commanding officer who is making this decision. Second is the
process the commanding officer uses to make his or her 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, I expanded this O-6 level 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.
My expansion of the scope of the SECDEF's withhold of IDA is
another example of the important role a commanding officer plays in
military justice. I felt it was important for good order and discipline
to make it clear to our marines that all types of nonconsensual sexual
behavior were worthy of a more senior and experienced commanding
officer's decision. I also made it clear that under no circumstance
could the SA-IDA forward a case down to a subordinate authority for
disposition.
Before discussing the procedures our SA-IDAs use to make the
initial disposition decision, I want to point out a specific Marine
Corps policy on collateral misconduct by an alleged victim (e.g.,
underage drinking). Marine SA-IDAs are encouraged to defer adjudication
of any alleged victim collateral misconduct until the more serious non-
consensual sex offenses are adjudicated. This policy is specifically
aimed at encouraging victim reporting and making the fairest decision
regarding collateral misconduct at the most appropriate time.
In accordance with Rule for Court-Martial (RCM) 306(c), the SA-IDA
for sexual assaults may dispose of charged or suspected offenses
through various means: ``Within the limits of the commanding officer's
authority, a commanding officer 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 Non-
Judicial 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 SJA. 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 commanding officer'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 commanding officer 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 commanding officer decides to proceed with charges against an
alleged offender, the commanding officer will file a request for legal
services with the LSSS that services the command.
the article 32 investigation
Before a case can go to a General Court-Martial, the commanding
officer 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 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 law and all rules on
privileges do apply.
Before deciding how to dispose of charges and allegations, the
convening authority again receives advice from his or her SJA and then
decides how to dispose of the charges and allegations. Prior to making
a disposition decision, Convening Authorities also take the victim's
preference into consideration. Victim advocates, SARCs, and the victim
can express preferences to the trial counsel, who will communicate
directly with the SJA and Convening Authority. If the commanding
officer decides to move forward, he or she may refer the charges to a
general court-martial or a lesser forum.
court-martial
Since the formation of our CTTs in October 2012, we have seen
significant improvements in our ability to successfully prosecute
Courts-Martial involving sexual assault offenses. After the first 6
months of our legal reorganization (October 2012-March 2013), we
compared court-martial disposition data against the same 6-month period
from the previous year (October 2011-March 2012). Here are our main
findings:
A 77 percent increase in the number of cases involving
sex offenses that went to court-martial (from 31 to 55). We
attribute that significant increase to three main things:
first, an improved investigative effort as a result of
improvements in NCIS' ability to investigate cases, along with
the force multiplying effect of our embedded investigators;
second, the dedication of increased prosecution resources to
complex cases; and three, increased reporting based on our
Campaign Plan efforts.
A 94 percent increase in the number of general courts-
martial in cases dealing with sexual assault offenses (from 19
to 37).
For General Courts-Martial involving sexual assault
offenses, an 89.5 percent overall conviction rate, with 62.5
percent of those convictions for sexual assault offenses. In
the 30 cases where there was a conviction for a sexual assault
offense, 90 percent of the sentences included a punitive
discharge. We also almost doubled the amount of sexual assault
convictions receiving confinement in excess of 5 years (from
28.5 percent to 44 percent).
Between the two 6-month periods, there was an 18-
percent increase in the conviction rate of charged sexual
assault offenses.
Overall, the initial data from our legal reorganization shows that
our CTTs are prosecuting more cases with better results. We expect this
trend to continue and will closely monitor the statistics to identify
any other relevant trends. This set of initial data also validates my
belief that a commanding officer-based system of military justice can
successfully prosecute complex cases if we are smart in how we dedicate
the appropriate investigative and prosecutorial resources.
My focus to this point has been on the prosecution function within
the Marine Corps. What must not be lost in our discussion of offender
accountability, is the primary goal of justice in our courtrooms. I
must ensure that each marine accused receives a constitutionally fair
trial that will withstand the scrutiny of appeal. To that end, in 2011
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 of the
Marine Corps. This change was designed to enhance the independence of
the Marine Corps DSO and the counsel assigned to it. The DSO also
established a Defense Counsel Assistance Program to provide assistance
and training to the DSO on sexual assault and other cases.
During the Court-Martial process, we take special care to ensure
that the rights and interests of victims are protected. The Military
Rules of Evidence (MRE) 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.
Marine prosecutors, paralegals and NCIS investigators, along with
full-time, professional, credentialed SARCs and Victim Advocates (VAs),
provide individualized support to inform and enable victims to
participate in the military justice process. The Marine Corps is in the
process of hiring 25 full-time credentialed SARCs and 22 full-time
credentialed VAs to augment the over 70 SARCs and 955 Uniformed and
civilian VAs presently in the field. Hiring and credentialing are on
track to be completed by October 2013.
post-trial--the convening authority's clemency power
On May 7, 2013, the Secretary of Defense submitted proposed
legislation to Congress that would modify the Convening Authorities
ability to take action on the findings and sentence of a court-martial
during the post-trial phase. Specifically, the legislation would limit
the commanding officer's ability to act on the findings of a court-
martial to a certain class of ``minor offenses,'' and also require a
written explanation for any action taken on the findings or the
sentence of a court-martial. I support exploring these proposed
modifications for two reasons.
First, I believe the proposed modifications are reasonable
adjustments to a specific phase of the court-martial process that has
changed significantly since its inception. The commanding officer's
broad authority under Article 60 was established during a time when the
key participants of the trial--the prosecutors, defense counsel, and
military judges--were not professional lawyers, and when there was not
a comprehensive system of appellate review. The professionalization of
our court-martial practice and the addition of multiple layers of
appellate review justify reducing the commanding officer's broad
authority to take action on the findings in cases not involving ``minor
offenses.'' I believe the Secretary of Defense's proposal properly
excludes the right class of cases that would be left to the appellate
review process for the correction of legal error and/or clemency.
Similarly, I believe that a commanding officer, based on his or her
specific needs for good order and discipline, should retain the ability
to take action on the findings of ``minor offenses'' identified in the
proposal.
Second, the proposal would improve the transparency of the military
justice system. When the commanding officer does believe it is
necessary to take action under Article 60, that action should be as
transparent and visible as every other aspect of the court-martial. The
proposed requirement for a written explanation for any Article 60
action ensures accountability and fairness and will preserve the trust
and confidence servicemembers and the public have in our military
justice system.
conclusion
I fully acknowledge that we have a problem and that we have much to
do. We must protect our greatest asset--the individual marine . . .
they are and will always be the strength of our Corps. That said, I am
determined to establish a culture that is intolerant of sexual
harassment and sexual assault, one that promotes mutual respect and
professionalism, and maintains combat readiness. I am determined to fix
this problem and will remain fully engaged in developing solutions
towards prevention efforts and maintaining our high standards of good
order and discipline.
Chairman Levin. Thank you very much, General Amos.
General Welsh.
STATEMENT OF GEN. MARK A. WELSH III, USAF, CHIEF OF STAFF OF
THE AIR FORCE; ACCOMPANIED BY LT. GEN. RICHARD C. HARDING,
JAGC, USAF, JUDGE ADVOCATE GENERAL OF THE U.S. AIR FORCE
General Welsh. Thank you, Chairman Levin, Ranking Member
Inhofe, members of the committee, for allowing us to be here
today together to address this very difficult, but critically
important topic.
Lieutenant General Harding and Chief Master Sergeant Cody
of the Air Force and I are privileged to join this group.
Mr. Chairman, may I offer, on behalf of this entire panel
and all of our men and women in the U.S. military, our
sympathies on the loss of Senator Lautenberg. I know many of
you were very close to him, and we are so very sorry for your
loss.
Chairman Levin. We thank you for that.
General Welsh. General Odierno described very well the
reporting process and the action process for response to a
sexual assault. The Air Force's process, Mr. Chairman, is
almost identical. I will associate myself with the remarks of
every Service Chief you have heard so far with the severity of
the problem and avoid some of the details and defer to my
written statement for that.
Mr. Chairman, I would like to say that sexual assault is a
crime, as the Commandant just said, and is unacceptable in any
of our Services. Moreover, I believe it undermines the mission
effectiveness of our great force. Everyone on this panel is
committed to doing whatever is necessary to ensure an
environment free from sexual harassment, disrespectful
treatment, and the crime of sexual assault.
Air Force leaders have worked hard to make sure our people
understand that it is every airman's responsibility to ensure
unit climates are free from harassment and disrespect, that
every airman is either part of the solution or part of the
problem, and that there is no middle ground.
That message starts with me, as does the accountability for
the solution. It is my responsibility to ensure that the Air
Force welcomes new airmen into a safe, respectful, and
professional environment, that new airmen are taught standards
of behavior, discipline, and respect for others, that unit
commanders and supervisors enforce and live by those same
standards, and if they do not, that they are held harshly
accountable.
That if sexual assault does occur, that victims are treated
with compassionate care, that they feel confident to report the
incident without fear of retaliation or reprisal, and that
alleged perpetrators are given a fair and impartial forum and
then firmly held accountable if proven guilty.
Nothing saddens me more than knowing that this cancer
exists in our ranks and that victimized airmen on what is
unquestionably the worst day of their life sometimes feel they
can't receive compassionate, capable support from our Air
force, or they don't trust us enough to ensure that justice is
done.
Clearly, it is time for thoughtful consideration of every
reasonable option. Like my fellow Service Chiefs, I believe the
576 panel gives us the option to look at the unintended
consequences, the second- and third-order effects of major
changes, and decide which ones make sense and which might not.
In the meantime, none of us will be standing still.
Commanders shouldn't just be part of the solution. They must be
part of the solution, or there will be no solution. That is the
way our systems operate.
I will tell you this. None of us are going to slow down in
this effort because we all feel the same about one thing. We
all love the people in our Service. All of us have families,
and we immediately relate to them every time we see a report of
this crime.
I have five sisters. I have a mother. They set my moral
compass on this issue. I have a daughter who is looking at
coming into the U.S. Air Force. I will not be tolerant of this
crime. None of us will.
Secretary Hagel said it clearly. Sexual harassment and
sexual assault are a profound betrayal of sacred oaths and
sacred trusts, and they must be stamped out of America's
military. I know that this hearing is about helping us do
exactly that, and I am grateful for your continued commitment
to this effort.
I look forward to the conversation.
[The prepared statement of General Welsh follows:]
Prepared Statement by Gen. Mark A. Welsh III, USAF
Sexual assault and unprofessional relationships are unacceptable,
they have no place in our Air Force, and their prevalence undermines
the mission effectiveness of our great Service. The U.S. Air Force
cannot and will not tolerate such behavior, and as I have done since
becoming Air Force Chief of Staff, I will continue to pursue an
organizational environment free from sexual harassment, disrespect, and
the crime of sexual assault.
As an Air Force, we have worked hard to disseminate the message
that it is every airman's responsibility to ensure unit climates are
free from harassment and disrespect. You are either part of the
solution or part of the problem; there is no neutral position. That
message starts at the top, and it is my responsibility to ensure that
the Air Force family welcomes new airmen into a safe, respectful, and
professional environment; that new airmen are taught standards of
behavior and discipline; that unit commanders enforce and live by those
standards; and that if sexual misconduct occurs, victims are treated
with compassionate care, they feel confident to report the incident
without fear of retaliation or reprisal, and that alleged perpetrators
are given a fair and impartial forum and held accountable if proven
guilty. Nothing saddens me more than knowing this cancer exists in our
ranks, and that victimized airmen, on possibly the worst day of their
lives, sometimes feel they cannot receive compassionate, capable
support from our Air Force. This is an issue I work every day to
remedy, primarily through those installation- and unit-level commanders
who are so critical to good military order, discipline, and morale, and
who must be personally involved in establishing the proper
organizational climate and character.
Since very early in my tenure as Air Force Chief of Staff, I have
emphasized this issue to multiple echelons of Air Force leadership, and
to our airmen themselves. Every Air Force four-star general received my
guidance during our CORONA Fall conference in early October 2012.
Secretary Donley, then-Chief Master Sergeant of the Air Force Roy, and
I issued a joint letter to airmen on November 15, 2012, expressing
clear and unambiguous direction to the force, urging them to become
personally involved in driving sexual misconduct from our ranks. We
brought all 164 Air Force wing commanders--those most influential in
shaping our Air Force environment and climate at the installation
level--to Washington on November 28, 2012, to receive not only my
personal perspective on this issue, but also to encourage meaningful
dialogue and explore significant policy options for the future.
Following the wing commander conference, installation leadership
conducted an Air Force-wide health and welfare inspection during the
first 2 weeks of December 2012 designed to eliminate environments
conducive to sexual harassment or unprofessional relationships, both
possible leading indicators of sexual misconduct. Over 32,000 findings
were reported by wing commanders at over 100 installations, with 85
percent of the findings comprised of ``inappropriate'' items like
unsuitable calendars and magazines displayed in public areas. About two
percent of the findings were pornographic in nature. All reported items
were removed, but more importantly, airmen and their commanders
received a clear message of non-tolerance for sexually-charged
environments.
I issued a January 2, 2013, ``CSAF Letter to Airmen'' reinforcing
the message that images, songs, stories, or so-called ``traditions''
that are obscene, vulgar, or that denigrate or fail to show proper
respect to all airmen, are not part of our heritage and will not be
accepted as part of our culture. They are not things we value, and they
ultimately degrade mission effectiveness and hurt unit morale.
Disrespectful, sexually-charged atmospheres foster a ``permissive
environment'' for sexual predators, allowing them to pursue their
criminal acts more easily. By reaffirming respect and professionalism
within workplace environments, we took an important step toward
eliminating environments conducive to sexual misconduct. We must
continue to aggressively pursue that goal.
We have made progress in the Basic Military Training (BMT)
environment as well. General Edward Rice, Commander of Air Education
and Training Command (AETC), has continued to investigate thoroughly
all allegations of misconduct, to hold perpetrators of misconduct
accountable, to care for victims of misconduct, and to fix the problems
that led to the misconduct. Providing a safe and professional training
environment to our Nation's sons and daughters who choose to become
airmen is a sacred responsibility. We have worked hard to restore the
trust of the American public while also honoring the selfless service
of the great majority of our military training instructors (MTIs) who
exemplify the highest adherence to our core values of Integrity,
Service, and Excellence.
The Air Force does not prejudge the accused--every airman under
investigation is presumed innocent until and unless proven guilty. The
Air Force has completed 19 courts-martial cases related to the BMT
investigation, with all but one resulting in a conviction.\1\ Three
MTIs received non-judicial punishment under Article 15 of the Uniform
Code of Military Justice (UCMJ) for violation of the AETC policy
against unprofessional relationships. The unprofessional relationships
were all consensual relationships with students in technical training
status: one involved social media contact only, one involved a non-
sexual relationship with a student, and the third involved a sexual
relationship with a student who had graduated from technical training.
There are eight more trials scheduled, and three other instructors are
under investigation.
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\1\ The case of the sole exception is still open as the Air Force
has appealed a judge's evidentiary ruling.
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We have identified and cared for a total of 63 trainees and
technical school students involved at Joint Base San Antonio-Lackland.
Twelve are victims of sexual assault, 40 were allegedly involved in an
unprofessional relationship with an instructor involving physical
contact, and 11 were allegedly involved in an unprofessional
relationship with an instructor involving no physical contact.\2\ The
vast majority of the misconduct allegations--51 of 63 affected trainees
and students--fall into the category of unlawful consensual
``unprofessional relationships'' as defined by AETC policy. All 63
airmen have been contacted and offered support from base agencies under
the Air Force's Sexual Assault Prevention and Response (SAPR) program,
as well as other support services such as legal assistance. Sixty-one
have accepted some level of Air Force support, including 11 who have
been assigned victim advocates at their request, and 24 who have
requested and been assigned Special Victims' Counsel (SVC). The Air
Force will continue to provide this support to all future victims
identified as a result of the ongoing BMT investigations. The mending
of the BMT environment at Lackland AFB has taken time, but due process
and the deliberative nature of an effective investigation required it.
I am grateful for the tremendous progress General Rice and his team
have achieved, and I am confident that the Air Force is firmly on the
path to restoring the high levels of professional conduct that we
demand of ourselves, that the BMT environment requires, that our
trainees deserve, and that the American people expect.
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\2\ Eight of the 11 unprofessional relationships not involving
physical contact were via social media and/or telephone only.
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sexual assault prevention and response in the air force
A 2010 Gallup survey revealed that since joining the Air Force, 19
percent of women and 2 percent of men experienced some degree of sexual
assault. For 3.4 percent of women and 0.5 percent of men, those
assaults had occurred in the 12 months preceding the survey. Of those,
only about 17 percent of the women and 6 percent of the men reported
the incident. We expect to conduct another Gallup study later this year
to gauge shifts from this baseline data. The Air Force recorded 614
reports of sexual assault in fiscal year 2011; in fiscal year 2012, the
figure rose about 29 percent to 790.\3\ These sexual assaults, as
reported in the fiscal year 2012 Department of Defense (DOD) Annual
Report on Sexual Assault in the Military, range from inappropriate
sexual touching to rape. Other figures suggest a strong tendency to
under-report, and even more disturbing is that within the Air Force,
fellow airmen commit the majority of these crimes--brothers- and
sisters-in-arms who should be protecting and looking out for one
another. Calling these numbers unacceptable does not do the victims
justice--in truth, these numbers are appalling!
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\3\ 449 unrestricted reports, 399 restricted reports, of which 58
converted to unrestricted.
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The 2010 and 2012 Workplace and Gender Relations surveys provide
insight as to why victims of sexual assault often do not report the
assault. Results from both years show that ``they did not want anyone
to know'' (70 percent); ``they felt uncomfortable making a report'' (66
percent); and ``they did not think their report would be kept
confidential'' (51 percent), are the top three barriers to reporting.
Victims of sexual misconduct often attach undeserved feelings of shame
to the incident that discourage them from sharing their experiences
with fellow airmen, family, or their chain-of-command. Some victims
fear reprisal or retaliation from the alleged perpetrator or their
friends or their chain of command, while others do not wish to re-live
the experience through the multiple ``retellings'' of the event that an
in-depth investigation requires. With minor offenses, airmen often feel
that the incident was not sufficiently egregious to merit a formal
report. Despite the existing tendency to under-report, I believe that
increased attention to this issue, educational efforts to ensure every
airman knows exactly what constitutes sexual assault in the military,
and generating trust in the many elements of the victim support
apparatus are part of the required solution going forward.
Once a victim does report, there are many avenues of support and
legal guidance available. The Air Force process, from initial incident
report through case disposition, is very similar to that of the other
military Services. A sexual assault victim may initiate either a
restricted or an unrestricted report of sexual assault. A victim may
only initiate a restricted report if they voice their initial claim to
a Sexual Assault Response Coordinator (SARC), a Victim Advocate (VA),
or a medical professional. For restricted reports, the victim's
identity and/or identifying information is not provided to anyone in
the supervisory chain or to law enforcement.
Once the victim makes his/her initial report to a SARC, VA, or
medical professional, the victim's reporting options are fully
explained and a personal victim advocate (VA) is appointed, if desired.
In the Air Force, SARCs are government civilians or officers, located
at every Air Force installation, with a full-time responsibility to
handle sexual assault response. Victim advocates are trained volunteers
who work with victims on a part-time basis.
If the victim's initial report is to a supervisor, commander, or
law enforcement official, the report must be initiated as an
unrestricted report, and must be investigated by law enforcement. If
the victim tells a friend who tells a supervisor, commander, or law
enforcement, this is considered an unrestricted report of sexual
assault and must be investigated by law enforcement. If law enforcement
responds to a scene involving allegations of sexual assault, the Air
Force Office of Special Investigations (AFOSI) is notified immediately,
and the base defense operations center will enter a sanitized entry
into the law enforcement blotter, a controlled document with very
limited distribution, that captures chronologically all security forces
activities. The blotter entry does not include personally-identifying
information for either the victim or the alleged offender, but it will
identify who was notified of the incident, particularly AFOSI and the
chains of command of all parties involved. AFOSI will notify the SARC,
who will then engage the victim to offer support. There is no
requirement for victims to report a sexual assault to their supervisor
or commander personally.
DOD regulations require the SARC to provide the installation
commander with information on unrestricted and restricted reports of
sexual assault within 24 hours,\4\ and all sexual assault reports, both
restricted or unrestricted, route through the installation SARC and the
vice wing commander to the installation command post within 48 hours of
notification. If the report is unrestricted, only the victim's duty
status (military or civilian) is included; if restricted, only the fact
that a report has been filed is forwarded. Installation command posts
forward operations reports up the chain of command, through their
respective major command commanders, to Air Force headquarters. These
reports are forwarded to me on a weekly basis. For unrestricted
reports, the victim's commander is notified as soon as possible, either
by the SARC, the unit first sergeant, or medical personnel. Upon
initiating an investigation, AFOSI also provides memoranda to the unit
commanders of all subjects involved, alerting them to the
investigation.
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\4\ DODI 6495.02, Enclosure 5, para. 3(g)(2).
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From the moment an alleged assault becomes known, the SARC informs
the victim of all available support services, including counseling, a
safe place to stay, access to a special victims' counsel (SVC) and the
confidentiality associated with sexual assault forensic examinations
(SAFEs). AFOSI will offer a victim a SAFE if circumstances warrant,
and, if conducted, accepts custody of the SAFE kit from the issuing
military treatment facility or local community hospital. The SARC
arranges a follow-up meeting with the victim the morning after any
alleged sexual assault.
AFOSI works closely with the prosecutors from the Staff Judge
Advocate's (SJA) office as they conduct and complete the investigation.
Commanders are required to provide victims who file unrestricted
reports monthly updates on the status of investigative, medical, legal,
or command proceedings until final disposition.\5\ The SARC, VA, and
SVC--if requested--maintain contact with the victim throughout the
investigation. AFOSI is not permitted to ``unfound'' an allegation of
sexual assault after an investigation. AFOSI must, in all cases,
provide their report to the alleged offender's commander for
disposition after every sexual assault investigation. The AFOSI reports
include a narrative of all of the investigation's steps, a description
of all the available evidence, and a copy of all witness statements.
SJAs use the same investigative report to provide commanders
appropriate disposition recommendations. Since recent Secretary of
Defense-directed legal reforms have withheld initial disposition
authority for sexual assault cases from commanders who are not a
special court-martial convening authority with the rank of at least O-6
(typically Air Force wing commanders), the squadron commander no longer
has the authority to issue initial disposition decisions. The squadron
commander, an O-4 or O-5 typically with 12 to 16 years of service, now
sends the case materials to the special court-martial convening
authority with his or her own disposition recommendation. If the
special court-martial convening authority accepts the recommendation,
he or she may elect to take action at their level, or they may return
the case to the squadron commander for disposition. If the special
court-martial convening authority disagrees with the recommendation, he
or she may still take action at their level, or forward the case to the
general court-martial convening authority for disposition. Throughout
the process, the legal office--through the victim and witness
assistance program--consults with the victim and obtains his or her
input on whether to prefer charges, or to accept the accused's
discharge or resignation in lieu of court-martial. In over 99 percent
of all Air Force cases where an SJA recommended a court-martial, the
convening authority's disposition decision followed the SJA advice.
Also, Air Force prosecution and conviction rates for sexual assault
have been very similar to national averages.\6\
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\5\ DODI 6495.02, Enclosure 5, para. 3(g)(2).
\6\ Rape, Abuse, and Incent National Network (RAINN) nationally-
tracked prosecution and conviction rates are 26 percent and 56 percent
respectively. Using the RAINN model to calculate the numbers, USAF
prosecution rates were 24 percent and conviction rates were 57 percent
for fiscal year 2012.
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Despite the progress we have made in the Air Force, more must be
done. The Air Force has partnered with the Office of the Secretary of
Defense (OSD) to conduct a top-to-bottom review of current SAPR
training requirements to determine their sufficiency and effectiveness.
Secretary Hagel has further directed that all Services re-train and re-
certify their respective SARCs and VAs, and the Air Force is in the
process of doing so. Furthermore, in accordance with the National
Defense Authorization Act for Fiscal Year 2012, all of our over 3,100
volunteer victim advocates have been informed of the certification
required to serve victims after October 1, 2013, and we are on track to
hire and place a full-time, fully certified victim advocate at every
installation by October 1, 2013.
In coordination with OSD, the Air Force has implemented a special
victims' capability comprised of investigators and attorneys equipped
with specialized training in sexual assault cases. This special victims
unit (SVU) possesses advanced training in sexual assault investigation
and litigation, and is qualified to handle the most difficult sexual
assault cases. Twenty-four AFOSI agents, whose sole purpose is to
investigate sexual assault crimes, serve in this capacity, and nine of
our most experienced senior trial counsel also contribute to the SVU.
All told, 48 AFOSI agents and 24 trial counsel have jointly attended
the Federal Law Enforcement Training Center's sex crimes investigation
training program this fiscal year. This summer, additional AFOSI agents
and trial counsel will attend an advanced sexual assault litigation
course at the Air Force JAG school.
In January, the Air Force also stood up the SVC program--separate
and distinct from SVU--as a pilot program for DOD. SVCs are providing
comprehensive and compassionate legal representation to victims, and in
a few short months the program has already made a profound difference
for our victims and our Air Force. To date,
these attorneys are zealously representing over 300 clients in
various stages of the investigatory and adjudicatory phases of their
cases. Feedback from those who have received SVC services has been very
positive and extremely encouraging. A report on the pilot program's
performance, due to OSD on November 1, 2013, will likely affirm these
initial impressions.
To sustain and capitalize upon this momentum, I directed a complete
review of manpower and resource requirements pertaining to the Air
Force SAPR program which identified a shortfall of 224 SARC, VA, and
SVC positions across the enterprise. We will work to fill those billets
immediately, prioritizing the installation-level first. We will also
continue to expedite base transfer requests for all Air Force sexual
assault victims. We approved all 46 expedited transfer requests over
the past year, to include both permanent change-of-station and local
installation reassignments.
Secretary Donley and I also recently approved realignment of the
SAPR office within the Air Force headquarters hierarchy. The expanded
office will be led by a General Officer reporting directly to the Vice
Chief of Staff of the Air Force. We will also infuse the office with a
significant increase in dedicated manpower and expertise, to include
recruiting outside experts in this field to advise and assist our
efforts as full-time teammates. The revised SAPR office will be better
equipped to execute our comprehensive approach to combating sexual
assault along five lines of effort: Personal Leadership, Climate and
Environment, Community Leadership, Victim Response, and Holding
Offenders Accountable.
ucmj and the commander
Since becoming the Air Force Chief of Staff, I have worked hard to
combat sexual assault within our ranks. I know our commanders and
supervisors truly care for their airmen, and appreciate the tremendous
sacrifices they and their families make every day in service to our
Nation. I recognize that the American people send the U.S. military
their very best to serve, and that we have been entrusted by the
families of every airman with the care of their sons and daughters. I
take this responsibility very seriously, and have shared my thoughts on
this subject with airmen at every level of our Air Force.
Airmen should have no doubt about who will hold them accountable
for mission performance and adherence to standards. Airmen expect their
commander to define the mission, ensure readiness, and hold accountable
other airmen who fail to meet their responsibilities or live up to our
standards of conduct. The commander must have both the responsibility
and the authority to address issues that affect the good order and
discipline of their unit. Military units reflect the character,
demeanor, and priorities of their commanders. Commanders having the
authority to hold airmen criminally accountable for misconduct in-
garrison is crucial to building combat-ready, disciplined units. In a
deployed environment, where lives are in immediate and proximate
danger, the importance of unit cohesion driven by a commander's ability
to maintain order, discipline, morale, and to hold airmen accountable
cannot be overstated.
There are many current legislative proposals that seek to alter the
UCMJ, some in significant ways. The UCMJ traces its roots to the 1775
Articles of War, with 238 years of proven history and combat
effectiveness behind it. During the intervening 238 years, this body of
law--with commanders serving in a ``gate-keeping'' role over courts-
martial--has ensured a well-disciplined military, one that has fought
the Nation's wars and defended national interests extremely well.
Bodies of law like the UCMJ can and should change over time, but any
changes should be conducted prudently, deliberatively, and with
thoughtful consideration of unintentional second- and third-order
effects.
Over the last 5 years, only 1 of 327 Air Force sexual assault
findings resulted in a complete reversal of court martial findings by
the convening authority with no follow-on disciplinary action--the
Wilkerson case--which has served as the catalyst for recent calls for
change. The current Article 60 \7\ legislative proposal from the
Secretary of Defense that places limits on commanders' authority to
overturn any conviction represents a thoughtful and significant step in
the right direction to limit commander authority appropriately.
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\7\ Action by the convening authority.
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I believe the decision to elevate court-martial initial disposition
authority for sexual assault cases to the O-6 level will also produce
significant results over time. The Air Force is already seeing
significantly higher referral rates for sexual assault cases during
fiscal year 2013 than in previous years. It will take time to assess
fully the success of these changes. But to truly turn the corner on
sexual assault, we must thoroughly consider every reasonable
alternative in our effort to find the set of ``game changers'' that
will lead to the elimination of this crime from our Air Force.
As we do so, it will be important for us to remember that
commanders are also the key to permanent organizational and
environmental change. From racial integration to the repeal of ``don't
ask, don't tell,'' unit commanders have been absolutely essential to
the acceptance of new policy and standards of conduct. The commander's
strong and effective role throughout unit climate shifts is crucial--
including the reaffirmation of environments free of sexual misconduct.
Changing views on respect and dignity does not happen overnight and it
requires consistent leadership focus. We must avoid creating an
environment where commanders are less accountable for what happens in
their individual units, stifling the very environmental shift we seek.
The U.S. military takes pride in its ``can-do'' attitude, and we have
led the way on a range of societal imperatives. We can, and will, do
the same on sexual assault. If we are serious about change, we must
reinforce to commanders that success depends on their sound judgment in
all matters involving good order and discipline, not separate them from
the problem.
summary
Secretary Hagel said it clearly--sexual harassment and sexual
assault in the military ``are a profound betrayal of sacred oaths and
sacred trusts; this scourge must be stamped out.'' \8\ The Air Force
has made steady progress in sexual assault response, but preventing the
crime itself remains the goal. Regardless of their background, once a
young man or woman becomes an airman, they are held to a higher
standard, as service in the most capable military in the world demands.
That unmatched capability requires adherence to a code of behavior that
exceeds societal norms. The unit commander is the most visible champion
and example of the norms we expect our people to meet, personifying
expectations of discipline daily with his or her airmen. Commanders
knit combat units into an effective fighting force, and airmen reflect
the character and values of their commander--commanders are the key to
promoting persistent, healthy environments of respect and dignity.
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\8\ Commencement address to 2013 graduating class at West Point,
May 25, 2013.
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We swear an oath to uphold and defend our Constitution, and we
willingly agree to lay down our lives in defense of the freedoms we all
cherish. About 1 percent of Americans volunteer to serve their Nation
in uniform, and as U.S. service men and women, we sacrifice a portion
of our personal freedoms to bond effectively as a cohesive member of
America's military team. Because of this, we must instill a climate of
respect in every Air Force unit, and into the mind of every airman.
Every airman must desire to do the right thing, to respect and look out
for fellow airmen, and to truly live by our core values of Integrity
First, Service Before Self, and Excellence in All We Do. No one who
truly lived those values would ever walk down a path that leads them to
commit this terrible crime.
Americans hold their military to a high standard, and rightly so.
Air Force leadership at every level has an obligation to protect and
strengthen the force, and to be worthy of the confidence of our airmen
and the Nation we serve. We have a duty to live by our core values and
to meet or exceed the high standards the American people expect of us.
As Secretary Donley has stated, ``this is family business,'' and as an
Air Force family, we must do a better job of caring for one another. I
will never stop spreading this message, and we will never slow down our
efforts to ensure that victims receive the best, most capable, and most
thoughtful care and advice possible. Until we succeed, I will do
everything in my power to eradicate sexual assault from the ranks of
the U.S. Air Force. Nothing else is acceptable.
Chairman Levin. Thank you very much, General Welsh.
Admiral Papp.
STATEMENT OF ADM ROBERT J. PAPP JR., USCG, COMMANDANT OF THE
COAST GUARD; ACCOMPANIED BY RADM FREDERICK J. KENNEY JR., USCG,
JUDGE ADVOCATE GENERAL OF THE U.S. COAST GUARD
Admiral Papp. Good morning, Chairman Levin, Ranking Member
Inhofe, and the distinguished members of the committee. I
appreciate the opportunity to testify before you this morning.
Sexual assault is a violent crime that devastates its
victim. It also destroys unit discipline. It erodes
cohesiveness, and it degrades our readiness. I am personally
committed to eliminating it from our Coast Guard.
We are making progress. New policies, enhanced training,
improved access to victim support services, and greater
reporting opportunities, including those outside the chain of
command, provide us with important tools to achieve our goal of
eliminating sexual assault from the Coast Guard. However, we
must and we will do more.
In a message last year to all my Coast Guard men and women,
I told the Service, ``We will intervene to prevent or halt
these acts when they are occurring. We will investigate and
discipline those who have violated law and service policy. We
will insist that all our shipmates live by our core values.
Most importantly, there are no bystanders in the Coast Guard.''
Recently, I followed this with a commander's intent message
that initiates our Service-wide campaign plan for eliminating
sexual assault from the Coast Guard. Yesterday, I briefed
Secretary Napolitano on our efforts. She directed me to ensure
that every member of the Coast Guard is clear regarding their
responsibility and to take whatever action is required to
eradicate sexual assault from our Service and to ensure that
victims receive immediate, compassionate, and complete support.
The Coast Guard system of reporting, investigation, and
prosecution of sexual assault cases is largely similar to the
Army's, as described by General Odierno. Details that are in
any way different are contained in my written statement.
This is, first and foremost, a leadership responsibility.
Every commander must create a culture that is intolerant of any
unwelcome sexual contact or the behaviors that enable it.
We have enhanced our training so that all hands recognize
indicators of this behavior and are prepared to intervene. We
must also demand command climates that allow victims to come
forward, knowing they will be protected and cared for without
fear of reprisal or stigma.
Prevention is the first and best option. However, when a
response is necessary, when this crime does occur, we will hold
those predators accountable.
The military justice system is a critical tool for doing
this. We give commanders great responsibility to act
independently and demanding in dangerous situations, and we
hold them accountable for the results.
I recognize the military justice system is not perfect, and
I welcome considered, well-reasoned improvements where they are
needed. However, I have serious concerns about legislation that
would fundamentally alter the role of commanders without full
consideration of the second- and third-order effects on command
authority and the ability to maintain unit discipline.
Stopping sexual assault is also the duty of each and every
individual. As I said before, there can be no bystanders. Every
Coast Guardsman must take ownership of this problem and be
intolerant of any action that minimizes the significance of
this crime.
If they see it occurring, they must take action to
intervene, prevent, or halt it, and then, most importantly,
report it. Failure to help a shipmate in those circumstances
demonstrates a lack of courage that is contrary to our core
values. I expect every Coast Guardsman will display the same
courage in those circumstances as they would while rescuing
someone in peril on the sea.
I look forward to working with this committee to eradicate
this crime from our midst, and I look forward to your
questions.
[The prepared statement of Admiral Papp follows:]
Prepared Statement by ADM Robert J. Papp, USN
Good afternoon Chairman Levin, Ranking Member Inhofe, and
distinguished members of the committee. Thank you for the opportunity
to testify before this committee about the Coast Guard's commitment to
eliminate sexual assault from our Service.
The violent crime of sexual assault plagues our society; it is
unacceptable in any place. However in the military it is especially
repugnant because it breaks the sacred bond of trust between
servicemembers that is vital to readiness and our Nation's security. We
will not tolerate the crime of sexual assault in the Coast Guard.
To execute our missions, all Coast Guard personnel must be bound by
trust and mutual respect for one another. The crime of sexual assault
not only damages the victim, it undermines morale, degrades readiness
and damages mission performance. It is a deliberate act that violates
law, policy and our Core Values of Honor, Respect, and Devotion to
Duty.
We have made progress in improving our ability to prevent and
respond to sexual assaults in the Coast Guard. New policies, enhanced
training, improved access to victim support services, and greater
communications provide us with important tools to achieve our goal of
eliminating sexual assault from the Coast Guard. Despite some progress,
we must and will do more to combat sexual assault.
As I told Coast Guard men and women worldwide a little over a year
ago: ``We will intervene to prevent or halt these acts when they are
occurring. We will investigate and discipline those who have violated
law and service policy. We will insist that all of our Shipmates live
by our Core Values. Let me be clear, there are no bystanders in the
Coast Guard. Respect for our Shipmates demands that each of us have the
courage to take immediate action to prevent or stop these incidents.''
Sexual assault prevention and response encompasses more than policy
statements and more than check-the-box training--it must be an
extension of each servicemember's ethos, inculcated into our everyday
planning, training, and operations. An operating environment free from
threat of sexual assault must be part of our culture.
sexual assault prevention and response policies and programs
The Coast Guard has strengthened policies and tools to combat
sexual assault over the past several years. We will continue to improve
our programs and services. The Coast Guard has previously provided a
summation to this committee on our Sexual Assault Prevention and
Response (SAPR) Program initiatives. To recap the program:
As early as 2002, Coast Guard policy required commands to report
any allegations of rape or sexual assault to the Coast Guard
Investigative Service (CGIS) for investigation. 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.
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 SAPR
Program. The Vice Commandant approved the thirty nine recommendations
from the Working Groups on January 31, 2013.
One of the most significant recommendations, the establishment of a
Flag level Sexual Assault Prevention Council (SAP-C), has already been
implemented, with the Deputy Commandant for Mission Support hosting the
inaugural meeting on February 27, 2013. The SAP-C is a standing body
chaired by a Vice Admiral and comprised of subject matter specialists
designed to oversee the implementation of the Task Force
recommendations; consider & 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. Since this initial
meeting, the SAP-C has formed three working groups, assigning the
implementation of the Task Force's recommendations to each on an
aggressive schedule.
Other recommendations from the Task Force include providing Victim
Advocates to improve access to 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''.
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 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 that a comprehensive inter-disciplinary approach
toward managing the victim's safety and support is in place, and that
the investigation begins immediately.
Also noteworthy within the last year was the creation and roll-out
of the Coast Guard's bystander intervention training program known as
the ``Sexual Assault Prevention Workshop''. 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 forty-eight 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 Guardsmen 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 & leadership courses
in the Coast Guard, and we have significantly expanded the number of
trained Victim Advocates across the Coast Guard, resulting in
approximately 800 new Victim Advocates in the last few years.
In April 2013, in observance of Sexual Assault Awareness Month
(SAAM), I directed all Commanders, Commanding Officers, Officers-in-
Charge, Deputy and assistant Commandants, and Chiefs of Headquarters
staff elements to conduct a unit all-hands SAAM discussion. A
standardized training toolkit was developed and featured videos from
the Master Chief Petty Officer of the Coast Guard and me offering
personal messages on the imperative to focus efforts on preventing
sexual assault. Additionally, the toolkit provided a training film and
a script to facilitate open, frank, and productive unit-level
discussion about sexual assault prevention and response.
In May 2013, a SAPR Military Campaign Office was created under the
Deputy Commandant for Mission Support to orchestrate execution of the
SAPR Strategic Plan and to manage strategic communications. A Captain
(O-6) has been assigned as the full-time lead and a support staff has
also been assigned, including a Commander (O-5) as a Coast Guard
Liaison to DOD's Sexual Assault Prevention and Response Office. This
will optimize alignment between DOD and the Coast Guard with Strategic
Plan implementation.
Most recently, I issued my Commander's Intent launching a service
wide ``Campaign to Eliminate Sexual Assault from Our Coast Guard'' on
May 26, 2013. In this mandate, I make clear to everyone in the Coast
Guard, including Active, Reserve, civilian, and auxiliary, my
expectation to create a culture intolerant of sexual assault. This
includes stopping sexual assault by recognizing indicators of predicate
behavior and ensuring all personnel know they are empowered to
intervene. We will also improve the availability and quality of
response resources; improve reporting, investigative, and military
justice processes; and enhance victim aftercare.
In addition to specific SAPR programs and policy, the Coast Guard
has worked to continually improve the administration of military
justice and build our special victims' advocacy capability. In
coordination with the Joint Service Committee on Military Justice, we
are examining methods to incorporate the rights afforded to victims
through the Crime Victims' Rights Act into military justice practice.
We are also developing a Special Victim Counsel program to ensure that
victims of sexual assault are provided the advice and assistance they
need to understand their rights and feel empowered in the military
justice system.
reporting options and processing of sexual assault crimes
Turning to the military justice system, I would like to discuss the
process of how an allegation of sexual assault is reported,
investigated, preferred (charged), and tried within the Coast Guard.
A victim of sexual assault in the Coast Guard can elect to make a
restricted or unrestricted report. Once any urgent medical treatment
for the victim is provided, the Sexual Assault Response Coordinator
(SARC), Victim Advocate, Health Care Provider, or Family Advocacy
Specialist will advise the victim of the two reporting options,
explaining the benefits and limitations of each, and document the
reporting option the victim selects.
Ultimately, the decision to make a restricted or unrestricted
report is the victim's choice. The victim's decision on which report to
make affects the processing of the case.
Under the restricted reporting option, the victim notifies only
certain authorized individuals, including a Victim Advocate, Family
Advocacy Specialist, or Health Care Provider, about the incident. The
report is ``restricted'' because the allegation is not to be reported
to the chain of command and the victim's identity and all information
about the allegation is protected. The victim receives advocacy,
medical treatment, and counseling but a formal investigation is not
triggered. The authorized individual who receives the restricted report
will notify the appropriate Sexual Assault Response Coordinator.
SARCs are strategically located in each Coast Guard District and
the Coast Guard Academy. The SARC will assign a victim advocate if
requested by the victim, and will track the case. Any evidence
collected by the victim or victim advocate is sent to CGIS, but it is
not processed and no attempt is made by CGIS to identify the victim. If
forensic evidence is collected as part of a restricted report, current
policy requires that it be retained for at least 1 year. If the victim
chooses at any time to make an unrestricted report, CGIS will then
process the evidence and begin an investigation. The chain of command
is not notified of the restricted report, and will not be notified
unless the victim ultimately decides to make an unrestricted report.
Chaplains are also permitted to receive restricted reports.
However, unlike other personnel authorized to receive a restricted
report, a Chaplain is not obligated to notify the SARC or track the
reports made. The chaplain may facilitate contact between the victim
and any necessary advocacy services.
Under the unrestricted reporting option, the victim makes an
unrestricted report when he or she notifies his or her command, CGIS,
or any servicemember who is not authorized to receive restricted
reports about the incident. The victim may notify his or her supervisor
or commanding officer; however, the victim does not have to notify his
or her chain of command directly. The victim may notify a SARC, Victim
Advocate, CGIS, Chaplain, local law enforcement, or an attorney in the
legal office. These entities will then notify the victim's unit
commander, the alleged offender's unit commander, or another
appropriate authority in the chains of command. The SARCs and the
Victim Advocates receive training on what to do with an unrestricted
report if the victim identifies the unit commander as the alleged
perpetrator.
After the unit commander has received a report, he or she will
notify CGIS and the SARC, if they have not already been informed. Upon
notification of an alleged sexual assault, CGIS prepares a notice of
case initiation (NOCI) report, detailing the allegations made, location
of the incident, status and identification of the victim and
perpetrator, units assigned, and known or potential witnesses. This
NOCI report is transmitted to CGIS Headquarters, where a case dossier
is created for investigative tracking, data collection, and for use in
notifying senior Coast Guard leaders. It serves as notice within CGIS
that an alleged sexual offense has been committed and that a formal
criminal investigation has been initiated. Only personnel within CGIS
have access to the information contained in the NOCI report. CGIS will
notify the appropriate command cadre of both the victim and the
perpetrator upon initiation of an investigation to ensure that no
action is taken by the command without CGIS visibility and concurrence.
Only CGIS is authorized to conduct a formal criminal investigation.
Command cadre and other parties are prohibited from conducting any
investigative activity into allegations of sexual assault. There are no
longer any command-level investigations into allegations of sexual
offenses. CGIS will notify the servicing legal office that an
investigation into a sexual offense has been initiated. CGIS and the
legal office work closely to ensure the various elements of the offense
under investigation are thoroughly addressed and that all victim and
witness rights are preserved. CGIS investigative efforts include, to
the extent possible within the application of the military justice
system and the rules of evidence, an interview of the victim, alleged
offender, and all necessary witnesses; collection of physical and
documentary evidence; collection of testimonial evidence; and forensic
analysis of the evidence collected. The command does not have an active
role in the investigation, except to make witnesses available for
interview by CGIS agents and to provide any additional support
requested by CGIS.
Although the command does not play an active role in the
investigation, it does play a critical role in providing care to the
victim. The victim's unit commander is responsible for, among other
things, ensuring the physical safety of the victim, advising the victim
of his or her options for medical assistance, ensuring the victim
understands the availability and benefits of victim advocacy,
determining whether the victim needs to request a military protective
order, and facilitating the need for temporary or permanent
reassignment to another unit, duty location, or living quarters. A full
list of the unit commander's obligations is located in the Sexual
Assault Prevention and Response Program Instruction (COMDTINST
M1754.10D).
The alleged offender's unit commander also has obligations during
the investigation. He or she must ensure that CGIS has been notified,
limit the dissemination of pertinent information to only those
personnel with a need to know, ensure procedures are in place to inform
the alleged offender about the investigative and legal processes,
provide for counseling for the alleged offender, and monitor the
general well-being of the alleged offender, especially for any
indications of suicide ideation.
Unit commanders also have an obligation to emphasize that the
alleged offender is presumed innocent until proven guilty, advise those
with knowledge to fully cooperate with the investigation, and determine
whether additional counseling or training is required for the unit.
After CGIS has pursued all logical leads, the agents prepare a
final report detailing the investigative effort and results. CGIS does
not ``substantiate'' or ``unsubstantiate'' the allegations. Instead,
CGIS mandate is to develop investigatory facts. A copy of the report is
provided to the command responsible for determining any adjudicative
action and to the servicing legal office. In accordance with my
service-wide order issued in June 2012, only those officers who have
special court-martial convening authority, have achieved the grade of
at least O-6 (Captain), and have a dedicated staff judge advocate
assigned may dispose of allegations of sexual misconduct, which
includes any allegation of rape, sexual assault, aggravated sexual
contact, abusive sexual contact, forcible sodomy, and attempts to
commit such offenses. Because of the current organizational structure
of the Coast Guard, in most cases the initial disposition decision is
made by a flag officer. Only these commanders may make the decision to
refer the case to court-martial, to impose non-judicial punishment, to
take adverse administrative action, or to take no further action in the
case. The commander must consult with the assigned staff judge advocate
before making any decision in the case, including the decision to take
no action. If no action is taken, the commander must document that
decision in writing after consultation with his or her staff judge
advocate.
If charges are preferred, the case data is entered into the Coast
Guard Law Manager system, where it can be tracked by the local legal
servicing office and the Office of the Judge Advocate General. Trial
Counsel (prosecutor) and Defense Counsel are then assigned. Only
experienced trial attorneys are assigned as lead counsel in sexual
assault cases.
Under this process, a victim of sexual assault has options. They
can make a restricted or an unrestricted report. They can decide to
whom they want to report. Most significantly, the victim has options
other than reporting a sexual assault directly to the command. However,
once reported, a commander has a critical role not only in the safety
and in well-being of the victim, but also a central role in the
administration of justice.
military justice process and legislative improvements
The administration of justice within the military has been
subjected to increased scrutiny in the last few years, in particular
the role of the commander. That criticism is not entirely unjustified,
and the military has not ignored those critiques. As an institution,
the Armed Forces have continuously strived to improve its system of
justice. History has shown that the modern military justice system has
evolved in efforts to make constructive changes. From the enactment of
the Uniform Code of Military Justice in 1950, to the Military Justice
Acts of 1968 and 1983, to the implementation of rules of procedure and
evidence, the military justice system has not remained a static legal
regime. Moreover, the Services themselves have helped shape changes to
the UCMJ and Manual for Courts-Martial through the Joint Service
Committee on Military Justice. The Coast Guard has embraced those
changes.
The modern 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 arguably one of the best, most fair, and just systems in the
world. However, the argument for the status quo should not be because
it is the status quo. While the system works well, it is not perfect.
There should be, and there is, a never-ending quest to improve it. Our
current system of military justice is worthy of robust examination and
debate. It is important that serious thought go into what in the UCMJ
should be changed and how that change should be accomplished. As
Service Chief, I am committed to changing our organizational culture. I
am concerned that dramatically changing our system of justice at the
same time could impede those cultural changes.
With that said, a core tenet of the military justice system is the
central role commanders play in the administration of military justice.
Military justice, unlike the civilian criminal system, has a dual role
of seeking justice and enforcing discipline. This reflects the notion
that commanders are in charge of their units, not lawyers or other
officials. Any changes to the military justice system should not
needlessly undermine commanders' ability to maintain good order and
discipline. While the Coast Guard shares the goal of improving the
system of justice within the military, it generally opposes legislation
that would fundamentally alter the role of commanders in a piece-meal
fashion without a full appreciation for the second- and third-order
effects on the unit discipline and command authority.
With these two aims in mind, the National Defense Authorization Act
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. Congress legislated a clear mandate that these panels
assess ``legislative initiatives to modify the current role of
commanders in the administration of military justice and the
investigation, prosecution, and adjudication of adult sexual assault
crimes.'' This deliberate and thoughtful study is an appropriate method
to consider possible changes to the UCMJ.
closing
Since 1790, the Coast Guard has been standing the watch and
protecting America's national interests against all manner of maritime
threats. The success of our operations has always depended on both
Prevention and Response. However, our first priority is always to
prevent an incident from occurring. Whether it's a vessel casualty, a
pollution incident, disruption of traffic into our ports, or the flow
of illegal drugs and migrants, we have always believed it is better to
prevent an incident from occurring than respond to it afterwards.
However, should an incident occur, no one is better at responding
than Coast Guard men and women. We rescue those in distress, enforce
the laws, and fight for our Nation and our people. It is what we do.
The same must be true of our efforts to eliminate sexual assault
from our Service.
As the President has said, there is ``no silver bullet'' to solving
the blight of sexual assault within our ranks. But we will continue our
efforts until every victim feels confident in the ability to report
sexual assault; every servicemember feels a duty to intervene and
protect; every leader is focused on a command climate intolerant of
sexual assault; and every crime is vigorously investigated and
prosecuted, and justice is done. We will continue until sexual
predators are driven from our Service.
Our goal is simple--to eliminate the crime of sexual assault from
our Service and ensure that no Coast Guard man or woman ever needs to
fear the crime of sexual assault from a shipmate.
Chairman Levin. Thank you very much, Admiral.
We are going to have a 6-minute round of questions.
Under the current law, both the initial disposition
authority for a case--that is the official who decides whether
to proceed to court-martial or to seek lesser punishment--and
the convening authority--that is the official who appoints the
military judge and other members for a trial by court-martial--
both are part of a chain of command.
That means that the chain of command has ultimate
responsibility for addressing misconduct in the ranks,
including steps to address command climate that contributes to
misconduct, steps to protect the victims of misconduct, and to
ensure appropriate punishment for the perpetrators.
Let me start, General Dempsey, with you. If the UCMJ were
amended to reduce the commander's discipline authority by
taking away his or her power to refer a case for trial by
court-martial or by taking away the power to impose nonjudicial
punishment, what impact would that have on a commander's
authority and control over those who are under his or her
command?
General Dempsey. Well, in general terms, Mr. Chairman, as
one of the chiefs said, we hold the commander responsible for
everything the unit does or fails to do on or off duty, and
whether in CONUS or deployed in an expeditionary contingency
plan. That kind of responsibility is best served by authority
that aligns with it.
So, if you have heard each of us suggest that the role of
the commander is central in solving this problem, it is because
we believe that the role of the commander is essential to any
change, any positive change we will be able to make on this
issue.
Chairman Levin. General Odierno, is there a relationship
between the commander's authority to take action against a
member of the Armed Forces and the commander's power to address
problems of climate and culture, whether on the issue of sexual
assault or with regard to other serious offenses, such as
barracks larceny, for instance?
General Odierno. A commander sets the tone for all that
goes on inside of a unit, and he must have the ability to
quickly, visibly, and locally administer justice so soldiers
understand that the commander will ensure that the climate that
they operate in is important. It is also important that we have
these capabilities as you are deployed, that we can export this
capability.
As somebody mentioned, I think you mentioned, 800 courts-
martial were conducted in Iraq and Afghanistan by the Army, and
several other cases of nonjudicial punishment. In some cases,
this impacted not only our forces discipline, but the Iraqis or
Afghans that were involved in the incidents that they saw, that
we were able to do it right there, bring them as witnesses and
prosecute the soldiers, which helped them to understand that we
were holding people accountable as well. That is an example of
the kind of thing that our commanders are willing and have to
do.
One other vignette I would just give you is there are cases
in the Army, say, you have a soldier in a barracks who has--
sometimes we have soldiers who decide they give up. So they
refuse to report to formation. They conduct barracks larcenies.
They start doing significant amount of drugs in the barracks.
It is incumbent on the commanders and the chain of command to
ensure they do not tolerate this.
If we had to give that to an independent authority in order
to solve that problem, in my mind, that takes away the power of
the commander to set a standard that would say I am responsible
for the health and welfare of this unit. I am responsible for
the discipline of this unit, and I will take charge of this
discipline whether it is here, overseas, or anywhere to ensure
that we can operate in a cohesive way. Unit cohesion is the key
term.
Chairman Levin. It has been frequently said in many op-eds
and editorials that the only option now available to a victim
of sexual assault is to report to his or her chain of command.
In other words, the only option is to report to the commander
of his or her unit, to your boss. It is pointed out how absurd
it would be to require somebody to report to his or her boss
if, in fact, that person has no confidence in his or her boss,
if that is the case.
Now, General Odierno, you have said, and I believe a number
of you have said that there are many, many options that a
victim of sexual assault has for reporting an offense, and you
enumerated them. Reporting to a sexual assault coordinator,
sexual assault victim advocate, healthcare professional,
military police, local police, appropriate criminal
investigative command, DOD Inspector General, DOD hotline,
Judge Advocate General (JAG), or anyone in the chain of
command, including that person's own commander, should he or
she make that decision.
I believe, Admiral, you indicated that every person in your
Service has been informed of those opportunities, those options
to report an assault, that they are not limited to report to
their own commander. General, is that true in the Army, and
more importantly, do the men and women in the Army, are they
informed of all these various options to report an assault or
other sexual offense or any other offense?
General Odierno. Several years ago, we began training this,
starting in basic training. So within the first 2 weeks that
you become a member of the Army in basic training, you are
given the basic information about who you can report to for,
specifically, sexual assault offenses. It begins from the time
you come into the Army to the time you progress through the
Army.
I would say one caveat to that, which I think is that they
all--when they understand they can report, the next step for us
is to ensure when they do report, even if it is outside the
chain of command, that they are not retaliated against by the
chain of command. So, that is the second step to this process.
There are many ways for them to report. They are trained to
do it, and then it is up to us to make sure that within the
chain of command there is no retaliation or consequences, no
matter how you report. We are working on that very carefully as
well.
Chairman Levin. I just want to ask all of the other
Services here, are the men and women in your Service notified
that they have the option to report a sexual offense against
them in numerous ways? They are not just--they are not required
at all to report to their commander?
Starting with you, General, let me ask all of you. Any of
you disagree with that? Because we have to have that real
clear. There has been a big misunderstanding about this
question of having to report to your commander.
In any of your Services, must a victim report an offense to
their commander, or are these other options available? So just
give me yes or no. Yes, the other options are available in each
of your Services, and men and women are so informed.
Admiral, you have already answered the question. General?
General Welsh. Mr. Chairman, the options are available, and
they are informed.
Chairman Levin. They are informed. General, I assume that
is the policy for all the Services. General, you have already
answered, General Odierno. General Amos?
General Amos. Mr. Chairman, it is exactly the same, and I
would add one more thing that we all have is the thing called a
uniformed victim advocate. Those are actual young men and women
that are probably their same rank that are in these units whose
pictures are up on the bulkheads. So it is a lot easier to go
to a contemporary. They are trained 40 hours of training.
So the answer is yes.
Chairman Levin. Admiral?
Admiral Papp. The same within the Coast Guard, sir.
Chairman Levin. Thanks very much.
Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
I think it is very appropriate that the Defense Legal
Policy Board report on military justice in combat zones came
out just last week. I quoted in my opening statement a rather
long part of that. The two-sentence synopsis would be, ``The
military justice system is a definitive commanders' tool to
preserve good order and discipline, and nowhere is this more
important than in a combat zone. A breakdown of good order and
discipline while deployed can have devastating results on
mission effectiveness.''
Does anyone disagree with that statement? [No response.]
All right. If you agree with that statement, General
Odierno, why don't you give us just an example of how stripping
this authority from the commanders affects his or her ability
for maintaining good order and discipline or mission
effectiveness, and why?
General Odierno. Well, first off, again, as I said earlier,
it is about quickly, visibly, and locally taking action that
very quickly makes sure that the unit and other soldiers
involved understand that this will not be tolerated. It also
ensures them that action will be taken immediately.
If we can't do it forward in theater, then it would delay
action. Potentially, we would have a problem with witnesses,
and so it would cause us not to have something done quickly,
very visibly, and locally. So, in my opinion, it is about,
again, continuing to have unit cohesion in a forward operating
capability that allows our soldiers to continue to perform
their mission under very difficult conditions.
Senator Inhofe. That is very good. In reading the Defense
Legal Policy Board's report, it quotes most of you on this
panel. Secretary McHugh stated in this report, ``The Services
are consistent in their position that initial and final
disposition authority should reside in the commanders, as is
currently the case.''
He is not here today, but General Harding, you are. You are
quoted in here as saying, ``Creating artificial distinctions
between offenses should not supplant a commander's case-by-case
evaluation of an alleged offense.''
Is that an accurate statement today?
General Harding. Yes, sir. It is.
Senator Inhofe. Tell me why.
General Harding. I believe that after 34 years of practice
of law in the military that what I have observed is that
commanders are enhanced, their ability to exercise command and
control, their ability to discipline their forces is enhanced
by holding every member of their command appropriately
accountable.
Senator Inhofe. Very good.
General Ary, in January 2012, you stated, ``In a combat
environment, noncompliance with rules and undisciplined
operations cost lives and negatively impacts the mission.''
Do you still believe that the commander must maintain the
central and permanent role, as you did a year and a half ago?
General Ary. Yes, sir. I do. In fact, I would say whether
it is an enemy on a battlefield or sexual assault in the
barracks, good order and discipline is just as important.
Senator Inhofe. General Amos, do you agree with that?
General Amos. Yes, Senator. Absolutely.
Senator Inhofe. He has said that an undisciplined operation
costs lives. Could either one of you give us an example of how
that could cost lives?
General Amos. Senator, we have had a couple of occasions
several years ago in Afghanistan where we had one or two
marines that were not paying attention to business, falling
asleep on duty, falling asleep on watch. As a result of this,
the battalion commander and the company commander had to do
something about it.
Marines' lives were at risk. There was a nonjudicial
punishment in those cases and in one case court-martial that
ended up as a result of this. So the behavior forward deployed
in combat absolutely is critical and could cost lives.
Senator Inhofe. Thank you, General Amos.
Yesterday, I talked about the 10 provisions that were in
the NDAA for Fiscal Year 2013 that were the programs on sexual
assaults. Can anyone here give me a status as to what has been
done on those 10 recommendations that were in the NDAA for
Fiscal Year 2013? [Pause.]
General Ary. Well, sir, it is a long list. But I think one
of the big game-changers here is going to be the hiring of
those certified, credentialed victim advocates. I think we all
recognize that our victims need an advocate that is effective,
and we think that those will be a supporting effort for the
uniformed victim advocates.
Also the SARCs. Getting them online is going to be big, and
we are in the process of hiring them right now.
Senator Inhofe. Okay. What I am trying to get at here is
those are 10 specific things, and I assume you are all aware of
those and are working on it. I see nods to the affirmative.
Lastly, General Welsh, the Air Force currently has a pilot
program for a special victims' counsel. What is the current
status of that?
General Welsh. Sir, the program began in January. It was
planned to run for 1 year, but we plan to give a report to the
Secretary of Defense no later than November 1 of this year. We
have so far had 318 victims apply for support through the
special victims' counsel.
We currently have 60 special victims' counsel who are fully
trained to do this work. They are today supporting 282 victims
in various ways, including many all the way through court-
martial and final adjudication of their cases.
Feedback from the victims has been very, very positive. We
believe the program is working very well for us. We are excited
about where it is going.
Senator Inhofe. General Welsh, this is an Air Force pilot
program. Would you recommend this for the other Services?
General Welsh. Sir, the results we are seeing are very
positive. I am going to recommend to my Secretary that we
continue the program.
Senator Inhofe. Very good, sir.
General Welsh. There are resource issues associated with
it, each Service will have to look at separately, but it has
been a very, very good program.
Senator Inhofe. Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator Inhofe.
Senator Reed.
Senator Reed. Thank you, Mr. Chairman.
This issue goes to the heart of our military forces, our
national security. All the talent and the billions of dollars
of technology won't make a difference if soldiers--and I will
use the term generically--don't trust their fellow soldiers,
and certainly if they don't trust their commanders. The essence
of the military is that soldiers protect, not exploit, their
comrades, and commanders particularly protect and not exploit
their commanders.
Having said that, General Odierno, to your knowledge, has
the Army relieved a commander who has tolerated an
inappropriate environment with respect to sexual abuse?
General Odierno. Senator, in the last 4 years, we have
relieved 57 commanders, 14 brigade and 43 battalion commanders,
and about half of those for command climate. About half of
those cases were specifically related to their ability to
execute sexual assault and other issues associated with command
climate and toxic leadership.
Senator Reed. Is this an explicit criteria or criterion,
rather, for promotion board consideration for particularly
senior ranks?
General Odierno. I would say toxic climates as a whole,
which include sexual harassment, are absolutely assessed and a
requirement for any type of promotion or job of senior--for any
senior members. If you ask me specifically is sexual harassment
on there, on our efficiency reports, we don't specifically
mention sexual harassment, but we talk about command climate,
which sexual harassment is a subset of.
Senator Reed. It may be well to consider making that much
more explicit not only in terms of relief, but in terms of
evaluation and in terms of promotion because if you want the
chain of command to be--have the authority that it has today,
then it has to be extraordinarily responsible to this specific
issue and not to general climate issues. That is my opinion,
for what it is worth.
Admiral Greenert, can you answer the same question?
Admiral Greenert. Yes, sir. The command climate is an
explicit part of an officer's fitness report. Command climate
of a unit by a unit commander is evaluated by the immediate
senior in command, and that is reported to our type commander.
So by virtue of those reports and the synopsis in the
report of fitness at a promotion board, the command climate is
evaluated by the promotion board. It is an explicit part of an
officer's evaluation.
Senator Reed. With respect to relief, have you relieved a
commander because of the--specifically, not generically,
because of bad climate? Specifically because of the failure to
respond to sexual abuse in his command or her command?
Admiral Greenert. Not explicitly due to sexual abuse within
a command. However, those--a few who have been removed due to
poor command climate, when, unfortunately, after the fact, what
we are seeing now, we have found that it is an attribute.
Senator Reed. General Welsh?
General Welsh. Senator, during my tenure, we have not
removed a commander explicitly for climate of sexual assault or
sexual harassment. We have removed commanders for command
climate, but I don't know of one specific to that in the past.
They are clearly held accountable as far as command
performance reports based on their ability to lead and
influence their people. This is a major part of that. Maybe
equally as important I think are commanders in the field, and
for us at the wing commander level especially, need to fully
understand how the Air Force and I feel about this topic and
about how it will affect their future opportunities.
I called all of them to DC last--at the end of last year,
late November, early November, and made it real clear to them.
I haven't talked to Colonel Jeannie M. Leavitt--a witness on
panel II--about this, but in the second panel today is one of
my wing commanders. I believe she can tell you what I expect
from her in this regard, and I think that is important. We have
all done that.
Senator Reed. General Amos?
General Amos. Senator, to the best of my knowledge, since I
have been the Commandant for 2\1/2\ years, I don't believe we
have relieved anybody from command for having a climate of
sexual assault or sexual harassment.
That said, there is an expectation for each of our
commanding officers to set the conditions, the climate, in his
or her organization that not only does all the combat stuff--
equipment, the training, and the personnel readiness--but also
sets the environment such that young marines who are in that
unit are comfortable. They are confident in their leadership.
Last month, I signed a policy letter out to every single
commanding officer. We have already briefed it. It is
instituted now. Every commanding officer will take--the whole
unit will take a command climate survey. We just finished it,
34 questions. At least five of those deal with sexual assault,
sexual harassment, confidence in the leadership to be able to
protect and take care of the interests of the young marine.
That command climate survey will be done at the beginning
of every single commander's term within the first 30 days and
annually at that point. Those results will go to the next
higher command.
So a commander is responsible for everything else, clearly
responsible for command climate, Senator. My expectations are
we will probably see more of this in the future.
Senator Reed. Admiral Papp, my remaining time, please?
Admiral Papp. Thank you, sir.
We average probably about a dozen reliefs for cause each
year, primarily due to command climate issues. We fill the
spectrum. We have officers in charge starting at the chief
petty officer, or E-7 level, E-8 and E-9, all the way up
through many junior officers commands as well. So primarily due
to command climate issues as they are discovered.
We have had one relief of an O-4 2 years ago, was relieved
of command for failure to report a sexual assault. The victim
went outside the chain of command and made the report. It came
back in the chain of command above this particular commander,
and he was relieved for failure to report.
Senator Reed. Thank you.
Chairman Levin. Thank you very much, Senator Reed.
Senator McCain.
Senator McCain. Thank you, Mr. Chairman.
Obviously, we are here today to determine how DOD can most
effectively reduce instances of sexual assault and ensure that
offenders are held accountable. Our witnesses have
characterized the problem as a crisis and a cancer that
threatens the very fabric of our military, and I couldn't agree
more.
At its core, this is an issue of defending basic human
rights, but it is also a long-term threat to the strength of
our military. We have to ask ourselves if left uncorrected,
what impact will this problem have on recruitment and retention
of qualified men and women?
Just last night, a woman came to me and said her daughter
wanted to join the military, and could I give my unqualified
support for her doing so? I could not.
I cannot overstate my disgust and disappointment over the
continued reports of sexual misconduct in our military. We have
been talking about the issue for years, and talk is
insufficient.
I would remind my colleagues that after the Vietnam war, at
the end of the Vietnam war and in the aftermath, there were
breakdowns in discipline. There was race riots on aircraft
carriers. There was instances of fragging. There was tremendous
racial unrest and tensions within our military. We addressed
the issue, and now I believe the military is our most effective
equal opportunity employer.
We must do that in the case of this crisis that we are
facing now. Today, we all agree that action has to be taken,
and I hope that today's hearing will build on that consensus.
General Dempsey, as you stated in your prepared statement,
you have endorsed Secretary Hagel's proposed amendments to
Article 60. I am sure that members of the panel are familiar
with it. They would prohibit a convening authority from setting
aside the findings of a court-martial, except for a narrow
group of qualified offenses, and require a convening authority
to explain any sentence reduction in writing.
Is there anyone on the panel that disagrees with Secretary
Hagel's recommendation? [No response.]
Thank you. General Dempsey, do the Services allow
individuals with a history of sex-related crimes to enlist or
receive a commission to serve?
General Dempsey. There are currently, in my judgment,
Senator, inadequate protections for precluding that from
happening. So a sex offender could, in fact, find their way
into the Armed Forces of the United States. In fact, there are
cases where a conviction wouldn't automatically result in a
discharge.
Senator McCain. Obviously, we have to fix that. You would
agree?
General Dempsey. Absolutely.
Senator McCain. General Odierno, in your prepared
testimony, you expressed your support for this proposal but
stated you need to ``consider several technical amendments to
ensure the UCMJ functions properly in practice.'' Would you
submit for the record those technical changes that you would
like to see?
[The information referred to follows:]
General Odierno and Lieutenant General Chipman. As detailed in my
written statement, I support a number of legislative proposals that
contemplate changes to the role of the commander and to the Uniform
Code of Military Justice, including a Commander Response Certification
or system of checks and balances, Article 60 limitations, new
enumerated offenses for trainer-trainee sexual abuse, general court
martial referrals for the most serious sexual offenses, bars to service
and mandatory separation for those convicted of these crimes, expanded
legal assistance training for attorneys assisting victims throughout
the process, and the Response System Panel and Judicial Proceedings
Panel for a comprehensive review and comparison of our system to
determine what changes should be made to law and policy. The Army will
continue to provide technical assistance on proposed legislation as
requested.
General Amos and Major General Ary. In his written submission,
General Odierno stated, ``I support proposals which would require that
all penetrative sexual offenses (for rape, sexual assault, forcible
sodomy and attempts to commit those crimes) be referred to a General
Court Martial only, rather than a Special Court Martial or a Summary
Court Martial, due to the severity of these crimes. To implement this
proposal, however, we will need to consider several technical
amendments to ensure the Uniform Code of Military Justice (UCMJ)
functions properly in practice.''
I believe the convening authority's pretrial discretion in
determining how to dispose of certain sexual assault offenses should
not be limited. [do not support legislation that would limit the
discretion of the convening authority to determine how to dispose of
certain sexual assault offenses before trial. Rule for Courts-Martial
306(b) states that ``[Allegations of offenses should be disposed of in
a timely manner at the lowest appropriate level of disposition . . . ''
In deciding how an offense should be disposed of, there are several
factors the convening authority considers, including the views of the
victim as to disposition. While I agree that a general court-martial is
normally the appropriate forum to adjudicate sexual assault offenses,
there are circumstances, such as victim preference, when a convening
authority may find it appropriate to handle a sexual assault offense at
a special court-martial. For example, in a case where it might be very
difficult to prove a penetrative sexual offense, there might also be a
contact-type sex offense to which the accused is willing to plead
guilty. The victim may prefer to avoid a lengthy contested general
court-martial in order to guarantee a conviction and the accused's
qualification as a sex offender. If the law mandates that all sexual
assault cases be referred to General Court-Martial alone, the ability
for a commander to remain flexible upon victim preference would be
impossible.
I concur with General Odierno that changes to the UCMJ should not
be made in a piecemeal fashion. Any proposed changes to the UCMJ should
be referred to the Response Systems Panel for independent review and
assessment. By taking a deliberate and thoughtful approach, we can
ensure that unforeseen or unanticipated consequences do not adversely
affect victims of sexual assault or compromise the Constitutional
rights or those accused of crimes.
Senator McCain. It is important for our committee to
understand the extent to which commanders are following the
advice of legal counsel in making disposition determinations.
My understanding is that in an overwhelming number of cases in
each Service, the commander is following the advice of legal
counsel.
Could the Service Chiefs or Judge Advocates tell us how
many cases did a commanding officer go against the advice of a
Staff Judge Advocate (SJA) in executing their convening
authority? Do you know, General?
General Amos. Senator, I don't--I am going to let General
Ary talk if he has the numbers. But in 43 years, I can't think
of a single instance where my Judge Advocate, in all the times
I have been in command and a convening authority, I can't think
of a single instance where my Judge Advocate came to me and
said we want you--we recommend that you prosecute these cases,
and I didn't do it.
On the other hand, I can think of many where he said we
don't have enough evidence, don't prosecute him, and I did
anyway.
Senator McCain. General?
General Odierno. Something related to this is that I think
sometimes people are led to believe that all of a sudden
commanders are doing these cases with no experience. From the
time you come in the Army or any Service as a commissioned
officer, as a platoon leader, company commander, battalion
commander----
Senator McCain. I would appreciate--I apologize.
General Odierno. Okay. So, yes. So, in every case, I agree
totally with General Amos is that in every case in my own
experience that when I was--said we have evidence to go, we
did. Many times, when we didn't think we had enough, we went to
a court-martial anyhow because of the importance of the case.
Senator McCain. Admiral? I am sorry for the request for a
short answer.
Admiral Greenert. We scrubbed every case for the last year
for sure, and there were no discontinuities. The advice was
taken, legal advice was taken by the commander.
Senator McCain. General?
General Welsh. Senator, we reviewed every case, every trial
for the last 3 years. There were 2,511 cases, and 22 of those,
the initial disposition authority did not agree with the
recommendation from the JAG. The recommendation was forwarded
in 10 of those cases to a higher convening authority who agreed
with the JAG's recommendation, and that was the action that was
taken.
In 12 of the 2,511 cases, the commander made a different
decision than what his JAG recommended, so less than 1 percent
of the time.
Senator McCain. Admiral DeRenzi, you have had a long
experience with these issues. Is the problem better, worse, or
the same?
Admiral DeRenzi. Sir, do you mean sexual assault issues in
general?
Senator McCain. Yes.
Admiral DeRenzi. I think the problem is improving. I was a
junior officer during Tailhook, and I can tell you that I do
not recall the training efforts, the response, the prevention,
the attention on our ability to prosecute offenders reaching
down from leadership to the deckplate level at that time.
I would tell you that in the time since and now, I see a
difference. I see a difference in the leadership. I see a
difference in how the Judge Advocates are trained to respond
and support, and I see a tremendous difference in the
prevention and response efforts.
Senator McCain. But you would agree that improvements need
to be made?
Admiral DeRenzi. Yes, sir.
Senator McCain. We would be very interested in your support
or lack of support of some of the recommendations that we are
considering.
Admiral DeRenzi. Yes, sir. I would be happy to provide
those for the record.
[The information referred to follows:]
The Navy is committed to ensuring the military justice system works
fairly, guarantees due process, maintains good order and discipline,
provides justice to victims of crimes, and is accountable. Given this
commitment, we remain open to improvements in the military justice
system that further these goals without giving rise to unintended
second- and third-order effects. To be considered for change, proposals
should be targeted to address specifically identified problems with the
current military justice system.
However, I do not support taking away a Commander's authority to
convene courts-martial. Such authority underpins good order and
discipline, which is central to mission accomplishment. Commanders are
singularly responsible and accountable for mission accomplishment, as
well as for the welfare, safety, and effectiveness of those they lead.
Commanders must retain authority commensurate with their
responsibility. A key component of that authority is the ability of
Commanders, at an appropriate level, to take disciplinary action.
Secretary of Defense policy already withholds initial disposition
authority for rape, sexual assault, forcible sodomy and attempts to
commit those offenses to Special Court-Martial Convening Authorities in
the grade of O-6 and senior. This ensures that Convening Authorities
addressing the most serious sexual assault cases are knowledgeable and
experienced in the disposition of military justice cases. More
fundamentally, these Convening Authorities are senior military officers
who possess judgment cultivated throughout their careers by their
experiences in leadership positions. Additionally, the Secretary of
Defense policy ensures Convening Authorities have the support and
obtain the advice of senior judge advocates.
Through the Response Systems Panel created by section 576 of the
National Defense Authorization Act for Fiscal Year 2013, Congress has
created a means of objectively evaluating proposed changes to the
Uniform Code of Military Justice (UCMJ) relating to sexual assault in
the military. The Response Systems Panel should be given the
opportunity to complete its independent assessment of the systems used
to investigate, prosecute, and adjudicate sexual assaults prior to
enacting sweeping and fundamental changes to the UCMJ. The following is
provided subject to that caveat.
I fully support the Secretary of Defense's proposal to amend
Article 60 of the UCMJ to modify a Convening Authority's authority to
change the findings and sentence of a court-martial. This proposal
recognizes that our court-martial practice has changed since World War
II through the participation of professional military prosecutors,
defense counsel and judges in trials, as well as a robust review and
appeals process.
I believe there is merit in the provisions calling for enhanced
protection of new members of the Armed Forces in initial entry-level
processing and training environments from military members in a
supervisory role in these same environments. Although the Navy has
existing policies which prohibit inappropriate relationships and sexual
contact and provide appropriate punishment for offenders, a uniform
policy would promote consistency across the Services.
I also concur with provisions requiring commanding officers to
immediately notify the appropriate military criminal investigative
organization after receiving a report of sexual assault. The Navy
already requires such reporting but creating a statutory duty to report
reinforces the existing policy guidance. Similarly, I support
provisions requiring immediate notification of the chain of command of
sexual assault allegations. Such measures reinforce existing practice
and policy.
I concur with eliminating the statute of limitations for sexual
assault, sexual assault of a child and forcible sodomy. Although
prosecution of such offenses becomes more difficult with the passage of
time, the seriousness of the offenses warrants giving commanders the
opportunity to hold offenders accountable without regard to the current
statute of limitations.
While the Navy's legal professionals already provide support to
sexual assault victims, I can support extending the program to provide
victims with the legal advice that judge advocates are uniquely
qualified to provide, including legal consultation regarding victims'
rights; the military justice process; potential criminal liability of
the victim for collateral misconduct; potential civil litigation; and
legal assistance in personal civil legal matters.
I concur that individuals with civilian convictions for rape,
sexual assault, forcible sodomy and incest should be prohibited from
serving in the military. Similarly, if legislation is enacted requiring
administrative separation of individuals convicted by court-martial of
penetration offenses, or attempts to commit penetration offenses, but
not punitively discharged, then conforming amendments to the statutory
provisions pertaining to boards of inquiry would be required (see 10
U.S.C. 1182).
Navy commanders currently have the authority and ability to
temporarily reassign members who are alleged to have committed sexual
assaults pending the resolution of their case. Accordingly, a statutory
change is unnecessary but not objectionable. As victims currently have
the right to request an expedited transfer, commanders are able to
weigh the equities in each individual case and transfer either the
suspect or victim, as appropriate. This is in addition to the ability
to issue no-contact military protective orders, place a suspect in
pretrial confinement, or restrict liberties if the facts warrant such
actions.
Senator McCain. Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator McCain.
Senator McCaskill.
Senator McCaskill. Thank you, Mr. Chairman.
I appreciate all of you being here. I have spent hours and
hours with your prosecutors over the last several months. I
have had long conversations with several of you at the table,
including those who are heading up our various branches.
I want to start with the fact that I think part of the
problem here is you all have mushed together two issues in ways
that are not helpful to successful prosecution. There are two
problems. One is you have sexual predators who are committing
crimes. Two, you have work to do on the issue of a respectful
and healthy work environment.
These are not the same issues. With all due respect,
General Odierno, we can prosecute our way out of the first
issue. We can prosecute our way out of the problem of sexual
predators who are not committing crimes of lust.
My years of experience in this area tell me they are
committing crimes of domination and violence. This isn't about
sex. This is about assaultive domination and violence. As long
as those two get mushed together, you all are not going to be
as successful as you need to be at getting after the most
insidious part of this, which is the predators in your ranks
that are sullying the great name of our American military.
I want to start with--I think the way you all are reporting
has this backwards because you are mushing them together in the
reporting. Unwanted sexual contact is everything from somebody
looking at you sideways when they shouldn't to someone pushing
you up against the wall and brutally raping you.
You have to, in your surveys, delineate the two problems
because until you do, we will have no idea whether or not you
are getting your hands around this. We need to know how many
women and men are being raped and sexually assaulted on an
annual basis, and we have no idea right now because all we know
is we have had unwanted sexual contact, 26,000.
Well, that doesn't tell us whether it is an unhealthy work
environment or whether or not you have criminals. You have to
change that reporting.
Success is going to look like this. More reports of rape,
sodomy, and assault, and less incidents of rape, sodomy, and
assault. So everybody needs to be prepared here, if we do a
good job, that number of 3,000 the chairman referenced, 3,000
and something, that is going to go up if we are doing well.
But overall, the incidents are going to be going down, but
we have no way of being able to demonstrate that with the way
you are reporting now. I hope that you all understand that.
Now reporting is the key. Senator Gillibrand and I are in
complete agreement that this is about creating a culture where
victims are comfortable coming forward, and that is incredibly
important. I think a number of steps are being proposed in all
the different pieces of legislation, and a number of them you
have agreed with, which is progress.
I think we have to look at restricted reporting with an
emphasis on getting the perpetrator ID'd. Right now, no one is
really pressing to get the perpetrator ID'd in an unrestricted
report. Why is that important? Because the victim who won't
come forward today will come forward a year from now if there
are two other victims who have come forward.
But if we don't know who the perpetrator was, we can't even
go back and talk to that victim. I think that is one thing that
you all need to work on.
Let me ask a question of you, General Amos. I am
concerned--I agree with the part of Senator Gillibrand's
legislation, and others, I think, have included this, too, in
our legislation, that we should not be taking into account how
good a military person is in deciding whether or not to try
them on a felony. The facts of a felony are the facts of a
felony.
I don't care how good a pilot it is. I don't care how good
of a special operator a person is. Their ability to perform as
a soldier or an airman or a member of the Coast Guard is
irrelevant to whether or not they committed a crime.
Do any of you disagree with the proposal that we should be
not considering how good a military character they have in
terms of how well they serve the military as part of the
consideration as to whether or not a case should be tried where
a felony accusation has been made? Anybody disagree with that?
[No response.] Nobody disagrees with that? Okay. That is good.
General Harding. Ma'am, I will just comment that assessing
the character, to the extent that you can through previous
deeds, is an appropriate factor to enter into the equation. It
doesn't enjoy overriding weight, but I think that is what the
code had in mind. I think district attorneys also assess an
individual's character in the community to determine whether or
not the allegation is supported or not supported by that.
But it is one of many characters in the totality of
circumstances that you referred to that are taken into
consideration in a decision whether or not to prosecute. But it
is not, by any stretch of the imagination, an overriding factor
or one that would result in a decision solely not to prosecute.
Senator McCaskill. Well, the character of the perpetrator
would come in the trial if the defendant wanted to bring it
into the trial, and then there would be an opportunity to
impeach. There is no opportunity to impeach on character at a
disposition phase. I completely disagree with you, General
Harding.
There is not--it is not relevant as to whether or not
somebody raped a woman how good a pilot he was.
General Harding. I am not referring to their job
performance, ma'am. I am referring to their character. As a
district attorney, would you assess an individual's character
before--in the totality of circumstances? Not at all.
Senator McCaskill. If the defendant brings it in in a
trial, then it is relevant that I have that opportunity to
impeach at the trial and show that his character is not that
great.
General Harding. I think you and I agree.
Senator McCaskill. Whereas, you don't have that at a
disposition phase. You don't have that--I shouldn't say
disposition phase because that is confusing to people out
there. Because disposition technically in our world is the end
of the trial. But for you, disposition is at the beginning.
At the beginning of the trial process, deciding whether or
not there is sufficient evidence to support the charges, the
character of the defendant should be irrelevant.
General Harding. To include a bad character, a character
for criminal actions in the past.
Senator McCaskill. The facts should speak to that. If he
has been convicted and if there have been accusations that have
been borne out, if he has had other actions against him, then
that is a factual determination. That is not this illusive let
us put together a big package and say what a great guy this is.
General Harding. Well, that is not what the process is.
Senator McCaskill. Okay. Well, we may not disagree or we
may disagree. But we will ferret that out.
I just, for the record, Mr. Chairman. I know my time is up.
I need to know how many cases you all have taken that civilian
prosecutors declined to prosecute. I also need to know how many
cases you have taken after someone has been found not guilty in
civilian courts.
I don't think many people realize that you do that, and you
do. In talking to the prosecutors, there are cases that you
have taken action after someone is found not guilty in the
civilian courts. I think that is important for our
consideration as we work on the markup of the defense
authorization bill.
Thank you, Mr. Chairman.
Chairman Levin. Let us ask each of the Service Chiefs here
to get the statistics which have been requested along that line
by Senator McCaskill.
[The information referred to follows:]
General Odierno and Lieutenant General Chipman. The Army
does not track the total number of cases in which civilian
authorities had concurrent jurisdiction, took the lead on
investigation and declined to prosecute and Army commanders
subsequently chose to proceed with judicial action. However,
data collected from a sampling of our General Courts-Martial
jurisdictions and Special Victim Prosecutor case trackers
indicates that in every jurisdiction, Army commanders have
preferred court-martial charges or pursued nonjudicial or
adverse administrative actions after civilian authorities
declined to prosecute Army offenders. The number of cases will
vary by jurisdiction, depending on the resources or
prosecutorial policies of the local authorities and upon the
relationship between the local authorities and the Office of
the Staff Judge Advocate. For example, for the Special Victim
Prosecutor assigned to Fort Drum, NY, over a 30 month period, 9
of the 25 sexual assault cases (36 percent) handled within the
geographic area of responsibility were cases in which the
civilian authorities investigated and declined to prosecute and
Army commanders chose to prefer charges.
The Army is also aware of 28 specific cases from various
jurisdictions in which Army commanders pursued courts-martial
after civilians declined to prosecute over the past 2 years.
This is not an exhaustive list as the number of cases declined
by civilian jurisdictions is not currently tracked by the Army.
Finally, there are cases, justified by unique
circumstances, in which Army commanders have prosecuted
soldiers who were acquitted in civilian courts. MSG Timothy
Hennis was prosecuted at Fort Bragg, NC, in 2010 for rape and
capital murder after three unsuccessful attempts by North
Carolina to convict. SGT Brendan Burke was prosecuted at Fort
Campbell, KY, in 2012 for the murder of his wife and mother-in-
law after four civilian trials ended with hung juries.
Admiral Greenert. Over the course of the last 2 fiscal
years, Navy commanders prosecuted seven sexual assault cases
declined by civilian prosecutors, resulting in two convictions
for sexual assault and one for a non-sexual assault offense.
Over that same period, the Navy successfully prosecuted one
general court-martial in which there was an acquittal in the
civilian court and one additional general court-martial in
which the civilian court found the member guilty, but only of
one count (involuntary manslaughter) of several charged. The
civilian court sentenced the accused to 12 months confinement.
The Navy subsequently tried the accused and secured a court-
martial conviction for voluntary manslaughter, aggravated
assault, discharging a firearm, endangering human life and
disorderly conduct. The accused received five years confinement
and a bad conduct discharge.
The cases above do not include current cases currently
undergoing an Article 32 pre-trial investigation or cases tried
overseas under another country's criminal jurisdiction.
General Welsh. While the Air Force does not formally track
this information, we routinely prosecute cases where the local
authorities decline to prosecute, including sexual assault
cases. The numbers below are the cases where this fact was
noted in the case synopsis of the fiscal year 2011 and fiscal
year 2012 Department of Defense Annual Report of Sexual Assault
in the Military. This is not an exhaustive list because there
may be cases where the local prosecutor waived or declined
jurisdiction but that fact was not captured in reporting.
In fiscal year 2012, we preferred charges in at least seven
sexual assault cases where civilian prosecutors declined to
prosecute. Five of those cases went to trial and four of those
resulted in convictions.
In fiscal year 2011, we preferred charges in at least eight
sexual assault cases where civilian declined to prosecute. Five
of those cases went to trial and five of those resulted in
convictions.
General Amos and Major General Ary. The Marine Corps has
not historically tracked this specific statistic. In February
2010, the Marine Corps implemented its Case Management System
(CMS) in order to accurately track and meet the legal
requirements for timely post-trial processing and review. CMS
was not initially designed to capture trial level data about
certain types of cases, but since its inception, CMS has been
modified and utilized to track valuable information about
certain types of cases, such as sexual assaults and hazing. To
this point, pretrial civilian involvement in a court-martial
has not been tracked as part of CMS. The Marine Corps is
modifying CMS to collect this data in the future.
Despite the immediate unavailability of the requested data,
we are currently collecting responsive information from our
offices in the field. We anticipate having our answer by June
10, 2013.
Admiral Papp. [Deleted.]
Chairman Levin. Thank you, Senator McCaskill.
Senator Chambliss.
Senator Chambliss. Thanks, Mr. Chairman.
First of all, let me say that I think each of you delivered
a statement with emotion and passion, and you obviously
recognize the seriousness of the issue. I take you at your word
that we are going to get to the bottom of, number one, how we
attack the issue and, second, as to the best way to resolve it
moving forward, particularly in light of the fact that now if
we are going to have women in combat, I think the potential for
the issue to increase is going to become even greater.
Admiral Greenert, I want to go back to an incident that
didn't occur on your watch. But as I recall, several years ago
when we had the first females go out on an aircraft carrier
that when they returned to port, a significant percentage of
those females were pregnant. Now I don't remember exact
percentage, but as I recall, it was pretty high percentage.
Was any investigation made by the Navy following that
incident to determine whether or not all of those pregnancies
occurred as a result of consensual acts, or was there any
investigation made regarding sexual attacks that were made on
that carrier?
Admiral Greenert. Senator, I will have to take that one for
the record and go dig up and get those facts behind that.
[The information referred to follows:]
An investigation would have been initiated if a sailor reported a
sexual assault. In 1988, the Naval Criminal Investigative Service began
maintaining records of sexual assault investigations (records are
maintained for 50 years). In review of these archives, we found no
reported sexual assaults during the first deployment of USS Eisenhower
with women on board (October 1994-March 1995). Additionally, there were
no delayed reports of sexual assaults upon the ship's return from
deployment.
Senator Chambliss. Well, my reason for asking that is that
I hear and I understand all of you talk about the importance
for chain of command and the importance that we follow that. If
we are going to maintain good order and discipline in the
military across the board, that has to be the case. But there
also has to be some kind of fear put into these young people
that come to every branch of our Service the very first day
that they raise their hand and swear to defend the
Constitution.
The fear has to be that that chain of command that we
allude to really is serious about making sure that these types
of sexual assaults do not occur and, by golly, if they do,
starting with the drill sergeant all the way to the top,
somebody is going to make sure that you pay the price if this
does happen.
If you look at the private sector, if something like that
had happened, there would have been an extensive investigation,
and it wouldn't be taken for granted that everything was
consensual. But I dare say that after that happened, it made
the headlines in the paper.
I was on the Personnel Subcommittee at the time that
happened, and frankly, I don't recall any investigation being
made of it. Looking back on it, it is easy now to say it should
have because of the number of instances that we have seen.
The easiest way to eliminate this problem is to make sure
it never happens in the first place and that those men and
women are trained early on as to the types of situations they
ought to avoid and the consequences if something like this does
happen.
So to each of you, let me just ask you, and I will start,
General Welsh, with you and come right down the line, is there
any background check done during the recruitment process to
determine whether or not these young men and young women have
had any incidences that might lead to this?
General Welsh. Sir, there are background checks done. But
as was previously mentioned, I am sure there have been cases
where people have entered the military and entered the Air
Force who have had a problem with this in the past that is not
in any formal database.
Senator Chambliss. Admiral?
Admiral Greenert. Background check in regard to criminal
record, those are done. But as General Welsh said, to the
degree and the success, we have to go back and check.
Senator Chambliss. General?
General Odierno. The same. Background checks are done, but
the ability to identify sexual offenders is certainly not 100
percent right now, and we have to do a better job of doing
that. We need help with having a better database, but also
making sure we are scrutinizing those as we go forward.
General Amos. Senator, we are plugged in deeply to the FBI
database, and we absolutely willingly will not recruit a marine
or candidate that has a sexual assault background at all. When
we find out we have a marine that has committed and is
convicted of it, they are discharged.
Admiral Papp. Same here, Senator. We do a background on
every person that is recruited. If we find someone who did slip
through the cracks and we found there is a previous conviction,
that is a fraudulent enlistment, and they are discharged.
Senator Chambliss. Well, there may be some exceptions as,
General Dempsey, you responded to Senator McCain on. There may
be some exceptions to folks who slip through that crack, but
you are going to have to go further than looking at convictions
of individuals.
I don't know how you are going to do that, whether you get
additional character references or what. There may be things
known within the community about individuals that need to be
given to the military to prepare, and it may be on other issues
also. But we have to do a better job of screening folks before
they come in.
The other thing we have to remember as we think about
making changes to the UCMJ in this respect, the young folks
that are coming into each of your Services are anywhere from 17
to 22 or 23. Gee whiz, that is the level or the hormone level
created by nature sets in place the possibility for these types
of things to occur.
So we have to be very careful how we address it on our
side, but guys, we are not doing our job. You are not doing
yours, and we are not doing ours with the rates that we are
seeing on sexual assaults. As I said to start with, you
recognize it. We recognize it. We have to figure this thing out
because we simply can't tolerate it.
Thank you very much, Mr. Chairman.
Chairman Levin. Thank you, Senator Chambliss.
Senator Udall.
Senator Udall. Thank you, Mr. Chairman.
Good morning to all of you for appearing today, and thank
you for being here to discuss what is probably the most
troubling issue that this committee has addressed since I was
elected to the Senate.
For good reason, the American people trust our military
more than any institution in our country, and that trust is
well deserved. But now I am afraid that some of the
dishonorable actions of our troops and some of our leaders are
threatening that trust.
Every sexual assault committed by an American servicemember
represents a fundamental failure of leadership, and we are not
just talking about one or a few assaults. We are talking about
thousands. If the troops can't trust their teammates or their
leaders to keep them safe, then we are facing a fundamental
breakdown of good order and discipline, and that puts our
troops at greater risk than they already face.
We ask a hell of a lot of our troops, but I refuse to ask
them to put up with rape. Make no mistake, sexual assault is a
national disgrace. But the American people expect our military
to set and uphold the highest possible standard of conduct, and
frankly, the military is failing to meet that expectation.
I have been working with my colleagues on both sides of the
aisle on legislation that will help to end this plague, and I
know that you are working toward the same goal. But to be
blunt, you need to do more, and it needs to happen much faster.
As our senior leaders and as fathers, I know you agree that
the status quo is unacceptable. So I expect to see bold and
immediate action to end this crisis because I can assure you
that that is what you will be seeing from me and my colleagues
on this committee.
General, let me turn to my first question, and I would hope
I could receive a yes or no answer. Do you feel that the DOD is
lacking the authority or the tools it needs to reduce the
incidence of sexual assault in the military? If not, then why
do you believe that the number is not dropping? If DOD has the
power it needs to solve this crisis, what isn't being done?
General Dempsey, I think it would be appropriate if I
started with you.
General Dempsey. Well, as I said in my opening statement,
Senator--by the way, thanks for your passion about this issue.
I assure you we share it.
As I said in my opening statement, there are some things we
have had an opportunity to reflect on together as chiefs with
our SJAs, with DOD, and those things we have actually come
forward and said we have had enough time to deliberate on
those, and we are eager to move ahead. There are other things
that this 576 panel I think will illuminate as we allow it to
do its work.
So I think, in general, we have the tools that we need, but
we haven't been getting it done. You said so. We agree. So,
there are other measures to be taken, and we hope that that
panel allows us to understand them.
Senator Udall. General Dempsey, I think you speak for the
panel here and for all the Service Chiefs.
General Dempsey. Well, be careful about that.
Senator Udall. Okay.
General Dempsey. These guys are not bashful characters.
Senator Udall. Maybe I will start then, start with Admiral
Papp, and we can move across to General Amos and General
Odierno and in turn? Admiral?
Admiral Papp. Yes, sir. I think we have all the tools. It
is all a matter of focus, and that is our job as leaders. We
have been driving that focus now, and I expect to see results.
Senator Udall. General Amos?
General Amos. Senator, we absolutely have the tools. We
have failed in this in the past. It has not been a top priority
in the years past, in the decades past. If it was, we wouldn't
be here today.
But it is now. It is now in my Service, and I speak for
probably all of us, it is a priority in our Services now. We
are after it, and we hear you loud and clear.
Senator Udall. General Odierno?
General Odierno. I would just say I think we have adequate
tools, but I think there is some refinement that we can work
together with on this. I think that is around the edges, and I
think we just have to make sure we understand the second- and
third-order effects of those refinements.
I think that, to me, is the critical piece to this as we
move forward.
Senator Udall. Admiral Greenert?
Admiral Greenert. I think we have the tools, that the
commander has the tools, we have the tools to provide a proper
atmosphere of dignity, respect, and make sure the command
climate is there. I think Congress and this committee have come
forward with some ideas to further those tools, and I think
that is great, and we should continue to pursue those, to move
faster, to your point, Senator Udall.
We should evaluate these tools to make sure we understand
them, the second- and third-order effects, so we don't--so we
do make the progress that are intended.
Senator Udall. General Welsh?
General Welsh. Senator, I believe that the tools are there.
But I also agree that we can refine them. I think that is what
this discussion of reasonable alternatives should include,
everything from punishments to deterrent capabilities, to make
sure people clearly understand what the result of this crime
will be if you commit it.
I also think that one of the things we are lacking isn't
the tool. It is just expertise in this arena. We don't have a
lot of people who are brilliant in this area. We are trying to
develop knowledge and expertise because we are so focused on
this now. But it is going to take some time, and it is going to
take partnering with people who really understand the problem.
Senator Udall. Mr. Chairman, I will stop there. I know we
are going to have a series of rounds, and I have many, many
more questions, as do my colleagues. But this is truly
something that needs immediate attention, and I know that we
can solve this.
Thank you all.
Chairman Levin. Thank you, Senator Udall.
Senator Wicker.
Senator Wicker. Thank you very much, Mr. Chairman.
Thank you to each member of the panel.
Let me start with General Odierno because I was interested
in your statement about the Colorado case, where the civilian
authorities concluded that there was not enough evidence to
proceed and then the military court came out with a different
result.
General Odierno, as I understand it, we have a lot of
legislative proposals. Among changes that are being advocated
are three that I want to ask you about and how it would have
impacted that particular case that you mentioned. One would be
removing unit commanders from the military justice
decisionmaking process when a crime is reported.
A second would be placing the convening authority for
courts-martial for sex-related crimes outside the chain of
command for either the accuser or the accused. Three,
prohibiting convening authorities from setting aside
convictions in courts-martial for sex-related crimes only.
So let me ask you, in the case that you mentioned, how
would these changes have impacted the, in your view, successful
result in prosecuting a member of the military who turns out
was a multiple offender?
General Odierno. I think the commander has information that
is available to him and tools that are available to him that
maybe might raise some doubt. So what the commander did in this
case was then ask for further investigation by our CID.
I think if you had an independent authority, they wouldn't
be privy to some of this information because the commander
understands other things that go on within the climate of a
command. So, I think it probably would not have happened if, in
fact, the commander was not part of this process.
Now, again, it depends on exactly what the legislation
means. I have to take a look at it. But my initial thought is
it would have been very, very difficult in this case. I think
the commander, understanding his command, understanding his
soldiers, was able to direct the CID to continue to
investigate, and when they came up with more and more
information and talked to other people in the unit or other
potential victims who came forward, they were then able to
prosecute this case over a couple months' worth of
investigation.
So, in my opinion, that shows the importance of the role of
the commander and why we want him in the system. The only other
one I would talk about, in terms of overturning convictions, I
don't think that plays a role. That legislation did not play a
role in this at all because that comes, obviously, after the
court-martial would have been completed.
So then you look at overturning results of any sexual
offenses, and so I don't think that would have had any
difference in this case at all.
Do you want to add anything, Dana, on that?
General Chipman. Yes.
Senator Wicker. Lieutenant General Chipman?
General Chipman. Senator, I think what the chief talked
about is, in fact, relevant. The idea that the CID can go back
to prior duty stations and gather that pattern of misconduct
that may have occurred there. As Senator McCaskill mentioned,
one victim comes forward and then others, if you retain that
evidence for a sufficient period of time and identify other
victims, that can add and have a cumulative effect.
But it would not have altered the ability to set aside. I
mean, I don't think that would have occurred in this case. We
do think that we are inclined and over our special victim
prosecutor history, we have pulled 28 cases that the civilians
were not proceeding on and have been able to mount a court-
martial prosecution since 2009.
Senator Wicker. Let me ask this question as a former Judge
Advocate myself. In every instance that you mentioned, General
Odierno--your JAG is sitting at your right hand today--the
commander is in constant consultation with the JAG on all of
these decisions?
General Odierno. Absolutely, Senator. Absolutely.
Senator Wicker. Okay. General Amos, I was intrigued by
something you said, and there is a bit of a paradox here. You
say you reject the status quo, and yet you say we have the
tools.
Help clear up any confusion I might have over that. Which
proposals have the most merit in moving from the status quo,
and would you just clarify what you were trying to tell the
panel?
General Amos. Senator, we have the tools because we have
the leadership, and I think we have the capability and
wherewithal internal to the organization, the institution, the
commands, to be able to actually make the changes, make the
difference, and eradicate sexual assault. So that is what I
meant by that.
But when I talked about I reject, what I was saying was--
referring to was just the wholesale UCMJ, it is perfect, we are
not going to look at it. Truth of the matter, it does need to
be reviewed, and it does need to be looked at. That is what I
was referring to by that, sir.
Senator Wicker. Okay.
General Amos. I am more than willing to sit down and go
through these things, the proposals.
[Additional information provided for the record follows:]
The Marine Corps generally supports the current Senate and House
legislative proposals that make improvements in recruiting, retention,
reporting, and transparency and maintain the commander as the central
authority in military justice. The Marine Corps believes there is merit
in many of the proposals, and that implementing them would improve the
administration of military justice and the maintenance of good order
and discipline.
The Uniform Code of Military Justice (UCMJ) is a carefully designed
system with many deeply embedded checks and balances. The elements of
the UCMJ that allow it to be portable, swift and efficient (commander's
role in charging and selecting members, worldwide personal and subject-
matter jurisdiction, and a two-thirds majority requirement for a guilty
finding) also demand procedural safeguards that guarantee the accused's
trial satisfies the Constitutional requirements of due process
(enhanced rights against self-incrimination, a pre-trial Article 32
investigation, a robust and open system of discovery, and a prohibition
against unlawful command influence). Major structural changes to the
UCMJ should be carefully analyzed to determine any long-reaching
effects on the efficacy of military justice and the accused's right to
a fair trial.
The first group of proposals in which the Marine Corps is open to
working with Congress to foster improvement involve changes to the UCMJ
that will improve the military's ability to prosecute and defend
complex cases such as sexual assaults while facilitating a commanders
responsibility to balance swift prosecution with the accused's right to
a fair trial. The following changes also help improve the transparency
of the military justice system, thereby helping to create an
environment conducive to victim trust, confidence, and reporting:
The Secretary of Defense's legislative proposal to
modify Article 60 (S. 964 Sec. 2; S. 1032 Sec. 2). It is a
logical limitation on the power of the convening authority to
act on the findings of a court-martial that is based on
developments in the military justice system over the past
decades.
Legislation that requires a convening authority to
provide a written justification, for inclusion in the record of
trial, for any action that he or she takes under Article 60 (S.
538 Sec. 1; S. 967 Sec. 6(a); S. 1032 Sec. 2; Secretary of
Defense's legislative proposal). This legislation ensures that
a convening authority's decision and reasoning is transparent.
The right of a victim to submit matters in the
clemency process (S. 1032 Sec. 3). This change will ensure that
victims of all crimes are able to communicate their preferences
to the convening authority during the post-trial phase in a
similar fashion to the accused, and is consistent with the
victim's pre-trial right to communicate their preferences to
the convening authority.
Legislation that requires a commander who is informed
of an alleged sexual assault to report the allegation to the
next higher officer in the chain of command and to the relevant
MCIO (S. 548 Sec. 5; S. 967 Sec. 7). This increases
transparency and ensures prompt and proper criminal
investigations of all allegations of sexual assault, regardless
of the time, place, and circumstances.
The Marine Corps supports the concept of an 0-6 SPCMCA
level SA-IDA, (S. 548 Sec. 3(a)(I)(B)), as already implemented
by the Secretary of Defense and the Commandant. Before making
this a statutory requirement, the Marine Corps believes the
concept should be studied by the RSP as part of the overall
evaluation of the role of the commander. The Commandant of the
Marine Corps expanded that Secretary's withhold to include not
just penetration offenses, but all contact and child sex
offenses. However, not enough empirical data has been collected
to confirm that this is the proper SA-IDA level to justify
making it a statutory requirement.
The Marine Corps believes any other changes to the fundamental
structure of the UCMJ should be carefully and deliberately studied by
the RSP. The Marine Corps recommends that the RSP, in addition to its
already established tasks of reviewing the role of commander and
advisory sentencing guidelines in sexual assault cases, look at
sentencing reform in a broader sense. Specific issues the Marine Corps
recommends studying include limiting sentencing authority to military
judges and eliminating the good military character defense.
The second group of issues the Marine Corps is open to working with
Congress for involve policy changes related to recruiting, retention,
and reporting. Collectively, these proposals will have three positive
influences: (1) they provide a rapid way to remove sexual predators
from the military service, thereby improving the health and safety of
the force; (2) they encourage reporting of sexual assault allegations
and protect those who make those reports; and (3) they improve the
Department of Defense's ability to report critical data related to all
aspects of sexual prevention, response, and offender accountability.
Together, these proposals also will have a very strong deterrent effect
on criminal sexual behavior. This in turn adds to the authority
commanders have to protect their marines, hold sexual criminals
accountable, and maintain good order and discipline.
Providing authority for Inspector General retaliatory
investigations following sexual assault reporting (H.R. 1960
Sec. 537). This legislation ensures that the protections
afforded to military whistleblowers are explicitly expanded to
those servicemembers who report information regarding sexual
assault.
Recruiting policies that bar sex offenders from
entering military service (S. 548 Sec. 2). The substance of
this legislation will codify service regulations that already
prevent sex offenders from entering military service.
Retention policies that require mandatory separation
for members convicted of qualifying sex offenses (S. 548 Sec.
2). While the Marine Corps currently processes all convicted
sex offenders for administrative separation if they do not
receive a punitive discharge at court-martial, this legislation
will expedite that process.
Related to this proposal, for inappropriate
sexual misconduct that does not result in a criminal
conviction, but which was substantiated by an
investigation or a commander, the Marine Corps will
require mandatory processing for separation. This new
policy is part of the Commandant's Sexual Assault
Campaign Plan and will soon be published in a revised
Marine Corps Separations Manual.
Requiring a victim's commander to brief the first
general/flag officer in the chain of command within 8 days of
an unrestricted report of sexual assault (S. 1032 Sec. 8). The
``8-day report'' ensures that commanders are providing timely
and appropriate victim care. It also provides general or flag
officer oversight and trend analysis of sexual assault cases
within his or her purview; this in turn allows for authorities
to direct appropriate training, remediation, or safety measures
where appropriate. This proposal also mirrors existing Marine
Corps practice.
Comprehensively reviewing the training and
qualifications of all DOD personnel responsible for sexual
assault prevention and response within the Armed Forces for the
discharge of such responsibility (S. 964 Sec. 1 ). This
legislation ensures that the appropriate personnel are in these
important jobs. The Commandant of the Marine Corps has already
put this into practice by hand-selecting an O-6 operational
commander, whom he recalled from a deployment, in order to put
him in charge of the Marine Corps' Sexual Assault, Prevention,
and Response office.
Providing guidance on a commanders' ability to
temporarily reassign or transfer those accused of sexual
assault (H.R. 1960 Sec. 535). This legislation would ensure
that commanders are aware of their authority to transfer a
marine or sailor who is accused of sexual assault, when such a
transfer or reassignment would be in the best interests of the
victim and good order and discipline.
Requiring a commander to screen a servicemember's
personnel records for any history of sexual assault upon
assignment or transfer to a new unit (S. 548, Sec. 6). This
legislation is an added check on our system of screening for
sex offenders at service entry and ensures that commanders are
aware of any history of sex-related offenses of their incoming
personnel.
Increasing the requirements for retaining records for
sexual assault cases (S. 548, Sec. 7). This legislation will
improve tracking and is currently pending implementation by
service regulation in the Marine Corps.
Adding details to the DOD SAPR Annual Report (S. 871
Sec. 3). This requirement will allow the DOD and Services to
more closely track those accused of sex offenses and gather
data on a unit's history of dealing with these cases.
Requiring the assignment of SANEs at the brigade level
and higher unless it is an undue burden (H.R. 1986 Sec. 2).
This requirement will ensure that each victim is provided the
``gold standard'' for sexual assault forensic examinations and
will prevent revictimization and unnecessary trauma after a
sexual assault.
Establishing a uniform policy or legislation that
appropriately proscribes relationships, and sexual contact
between certain servicemembers (between trainers and trainees,
and between recruiters and applicants), as well as mandatory
administrative separation of members who violate this policy
(H.R. 2206 Sec. 2(a)-(c)). This legislation recognizes the
unique position of power present in the trainer-trainee
environment and holds our trainers and recruiters to an
appropriately higher standard and is reasonably designed to
prohibit them from forging consensual relationships.
Increasing the rights and protections for veterans
with military sexual trauma (S. 294 Sec. 2; H.R. 975 Sec. 3).
These protections will expedite veterans' benefits for
servicemembers who have been the victim of a sexual assault.
I support all of the aforementioned proposals for the reasons
articulated and because I believe that they will best ensure that our
victims of sexual assault receive the care they need and the justice
they deserve. I am also open to explore other innovative measures that
could improve upon the current system, thereby better effectuating a
commander's ability to maintain good order and discipline within a
warfighting organization.
Senator Wicker. You mentioned, General Amos, aggressive
steps that you have taken. Since you have taken those steps, is
the situation better or worse now in the Marine Corps, in your
judgment?
General Amos. The numbers of reported sexual assaults have
gone up 31 percent since I took those steps. You are going to
look and say, ``Oh, my gosh.'' When we began this campaign plan
in June of last year, we said if we are going to be successful
to set the conditions, the atmosphere, the command climate,
such that our victims are comfortable coming forward, then we
can expect the numbers of reported incidents to go up.
We don't know what the total number of incidents are. They
are up there somewhere. But what we do want to do is try to
capture as many of those as we can. So our numbers of reported
incidents have gone up. I expected that to happen. I don't take
solace in it, but it is the reality of a successful campaign.
Senator Wicker. You think they were occurring, but now more
of them are being reported because of your aggression?
General Amos. Oh, absolutely, sir. What we don't know is
the top line. In a perfect world, the total numbers of real
assaults, whatever that number is, if we are successful in our
campaign plan, will come down. The numbers of actual reports
will go up, and somewhere they will meet, and we will have
absolute ground truth, which is what I think Senator----
Senator Wicker. Okay. Admiral Greenert, is that happening
in the Navy in these particular locales where you have really
been pressing it? At schools, at the Naval Academy, at
Pensacola, are things getting better or getting worse? Are we
seeing more reports because reporting is okay now?
Admiral Greenert. We are just getting started at the Naval
Academy and in Pensacola. But in San Diego and in Great Lakes,
where our training command is, we are getting more reports.
Navy overall is a 50 percent increase in reports.
We are getting a significant amount, I have to give you the
numbers, of incidents that occurred a couple of years before,
where somebody has decided to come forward from the past. But
overall, in those sites that I described, in Great Lakes and in
San Diego, particularly in Great Lakes, the number of incidents
has gone down by two-thirds.
It is still we have promising information in San Diego
some, but it is not statistically significant, from 21 to, say,
13 over a 6-month period. That is just data right now, Senator.
We have to look at it.
Senator Wicker. Thank you.
Chairman Levin. Thank you very much, Senator Wicker.
Senator Manchin.
Senator Manchin. Thank you, Mr. Chairman.
Thank all of you for being here today.
I had the privilege of meeting with Secretary Hagel a few
weeks ago at the Pentagon, and I know that he is serious about
cutting this cancer from the ranks of the military. It is a
tough issue and one that has plagued our military for far too
long, and I think you all would agree on that.
I believe you are understanding that Congress is serious
about not going to sit back and let this continue. I know that
all of you are completely committed to working with us, and we
can't change what has happened, but we can work very hard to
make sure it doesn't continue to happen.
To all of you, I would say this is not a new problem. I
look at the Navy Tailhook scandal, 1991. The Army basic
training scandals in the mid-1990s. The Coast Guard captain who
was kicked out in 2010 for improper relationships with
subordinates. You had the Air Force basic training scandal at
Lackland. There are many, many more. Most disturbing are the
recent abuses by those charged to prevent sexual assault.
After each of these instances, DOD leaders all said ``never
again'' or used phrases like ``zero tolerance.'' So I guess I
would ask what is different this time? What is different this
time? If we have a history of this repeating itself and nothing
ever being done, what is different now?
General Dempsey?
General Dempsey. Well, I will respond, and then you can
redirect to the chiefs. But I will have 39 years in the Service
tomorrow. So I have been through periods of enormous change and
also periods where we have had this issue.
You talk about the 1990s, I have actually spoken--we have
actually spoken about that as well. I think what happened in
the 1990s is we focused on victim protection. We immediately
focused our energy on victim protection probably out of
balance----
Senator Manchin. Versus prevention.
General Dempsey. Right, versus prevention. That is right.
Then, as we have reflected on it, we entered this period of
12 years of conflict. Frankly, I think we probably--I will
speak for myself. I think I took my eye off the ball a bit in
the commands that I had. The chief talks about doing command
climate surveys. At the operations tempo (OPTEMPO) we were
operating, some of that stuff, frankly, just got pushed to the
side, and we didn't do the right amount of command climate
surveys.
What you are hearing, I think, today is the recognition
that we have to go back to take some of these tools that we
have and make better use of them and focus our energy on it. We
are also spending a lot more time now working on the prevention
side of it.
I think we also have to acknowledge that coming out of this
period of conflict, we have soldiers, sailors, airmen, marines
and coastguardsmen who engage in some high-risk behavior as
they come out of the conflict. So, when you tie it all
together, I wouldn't say that we have been inactive, but we
have been less active than we probably need to be.
What you are hearing reflected here today is a willingness
to take the tools we have, but also consider other tools as
well.
Senator Manchin. I would just say that I think that the
Senate or Congress is more balanced with our Senators of
different gender, if you will, who bring a balance to us and
bring this, and you can see all the different aspects of what
we are all concerned about, and we support all of their
efforts.
But with that being said, do you believe by leaving it in
the chain of command, if anybody--and General Amos, I would say
that there is a lot of power in the military. With the ranks,
and I think that is the concerns we may have, is it truly going
to be able to correct itself without intervention of the really
tough legislation we are talking about?
General Amos. Senator, I would say the legislation, the one
we are talking about removing the convening authority out of
the chain of command is absolutely the wrong direction to go. I
think it is going to take--it will take the eyes off the
commander on a problem that is enormously important right at a
very critical time when we are committed to making the changes.
The changes in command climate, the changes in confidence
can only start at the beginning. I mean only can start at the
top. So I think we are going in the wrong direction.
Senator Manchin. General, these types of sexual assault and
abuse have gone on for far too long, and for over 20 years, we
have identified some serious, some serious problems that have
happened, serious crimes, and have not gone answered. I think
that is why you have seen it get to the level it is today with
26,000 that have been known and only 3,000 reported.
It is almost intolerable that we can continue on this
current path by allowing the commanders to be in charge at the
level they are.
General Amos. Senator, I will make a statement here. I am
so committed, my Service is, and we all are, but I will just
speak for myself on this thing, to making the changes and
turning this completely around that if I honestly believe that
pulling the commanding officer, the convening authority, the
disposition authority out of the chain of command would fix it,
then, sir, I would raise my hand and I would vote for it today.
I would vote for it today. It is not clear to me that that
is the case because it is not that way in anything else that we
deal with in the military.
Senator Manchin. Is there anybody here that disagrees with
General Amos basically on removing this from the chain of
command? Anybody disagree with that statement?
General Dempsey. No.
Senator Manchin. You all are in agreement that it must stay
in the chain of command?
General Dempsey. I am. Yes.
Senator Manchin. Anybody else want to speak to that?
Admiral Greenert. Senator, I don't know how to take it out
of the chain of command and then in the continuum of
responsibility and authority that we tell our people that they
are responsible for the welfare, and this goes to training, all
the way through combat, all of that, how you take that part out
of it and then you put the victim back in, if they come back.
Or the report is reviewed, the investigation is reviewed, and
it is returned, they say, well, here you go. It is back again.
I just don't understand how to do that yet. So, from that
perspective, I do agree with General Amos because I haven't
been able to internalize or understand it. But as I study the
proposals, I don't know how that works.
But this I do know. We do hold them accountable for that.
That has been forever. Especially those of us in the Navy who
go out to sea within the units and that, it can confuse the
crew, and that concerns me.
I want to--I have to understand. I think it needs to be
reviewed much more closely before we jump on it.
Senator Manchin. I will save my other questions for the
second round, but thank you very much for your answers.
Chairman Levin. Thank you very much, Senator Manchin.
We are not planning, by the way, on a second round on this
panel.
Senator Manchin. We are?
Chairman Levin. We are not. Just so----
Senator Manchin. I will wait for another day.
Chairman Levin. Thank you. Or you could ask questions for
the record.
Any of us, by the way, are free to answer or ask, excuse
me, questions for the record, but we are not planning on a
second round on this or other panels, given the number of
witnesses that we have to cover today.
Thank you, Senator Manchin.
Senator Fischer.
Senator Fischer. Thank you, Mr. Chairman.
Thank you all for being here today.
It seems like the talk in the media has focused on the
seven women members of this panel, but I would like to point
out that all of my colleagues take this issue very, very
seriously, and they have been leaders in the past on this--
Senator Levin, Senator Inhofe. We need to resolve it, and it
needs to happen soon.
We are looking at a crisis here that is being viewed
through the lens of gender, but I think all of us need to
acknowledge that this isn't a gender issue. This is a violence
issue, as my colleague Senator McCaskill so eloquently reminded
all of us. This is a crisis that I believe the military needs
to step up and confront.
In response to a question that we had from Senator Reed
previously, many of you indicated that no commanders have ever
been removed for setting an inappropriate environment with
regard to sexual assault. In fact, Admiral Greenert, in your
prepared statement, you wrote that we are also addressing
command climate and how it contributes to sexual assault,
particularly the impact of sexual harassment and how it
contributes to a culture that may enable sexual violence.
I guess I would first ask you, Admiral, do you believe that
this climate we have, this culture that we are kind of just
putting aside sexual harassment and not taking action on that,
contributes then to sexual assault?
Admiral Greenert. I believe that a command climate that
tolerates innuendos, jokes, posters, and allusions therein
involving gender sets the stage for an environment where a
predator could, if not flourish, exist. I believe that that,
first of all, you have to get to that, and we are focused to
get to that, and that I am hopeful then because I don't know
that it would expose such a person.
Senator Fischer. I would ask each of you, have you
evaluated any ways to enhance the current command climate
reports to make commanders more accountable for the environment
that they are setting within your ranks. If we could start with
you, Admiral?
Admiral Papp. We have no formal process, ma'am. But that is
something that we stress verbally as we go through command and
operations school, when we send people out there with all the
senior field commanders that I select to take over our major
commands, that they are to focus on command climate issues and
make sure that any report of any sort of command climate
violation is thoroughly investigated.
Most often, we send our senior enlisted member from the
district or the area to do a climate survey. We have a couple
of units right now that we have heard reports on, and we are
doing climate surveys on them.
Senator Fischer. Do you think it would be beneficial if you
had a formal process in place?
Admiral Papp. That is certainly one of the things that we
are looking at through our sexual assault task force.
Senator Fischer. Thank you.
General?
General Amos. Senator, I think command climate is the
single, my perspective, is the single greatest indicator not
only for the combat readiness, the equipment readiness, the
personnel readiness of the unit, all of those things, but also
the health, what we call the spiritual health of that
institution. I am not talking religion here. I am talking about
the ability to be able or the absolute sacredness of taking
care of one another, not being a predator, not preying on one
another.
So we started the command climate officially. It begins the
end of this month. I approved it last month, as I said a bit
ago. Those reports for the climate of that organization, it
will be everybody will take it, will go to the next higher in
the chain of command. So that the commander's commander will
now be able to look into that organization and say, okay, how
are they with regards to sexual assault, sexual harassment, and
the like.
Senator Fischer. Thank you.
General?
General Odierno. Senator, several things. One is I directed
about a year ago the incorporation of command climate surveys
done within 3 months when you take command, 6 months, and then
12 months thereafter to get out specifically this year.
Second, we are doing a pilot on 360 assessments of
battalion and brigade commanders, which will incorporate
questions about the entire command climate to include sexual
harassment, sexual assault. We are in the process of
determining what we will do with those assessments, and that is
part of the pilot.
Once we get those, I expect that I am looking at directing
360s for every battalion and brigade commander beginning this
fall. I am just waiting for the results of this pilot about how
we do it.
So with those kind of issues, it is about commanders
understanding how important that climate is, and those will be
reported to those who they work for as we go through this
process.
Senator Fischer. I know that all of you value trust and its
importance within your ranks. So, General, with this pilot
program, how do you develop that trust, and how are you going
to evaluate it? By the number of reporting that comes out that
General Amos talked about earlier?
General Odierno. I think, yes, absolutely. I think one of
the things we are struggling with, there is lots of different
opinions on this. But the one thing I know for certain is that
we need to make sure commanders understand that we won't
tolerate toxic environments, and toxic environments can be
created in several different ways. Sexual harassment, sexual
assault is part of a toxic environment, and that is what we are
looking to correct in this, as we look at this.
Admiral Greenert. Our Navy Inspector General visits, and
inspections include the command climate with regard to in my
case that I described to you of sexual harassment. Also General
Odierno and General Amos mentioned command climate surveys.
They are done at the relief of a commanding officer and then
periodically after.
Those results go to the immediate superior in command to
review on the unit, and then those comments then have to be
adjudicated--reconciled between the two overall so that you
look at the entire ship types. All the surface ships and air,
those are reviewed by what we call the type commander. So they
move up.
Senator Fischer. How often are those surveys done, and who
receives them and responds to them?
Admiral Greenert. Immediately upon or within I think it is
6 months of relief of a commanding officer--I will get you the
details of this. But shortly after relief by the commanding
officer. Then I will get you specifically the period. I think
it is about annually afterward that you get a command climate
survey.
Senator Fischer. Do you take that into consideration on the
next assignment for the officer then?
Admiral Greenert. Yes, Senator. Because that survey is then
reviewed by the immediate superior. Among the things you
evaluate your unit commander on would be reports such as this.
Senator Fischer. Thank you.
Chairman Levin. Thank you. Thank you, Senator Fischer.
Senator Fischer. Thank you, Mr. Chairman.
Chairman Levin. Senator Shaheen.
Senator Shaheen. Thank you, Mr. Chairman.
Gentlemen and Admiral DeRenzi, we very much appreciate your
being here today, and I know that everyone on this committee
shares the appreciation for your service and for the service of
all of the men and women in our military today. I know that we
are all very concerned about addressing what is a horrible
scandal on the good service of most of the men and women who
are serving. So thank you for your efforts to do that.
Chairman Levin, when he gave his opening remarks, talked
about some of the scandals that have surfaced in the last
couple of years from the allegations at the Naval Academy about
rape of one of the female midshipmen to the rugby team being
suspended at West Point, to the recent videotaping at West
Point, to Fort Hood, to the Aviano Air Base, to Lackland. All
of these scandals that have surfaced make me wonder if the
measures that have been taken are going to be able to
fundamentally address this issue and whether it is not going to
take a more significant look at how we operate in the military
to really address this scandal at all levels.
So, Admiral Greenert, you talked about the chain of command
and how it might be implemented to address some of these crimes
outside of the chain of command. I wonder if anybody here has
looked at some of our allies, at Britain and Canada and Israel,
which have removed the chain of command from serious cases, and
how that is working and how they have done that?
General Dempsey or Admiral Greenert, I don't know which one
of you might like to respond?
Admiral Greenert. I have not, Senator. But I will. I know
the Israel navy chief very well, and I will have that
conversation. I thank you for that tip.
Senator Shaheen. General Dempsey, do you want to add
anything?
General Dempsey. We have just begun that, actually, in
preparation for this hearing and for the consideration of some
of the legislative recommendations we have. So I have a
briefing from my Australian counterpart and my Israeli
counterpart, and I have a couple of other requests outstanding.
Senator Shaheen. I hope you will let us know what you find
out.
Almost everyone today has talked about the importance of
good order and discipline, but I am wondering if you can
respond to how sexual assault in a unit that goes unpunished
and unreported might undermine unit morale and cohesion,
especially as we look at more and more women joining the ranks
of our military. What has been your experience on that?
General Odierno, have you got----
General Odierno. I think, as I said earlier, it gets to the
very fabric of who we are. I mean, we have to rely on each
other totally. As a ground force, close combat, no matter what
your position is, you have to be able to rely on those to your
right and left. If you can't rely on them to protect you,
whether you are a male or a female, it goes against everything
we are.
So, in my mind, it gets to cohesion. It gets to our ability
to accomplish our mission. It fundamentally goes at the
discipline of our unit, and that is what makes it so disturbing
to all of us. We just don't expect that in our units, but we
are seeing it. So, it is why it is so important that we have to
deal with this issue.
As you said, we are increasing the role of women. We are
increasing the number of women. We are increasing. They are in
the Army significantly as we move forward, and so we have to
deal with this because we rely on them and are going to depend
on them more and more because we need their talents. It is
important for us to go forward with this.
Senator Shaheen. Senator Fischer and I have introduced
legislation that would make the sexual assault prevention
response positions more high profile, and I was pleased,
General Odierno, that in your testimony you addressed this. I
am wondering if there is a response from the other chiefs who
we haven't heard from about the possibility of enhancing and
upgrading those sexual assault prevention and response
positions so that commanders have a hand in that selection
process.
Do you think this is something that would be helpful,
General Amos?
General Amos. Senator, I think absolutely yes. But if I
could just caveat that with how we have done it. A year ago,
when we were putting this campaign plan together and said,
okay, enough is enough, let us change it. Let us fix it. I
personally selected the head of our program and brought--he was
out overseas in command of 2,500 marines, a Marine
expeditionary unit. I brought him home early from the Western
Pacific to come in and head that up because he had the passion,
the intellect, and the capacity to be able to do that.
So, in that regard, Senator, I think those individuals in
charge of representing these programs to us absolutely should
be handpicked, and in my Service, I am the guy that does that.
Senator Shaheen. General Welsh, do you want to respond to
that?
General Welsh. Yes, ma'am, I would. Thank you for the
question because it gives me the opportunity to comment on the
SARCs we already have, who are doing absolutely phenomenal
work. They feel like they are battling upstream on this issue,
and they are more frustrated than anyone is. Anything we can do
to enhance their training and their qualifications and the
support we give them and the visibility we give them is a good
thing.
We are currently in the process of expanding the numbers.
Moreover, on the air staff, we are moving the entire office to
have it report directly to our Vice Chief of Staff. We have a
two-star general, General Maggie Woodward, who will take over
that office now. We will hire a Senior Executive Service
deputy. We will expand the number of people in the organization
and hire highly qualified experts to come in and help give us
the expertise that we need to help move forward in this area.
You asked the question a minute ago about what can happen
if a climate is allowed to continue. I believe the Lackland
issue that we saw the last couple of years is exactly that. It
was allowed to continue. It got very ugly very quickly, and
that is the danger.
One of the comments I made earlier had to do with not
knowing if we have relieved commanders for this. While I don't
think it was directly termed for a climate of sexual assault,
we did have two commanders at Lackland that were relieved by
General Ed Rice, and it was clearly related to the climate that
they had allowed to develop.
So, I would like to correct that on the record. Somebody
reminded me of that a moment ago.
Senator Shaheen. Thank you. My time is up.
Chairman Levin. Thank you very much, Senator Shaheen.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
I think Senator McCaskill made a point that I thought was
very intriguing. When people come forward and talk about being
assaulted or bad working environment are completely two
different things. Is there a system in place to capture those
two different things?
Of all the numbers we are talking about, can you tell us
from your Services' point of view of the numbers, the
thousands, whatever allegations there are being made out there,
how many of them fall into the category of inappropriate
conduct versus a crime? Can you tell me that in the Coast
Guard?
Admiral Papp. No, sir. I don't have stats or figures that I
can give you, and we can certainly do that for the record.
[The information referred to follows:]
General Odierno and Lieutenant General Chipman. The Army's annual
report on sexual assault currently includes the following categories:
rape, sexual assault, aggravated sexual contact, abusive sexual
contact, forcible sodomy, and any attempts to commit these offenses.
Several methods of distinguishing between the ranges of infractions
could easily be developed from our current reporting and data
collection. For example, the Army could easily separate the reporting
into three or more subsections such as: penetrating offense, non
penetrating and abusive sexual contact (unwanted touching).
Furthermore, the existing Defense Manpower Data Center Human and
Gender Relations Surveys examine a very broad spectrum of misconduct
defined generically as ``unwanted sexual contact.'' This broad
categorization complicates our efforts to accurately measure the gap
between estimated incidents of sexual assault and reported sexual
assault. However, the Army Research Institute conducts a separate
survey every 2 years that examines a much more specific set of
behaviors and can accurately distinguish between inappropriate conduct
and criminal acts.
General Welsh. We will work with Chairman of the Joint Chiefs of
Staff leadership to propose and put into place a system of tracking the
sexual assault misconduct in different categories, especially rape,
sexual assault, and nonpenetration sexual contact.
One point of clarification from the hearing, a distinction is
already made in the Workplace and Gender Relations Survey of Active
Duty Members between unwanted sexual contact (i.e., sexual assault) and
unwanted gender-related behaviors (i.e., sexual harassment and sexist
behaviors).
Although the term ``unwanted sexual contact'' does not appear in
the Uniform Code of Military Justice (UCMJ), it is used as an umbrella
term intended to include certain acts prohibited by the UCMJ. For the
purposes of the 2012 WGRA survey, the term ``unwanted sexual contact''
means intentional sexual contact that was against a person's will or
which occurred when the person did not or could not consent, and
includes completed or attempted sexual intercourse, sodomy (oral or
anal sex), penetration by an object, and the unwanted touching of
genitalia and other sexually-related areas of the body. This misconduct
is covered under Article 120, 125, and 80 of the UCMJ, and these are
the offenses included in our current tracking.
To determine the extent of unwanted gender-related behaviors,
members were provided a list of 12 sexual harassment behaviors and 4
sexist behaviors and were asked to indicate how often they had
experienced the behaviors in the past 12 months. The 12 sexual
harassment behaviors comprise 3 components of sexual harassment-crude/
offensive behavior (e.g., repeatedly told sexual stories or jokes that
are offensive); unwanted sexual attention (e.g., unwanted attempts to
establish a romantic sexual relationship despite efforts to discourage
it); and sexual coercion (e.g., treated badly for refusing to have
sex). Sexist behavior is defined as verbal and/or nonverbal behaviors
that convey insulting, offensive, or condescending attitudes based on
the gender of the respondent
General Amos and Major General Ary. The different types of sexual
offenses are separately tracked and reported under existing surveys and
systems.
The term ``unwanted sexual contact'' (USC) is used in the Workplace
and Gender Relations Survey of Active Duty Members (WGRA) and is
defined as ``intentional sexual contact that was against a person's
will or which occurred when the person did not or could not consent,
and includes completed or attempted sexual intercourse, sodomy (oral or
anal sex), penetration by an object, and the unwanted touching of
genitalia and other sexually-related areas of the body.'' The WGRA
further divides USC into three categories: penetration of any orifice;
attempted penetration; and unwanted sexual touching (without
penetration). The full WGRA report includes a break-down of responses
in each of these three categories.
The Department of Defense, in DOD Directive 6495.02 (Sexual Assault
Prevention and Response (SAPR) Program Procedures), defines ``sexual
assault'' as ``Intentional sexual contact characterized by the use of
force, threats, intimidation, or abuse of authority or when the victim
does not or cannot consent. As used in this Instruction, the term
includes a broad category of sexual offenses consisting of the
following specific UCMJ offenses: rape, sexual assault, aggravated
sexual contact, abusive sexual contact, forcible sodomy (forced oral or
anal sex), or attempts to commit these offenses.'' The purpose of
having a broad definition of sexual assault is to permit a larger
population of victims access to SAPR services.
Existing systems used to track ``sexual assault'' offenses (e.g.,
the Defense Sexual Assault Incident Reporting Database (DSAID), which
is a centralized, case-level data system for documenting sexual assault
reports; and the Marine Corps Case Management System (CMS), which
tracks court-martial cases in a single database) identify the specific
alleged UCMJ offense(s).
Allegations of sexual harassment are separately tracked using the
Discrimination and Sexual Harassment (DASH) system. The purpose of the
DASH system is to track all formal complaints of discrimination or
sexual harassment and the parties involved in the investigation until
final action is taken.
The following chart breaks down the types of offenses, according to
the 2012 WGRA.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Attempted sexual Completed sexual
Unwanted sexual intercourse, intercourse, Maximum margin
USC Characterization touching anal or oral sex anal or oral sex Did not specify of error
(percent) (percent) (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
DOD Total..................................................... 42 15 20 23 +/-9
USMC Total.................................................... 29 22 20 30 +/-9
USMC Males.................................................... 31 15 10 44 +/-5
USMC Females.................................................. 26 32 34 8 +/-14
--------------------------------------------------------------------------------------------------------------------------------------------------------
Derived from DMDC's 2012 Workplace and Gender Relations Survey of Active Duty Members Tabulations of Responses, pgs. 348 and 349.
Admiral Papp. [Deleted.]
Admiral Papp. But just intuitively and anecdotally,
whenever we have somebody who is removed for command climate
issues, inevitably it goes much deeper, and we find other----
Senator Graham. I guess I would just say command climate
doesn't do justice to what we are talking about. Command
climate is a hostile workplace to me. A crime is a crime.
So, to me, how do we capture the difference between the
sexual perpetrator who somehow got through the gates of
training in the military, who has been able to survive and
sometimes flourish in the military performing their duties, but
yet have this as a disposition that will destroy the military
if not addressed? How do we separate those two? Does anybody
have any ideas to make sure we understand the difference?
Admiral Papp. Well, sir, I agree with Senator McCaskill
completely that there are two separate things we measure.
Senator Graham. Yes, but are they being reported in a way?
What about the Army?
General Odierno. Yes, right now, they are required to be
reported together.
Senator Graham. Well, I think----
General Odierno. We have to separate them. We can separate
them.
Senator Graham. I think that is a really good place to
start.
General Odierno. We understand that.
Senator Graham. Because I don't want everybody in the
country to think that every allegation is of rape. Now every
allegation of ``I was inappropriately talked to'' is very
important and needs to be dealt with that I was not treated
right. But I think there is a big difference between the two
systems that she is describing, and I don't believe there is
any tolerance for anyone to allow someone who is a sexual
predator to get anything other than just as hard a hit as we
can give them.
I would like to follow up on her question and you all
report back to us how you would create two tracking systems.
Now about lay people making prosecutorial decisions, that
is a bit odd to the average person. I mean, in the civilian
community, decisions to prosecute individuals are made by
trained lawyers, sometimes elected, sometimes appointed. How
would you justify this in the military, to have such a
different system?
General Odierno. I would just say that I think what we do
in the military is very unique. We are asked to do things that
are very different than any other profession, and that is why
the UCMJ was originally created, for us to have this unique
relationship because of the good order and discipline that we
often talk about and the unit cohesion that is necessary to do
the things that we are asked to do.
Senator Graham. Would you agree that a military commander
has authority that is hard to find a counter to in the civilian
community?
General Odierno. That is correct.
Senator Graham. Very few of us have the authority to order
somebody into battle.
General Odierno. That is correct.
Senator Graham. Very few of us have the responsibility of
commanding people where they don't really get to discuss among
themselves if this is a good idea.
From the Navy point of view, I remember writing a law
school paper about the absolute authority of a naval commander
at sea. There was a case where a guy had been up for like 20
hours. He went to sleep for 2 hours, and the ship ran aground,
and they court-martialed the commander. Why would you do that?
Admiral Greenert. Well, we entrust in the commanding
officer of the ship all of the people aboard and the ship
itself, part of the Nation. That authority and that delegated
authority to the commanding officer is absolute, and they are
absolutely responsible for anything that goes on.
Senator Graham. All I would tell my colleagues, the
military is truly a different world.
General Gross, who picks the jury?
General Gross. Senator, that is the convening authority.
Senator Graham. Is there any such thing as a jury of one's
peers in the military?
General Gross. It is different. I mean, everybody on the
panel--
Senator Graham. You are not going to get a jury of your
peers?
General Gross. That is correct. They outrank. They outrank
the individual who is on trial. In the case of an officer, it
is an all-officer panel, but every officer outranks the
individual.
In the case of an enlisted, they can elect to have an
enlisted panel, and part of the panel will be enlisted.
Senator Graham. But they will be all senior enlisted
people?
General Gross. That is correct.
Senator Graham. The point is that court-martial panels are
not jury of one's peers. They are juries made up of people who
have expertise and knowledge and experience for the unit who
are assigned to do justice in individual cases, but have that
command perspective because the whole point of military justice
is to render justice in individual cases, but to make sure the
system is moving the unit forward as a whole.
I understand this is a bit difficult to absorb for a lot of
folks who are not in the military. But I would say that from my
point of view, that commanders do listen very closely to their
JAGs. It seems like the only cases that go forward are the bad
cases. I don't know why you would want to send a case to court-
martial where your JAG said we didn't think it was a good case.
Can you tell us why you would do that, General Amos?
General Amos. I would be happy to, Senator, because there
are times when I have sent a case forward when my JAG has said,
sir, we don't have enough compelling evidence. It is a ``he
said, she said,'' which, quite honestly, makes up an awful lot
of our sexual assault cases.
There is alcohol involved. It is complicated, and I, in
those cases, often have forwarded it to a court-martial,
forwarded it to an Article 32, then a court-martial because I
am going to let the jury, the judge sort it out. But I want to
send a signal to the command that it is not tolerated here
because it may be ``he said, she said'' to me, but it may come
clearer in the matter of a court.
Senator Graham. Gotcha. One last question, I am over my
time. Article 60 power, the ability to set aside a finding or a
specification and reduce a sentence, do you all agree that that
should be taken away from commanders in most cases? To me, that
is internally inconsistent with your message to us in terms of
power of the commander. How do you reconcile that?
General Chipman. Senator, if I can answer that? I think
that when the code was promulgated in 1950, it was before
substantial reforms had occurred in 1968, where we brought in
trained judges, qualified lawyers, to perform those roles. So,
I think that the conditions that warranted that authority back
in 1950, coming out of our experience in World War II, no
longer pertained.
Chairman Levin. Thank you, Senator Graham.
Now Senator McCaskill has raised this question of keeping
statistics much more separately in terms of assaults, sexual
misconduct involving assaults versus other types of sexual
misconduct. That might not be the perfect dividing line. I am
not sure. But the point that she raised I think is extremely
important. Senator Graham has just emphasized that as well.
We would ask you, I think under your leadership, General
Dempsey, to propose and to put into place a system of tracking
the misconduct in different categories so that we can, number
one, understand it better but, number two, have a baseline that
we can follow. That would be very helpful to us.
So will you, General Dempsey, take the leadership, see if
that is possible with the stats that are currently available.
If it is, fine, we will have an earlier baseline.
Senator McCaskill. It is not.
Chairman Levin. Apparently, it is not. Senator McCaskill
said I think it is not, and one of the Services, I think,
indicated it is not. So either way, but assuming it is not
available, start now. If it is, you can reconstruct something,
fine.
Senator McCaskill. Mr. Chairman, the numbers that we have
been relying on that have been so widely reported is the 26,000
number, and that is from the biannual survey. The question is,
have you had unwanted sexual contact? That is the problem is
that that includes sexual harassment, unhealthy work
environment, and rapists.
Chairman Levin. Right.
Senator McCaskill. That doesn't help us track whether or
not we are getting at this or not.
Chairman Levin. I think it is an important point, and we
are asking you, starting now, if you can't reconstruct it
earlier, to give us a much more useful system, okay?
General Dempsey. We will go to work on it. If I could add,
though, just so you know how we got here, because I recalled it
might be now 10 or 12, 15 years ago, a conversation about
whether we should separate these categories. Because in
separating them, you could encourage some to ignore the
unwanted sexual touching or the sexual harassment and focus in
only on the sexual assault, and it was our view 15 years ago
that this was a problem that was a continuum, not individual
acts.
I know, but I am suggesting to you we didn't get to this
point by being stupid. We actually got to this point because we
were trying to do the right thing. Looking back at it, it is
probably time to adjust it.
Chairman Levin. Right. Well, we thank you for taking on
that task. We think it is now important that we do that.
Senator Gillibrand, thank you for your leadership on your
subcommittee, too. You have had hearings on this subject, and
you have been a leader on this subject. We very much appreciate
both of those things.
Senator Gillibrand.
Senator Gillibrand. Thank you, Mr. Chairman.
Thank you for holding this hearing, and I think what
Senator Levin said when he opened up this hearing, he said
discipline is the heart of the military culture, and trust is
its soul. I am sure there is not one of you who disagrees with
that statement, and this goes to the very reason why we are
having this hearing.
I have spent a lot of time over the past several months
trying to understand this problem because I appreciate the
service and dedication every single one of you gives every
single day to this country. I am extremely grateful with the
renewed passion and determination so many of you have shown in
this hearing about how you will get to the bottom of this
problem and how you end the scourge of sexual violence and
assault in the military.
I believe you when you say that is what you want to
accomplish. But what I want to talk about today is how we are
going to accomplish that and what the actual problems seem to
be.
After speaking to victims, they have told us that the
reason they do not report these crimes is because they fear
retaliation. More than half say they think nothing is going to
be done, and close to half say they fear they will have
negative consequences. They will be retaliated against. Of the
victims who actually did report, 62 percent said they actually
did receive some retaliation.
Unfortunately, the reports that we do have, the incidence
of reporting has actually dropped in comparison to the number
of cases. It has dropped from 13 percent to under 10 percent of
the vague estimate of 26,000 incidents. We don't know how many
are rapes and sexual assaults and how many are unwanted sexual
attempts.
Now Secretary Hagel has said the most important thing we
can do is prosecute the offenders, deal with those that have
broken the law and committed the crime. If we can do that, we
can begin to deal with this issue. Each one of you have talked
about today military trust.
General Odierno, you said the military is built on a
bedrock of trust. Crimes cut to the heart of military
readiness. You have to be able to rely on our troops. It goes
to unit cohesion and discipline. You have said it perfectly.
General Amos, you have said the exact same thing, that we
need to have trust.
General Welsh, you said the bottom line is, though, they
don't trust us enough to report.
General Amos, you said the exact same thing in April, you
say why wouldn't female marines come forward? Because they
don't trust us. They don't trust the command. They don't trust
the leadership.
General Dempsey, you said the same thing. You said that you
might argue that we have become too forgiving because if a
perpetrator shows up at a court-martial with a rack of ribbons
and has four deployments and a Purple Heart, there is certainly
the risk that we might be a little too forgiving of that
particular crime.
Lieutenant General Harding, you just answered Senator
McCaskill's question, saying you think character should be
considered whether or not we go to trial. No legal standard in
the country agrees with you. That is why we want prosecutors to
make that decision.
So my concern is this. You have lost the trust of the men
and women who rely on you that you will actually bring justice
in these cases. They are afraid to report. They think their
careers will be over. They fear retaliation. They fear being
blamed. That is our biggest challenge right there. Right there.
So what I want to ask you, now you have all said you could
never support taking this out of the chain of command. Now the
key question Senator McCaskill made is very important. I agree
with you. The chain of command is essential for setting the
climate. Absolutely. You do set the climate.
That is why when we looked at this problem we have chosen
to keep all Article 15 issues in the chain of command. We have
also chosen to keep all crimes of mission--going AWOL, not
showing up on time, not charging up the hill when you command
your servicemember to do so. So we have understood that you do
set the tone for all of this.
But there is a difference between setting the tone, dealing
with misdemeanor-level behavior and dealing with some criminal
behavior. But when we are talking about serious crimes, serious
crimes like rape and murder, crimes that have penalties of more
than a year or more, what several of us are asserting and
arguing today is we think you should do what other countries
around the world do, who we fight with every day, that are our
allies. They are side-by-side with us in combat--Israel, the
United Kingdom, Australia, Germany.
They have taken the serious crimes out of the chain of
command for precisely this reason because the commander, while
you are all so dedicated and determined, not all commanders are
objective. Not every single commander necessarily wants women
in the force. Not every single commander believes what a sexual
assault is. Not every single commander can distinguish between
a slap on the ass and a rape because they merge all of these
crimes together.
So my point to you is this has been done before by our
allies to great effect, and in fact, in Israel, in the last 5
years because they have prosecuted high-level cases, you know
what has increased by 80 percent? Reporting.
I would like you to tell me specifically if you elevated
only the decision point of whether to prosecute the serious
crimes to a JAG military trained prosecutor to make that one
decision, along with the decision that Secretary Hagel has
already recommended, the decision of whether or not to overturn
the jury verdict, it is just two decision points for only
serious crimes, for no other command climate.
I do agree with you, U.S. commanders are essential to this.
I don't think you can get this done if you are not 100 percent
dedicated to eliminating the scourge of sexual assault. So I
would like you to say, and starting with General Dempsey, how
do you feel about those two decision points? Why can't you
maintain good order and discipline without those two decision
points?
Because you have those two decision points today, and you
do not have good order and discipline. You have, arguably,
26,000 attempts, either unwanted sexual attempts, assaults, or
rapes. That does not define, by any of your definition, as
stated today, good order and discipline. It goes to the heart
of not having military readiness.
General Dempsey, please give me your thoughts about those
two decision points, and why is overturning okay with you, but
whether to go to trial is not okay with you?
General Dempsey. Well, we have had the time with the chiefs
or our SJAs to give full consideration of the Article 60
adaptation, and we will give consideration as part of the 576
process to the other part of the question.
But as I have said earlier, I haven't had the time to talk
to my counterparts. I am not sure they would completely align
themselves with you on the success or failure of taking it out
of their military chain of command. Some cases they were forced
to do it, and they are expressing their support for that.
But I do want to be clear. Though I am aligned very closely
with my peers here on the idea that we should try to fix this
through the commander, not around him. I also think we should
take a look at surrounding him or her with a constellation of
checks and balances so that we empower and hold accountable
commanders. So that is my initial thoughts.
Senator Gillibrand. General Amos, could you give me your
thoughts?
General Amos. Senator, I just pile on what General Dempsey
said about enabling the commander better. So that is something
we have not talked about, and actually, that is very
encouraging.
But just a little bit, last year we had a total of all our
general court-martial cases last year, 97 percent of those
under your proposed bill would go to this independent decision
authority, independent disposition authority, 97 percent. That
would be things like failure to obey orders and regulations.
Clearly, that is----
Senator Gillibrand. No, that is excluded under our bill.
Any crime of mission is excluded.
General Amos. Okay. I am just going by what is listed down
here. Assault, Article 134 offenses, adultery, child
endangerment, all those things would be would--go to this
independent disposition authority. Those are things that are
line with a commander's ability to be able to mete out justice
and maintain good order and discipline.
So, as I said earlier, if I thought--and I am not convinced
of this. If I thought that moving in an Initial Disposition
Authority (IDA) on sexual assault matters would reduce sexual
assaults, increase reporting, then I would support it. I am
just not there yet because I don't have any proof of this
thing, and I am not convinced of it yet.
Senator Gillibrand. Since my time has expired, I would like
each of you to submit for the record two things. How do you
intend to regain trust of the men and women that serve under
you that they can get justice within the current system?
Because that is clearly what they have told us. They don't have
the trust, and many of you have actually said that.
[The information referred to follows:]
General Dempsey I agree. We are losing the trust of our men and
women on this issue. To regain that trust, we will ensure victims are
confident they can report without fear of blame or retaliation and have
confidence in a transparent military justice system.
We are taking swift and deliberate action to reinforce a
professional work environment, prevent and respond to predatory and
precursor behaviors, and better protect victims. Already, we have moved
initial disposition authority to O-6 commanders or higher. We are
aggressively implementing the nearly 100 actions in the 2013 Department
of Defense (DOD) Sexual Assault Prevention and Response (SAPR)
Strategic Plan. We are engaging in a Department-wide stand-down to put
a laser focus across the force on these crimes.
We must do all this and more to increase victims' willingness to
report, hold commanders accountable for a unit climate of respect and
trust, and cement an enduring culture of dignity and professionalism.
We will identify and promote promising programs, such as the Air Force
Special Victims Counsel pilot program. This program has already
benefited hundreds of victims, many of whom have changed their report
to unrestricted, an immediate indicator of greater trust in the
process.
We will explore every option, and we are open to every idea, that
will help eliminate this crime from our ranks. I will not be satisfied
until trust is restored.
Senator Gillibrand. The second thing, how do you intend to
hold commanders accountable if they don't get reporting up and
they don't begin to solve this problem? Because none of you has
ever reprimanded or held any of these commanders accountable in
the past. But if everything starts and falls, stops and starts
with the commanders, how do you intend to hold them accountable
if they do not solve this problem?
Chairman Levin. That will be asked for the record, but I do
think, in fairness, that a number of them have testified that
they have held commanders accountable in the past, including
for sexual climate.
Senator Gillibrand. But never dismissed.
General Amos. Mr. Chairman, can I just----
Chairman Levin. We will let their testimony speak for
itself on that.
General Amos. Sir, I would just like to correct the record.
My guys behind me reminded me that we have relieved two
colonels----
Senator Gillibrand. Oh, you have?
General Amos.--in the last 12 months. Two for sexual
harassment and assault, two of them.
Senator Gillibrand. Thank you. Just please submit for the
record what your hope is, what your measure will be and how you
will create a measure of accountability.
Chairman Levin. Will you all do that then for the record?
We will require that.
Thank you very much, Senator Gillibrand.
[The information referred to follows:]
General Dempsey Commander accountability is the cornerstone of our
success. It is absolutely essential to solving this problem and we are
moving out on a comprehensive approach to hold commanders accountable
for preventing and responding to sexual assault at all levels. To snap
this issue back into the focus it deserves, we have taken immediate
steps to expand proven methods and are moving out on new initiatives.
We have already refined our assessments of command climate by updating
the surveys that specifically enable servicemembers to evaluate how
effectively their commanders promote work environments that are
intolerant of sexual harassment and violence and respond to reported
sexual assaults. Additionally, we have moved initial disposition
authority for incidents of sexual assault to O-6 commanders or higher.
I have also endorsed Secretary Hagel's proposed amendments to Article
60 that remove a convening authority's ability to modify Court Martial
findings or sentences for qualified offenses. To ensure compliance at
all levels we are also instituting Sexual Assault Prevention and
Response (SAPR) program compliance inspections and a range of nearly
100 accountability measures in the 2013 SAPR Strategic Plan. These
measures will ensure a multifaceted approach to accountability and,
where commanders fail in their responsibilities, the Service Chiefs are
resolute in their commitment to remove commanders for cause.
General Odierno and Lieutenant General Chipman. The Army has
relieved 57 commanders over the past 4 years for failures to establish
a healthy command climate or leadership failures. The Army will
continue to identify commanders who fail to establish climates that
encourage reporting and eradicate retaliation and hold these commanders
accountable. The Army intends to enhance our comprehensive set of
checks and balances through the implementation of a Commanders Response
Certification program. This program will ensure that all the actors in
the system--commanders, judge advocates, investigators and other first
responders--are complying with all requirements and mutually
reinforcing duties and obligations. This program will provide objective
and measurable evaluations that can be certified by senior commanders.
Transparency and visibility, both for offender accountability and
commander accountability, will be essential to restoring the trust that
we have lost.
Admiral Greenert. We recognize the foundation of our operational
effectiveness is the trust and resiliency of our force. Two elements
contribute to sustaining this trust-effective means to report incidents
of sexual assault and holding leaders accountable for creating an
environment that is safe and does not tolerate, condone or ignore
sexist behaviors, sexual harassment and sexual assault.
Commanding Officers are at the front line of creating command
climates of dignity and respect that prevent sexual assaults,
responding to sexual assaults when prevention fails, supporting victims
and ensuring aggressive prosecution and accountability of offenders. We
have mandatory reporting requirements for sexual assault through our
Operational Report and Situation Report reporting procedures, where
each command advises senior leadership of an event soon after it
occurs. We also require all sexual assault allegations made through
unrestricted reporting channels be referred to NCIS and investigated. I
am unaware of any incident where a commander failed to report an
incident up the chain of command and initiate an investigation based on
an unrestricted report.
Should a sailor not be comfortable making a report to their chain
of command, restricted or unrestricted sexual assault reports can be
made to personnel outside the victim's command and can be confidential,
as desired by the victim. Restricted reports are kept confidential; an
investigation is not initiated, and the command is notified only that
an assault has occurred with no identifying information regarding the
victim or suspect. Victims can make restricted reports to SARCs, VAs,
medical personnel, or by contacting the DOD SafeHelpline by phone (877-
995-5247) or online (https://www.safehelpline.org/), 24 hours per day,
7 days a week. Victims who make restricted reports will still receive
medical treatment, including a Sexual Assault Forensic Examination,
counseling services, victim advocacy support, chaplain support, and
legal assistance as they desire. Victims may also go outside their
command to local law enforcement, NCIS, an installation SARC or VA,
medical personnel, a military attorney, or a chaplain to make an
unrestricted report that will result in an investigation by NCIS.
Unrestricted reports provide victims the same support services as
restricted reports.
As part of the Navy's accountability process, commanders are
required to brief their Immediate Superior in Command and the first
flag officer in their chain of command on each sexual assault incident
occurring in their command. As part of that brief, commanders evaluate
the command climate of the suspect's command, as well as the factors
surrounding the sexual assault, such as location and environment
surrounding the incident, demographics, and the role of alcohol. Means
to prevent further incidents are discussed. Our Navy four-star flag
officers reinforce accountability for command climate by reviewing
these ``first flag'' reports each quarter. We are implementing the
policies and actions from our successful sexual assault prevention
program at Great Lakes Training Center across the Fleet. Early results
suggest that these commander-led initiatives reduced the prevalence of
sexual assault in each location through a tailored approach that
combines elements such as safety and security measures, direct
engagement with local business and civil authorities, and regulated
liberty. Empowering our commanders while holding them accountable for
identifying and implementing change, makes initiatives like these
possible.
Additionally, we have also directed that each commander's immediate
superior will have full access to all command climate survey
information for the commands under their purview. This will enable a
full evaluation of commanders based on sailor assessments of their
command climate.
We relieve officers in command when they are deemed to create or
sustain a poor command climate or commit misconduct, which can be
reflective of or contribute to poor command climate. We publicly
announce these reliefs and the reasons; since 2010 we have relieved 7
commanding officers for poor command climate and another 39 for
personal misconduct.
Preventing and responding to sexual assault is not just a legal
issue--it is a leadership issue. The performance, safety and climate of
a unit begin and end with the commander. By virtue of experience, skill
and training, our commanders are the best assessors of their people and
are the key to implementing effective, permanent change in our
military.
General Welsh. We know why some of our airmen have not reported
sexual assault in the past--our surveys tell us that lack of trust in
the system is a serious factor that we have to address, but there are
also many other factors that add into this issue.
We are looking for fundamental ways to improve the prevention and
response to combat sexual assault and improve the trust of our airmen
in the current system. For example, we have just established a Sexual
Assault Prevention and Response Office headed by a two-star general who
reports directly to the Vice Chief of Staff of the Air Force. This
Office will provide a multi-disciplinary approach to combat sexual
assault and include highly-qualified civilian experts with significant
experience in this area. Additionally, we have very promising initial
results from our Special Victims' Counsel Program and believe it will
play a significant role in improving trust and confidence in the
ability for victims to get justice within our system and in return
encourage additional reporting by victims of sexual assault.
The statistical data provides a number of reasons that cause
victims not to report, and we are pursuing lines of effort to address
those concerns. From the 2012 Workplace & Gender Relations Survey of
Active Duty Members, of the 67 percent of women who did not report, the
reasons in 2012 were:
------------------------------------------------------------------------
Air Force
Reason DOD (percent) (percent)
------------------------------------------------------------------------
Did not want anyone to know............. 70 79
Felt uncomfortable making a report...... 66 73
Did not think their report would be kept 51 NR
confidential...........................
Did not think anything would be done.... 50 NR
Thought they would be labeled a 47 40
troublemaker...........................
Were afraid of retaliation/reprisals 47 NR
from the person(s) who did it or from
their friends..........................
Heard about negative experiences other 43 NR
victims went through who reported their
situation..............................
------------------------------------------------------------------------
NR = Not reportable due to low reliability as the number of responses
were too low to provide a statistically relevant amount.
Additionally, the Air Force contracted Gallup in 2010 to study the
barriers to reporting and broke the data out by gender and type of
criminal act to better target our efforts. The Air Force will conduct a
follow-on survey in the fall of this year to evaluate against the 2010
baseline. Table 12 from the Findings from the 2010 Prevalence/Incidence
Survey of Sexual Assault in the Air Force are included below:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
We expect our commanders to create a respectful and professional
environment where every airman can maximize their potential to meet our
mission requirements. When this does not occur, we hold commanders
appropriately accountable, as we have done in the past and will
continue to do so in the future. We do so utilizing a wide range of
available administrative and disciplinary options.
General Amos and Major General Ary. The Marine Corps fully supports
the direction outlined in the Secretary of Defense memorandum dated 6
May 2013. One specified task requires the acceleration of the
assessment of the systems used to investigate, prosecute, and
adjudicate sexual assaults, mandated under National Defense
Authorization Act for Fiscal Year 2013. The Secretary of Defense memo
also requires that: (1) a method be developed to incorporate the victim
rights specified in the Crime Victims' Rights Act into military justice
practice, and (2) that victims' counsel be improved, ensuring that
victims are provided the advice and assistance they need to understand
their rights and to feel confident in the military justice system.
Marine Corps legal assistance attorneys received training on their
role of providing legal assistance to victims of crime, with a focus on
victims of sexual assault. Legal assistance services provided include
consultation addressing: the Victim and Witness Assistance Program,
including the rights and benefits afforded the victim; the differences
between restricted and unrestricted reporting; the roles and
responsibilities of trial counsel, defense counsel, and investigators
in the military justice system; services available from appropriate
agencies or offices for emotional and mental health counseling and
other medical services; the availability of and protections offered by
civilian and military protective orders; eligibility for and benefits
potentially available as part of the transitional compensation program;
and traditional forms of legal assistance.
Marine prosecutors, paralegals and Naval Criminal Investigative
Service investigators, along with full-time, professional, credentialed
Sexual Assault Response Coordinators (SARC) and VAs, provide
individualized support to inform and enable victims to participate in
the military justice process. The Marine Corps is in the process of
hiring 25 full-time credentialed SARCs and 22 full-time credentialed
VAs to augment the over 70 SARCs and 955 uniformed and civilian VAs
presently in the field.
The fiscal year 2012 DOD Annual Report shows a 31 percent increase
in sexual assault reports involving marines and indicates that this
spike occurred largely in the second half of the year (April-September
2012). This increase coincides with the Commandant's Heritage Brief
Tour from April to August and the launch of the SAPR Campaign Plan in
June. With sexual assault being a highly under-reported crime, this
increase in reporting is a positive endorsement of our efforts to
heighten awareness and to deepen the trust and confidence in the Marine
Corps response system.
New Command climate survey initiatives will supplement existing
ones, to get after instilling an environment that is not non-permissive
to misconduct and criminal behavior, therefore contributing to
increased trust and confidence. Supplementing the survey provided
within the first 90 days of a commander taking command, the Commandant
has initiated a new requirement. Mandatory 30 days after assuming
command and at the commanding officer's 12-month mark, this new survey
will go up to the first General in the chain of command to hold
commanders accountable for the climate they set. We believe that this
tool will help commanders measure the health and well-being of their
command and mitigate the high risk behaviors that tear at the fabric of
the Corps.
I do not think we should lose sight of the true goal of fostering a
culture intolerant of sexual assault. While the increased reporting in
2012 may indicate an increase in trust in the commander, the hope is
that future reporting will decline as a result of a corresponding
decline is sexual assaults. Therefore, it might not be appropriate to
punish a commander merely for reporting numbers that hold steady,
decline, or increase.
To ensure that commanders are appropriately executing their solemn
duties, in May 2013 the Commandant directed new Marine Corps-wide
Command Climate surveys. Command climate is the single greatest
indicator not only of combat readiness, but also of the spiritual
health of that institution. Marines have a sacred obligation to take
care of each other and it starts with the commander. Command climate is
not simply a measure of how happy marines and sailors are in their
workplace; it is an indicator of the good order and discipline and
drives mission accomplishment.
These new surveys are mandatory within 30 days of a commanding
officer taking command and also at the commanding officer's 12-month
mark in command. Giving commanding officers this tool and holding them
accountable for the overall health and well-being of their command will
help us mitigate the high-risk behaviors that tear at the fabric of the
Corps. The results of the Command Climate surveys will be forwarded to
the next higher headquarters in the chain of command. Senior commanders
may relieve their subordinates of command if they lose trust and
confidence in their subordinate's ability to lead the marines and
sailors under their charge. In just the last 6 months, the Marine Corps
has relieved three commanders based upon command climate concerns.
Admiral Papp. [Deleted.]
Chairman Levin. Senator Blunt.
Senator Blunt. Thank you, Mr. Chairman.
Thanks to all of you for your service and for being here.
You don't get to this table that you all are at today
without considerable skill in lots of areas--leadership,
communication, lots of things. I am always impressed when you
come and represent your Service and represent those who serve
us and defend us.
I did think, General Dempsey and Admiral Greenert, that
your response to the question that Senator Shaheen asked was
stunningly bad. The question was, have you talked to people, to
Services that have been dealing with this for longer than we
have?
Admiral Greenert, you said thanks for the tip about
Australia and Israel, which Israel would--and General Dempsey,
you said you had just begun that process preparing for this
hearing, which I thought was not--it is a good thing we had the
hearing. But then in response to what Senator Gillibrand said,
General Dempsey, you said you hadn't had time.
So maybe I have heard this wrong. Has anybody who works for
you been asking these people? This is not a tough management
thing.
Where do you go to find out how people have dealt with this
before, and how could that possibly, Admiral Greenert, be a
``tip'' from somebody on this committee to the principal
manager of the U.S. Navy? I will let you answer that first and
then General Dempsey.
General Gross. Yes, Senator, thank you.
As the legal counsel to General Dempsey, that is one of the
areas I have looked into. I have done some research on the
United Kingdom----
Senator Blunt. I was going to ask Admiral Greenert, and
then I will come to your----
General Gross. Oh, oh.
Senator Blunt. That will be good. If somebody is looking
into this, I will feel better than I did a minute ago. I am
hoping.
Admiral Greenert. Well, Admiral DeRenzi tells me she, too,
has had those conversations with our Navy, but I take that
aboard as something that I should have done, Senator, and I
didn't, although we have talked about it with my JAG.
Senator Blunt. Well, now apparently you hadn't talked about
it enough to know that she had talked to them about it, or you
would have said that to Senator Shaheen. I am trying to be fair
here. I know you have a difficult job. I admire what you do.
But this has been going on now for years. Senator McCaskill
has been, since the day she got here, trying to draw attention
to this effort. You haven't been in this job all that time, but
talking to people who have managed this problem longer than we
have seems to me the very easiest place to start. The guy at
the top should know that. The man or woman at the top should
know that.
Admiral Greenert. To be clear, Senator, I have talked about
sexual assault in our navies with several of my counterparts.
What I have not discussed is litigating and taking litigation
or the process, if you will, of litigation outside of the chain
of command. I have had numerous conversations with my
counterparts.
Senator Blunt. That is a helpful addition. General Dempsey?
Do you want your attorney to answer?
General Gross. Yes, Senators. As part of my duties, I have
been looking into these matters. I mean, I even started
thinking about it when I was in International Security
Assistance Force and U.S. Forces Afghanistan back in 2009 and
got a chance to learn about some of our allies' systems, to
include Germany. Frankly, I heard some dissatisfaction with a
criminal justice system that was completely bifurcated from the
military chain of command.
An individual who had made a decision that a commander with
battlefield experience might not have seen as a violation of
the rules of engagement and so forth, but it was handed over to
civilian prosecutors with no military experience, no combat
experience, to make decisions about whether or not it was
appropriate for that individual in that particular case to call
in fire on a position. So there was some dissatisfaction there.
I have recently spoken with a British Judge Advocate. He
sent me an article on the British system that I have been in
the process of looking at, and some of my folks are as well.
I know that the Service Judge Advocate, each Service Judge
Advocate also has criminal law shops. Just from speaking to
some of them, I know that they have considered Australia, the
United Kingdom, Israel, and others that have looked at this as
not necessarily as a solution to sexual assault, but as just a
system for pulling all crimes out of the chain of command and
into an independent, in some cases civilian prosecutor, in some
cases court.
Senator Blunt. I would think from a greater management
point of view, in addition, and I think you are doing this--I
hope you are doing this. But all of the thoughts we can get
from other people dealing with this, or how do you stop it from
happening? How do you minimize the chances you are going to
have to deal with this at a litigated level by whatever you do
in the culture of the command? What do you do to stop this from
happening?
If we find out they are doing no better than we are, that
is something that we should know. But I think they, in many
cases, dealt with this in the situations particularly we are
going into now longer than we have--in combat and other
situations.
The question I am going to submit for the record, and I
don't have time for everybody to answer it now, but among
others, it will be is to each of the Service Chiefs, is the
soldier, sailor, airman, marine, or coast guard person less
fearful of being retaliated against for reporting instances of
sexual harassment or assault than they were in the past?
I may put a couple of qualifiers on how--than they were,
say, 18 months ago, and how do you feel that the guidance that
commanders are issuing is restoring the trust among members of
the Service that we need to have?
Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator Blunt.
That question for the record will be answered. Then would
that be addressed to all of them, all the Chiefs?
Senator Blunt. It will be to the Service Chiefs.
Chairman Levin. All right, and to the chairman, I assume,
as well, and all questions for the record that we have
identified so far, kindly answer those promptly.
Any other questions that are not referred to specifically
today should be in to me so that we can pass them along no
later than, let us say, by Thursday, so we can put some kind of
a finite end to questions for the record.
[The information referred to follows:]
General Odierno and Lieutenant General Chipman. Data in the Army's
2012 Human Relations Operational Troops Survey (OTS) showed some
improvement over the 2009 OTS with regard to ``fear of retaliation''
after reporting a sexual assault. However, there is still much work to
do to eliminate the fear of retaliation. The 2012 OTS showed we are
making some progress in building a positive command climate in ensuring
personnel are protected from retaliation.
In 2012, approximately 16 percent of female enlisted soldiers and
15 percent of male enlisted soldiers said it was likely/very likely
that the reporting person's career would suffer; compared to 23 and 19
percent in 2009. In 2012, approximately 16 percent of female enlisted
soldiers and 14 percent of male enlisted soldiers said it was likely/
very likely that the reporting person would be labeled a troublemaker;
compared to 26 percent and 2 percent in 2009.
Admiral Greenert. We believe that our sailors have increased trust
in the Navy and their leadership with regard to sexual assault. This is
based on an increase we have seen in the number of sexual assault
reports since fiscal year 2009. In fiscal year 2012, there were a total
of 726 reports (527 unrestricted, 199 restricted) of sexual assault in
the Navy. This is an increase over the average of 564 total reports per
year from fiscal year 2009-fiscal year 2011. Additionally, through 2013
we continue to receive reports of previous incidents--assaults that
happened months to years prior to the date of report. Together, we view
the increase in reporting and the fact that victims are reporting prior
events an indicator of decreased barriers to reporting. Further, we
believe these trends indicate sailors increasingly trust the reporting
process and the ability of the command to support them as victims.
We address the issue of retaliation and other barriers to reporting
in our training and messaging to the force. Every sailor's
understanding of the sexual assault reporting process, as well as the
consequences for retaliation, has been raised through continuous
awareness and outreach, including key initiatives such Sexual Assault
Awareness Month, the interactive Sexual Assault Prevention and
Response-Leaders (SAPR-L) and Sexual Assault Prevention and Response-
Fleet (SAPR-F) training, and the recent DOD-wide Sexual Assault Stand-
down.
We will continue to closely monitor the impact of barriers to
reporting, and specifically retaliation, through future DOD and Navy
surveys.
General Welsh. The Air Force continues to strive for Sexual Assault
Prevention and Response (SAPR) and Equal Opportunity (EO) programs that
remove barriers to reporting incidents of assault or harassment,
especially fear of reprisal or retaliation. The Air Force will conduct
a follow-on survey in fiscal year 2014 to evaluate our progress against
the 2010 Prevalence/Incidence Survey of Sexual Assault in the Air Force
baseline. We believe the findings from this survey will provide us the
data we need to measure our progress in the areas covered by the 2010
survey. Both programs have significantly improved educational efforts
so all Airmen understand they should immediately notify EO, Sexual
Assault Response Coordinators, or Victim Advocates if they feel they
are being retaliated against for making a report. Additionally, every
new member of the Air Force receives accession training upon initial
entry on SAPR and EO reporting options, procedures and victim rights.
Training on both programs is further re-emphasized at all levels of
leadership and professional development. Our airmen can also utilize
the Inspector General office, which is an alternate reporting option
free from any chain of command involvement. Finally, reprisal or any
other form of retaliation is not tolerated in any Air Force
organization and victim privacy is the foundation of all existing
programs.
General Amos and Major General Ary. Sexual assault is a field that
is replete with deeply held myths that our training programs are
designed to dispel. Myths are often centered around victim blaming and
used as motives for reprisals. All of our efforts are focused on
changing our culture, educating marines about sexual assault, and
eliminating victim-blaming myths. which are contributing factors to
this problem.
We purposefully survey our marines to use their input to move
forward. Survey results help shape future initiatives, as we move
forward. As our SAPR Campaign Plan continues to unfold and its many
training initiatives are implemented, we anticipate that the survey
will show continued improvements. Since the Campaign Plan's launch, our
training efforts have included: the SAPR General Officers Symposium,
SAPR training at the Sergeants Major Symposium, Command Team Training,
``Take A Stand'' bystander intervention training for noncommissioned
officers, and all hands training for all marines. To continue our
emphasis on leadership engagement, we updated our SAPR training course
for prospective commanders and senior enlisted leaders to meet all core
competencies and set learning objectives as defined by the Office of
the Secretary of Defense. We have also implemented SAPR training
programs customized for the Delayed Entry Programs, Recruit Depots,
Entry-Level Training, Professional Military Education (PME), Officer
PME, and Pre-Deployment Environments.
Also designed to protect victims from reprisal are Expedited
Transfer Requests, implemented in February 2012, an option made
available to victims to help empower and inform their decisions.
Victims who file unrestricted reports can request a transfer and will
receive a decision within 72 hours. Additionally, victims who remain
reluctant to come forward have the option to file a restricted report.
This option allows victims to confidentially disclose the assault to
specified individuals (i.e., SARCs, VAs/UVAs, or health care personnel)
and receive medical treatment and counseling, without the involvement
of law enforcement or command.
The Marine Corps does not take reprisal lightly and our training
programs are designed to reduce stigma and increase confidence in
reporting. The 31 percent increase in reporting from fiscal year 2011
to fiscal year 2012 is a positive endorsement of these and other SAPR
initiatives designed to reduce stigma and to encourage victims to come
forward.
Admiral Papp. [Deleted.]
Chairman Levin. Senator Blumenthal?
Senator Blumenthal. Thank you, Mr. Chairman.
I want to join in expressing appreciation to you for being
here today. I know this moment is a challenging and difficult
and even a painful one because you share our view that the
crime of sexual assault sullies the good name and honor of the
greatest military in the history of the world. Each of you has
given your lives, your professional and your personal life, to
serving that military, and many under your command have
literally given their lives under your command to serve that
military and to keep faith and to maintain the trust that we
all agree is at the core of the great service that you perform.
I have no question, having spoken to you before today and
many under your command, that they share your determination to
root out this cancer and to do what the civilian world has, in
many instances, failed to do, which is improve our justice
system there. I think that the military has a great opportunity
to teach some lessons to the civilian world, just as you did on
the issue of race relations and desegregation, which General
Amos has alluded to.
I know something about prosecuting because I did it for a
number of years, and I know that it is very, very difficult to
make the kind of judgments about whether to charge someone with
a crime. It is the most difficult part of being a prosecutor
because you know in charging someone, with many crimes, you are
going to ruin that person's life forever, whether there is a
conviction or not. The kind of factors and issues to be
considered are what kept me awake at night.
I have supported making those decisions by someone who is
trained and experienced and has the responsibility exclusively
not only for making the decisions, but then trying the case. I
welcome General Dempsey's suggestion that we need to have
checks and balances, a constellation of checks and balances. I
welcome General Odierno's suggestion in his testimony that we
need to take a hard look at the present system.
What I would suggest to you, very respectfully, is that
decisions about prosecuting are as difficult and demanding and
challenging as some of the decisions that you make about the
expertise that is within your training, and the military would
be well served by having those decisions made by someone who is
perhaps not completely outside the chain of command, but at
least within it, and not maybe a Judge Advocate, who is, again,
not necessarily trained in this function, but someone who does
have that role exclusively so that he or she can bring to bear
that expertise and experience.
Reporting is the key factor here, and I am encouraged by
some of the numbers that we have heard, the 31 percent in the
Marine Corps, which I think is a basis for hope or optimism.
But reporting will not occur in greater numbers unless we do
refine, to take the word of the day, refine the present system.
I have suggested in legislation I proposed that victims be
given restitution out of a compensation fund as an incentive to
come forward, but also a means of making them whole. Let me ask
all of you, considering that someone can get restitution as a
victim for having a car robbed, isn't it appropriate for
restitution to go to a victim or survivor of sexual assault?
General Dempsey?
General Dempsey. Well, as I said in my opening statement,
Senator, I have been attentive to all of the legislative
proposals. I am hopeful that as part of the 576 panel that that
issue of restitution would come up. But I am not prepared to
give you an answer on it today because I don't understand--by
the way, Australia has done that in some ways successfully, in
some ways unsuccessfully, and I am still trying to learn the
lessons of our allies in that regard.
I don't have a view on it today, but I understand it.
Senator Blumenthal. I assume you would agree, from what you
have said, that mandating a punitive discharge for a convicted
sexual offender would be something you would support, another
measure that I have proposed?
General Dempsey. Yes, I have actually said that automatic
discharge for convicted felony offenses, particularly in the
case that we are discussing, sexual assault, is an idea that I
would align myself with.
Senator Blumenthal. What about the idea of some bill of
rights that is incorporated in the UCMJ, a bill of rights for
victims or survivors? Is that something that would seem to
serve the purpose of eliciting more reporting?
General Dempsey. Yes. I believe it is. The only one we have
actually put forward our military advice on collectively at
this point is the Article 60 change. These others we would hope
to put forward as part of the outcome of the 576 panel.
Senator Blumenthal. Including, for example, a right against
repeated interrogation without some kind of counsel being
present, a right against inordinate delay, a right to be
present in a proceeding, the right to speak at the proceeding
if credibility or past sexual history is raised, to set the
record straight. Those kinds of rights are basic to fairness
and to trust, it seems to me.
Finally, some kind of ombudsman or authority within DOD
that would be a source of action in the event there were a
miscarriage of the justice system. Would you support that kind
of change as well?
General Dempsey. Well, again, Senator, I am not trying to
avoid your question, but I am suggesting to you that I have
said that we will consider any of the options presented by 26
pieces of legislation, by the way, through the 576 process.
Senator Blumenthal. Let me just close, and I appreciate
being given this opportunity to question. One of the most
impressive and startling facts at this hearing was the
suggestion by--the testimony from General Amos and General
Odierno that they actually went ahead to prosecute despite the
recommendations to the contrary in many cases from their Judge
Advocate, which I think indicates the passion and zeal that
needs to be brought to this problem by the commanding officers.
I am confident that if that kind of zeal and passion are
brought to decision to charge, it will change this, the command
climate, and eliminate this cancer from the military system.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Blumenthal.
Before I call on Senator Ayotte, we are going to--after
this panel is completed, we are going to move directly to the
next panel, and we are not going to be stopping for lunch today
at all. We are going to work right through the lunch hour. That
is good news I wanted to deliver as early as possible.
Senator Ayotte.
Senator Ayotte. Thank you, Mr. Chairman.
I want to thank all of our witnesses who are here today for
their service and leadership to our country.
There are a few questions that I feel, number one, have not
been answered. Senator Graham asked, touched upon it. General
Dempsey, Senator Gillibrand touched upon it. But I think it is
a very important question, and if you can't answer it today,
then I think it needs to be taken for the record.
That is why is it that you support the changes to Article
60, and yet when it comes to the disposition authority for
crimes of sexual assault that you believe that it would
undermine the chain of command to make those changes or some
changes to the disposition authority? I have not heard a clear
answer on that today.
I am asking as someone who believes this is something we
need answered. As a panel, we have our markup next week. We
have all these pieces of legislation, and I think this is an
important threshold issue that we have to address.
If you would like to take that for the record, I would like
a clear answer so we can understand what the differences are
between what I think has already been described and can be
viewed very much as an inconsistent position on one end with
the chain of command versus the disposition authority. I would
appreciate your response to that.
I am not asking for it today. I just think it would be
important for us in this markup to have a full understanding of
what you think about that.
Then I wanted to ask----
Chairman Levin. Is that addressed to each of the chiefs?
Senator Ayotte. I think it would be appropriate, Mr.
Chairman.
Chairman Levin. It is. I think that it has been asked
today, and whether it has been answered fully or clearly, we
will leave up to each member here to decide.
However, it is an important question, and it goes to the
heart of the matter. We are asking each of the Chiefs, and the
chairman, to give us your response to that question no later
than this Friday--given the fact that markup is next week.
[The information referred to follows:]
General Dempsey. While I support the proposed reforms of Article
60, I do not support removing commanders from their role as initial
disposition authorities in the military justice process. Commanders'
decisions regarding the initial disposition of offenses are central to
their role and responsibility to maintain the good order and discipline
of their units and the individuals they command.
Article 60 of the Uniform Code of Military Justice (UCMJ) currently
grants broad authority and discretion to convening authorities to
dismiss findings of guilt after trial. That authority, which dates back
well over 200 years, was necessary when the military justice system
lacked many of the procedural safeguards inherent in the system today.
In the past, the military justice system lacked attorneys serving as
trial and defense counsel, independent trial judges, and an appellate
process. Article 60 was necessary then so that commanders, with the
advice of their staff judge advocates, could ensure the proceedings, in
particular the findings, were fair and just. Many changes to the
military justice system, which began with the Military Justice
Improvement Act of 1968, now provide the necessary due process and
safeguards. Licensed military attorneys now serve as prosecutors and
defense counsel, independent military judges preside over courts-
martial, and convicted servicemembers are entitled to a robust
appellate process. Due to these changes, there is little or no need for
a convening authority to dismiss the findings after a panel (jury) has
found the accused guilty, except in those cases where the panel has
found the accused not guilty of the major offenses and guilty only of
minor offenses which, in and of themselves, would not justify court-
martial in the first place. As I testified, prudent and deliberate
refinements to the UCMJ, after careful study, are necessary to keep the
military justice system vibrant and relevant, and the system needs
certain checks and balances to protect the rights of the accused, the
rights of victims, and the interests of justice. This proposed change
to Article 60 is one of those sensible refinements.
The same cannot be said for eliminating the commander from making
initial disposition decisions. While I support raising the initial
disposition authority to higher level commanders in sexual assault
cases, as the Secretary of Defense did in April 2012, I do not support
removing commanders from that decision entirely. The authority and
responsibility for a commander to hold his subordinates accountable for
criminal activity, violations of orders, and dereliction of duty goes
to the heart of good order and discipline.
General Odierno and Lieutenant General Chipman. The Army supports
the Secretary of Defense's revisions to Art. 60, which preserve the
current practical uses of post-trial convening authority to set aside
minor offenses and reduce sentences. The convening authority's ability
to reduce a sentence based on the interests of justice is unchanged by
the DOD proposal. The Army supports these amendments because of changes
in our practice. Article 60 was part of the original code passed in
1950 and was not amended during the first major revision in 1968. At
that time, the Services had not established the independent trial
judiciary and independent defense bar. Line officers, not Judge
Advocates, were assigned as judges, trial counsel and defense counsel.
The intent of Article 60 was to allow the convening authority to grant
clemency if the accused Soldier had not received a fair trial or if the
court-martial adjudged an overly harsh sentence. These justifications
do not support the current authority as it pertains to findings under
Art. 60 given the current state of our practice.
The Army does not support removal of the commander from the
disposition decision because the justification for this authority has
not changed. The commander's ability to punish offenses quickly,
visibly and locally is central to the authority of the commander and
the responsibility of commanders for all that goes on in the unit.
In addition, there are several practical concerns with removing the
commander from the initial phases of courts-martial. Commanders are
integrated into every aspect of their soldiers' lives and would remain
responsible for vitally important ancillary aspects of both victim care
and victim protection (where the victim is a soldier) as well as
control over the accused. Even if the commander were removed from pre-
trial disposition decisions, the commander would remain responsible for
determining whether an accused should be placed in pretrial confinement
or whether other conditions on liberty are appropriate, such as a
military protective order. The commander would also discipline the
soldier in the event he violates the military protective order. Because
we are deployed globally, the military commander is frequently the only
authority who can order such actions. Additionally, more senior
commanders in the accused or victim's chain of command are vested with
authority to process a transfer request for the victim, to appoint
sanity boards and to authorize the assistance of expert witnesses. The
commander's responsibility to care for the victim while managing the
accused is inextricably linked with his responsibilities as a
disposition authority, and removing this important aspect of command
authority will have significant ramifications.
Admiral Greenert. I support amending Article 60 regarding the
commander's post trial authorities while retaining disposition
authority with the commander as presently constituted. These positions
are not inconsistent, because they pertain to two entirely different
functions in the military justice process. A commander's disposition
authority pertains to pretrial responsibilities and the ability to
direct appropriate disciplinary action to support good order and
discipline; Article 60 pertains to post-trial actions, where a
disposition determination supporting good order and discipline is
complete and post-trial review and appeal processes are adequate to
ensure the effective administration of justice.
The responsibility, authority, and accountability we repose in
commanders for mission accomplishment--including successfully leading
U.S. servicemembers in combat--require that they play a central role in
the military justice system, with the authority to hold perpetrators of
all offenses appropriately accountable. The experience and perspective
a military commander brings to bear, augmented by the advice of
experienced military lawyers, allow for the proper balancing of mission
accomplishment, the rights of the victim, the rights of the accused,
and the interests of justice to reach an appropriate disposition
decision.
We have taken significant steps to ensure that allegations of rape,
sexual assault, forcible sodomy and attempts to commit those offenses
are forwarded to experienced senior commanders for disposition
determinations; these commanders are required to consult with their
experienced staff judge advocates and/or prosecutors in every case
before making a disposition decision. Commanders who serve as Sexual
Assault Initial Disposition Authorities are 0-6 or senior ranking
officers who have special court-martial convening authority.
Post-trial actions are different from the initial disposition of a
case. The Navy fully supports DOD's legislative proposal to amend
Article 60 removing the authority of commanders to set aside the
findings of a court-martial except for certain qualified offenses as
defined in the DOD proposal and requiring convening authorities to
explain, in writing, any action to modify a court martial sentence or
qualified offense findings. The DOD proposal recognizes that court-
martial practice has changed since World War II through the
participation of professional military prosecutors, defense counsel,
and judges, and the inclusion of a comprehensive review and appeal
process. Post-trial appeal and review processes under Articles 64, 66,
and 69 of the UCMJ occur after court-martial proceedings. Article 66
reviews apply to cases in which a punitive discharge or sentence of
confinement for 1 year or more was approved; those convicted are
assigned appellate defense counsel, and cases on appeal are decided by
senior judge advocates serving as Navy and Marine Corps Court of
Criminal Appeals appellate judges or by civilian judges of the U.S.
Court of Appeals for the Armed Forces. Article 69 reviews apply to
general courts-martial where a punitive discharge or confinement for 1
year or more was not approved; the records of trial are reviewed by the
Office of the Judge Advocate General. Article 64 reviews are conducted
for all other courts-martial cases and are submitted to a judge
advocate who must respond to any allegation of error made by the
accused.
Because court-martial convictions are now subject to these
processes (obviating the need for a substantive review by the convening
authority), the Navy supports the DOD proposal to amend Article 60 of
the UCMJ.
General Welsh. Airmen must very clearly understand who will hold
them accountable, both for mission execution and for meeting personal
and professional standards. They expect that to be their commander. Our
entire military system is based on commanders having that authority and
responsibility. In general, it has served us remarkably well in both
peacetime and conflict for a very long time. I believe we should be
very deliberate as we consider significant changes to that authority.
The ``576 Panel'' gives us the opportunity to do that.
Article 60 addresses the convening authority's responsibilities at
the completion of a court martial; the disposition decision has already
been made and findings have been issued by the court. Article 60's
post-trial authority developed at a time when the armed forces did not
have a robust appellate court system. Each Military Service now has its
own Court of Criminal Appeals. Every case tried at a military court-
martial is eligible for review by the Court of Criminal Appeals under
either Article 66 or Article 69 of the Uniform Code of Military
Justice. Cases with a sentence that includes a punitive discharge or a
year or more of confinement receive a compulsory appellate review. I
believe that Article 60 authorities can, and probably should, be
updated to reflect today's more modern military judicial system.
The Article 60 modification proposed by the Secretary of Defense
would prohibit a convening authority from setting aside the findings of
a court-martial except for a narrow group of qualified offenses.
Convening authorities would still retain their authority to execute
pretrial agreements and safeguard the interests of the command by
taking action on the sentence alone. Again, improvements in the
military judicial system and our robust appellate process provide the
rationale for my support of this Article 60 modification-not any loss
of confidence in our convening authorities. Secretary Donley and I are
committed to preserving the authority and responsibility of commanders
to promote good order and discipline within their units, while
simultaneously advancing victim support and protecting the due process
rights of the accused.
General Amos. A commander's pre-trial and post-trial court-martial
roles involve separate and distinct authorities that should not be
linked together. A commander's pre-trial disposition authority is an
enforcement mechanism that reinforces the commander's authority as the
individual who sets and maintains standards of conduct in a unit. A
commander's post-trial role, in addition to continuing to serve as a
mechanism to enforce a court-martial sentence, also includes a clemency
function that when exercised, provides some sort of relief to an
accused. The two roles can therefore serve completely opposite
functions. While at one time there was a need for both functions, the
military justice system has evolved substantially since its inception,
to the point where the broad clemency power under Article 60 is no
longer necessary, even though the enforcement portion of the Article 60
is still needed.
The commander's broad authority under Article 60 was established
during a time when the key participants of the trial--the prosecutors,
defense counsel, and military judges--were not professional lawyers,
and when there was not a comprehensive system of appellate review. The
complete discretion of the commander under that system prevented
miscarriages of justice, provided for the expedient correction of legal
errors, and permitted the granting of clemency in certain cases. The
professionalization of court-martial practice and the addition of
multiple layers of appellate review justify reducing the commander's
once unlimited authority to take action on the findings in cases not
involving ``minor offenses.'' The Secretary of Defense's proposal
retains the proper amount of clemency authority necessary to maintain
good order and discipline and properly excludes the right class of
cases that should be left to the appellate review process for the
correction of legal error and/or clemency. Additionally, the
requirement for a written explanation for any Article 60 action (on the
findings of a ``minor offense'' and/or the sentence of a court-martial)
ensures transparency and will preserve the trust and confidence
servicemembers and the public have in our military justice system.
Lastly, it preserves the ability of a commander to take action on a
sentence under Article 60, which serves as the authority for that
commander to reduce an adjudged sentence in accordance with a pre-trial
agreement.
Unlike the historical changes involving the conduct of a court-
martial and the post-trial processing of that court-martial, the
general role of the commander has not changed since the inception of
the UCMJ. The military still needs a system of deployable military
justice that provides swift and appropriate justice for the entire
spectrum of misconduct. This will never change. As long as there is a
military, there will be a chain of command. As long as there is a chain
of command, there will be a commander responsible for everything that
the unit does and fails to do. This responsibility cannot be
overstated. Command is a central pillar of military culture. When a
unit enters combat, success will be directly related to a commander's
ability to enforce his or her orders and standards. Commanders are
charged with building and leading their team to withstand the rigors of
combat by establishing the highest levels of trust throughout their
unit. Virtually every facet of Marine life underscores the authority
and centrality of the commander, to ensure that when those critical
moments come there is no hesitation among the marines he or she leads.
This is a cornerstone of combat effectiveness, which is the core
mission and central organizing principle of every Military Service. In
a very real sense, the Nation's security depends on the strength and
trust in the relationship between the commander and those he or she
leads.
This trust can only be built and maintained when marines know that
commanders have the authority to hold accountable marines who violate
that trust. Marines must know that their commander sent a marine to
court-martial, not an unknown third-party prosecutor, who plays no
daily role in developing and maintaining the bond of trust essential to
combat effectiveness.
The modification of Article 60 is about the reduced need for a
commander to make certain clemency decisions in the post-trial process.
Because the commander's need to make enforcement decisions has not
changed, the commander's authority to make those enforcement decisions
under the Uniform Code of Military Justice should also not change.
Admiral Papp. The Coast Guard does not support removing the
commander from the role of initial disposition authority because he or
she is responsible for mission accomplishment and instilling good order
and discipline in the unit. For that reason, the commander's role in
deciding whether and how to dispose of charges is vital to the
effectiveness of the military justice system and the military as a
whole. Judge advocates are critical to the effective and fair
application of the modem military justice system, but the discipline of
military personnel is primarily the responsibility of commanders. A
commander's exercise of initial disposition authority is apparent to
subordinate military members, reinforces their appreciation of the
authority of the commander, and thereby reinforces discipline.
Moreover, to make a commander who is held absolutely responsible for
mission execution, crew safety, and unit discipline, and not provide
the commander the authority over military justice matters may place the
commander at a disadvantage by maintaining his accountability but
denying him the authority to ensure discipline.
Significantly, the vast majority of officers who have the authority
under Article 22 to make an initial disposition on allegations of
sexual offenses in the Coast Guard are flag officers. In June 2012, the
Commandant of the Coast Guard withheld initial disposition authority
for allegations of sexual offenses to those special courts-martial
convening authorities who have achieved the rank of 0-6 (Captain) and
have an assigned staff judge advocate. While many special courts-
martial convening authorities are of the 0-6 pay grade, only 13 have an
assigned staff judge advocate. Even when the 0-6 has the authority to
dispose of an allegation of a sexual offense, the Flag Officer above
the 0-6 still has the authority to withhold disposition to his or her
level. As a result, most sex crime cases are disposed of at the Flag
level.
Initial disposition authority under Article 30 and the exercise of
convening authority under Article 22 are different than the authority a
commander exercises under Article 60. A commander's exercise of
discretion in granting clemency under Article 60 arguably has a
negligible effect on good order and discipline. Moreover, the
historical justification for post-trial clemency authorities has abated
with the introduction of professional judges, a highly competent
defense bar, and an appellate process of review.
Senator Ayotte. Thank you, Mr. Chairman. I appreciate it.
I know, General Welsh, that you were asked earlier about
the Air Force Special Victims' Counsel Pilot Program. Senator
Murray and I, we have a bill Combating Military Sexual Assault
Act of 2013. It has 33 co-sponsors. As I understand it, you
said that the response has been very, very positive in the Air
Force to this program?
General Welsh. Yes, Senator. Overwhelmingly positive.
Senator Ayotte. Overwhelmingly positive.
General Welsh. Yes, ma'am.
Senator Ayotte. In other words, victims feel that they have
the support of the system, which has been--when I look at your
survey, that is one of the issues that comes loud and clear
when you have people who are reporting saying 43 percent heard
about negative experiences of other victims that went through
that reported their situation.
General Dempsey, I would like to ask you what your position
is on our legislation in terms of giving this special victims'
counsel not only to those in the Air Force victims, but in
every branch of our military?
General Dempsey. Yes, Senator, thanks.
We have discussed that as chiefs, and there is a
distinction between special victims capabilities and special
victims advocacy that we are trying to work through and
understand the resource implications. But we are very much in
agreement that we need to do more for the victims.
Senator Ayotte. Okay, General. I also would appreciate if
you are able to give us--I know that you are talking about it
at a command level with the Secretary, but as we go into the
markup next week, it would be very helpful to know.
Because this piece of legislation does have 33 cosponsors
in the Senate, I want to make sure that every victim of sexual
assault gets the support that they need in the system to make
sure that people--we turn this around in terms of people who
are not coming forward because they fear how they are going to
be treated in this system.
I think knowing that there is a representative that
represents them and will represent their rights and respect
their rights within the system, I think, is very important. I
would appreciate any follow-up you have on that with your
meetings within.
[The information referred to follows:]
General Dempsey. The Air Force Special Victims Counsel (SVC) pilot
program, while very new, has shown positive results and provides a
robust support program for victims of sexual assault. Hundreds of
victims have availed themselves of SVC services in the Air Force in
just the past several months since it was implemented. Many of those
victims who initially filed restricted reports of sexual assault
decided to change their report to unrestricted, allowing full
investigation of the offenses committed by their assailant. As the
early reports have been so promising, I expressed in my May 20, 2013,
letters to Senators Levin and Inhofe that the proposed SVC legislation
had merit. I support providing victims of sexual assault this important
resource.
General Odierno and Lieutenant General Chipman. The Army is
monitoring the Air Force's special victim counsel pilot program and
recognizes the value of all efforts that enhance victim care and
satisfactions. The Army is engaged in hiring several hundred victim
advocates as directed by law. We are also training our legal assistance
attorneys and victim-witness liaisons to better advocate on behalf of
victims. The Army has 300 legal assistance attorneys currently
assisting and advocating for victims within a confidential attorney-
client relationship.
I am confident that the Army's approach of a Special Victim
Capability with specially selected and trained prosecutors,
investigators and victim witness personnel working as a coordinated
team, not in an adversarial relationship with a separate attorney, is
the best opportunity for effective, sustainable victim care without
undercutting accountability. The relationship between the prosecutor
and the victim is the bedrock of every case and I am hesitant to place
a wedge between them.
Admiral Greenert. The Navy's legal professionals provide support to
sexual assault victims. Navy prosecutors explain to victims their
rights; the court-martial process; and available Federal, State, or
local victim services and compensation. In addition, the Navy has
trained more than 150 attorneys, paralegals, and enlisted personnel to
provide legal assistance to crime victims in order to ensure victims'
rights are understood and protected. Active-duty and dependent victims
are eligible for military legal assistance services and are directed by
Sexual Assault Response Coordinators and Victim Advocates or
prosecutors to legal assistance attorneys to receive help pertaining to
victims' rights, understanding the court-martial process, and a wide
variety of legal issues related to being the victim of a crime.
I believe it is premature to commit to the full scope of the Air
Force Special Victim's Counsel pilot program at this time, particularly
given that in-court representation of victims has triggered judicial
challenges. The first such challenge is currently pending before the
United States Court of Appeals for the Armed Forces. The outcome of the
judicial challenges, and assessment of the issue by the Response
Systems Panel created by section 576 of the National Defense
Authorization Act for Fiscal Year 2013, will help determine the
feasibility of in-court representation of victims.
While such assessment is pending, I support a program that provides
victims with the legal support judge advocates are uniquely qualified
to provide, including: legal consultation regarding victims' rights;
the military justice process; potential criminal liability of the
victim; potential civil litigation; and legal assistance in personal
civil legal matters.
General Amos. The Marine Corps agrees with prohibiting sexual
contact between trainers and trainees, and would also support extending
that prohibition to recruiters and those honorable Americans seeking to
enter the Marine Corps. Sexual activity between these classes of
individuals is shameful and violates the trust and esprit de corps that
makes the Marine Corps what it is.
Marine commanders currently possess sufficient charging options to
punish this unacceptable behavior. Marine Corps regulations at our
Recruit Depots, where we train approximately 38,000 new marines each
year, provide strict guidance prohibiting any form of social or
personal relationship between drill instructors and recruits. Sexual
activity between a drill instructor and a recruit would clearly violate
this order under Article 92 of the UCMJ. Additionally, a drill
instructor would violate Article 120 when he or she used their position
of authority to coerce or threaten a recruit with some sort of wrongful
action in order to get the recruit to engage in sexual activity. This
type of abuse of authority justifies elevating criminal liability from
an orders violation to a non-consensual sex crime and registration as a
sex offender.
The Marine Corps believes this proposal should be first studied by
the Section 576 Response Systems Panel (RSP) to ensure the strict
liability nature of the crime would not create unintended second- and
third-order effects.
Admiral Papp. The Coast Guard supports providing comprehensive
legal services to victims of sexual assault, and we recognize the value
of designated Special Victims Counsel. As such, we are currently
developing an SVC program to ensure that victims of sexual assault are
provided the advice and assistance they need to understand their rights
and to feel empowered in the military justice system. In this effort,
the Coast Guard continues to closely monitor the changes and
enhancements to the Air Force's SVC program to assess and potentially
adopt best practices.
The Coast Guard would have no objection to legislation as long as
it vests in the Secretary concerned a degree of latitude in
implementation. The Coast Guard ensures currently that a cadre of
specially trained and designated personnel provides services to sexual
assault victims: Criminal Investigators, Victim Advocates, Sexual
Assault Response Coordinators or Employee Assistance Program
Coordinators, Health Care Providers, Family Advocacy Specialists, Trial
Counsel, Physical Disability Attorneys, and Legal Assistance Attorneys.
These specially trained personnel provide a host of complementary and
integrated services, including consultation between restricted and
unrestricted reporting, education about victim-witness assistance
programs, explanation of the military justice system, advisement of the
availability of health and mental health services, offers to assist
with any personal civil legal matters, and information about post-
service benefit programs. Affording survivors of sexual assault access
to special victim counsel would potentially supplement these services.
The Coast Guard notes that, as a general matter, statutory
requirements may not always take into account the disparity in the
size, organizational structure, and geographic location of units within
and among the services. Given geographic dispersion, structure, and
missions of the Coast Guard, absent additional funding, existing Coast
Guard legal resources may not be sufficient to allow special victim
counsel to carry out all of the duties identified in the current draft
language, which include accompanying and representing victims during
interviews with investigative services, at Article 32 hearings, and at
any court-martial proceedings. At the same time, some functions
contemplated for special victim counsel may potentially duplicate some
of the already available services performed by Victim Advocates.
The Coast Guard therefore recommends legislation provide the
Secretary concerned with a degree of flexibility in implementation and/
or execution, by foregoing prescriptive requirements and duties, and by
allowing the flexibility to allocate functions appropriate to their
training and expertise among special victim counsel and other members
of the cadre of specially trained and designated personnel who provide
services to sexual assault victims. This approach would preserve and
help to realize the apparent intent to prescribe a vibrant special
victim counsel program that would provide valuable assistance to
survivors of sexual assaults.
The Coast Guard understands that the Defense Department recommends
deferring legislation mandating special victim counsel pending
completion of the Air Force pilot program and assessment by the section
576 panel. The Coast Guard concurs with that recommendation.
Senator Ayotte. I also wanted to ask in our legislation,
one of the incidents that we have been--when we talk about
incidents that we are all troubled by, one of them has happened
at Lackland, where you have 43 female trainees alleged to have
been victimized by their military training instructors.
Seventeen instructors were accused of offenses ranging from
improper relationship all the way to rape.
One of the components of the legislation that Senator
Murray and I have introduced actually prohibits sexual contact
between instructors and trainees while the training is going on
and within 30 days of the completion of basic training. I think
all of you, as leaders of the military, appreciate that there
certainly is a vulnerability to those who are in a training
setting with those who are the commanders there and the people
that they are reporting to that are training them.
General Dempsey, when I saw your written response to that
piece of the legislation, I was troubled by the fact that there
wasn't an endorsement of that. I need to understand where do
you stand on the notion of prohibiting sexual contact between
instructors and trainees during basic training?
General Dempsey. We have spoken about special protections
for, for example, cadets in basic training. But we find
ourselves at a little bit on the horns of a dilemma. We have
the 576 process that the Secretary of Defense has been
chartered to go through, and we haven't had a chance, frankly,
to speak with him about any of these in particular, which is
why I have said on a couple of occasions now that, personally,
I think some of these issues have real merit and potential, but
I have to also be true to the legislation and the panel that
will try to see this thing holistically.
I am not trying to avoid the question, Senator. But I am
trying to make sure that I have the opportunity with the
Secretary to bring it into context.
Senator Ayotte. My time is up, and I just think it would be
hard to justify not supporting what seems to be basic common
sense when you have incidents like Lackland. Just the
relationship between a trainee in a basic training setting and
the individuals who have command over them, who are training
them, that there should not be sexual contact there because
that, obviously, can lead to issues of coercion.
I hope that that would be something that would just pass
the basic common sense test. I look forward to hearing more
about that from you as you have these meetings.
Thank you.
[Additional information follows:]
Admiral Papp. The Coast Guard concurs with the intent of the draft
legislation criminalizing a trainer engaging in consensual sexual
relationships with a trainee. However, the statute is duplicative with
existing charging options under the Uniform Code of Military Justice
(UCMJ) and may invite appellate challenges.
This conduct is already criminalized under the UCMJ. Coast Guard
personnel policy explicitly states that consensual sexual activity
between a trainee and trainer is prohibited and punishable under
Article 92 for failure to obey an order or regulation. The Coast Guard
has long used Article 92 to hold company commanders accountable for
consensual relations with students at training commands. In addition,
Coast Guard Training Center Cape May has promulgated a lawful order
prohibiting personal relationship between company commanders and
graduates of recruit training for 1 year following graduation.
Sexual conduct that is not consensual is prohibited and punishable
under Article 120. That would include cases when a trainer uses his
authority to place a trainee in a position where he or she cannot
consent freely. Sexual harassment is also punishable under Article 92
(orders violation) or Article 93 (maltreatment).
Placing this proposed offense under Article 120 as a sexual assault
raises legal concerns. The proposal removes consent as a possible
defense, thus making sexual conduct between two consenting adults a
strict liability sex offense.
Doing so would likely draw Constitutional challenges in light of
recent decisions by the Supreme Court and Court of Appeals for the
Armed Forces. Categorizing this offense as a ``sex act'' and placing it
under Article 120 raises an issue with regard to sex offender
notification. Under the Federal Sex Offender Registration Act, ``an
offense involving consensual sexual conduct is not a sex offense for
the purposes of this title if the victim was an adult, unless the adult
was under the custodial authority of the offender at the time of the
offense.'' 42 U.S.C. Sec. 16901(5)(c). The result is that conduct
criminalized under Article 120 may not result in registration while
other conduct will.
Because the proposal invites unnecessary legal risk with some of
the language used in the draft text and placement of this offense under
Article 120, the Coast Guard recommends that this proposal be further
studied by the congressionally-mandated panels under the National
Defense Authorization Act of 2013.
Chairman Levin. Thank you, Senator Ayotte.
Senator Donnelly.
Senator Donnelly. Thank you, Mr. Chairman.
I want to thank all of you for your service, and I know how
hard you are working to try to get this right.
We have heard about the risk of unintended consequences,
but here is the risk that concerns me; I know you all feel the
same. We have brothers and sisters, sons and daughters,
husbands and wives, and when this happens, it is the risk of
personal violation of somebody. It is the risk of destroying
that person's internal soul, their emotional state, their
physical state.
In some cases, by a person who they look to as their
leader, their commander, and that they look to with a sacred
trust. General Amos, you put it best. You said this is a sacred
trust that we have in front of us and that we have an
obligation to get this right.
We are in this with you. When you said the buck stops here,
the buck stops with us, too. We have an obligation to get this
right.
I was at the Indy 500 a week before the race, and we
inducted a couple hundred young men and women into the Service.
I want to be able to know when I look them in the eyes that I
can keep my obligation to tell them you can serve our country,
serve with dignity, have your dignity respected. That is what
we are trying to do.
General Odierno, you said we have a commander problem, and
so my question is we ask a lot of our commanders, in many
cases, they are in the middle of fighting a war at the same
time. They have a lot on their plate.
It doesn't, in my eyes, make them less capable that they
don't handle this. They have other things to handle. Why would
a soldier think less of their commander simply because their
commander doesn't handle this area?
General Odierno. Well, having been a commander in combat on
three occasions----
Senator Donnelly. Right.
General Odierno.--I would tell you that is essential
because they depend on you for everything that goes on in that
unit. One of the things we talked about, by the way, is this
threat about retaliation. That is not going to change if you
take it outside the chain of command. You still have the threat
of retaliation.
I want the commander fully involved in the decisions that
have an impact on the morale and cohesion of the unit, to
include punishment, to include UCMJ. That is their
responsibility. It is not too much responsibility.
In my mind, it sets the tone for the unit in order for them
to execute under the most strenuous conditions, and I need
commanders who can do that. I think, ultimately, if they can't
do it, then we hold them accountable. That is their
responsibility.
So I feel very strongly about it. Because what we ask them
to do--I agree with you. What we ask them to do is very unique
and very complex, and it requires a commander who sets the tone
for every issue. As we increase the role of women, it becomes
even more important in my mind that the commanders take this on
themselves and that they are part of the process to solve these
problems.
The other thing I would just say is they are not making
these decisions independently. You have a very experienced
Judge Advocate by your side the whole time, walking you through
and helping you through this process.
Senator Donnelly. What is the training that they have, the
commanders, as well in terms of classes that they take or book
learning that they take that they can look at this and go, ``It
is this or it is that,'' where they have the same kind of
prosecutorial ability.
General Odierno. Yes. We require commanders to go through
legal orientation courses before they take command. That is
part of the requirement for a battalion command, brigade
command, and when general officers take command, they are
required to go through a course that we teach at the Judge
Advocate General School in Charlottesville.
They go through that course to specifically outline for
them what their responsibilities are. One of the key pieces of
that is if you don't understand the responsibility, you go to
your JAG for them to explain to you the details and technical
responsibilities that you have. It is not only do they get
trained, they are taught to rely on their JAGs.
Senator Donnelly. This would be for any of the people. Are
you aware of how often, and I am sure you are, that people who
have suffered the sexual assault, that not long after there is
often suicidal thoughts or suicidal problems? I mean, this
seems to compound another issue that we deal with.
General Odierno. You are right.
Senator Donnelly. Well----
General Odierno. You are right, Senator. It does, and that
is why it gets to the overall issue of climate, environment, et
cetera.
Senator Donnelly. I would like to ask our Coast Guard
admirals who are here with us, there is a documentary, ``The
Invisible War.'' There is a young lady in there who is a member
of the Coast Guard, stationed not far--stationed on Lake
Michigan, not far from where I live. She went through an
extraordinary and horrible series of events.
I was just wondering after having seen that--she has been
working with the Department of Veterans Affairs (VA) and
working with others--has the Coast Guard reached out to her?
Have you contacted her or sat with her or talked with her to
say, ``Hey, how can we help put this back together for you?''
Admiral Papp. Senator, we have made attempts to--some of
the allegations she makes were not revealed when she was a
member of the Service. Every time we have made the offer to
further investigate or take up those allegations, we have
received no response.
I watched that, and it broke my heart. I brought it home
and had my wife watch it with me. I know many of our spouses go
on the road with us, and they are dealing with the families.
They are dealing with the crews. We have made that mandatory
viewing for our senior leaders, and we have also engaged in
seminars, every single senior leader within the Service.
In fact, we are going to finish up with our headquarters
component next week. It is our intent that nothing like that
happen again.
Senator Donnelly. Okay. I guess the point I also want to
make with this, and this is to all of you, and I know you are
all committed to this as well, is that we continue to follow-
up. We continue to try to get it right for some of these folks
who have felt, look, I have put forward my best claims. I have
been put aside.
Or as this process goes through, that once a decision is
made that we don't just leave them to the side. That they are
continuing to deal with a whole host of issues that we, like I
said, when I looked at those kids at the Indy 500, the buck
stops here, too. I have an obligation to make sure they get it
right and have an awesome and wonderful career, just like all
of you have had.
Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator Donnelly.
Senator Kaine.
Senator Kaine. Thank you, Mr. Chairman.
Admiral Greenert, in your testimony you departed a little
bit from your written testimony in one way that I thought was
interesting. You said this issue of sexual assault in the
military represents an existential threat to our core values,
and I think that is a great way to put it.
There has been a lot of testimony today and questions
eliciting testimony about the inside effect, the effect upon
those who are serving, the debilitating effect that sexual
assault of any kind would have. But I just want to say a word
about my concern about the external effects, not just those
currently serving.
First, the recruiting concern is a major one. I was
recently at the Mary Baldwin College in Virginia. There is a
Virginia Women's Institute for Leadership. It is an 800-person
women's college in Staunton, VA. One hundred of the women are
in an institute that is focused on training people to take
commissions in the military. They have a commissioning rate
that is higher than most of the senior military colleges in the
United States, about 60 percent.
As the students and I were in dialogue about what they
thought about for their future, they had two major concerns
that they wanted to raise with me. First is on our soldiers. Is
Congress, with sequester and all these other things, really
committed to the mission? Would we want to sign up for a career
if a political leadership wasn't committed to us?
Second they were asking about the sexual assault issue.
When somebody says I will put my life on the line and I will
risk death to go in harm's way, but I don't know whether I want
to risk a culture that has allowed this to grow so much, that
is a very serious concern.
You all, and we all, want to make sure that the best
leaders in the future feel like this is a career that they can
pursue because we want to be sitting here 25 years from now
with leaders who are entering today because they know they can
do it.
The second external effect that this has in a very dramatic
way is one on society. Every society needs heroes, and you all
are as good as we have right now. But when people start to
question their heroes or think that there is a cancer or
something within the heroic class, it not only affects their
view about the military, it affects their view about our entire
society.
I think they feel the same if they look at Congress. If
they look at Congress and they feel like we don't treat each
other civilly or we are too gridlocked, it doesn't just affect
their view about Congress. It affects their view about our
country.
So, when people look at the military and they see these
stories about sexual assault, it is not just affecting their
view about the military. It weakens their confidence in our
Nation. That is why the stakes in getting this right are so
high.
I tend to agree with the line of questioning that Senator
Gillibrand and others were pursuing that one of the main issues
here is this fear of reporting. The DOD report that came out in
April has some staggering numbers.
For those who do report unwanted sexual contact, 62 percent
say that they have experienced something that they would
believe is retaliation as a result. For those who do not
report--and we know, I guess, maybe 7 of 8 don't report, based
upon the recent survey--47 percent don't report because of fear
of retaliation, and 43 percent don't report for another reason
that is very close, which is the experience of others who have
had the same reason, which would either be retaliation or,
well, nothing was done. Why bother?
So 90 percent of people who don't report are reporting for
something, either retaliation or a sense of I have seen others
who have gone through it, and it just doesn't make any
difference. We have to get at that issue of the reporting and
the retaliation.
General Welsh, one of the things that I think is
interesting, you talked briefly in your comments and also to
Senator Ayotte about this Air Force special victims' counsel,
the response that you have gotten. I would be interested in
knowing about the positive response.
I am sure it is positively received that along the way
there is someone who can help understand the process, but I
wonder whether the special victims' counsel, whether you are
getting reports about it, ``It makes me fear retaliation less
knowing that I have someone who is going to be with me through
every step of the process.''
If we can't get the fear of retaliation down, then we are
not going to solve this problem. So, I think that the special
victims' counsel pilot project that you all are working on,
that may have an impact on the fear of retaliation. But if we
can't whittle that fear down, we are not going to solve this
problem.
So I would be curious as to whether you are seeing that in
any of the initial reports about the project?
General Welsh. Senator, we haven't seen any comments back
from the victims who do the survey debriefs with us that
specifically relate to ``I feel better about the risk of
retaliation because I had a special victims' counsel.''
The positive return rate is about 95 percent on these
surveys, overwhelmingly positive about the benefits of having
someone who understood the legal process, who was by their side
supporting them primarily the entire time, who shielded them
from unnecessary questioning, and who helped them understand
the intricacies and the confusion and the law of the legal
system that they are now in.
The positive results we are seeing are, number one, that
feeling from victims. Even in some cases where the alleged
perpetrator was acquitted, the victim still had usually
positive things to say about the special victims' counsel.
A couple of other areas that are really positive for us are
that we are finding fewer victims of the ones represented by
special victims' counsel deciding not to proceed forward with
prosecution, and I agree with the comments that have been made
earlier today about prosecution being a very, very, very
critical piece of this. So, the more cases we can get to a
court with good victim support to get the facts in the case
right, I think the better we will be in the future.
The other thing we are seeing is that there is a higher
propensity for victims who start as a restricted report. Once
they are assigned to special victims' counsel and have someone
who is helping guide them through this what must be an
incredibly confusing maze they face, more are deciding to come
forward and change from restricted to unrestricted, about 50
percent more than have in the past.
Those two statistics are really positive for us. The
special victims' counsel, in my mind, is one of a set of game-
changing things that can help us in this area across the
spectrum of issues related to sexual assault. Right now, it is
the only one we have found that is really gaining traction. We
have to keep looking for all the others.
Senator Kaine. Mr. Chairman, earlier you indicated, all of
you, that you thought you had the tools you needed right now.
But General Welsh, you did say that on the special victims'
pilot that resources are a component of how broadly you can
implement that, either in the Air Force or system wide.
Correct?
General Welsh. Yes, sir. It would be different by Service,
based on numbers of legal, of SJAs that are available and size
of your Service. But this is an issue. We just can't define it
clearly enough yet because we don't know what the top end of
our support capacity is.
Hopefully, we will find that out by the time we finish the
1-year pilot and be able to report on that in our paper.
Senator Kaine. Thank you.
Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator Kaine.
Senator King.
Senator King. You all have a great deal of experience with
leadership. In my experience, the personality and qualities and
character of the leader infect the whole organization, whether
it is for good or ill, whether it is a company or a small unit
or a governmental entity.
We have talked a lot today about culture, and it just seems
to me that one of the most important things is for you all to
mean it. To mean it. To make it absolutely clear, no jokes, no
winks, no nods, and don't tolerate people that make jokes,
winks, and nods. That is going to be a powerful way to
communicate it.
I am not suggesting that you don't, but I am just saying
that. Down the line that has to be part of this that we can
change the rules and do all those kinds of things, but it is
the culture that has to change, that this is unacceptable
conduct.
Along those lines, is retaliation an offense? If it isn't,
it should be. General Dempsey, is retaliation an offense in one
of these situations?
General Gross. Senator, there may be ways to charge that.
There is interference with the justice system and certain
things that there may be threats that could be charged. There
may be--there are different ways under the UCMJ that you could
get at that behavior.
Senator King. Well, I would suggest maybe you want to look
at something more specific than tampering with the system. But
we are talking about more subtle offenses, and perhaps think
about defining an offense of retaliation for reporting one of
these crimes because nonreporting is the big problem here. That
is the big issue.
General Gross. I mean, I truly do think there is adequate
provisions within the UCMJ now that you could charge almost all
the behavior that fell within that span.
Senator King. Does it ever happen?
General Gross. I know that I have recently seen charges
where there was obstruction of justice. I don't know that it
was retaliation, per se. But it was the idea that somebody was
encouraging someone not to testify or threatening them not to
tell the truth.
I have seen that a number of times over my career. I don't
know of a recent example of someone being charged with
retaliation, per se, but some of the Service TJAGs might have
an idea about that.
Senator King. Anybody else want to address that issue?
General Chipman. Senator, I will address part of it. We
talk about retaliation, and in fact, the top three reasons that
people don't report relate to loss of privacy, a desire not to
undergo the process, the idea that too many people will know,
so a lack of confidentiality. Those are the reasons that
actually outnumber retaliation.
Much of the retaliation that our survivors report actually
relates to ostracism from fellow unit members. So, it is not a
command-driven retaliation, but it is this idea that through
social media and other contexts, victims feel that they are now
isolated from the base of support within the unit that they may
have once shared because of this report of misconduct within
the unit, that same unit whose values and cohesion and ethos
they share.
Senator King. I would just suggest that this issue of
retaliation is significant. Whether it is in the command chain
or whether it is in the unit, again, it is creating a culture
of zero tolerance. I think that is important.
Let me change the subject for a minute. A lot of this
discussion is about Senator Gillibrand's bill to take these
decisions out of the chain of command. That is the issue that
all of you addressed in your opening comments, and I think it
is an important one.
Are there any figures, and there may be--I apologize if I
didn't pick them up--on how many decisions not to prosecute
after a complaint is made? How big a problem is this of a
decision of the O-6 or higher who decides not to prosecute? Is
it 1 percent, 2 percent, 10 percent, 20 percent? Do we have any
figures on that?
General Chipman. Senator, I think much of our experience
would be anecdotal. We have that check and balance with the
Judge Advocate and the commander discussing each and every
case. In the Army, for example, we have 50 major jurisdictions
that last year tried 2,400 cases. I would have 50 general court
convening authorities making the individual decision on the
merits of each case, accompanied by a discussion with his or
her Judge Advocate following a pretrial investigation.
Senator King. But you see, the point of my question is
Senator Gillibrand has suggested that we ought to take this out
of the chain of command because that is a problem in the
prosecution. I am trying to get at is it a problem in terms of
the numbers? Does it happen once every 1,000 cases or once
every 10 cases?
If you can comb the studies and the records and perhaps
answer that for the record, I would appreciate it.
[The information referred to follows:]
General Odierno and Lieutenant General Chipman. Statistically and
anecdotally, the Army prosecutes the most serious offenses (rape,
sexual assault, and forcible sodomy) at a rate comparable or favorable
to most civilian jurisdictions. Data available in the fiscal year 2012
Annual Report to Congress indicates that in founded cases in which
there was a final disposition and jurisdiction over the offender, the
Army prosecutes rape offenses at the rate of 56 percent and sexual
assault (sleeping or intoxicated victims) at a rate of 59 percent.
Studies by advocacy groups and academics estimate that civilian
jurisdictions, that do not have comparable comprehensive reporting
requirements, prosecute those same offenses at a rate between 12-20
percent. In a penetrative offense allegation, if insufficient evidence
exists to support the allegation, commanders can, and do, take lesser
actions for related offenses such as adultery, fraternization, or
violations of barrack's policies.
Due to the variety of disposition options for commanders under the
Uniform Code of Military Justice (UCMJ), the Army also prosecutes
``minor'' offenses, those involving an unwanted touch, with non-
judicial or administrative punishments. Civilian jurisdictions rarely
prosecute these types of offenses.
Finally, the UCMJ criminalizes conduct, such as indecent language
and or the sexual harassment of subordinates (maltreatment) that is not
criminalized in civilian jurisdictions. This allows commanders to
address the pre-cursor behaviors that can contribute to sexual assaults
and affect morale and discipline in a unit.
General Welsh. In general, the Air Force does not specifically
track decisions not to prosecute after a complaint is made. However,
some data is available specifically for sexual assault. The fiscal year
2012 Sexual Assault Prevention and Response Office (SAPRO) report
details 177 cases that were presented to Air Force commanders for
action in fiscal year 2012. Commanders took action for a sexual assault
offense in 56 of those cases: 42 resulted in preferral of court-martial
charges, 14 in non-judicial punishment. Command action was precluded or
declined for a sexual assault offense in 121 of those 177 cases
presented to commanders for action in fiscal year 2012: 54 because
probable cause existed only for a non-sexual assault offense, 32
because there was insufficient evidence of any offense, 24 in which the
victim declined to participate, 11 because allegation was deemed
unfounded by command.
``Unfounded by command'' includes cases involving determinations
made by a commander with supporting legal advice that the cases were:
(1) False cases--Evidence obtained through an investigation shows that
an offense was not committed or attempted by the subject of the
investigation; or (2) Baseless cases--Evidence obtained through an
investigation shows that alleged offense did not meet at least one of
the required elements of a UCMJ offense constituting the SAPR
definition of sexual assault or was improperly reported as a sexual
assault.
With regard to the number of cases where a Judge Advocate
recommends going forward and a commander does not, the Air Force
recently reviewed this through a data call. We found that commanders
disagreed on disposition in only 22 of 2,511 cases tried from 1 Jan
2010 to 23 Apr 2013 (less than 1 percent). Of those 22, there were 10
in which a superior commander preferred charges and only 12 where no
commander preferred charges. Only one of those 12 cases involved a
sexual offense charge (wrongful sexual contact).
General Amos and Major General Ary. In fiscal year 2012,
investigations were completed on 288 suspected individuals. Of those,
32.3 percent were outside of DOD's legal authority (i.e., the offender
was unknown, the subject was a civilian or foreign national, civilian
authorities assumed initial jurisdiction, or the subject died or
deserted). Accordingly, in fiscal year 2012 there were 195 suspected
individuals whose cases were presented to commanders for disposition
decision. After consultation with a Staff Judge Advocate, the commander
determined in these cases that there was insufficient evidence to
substantiate any misconduct in 54 percent of those cases. Of the
remaining cases, the commander determined that probable cause supported
sexual assault charges in 33 percent of the cases. In 97 percent of
those cases, the commander referred the case to court-martial.
On April 20, 2012 the Secretary of Defense issued a memorandum
withholding initial disposition authority (IDA) in certain sexual
assault offenses to the, 0-6, SPCMCA level. The Secretary of Defense
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
nonconsensual 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 fiscal year 2012, Marine Corps Legal Services Support Sections
received 2,575 Requests for Legal Services (RLS) on military justice
cases from commands within the Department of the Navy. Of those 2,575
RLS, 17 percent resulted in adjudicated general or special courts-
martial. The other 83 percent were adjudicated using alternate forums
or disposition methods. The Marine Corps found that convening
authorities took action consistent with their SJA's recommendation for
all cases that were disposed of during fiscal year 2012.
General Chipman. Senator, we will do that. There is very
little daylight between the cases that a Judge Advocate think
is worth prosecuting and the decision of the commander to refer
that case. So on the order of 1 percent would be more
realistic.
Senator King. That is a perfect intro to my final question,
and that is instead of taking--I am looking for an alternative
to taking it out of the chain of command but to still have a
check and balance. What about a situation where a decision not
to prosecute would have to have the written concurrence of the
JAG officer associated with that decision? In other words, it
is a two-person decision, as opposed to one.
That is an attempt to find a middle ground between not
tampering with the chain of command in any way, shape, or form
and the bill that would take these decisions out of the chain
of command. Any reflections on that?
General Odierno. Senator, as I said in my opening comments,
that is required. The JAG is required today to give his opinion
in writing. If it disagrees with the commander's decision, it
could be pushed up to the next higher level.
Senator King. It could be or would be? That is my question.
General Odierno. Yes, I think--I will let you answer that.
General Chipman. Senator, I think could be. I don't think
there is an automatic. It really depends upon the nature of the
disagreement between the commander and the Judge Advocate. But
certainly, there have been convening authorities and Judge
Advocates who have called me in my current duties to say can I
talk through this case with you and get your own assessment as
to the merits of this particular decision.
Senator King. My suggestion would be that it would go up
one level if the JAG disagrees with the decision not to
prosecute. Again, I am searching for an option here that
maintains the chain of command but still provides another check
and balance in these cases, which we all agree are
unacceptable.
Thank you very much, gentlemen.
Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator King.
Senator Nelson.
Senator Nelson. I would like to ask the commanders in
determining whether or not to prosecute, do you feel that the
accused's military service record should be a determination
aid/determining factor in whether or not to prosecute? General
Dempsey, I will start with you.
General Dempsey. We had this conversation a little bit
earlier, actually, and the question was at what point does
character enter into a decision to prosecute? I think we were
pretty clear, I thought, that the decision to prosecute was
made in the context of the overall character of service, but
always in light of the crime and the evidence that supported
the criminal prosecution.
In my own experience now, character generally comes into
sentencing and punishment far more than it does into the
decision to prosecute.
Senator Nelson. Yes. Character in the sense of a person's
exemplary military record, that is what I am talking about. Is
there anybody that disagrees that a decision to prosecute could
be mitigated by an exemplary record of the servicemember
accused?
General Amos. Senator, I don't believe a valorous record or
a substantive record should have anything to do with the
decision as to whether or not an individual should be
prosecuted, number one.
Number two, in 43 years, and having done this now many
times, I can't think of a single instance where my SJA sat down
with me and said, sir, we ought to reconsider this because this
marine XYZ has a tremendous record. Not a single time.
Senator Nelson. Does anybody disagree with General Amos?
[No response.] Okay. Now I understand that you all have already
discussed this, that you all agree that a commanding officer
can, at whatever level, cannot reverse a conviction by a
military court? Is there anybody that disagrees with that, in
other words, you would agree that a commanding, convening
authority could not reverse a conviction by a military court?
General Gross. Senator, I think--I can't speak for
everybody on the panel. But I think what was said earlier is
that we support Secretary Hagel's proposal to modify Article 60
that a commander, a convening authority couldn't reverse a
conviction in all except certain minor qualified offenses, if
those were the only ones remaining. He or she would still
retain the authority to reduce sentences for different
purposes.
I think that was the earlier testimony.
Senator Nelson. Could any of you speak--I guess, General
Welsh, could you speak to the circumstances where this has
happened that Senator McCaskill has been so involved in with
regard to the Air Force general?
General Welsh. Senator, I am not sure exactly what you are
looking for. The case was the Aviano case, but are you talking
about the convening authority's actual overturning of the
verdict?
Senator Nelson. Yes. In the case of General Helms.
General Welsh. Yes, sir. General Helms is actually a case
in Vandenberg Air Force Base in California, and General Helms'
case was a case where an individual was charged with two
counts, two sexual assault charges, and then some additional
lesser charges.
In the court, one of the sexual assaults, the principal
sexual assault charge was found to be not guilty. The
perpetrator was found guilty of the second charge and the
subordinate charges. General Helms, in her Article 60 review,
as the convening authority felt that the court had not met the
burden of proof for the allegation of guilt or for the finding
of guilty.
So, she set aside that finding in the court, and she
punished that finding under a lesser charge and the subordinate
findings of the court under nonjudicial punishment. That is
what happened.
Senator Nelson. Do you believe that a commander should have
that authority to overturn the decision of a military court?
General Welsh. No, Senator. I completely agree with
Secretary Hagel's recommended changes to Article 60.
Senator Nelson. Thank you.
Chairman Levin. Thank you, Senator Nelson.
Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman.
We have heard a number of you testify that the victims in
these circumstances can make an initial report in a number of
ways to a number of people. Now when the report is not to the
person that is in the chain of command and it is to some
nonmilitary entity, what happens to that report? Are these
entities required in any way to submit a report to that
person's, the complainant's chain of command?
General Welsh. Senator, each of the Services may be a
little bit different on how this starts, but I think we are
fundamentally all the same. If the report goes to someone who
then reports to the chain of command, the chain of command or
anyone in the chain of command, the chain of command must now
consider it an unrestricted report and it is reported through
the command chain through standard reporting procedures.
If the initial call goes to one of our Special Assault
Response Coordinators, to a victim advocate, or to a medical
person as part of that initial string of notifications, if they
get it first and contact the victim, then the victim will have
the opportunity to file an unrestricted report--or excuse me, a
restricted report. It starts with focus on victim care.
The commander is then only notified through the command
chain that an incident has occurred. There is no identifying
information.
Senator Hirono. I can understand when it is all in the
military environment, and so there is that. But we all know
that one of the major issues with regard to these kinds of
crime is the tremendous underreporting that is going on.
My interest is to make sure that whatever reporting is done
is being captured in some way by the military, and the
testifiers said that sometimes civilian authorities or
anonymously these crimes are reported. How do those get
tracked, if at all?
General Welsh. In some cases, they don't. In many cases,
our SARCs actually have done an awful lot of work to connect to
and cooperate and communicate with victim care agencies in the
regions around the bases. In those cases, those organizations,
unless there is a privacy restriction imposed upon them, will
share information or encourage victims to talk to the SARC, and
we will get the reporting back into the military chain.
Senator Hirono. You all do your best, all of you Chiefs and
all of our Services, you do your best to capture this kind of
information, I hope? Good.
There was also a discussion about command climate surveys
and how important they are to determine what kind of
environment our men and women are serving in. It seems as
though these are not institutionalized. It is not formalized.
I would suggest, and following up on some of my other
colleagues' line of questioning, that I would like to know who
does the survey? Who gets asked to participate in the survey?
What questions are asked in the survey? What happens in those
surveys?
I think that these surveys should be institutionalized
because of the importance.
General Odierno. Yes. In fact, I believe they are
institutionalized. First, the entire unit answers the question.
So, in other words, if it is a company or a battalion, the
entire unit will be part of the command climate survey, or at
least a proper representation of the unit of every rank.
Involved in the questions are anything to do with the
readiness of the unit to discipline within the unit, to sexual
assault, sexual harassment, to suicide information, to how they
feel the command reacts to what they do, what they don't do. So
it gives you overall assessment of a capability of a unit from
readiness to climate issues, and we have questions that are
specifically built for them to answer that have been studied
and continue to be adjusted over time throughout the Army.
Then those answers are taken. There are assessments done,
and then feedback is given to the chain of command.
Senator Hirono. So these surveys are institutionalized in
the Army. What about the other Services? Also there is a
question of confidentiality. Are these surveys done
confidentially?
General Odierno. They are.
Senator Hirono. What about the other Services?
General Amos. Senator, we have institutionalized it. It is
mandatory for each command. As soon as a commander takes over,
within 30 days, he or she has to have this 34-question command
climate survey taken on 100 percent of the individuals in their
unit. Then it will be done on the anniversary of that taking,
so every year.
That information is confidential, and it goes to the next
higher command, and in that, out of that, the next higher
commander. So if the command is a battalion that is having the
survey, a regimental commander is going to know the climate of
that organization. Are the marines happy? Is the equipment up,
and are they--what is the climate for sexual harassment and
sexual assault?
Senator Hirono. Thank you. I am running out of time, and I
have a couple of important questions.
We know that there are a number of bills that have been
introduced, and several of them is to remove the chain of
command from certain decisions. We know that we have allies--
Israel, United Kingdom, Australia, Germany--who have done the
kinds of things, removal of chain of command on certain
decisions.
The response to the question of whether or not any of you
have talked with our allies with regard to their experience I
thought was unusual in that you had--apparently you haven't had
those discussions. I like to make decisions based on
information and experience. I would really like to hear from
you as to when you intend to or if you intend to talk with our
allies as to what their experience is in moving in the
direction that some of these bills move in.
Is there any timeframe when you are going to be doing that,
any of our chiefs?
General Welsh. Senator, I think we have all done a little
bit of this work. General Harding, for example, has spoken with
the Australians, with the Canadians, and with the British TJAG
or member of the JAG staff to get their views on this.
I have spoken with the former Canadian and British air
chiefs, also the Israeli air chief on a visit to Washington. On
my visit to Israel in about a month, it is one of the topics we
have on the agenda to discuss with his legal team. I think this
actually is happening. There are people interested.
The problem is getting to the details, and to get the
details of how they operate, we have to go to them to talk to
them and their staff. That is what was not available when we
spoke originally with the air chief.
Senator Hirono. Mr. Chairman, I would very much appreciate
a response from all of our Services as to when they intend to
talk with our allies, if they intend to, and with specifically
regarding the removal of the chain of command on some of these
decisions.
Chairman Levin. Do you want that for the record?
Senator Hirono. I would like to have that in the record.
Chairman Levin. Please tell us whether you and your JAGs
have had such conversations and, if not or even if you have,
what your plans are to have additional conversations with our
allies. A number of people have raised that question. So we
will ask each of you, for the record, to give us that
information.
[The information referred to follows:]
General Odierno and Lieutenant General Chipman. The General officer
leadership of The Office of The Judge Advocate General (TJAG) for the
U.S. Army has met with the Canadian TJAG, Canadian DJAG on Military
Justice, British T JAG, and Australian TJAG within the past 2 years to
discuss the role of the commander in military justice. It is important
to note that changes in those systems, that altered the authority of
the commander in military justice, were based on perceptions or
findings that the rights of the accused soldiers were not being
adequately protected. We will continue to examine our allies systems of
justice.
Admiral Greenert. The Judge Advocate General of the Navy, the
Deputy Judge Advocate General of the Navy and I have had meetings with
our counterparts from the United Kingdom, Canada, and Australia to
discuss the management of military justice cases, including sexual
assault. The role of the military commander in these nations differs
from the role of the commander in the U.S. military justice system.
In the United Kingdom, a civilian Director of Service Prosecutions
makes the decision to prosecute at court-martial and determines the
charges. Military commanders may try minor offenses at a Summary
Hearing (similar to non-judicial punishment (NJP) under Article 15 of
the Uniform Code of Military Justice (UCMJ)); however, serious offenses
are referred to General Court-Martial and, in contrast to the U.S.
military justice system, commanders may not grant clemency following a
conviction at court-martial.
In Canada, commanders may try minor offenses at a Summary Trial
(similar to NJP). For more serious offenses, a commander, a commander's
delegate, or a military police officer may charge the offenses, which
are then referred to the Canadian Military Prosecution Service (CMPS).
The CMPS was created to separate the court-martial system from military
commanders; the Director is appointed by the Defense Minister and it is
staffed with active-duty attorneys. CMPS decides which cases should
proceed to trial, designates the trial forum, drafts appropriate
charges, and provides prosecutors for court. CMPS may also decide to
not proceed with charges. Military commanders have no authority to
grant post-trial clemency following conviction at court-martial.
Offenses committed by servicemembers in Canada may also be prosecuted
in civilian courts.
In Australia, a military commander may try minor offenses before a
Summary Authority (similar to NJP). More serious offenses are
investigated by the Provost Marshal, who has the discretion to submit
the investigation to the commander or to the independent Director of
Military Prosecutions (DMP). The DMP, appointed by the Defense
Minister, consults with the Superior Authority (typically a two-star
commander) to ensure chain-of-command input is considered in the
disposition decision. For offenses with concurrent military/civilian
jurisdiction, the DMP is required to consult with civilian authorities
to determine whether the offense is sufficiently connected to service
discipline to allow trial by court-martial. If the DMP determines that
court-martial is warranted, the DMP determines the charges and provides
the prosecuting attorney. Through the Registrar of Military Justice, a
panel of jurors is chosen at random from all available officers of the
defense force. This system was instituted in Australia eight years ago.
Although generally thought to have provided more transparency and
fairness in the eyes of the Australian populace, the changes have not
markedly changed the rate of criminal offenses, serious crimes, or
conviction rates. The Australian force has expressed an interest in the
U.S. system's restricted reporting options to encourage sexual assault
victims to come forward.
Many of the changes made to the military justice systems in the
United Kingdom, Canada, and Australia resulted from perceived system
unfairness, lack of transparency, or court rulings pertaining to the
rights of accused servicemembers. However, each system retains the
authority of the commander to adjudicate minor offenses and maintains
differing roles for the military commander in the disposition of more
serious offenses.
General Welsh. We have spoken with a number of our allies about
removal of the chain of command on some decisions, and we have begun
evaluating the merits of their approaches. Specifically, Lieutenant
General Rich Harding, the Air Force Judge Advocate General, had
meetings with his Australian and Canadian counterparts on the topic in
the last 6 months and intends to engage with his British counterparts
later this year. In addition, I will be meeting with his Israeli
counterpart in August and this issue is already on their agenda. He
will add this topic to the agenda for future meetings with his
counterparts from our other nations who have a system that separates
commanders from the initial disposition decision. Our additional
conversations with allies on this topic will build on the knowledge we
already accumulated.
One key distinction that makes adopting any of the allied models of
criminal justice especially problematic for the United States is the
relative size and geographic distribution of our Armed Forces compared
to those of our allies. The United States has approximately 1.4 million
active duty servicemembers stationed worldwide compared with
approximately 221,000 in Germany, 212,000 in the United Kingdom,
172,000 in Israel, 59,000 in Canada, and 51,000 in Australia. As of 31
December 2012, U.S. Armed Forces were stationed in more than 150
countries, with large contingents of 52,692 in Japan, 45,596 in
Germany, 39,157 in Afghanistan, Iraq, Kuwait, South Korea and
classified locations, 10,916 in Italy, and 9,310 in the United Kingdom.
Implementing a centralized prosecutorial system likes our allies
presents unique challenges given a need to administer a consistent
uniform justice system for a very mobile workforce across nearly every
time zone in multiple foreign countries subject to host nation
arrangements.
General Amos and Major General Ary. The Staff Judge Advocate of the
Marine Corps (SJA to CMC) has personally met with the senior Canadian
judge advocate and discussed changes in their military justice system.
The SJA to CMC's staff has also been researching and evaluating the
changes some of our allies have made to their military justice systems
to see what lessons may be learned.
The Marine Corps' initial research into the changes made by our
allies indicates that in many cases, those changes were undertaken
because of court decisions that found the military justice system did
not adequately protect the rights of the accused. This is a
fundamentally different situation than the one currently being
evaluated by Congress. Federal courts, including the Supreme Court,
have consistently upheld the constitutionality of our military justice
system.
The Marine Corps will continue to research lessons learned from our
allies, both individually and collectively as part of the Joint Service
Committee on Military Justice, the Code Committee, the Response Systems
Panel, and the Judicial Proceedings Panel. We are constantly reflecting
upon our system and trying to improve it. We will continue to do so in
the future.
Admiral Papp. [Deleted.]
Chairman Levin. Thank you, Senator Hirono.
Senator Hagan.
Senator Hagan. Thank you, Mr. Chairman.
Mr. Chairman, I really do appreciate you holding this
hearing today, and I appreciate all of you being here and your
testimony.
I also appreciate the fact that we have All-Volunteer
Service today. I think our men and women who are serving us,
they have a mission, and they have a job to do. They should not
have to worry whether today is going to be the day that they
are sexually assaulted.
I want to tell General Amos and Admiral Papp, I believe in
your opening sentence, both of you said that this is a crime,
sexual assault is a crime, and we have to address it as such.
That is what this hearing is for, to discuss this.
One of the concerns that I have heard and that has been
raised with me is an environment in which commanders--and this
is a little bit of background--are hesitant to report issues
like sexual assault up to the chain of command because of the
fear that making these incidents known might possibly reflect
poorly on them as commanders. Commanders may fear that if they
are not ``handling it at their level,'' they might be passed
over for promotions and future command.
While I realize that the official message from our senior
leaders is different, I am concerned that at the lower levels,
especially at the lower levels, there may be an environment in
which commanders believe that they have to sweep sexual assault
reports under the rug in order to avoid a perception that they
are not properly leading their units.
General Odierno and General Amos, if you could tell me, are
there any concerns that our commanders, especially at these
more junior levels, feel they need to handle the situation
rather than properly reporting sexual assaults? In particular
if it would impact on their careers?
General Odierno. I think, first off--thank you, Senator,
for the question. I think, first off, what we have to discuss
is that this is everybody's problem. It is not their problem.
It is every commander's problem. It is every soldier's problem.
It is everybody's problem. We have to work this together.
In fact, what we are trying to establish is that the worst
thing we can do is not report this and not deal with it. That
is our responsibility. What I am trying to emphasize is the
fact that if you don't do the things we are asking, reporting,
setting the right climate, it is about what actions you are
taking. Inaction is what we don't like.
I think the constant discussion that you have to have from
command level to command level to command level is what you
have to do to ensure this does not happen, what you described,
and that is what we are really focusing on. Because in order
for us to solve this problem, everybody has to be all in on
this problem.
General Amos. Senator, I think it could happen, and I
suspect, as I look back over years, decades, it probably has.
But I will just say that we talked a lot about command climate
here. We have talked about, to me, that, in and of itself, is a
commander's report card of sorts.
I mean, there is a lot of other things that a senior
evaluates a junior on, but in there, you will know right away
whether you have a climate that supports and protects victims
of sexual assault and sexual harassment.
Today is different than it was even a year ago. Our
commanders now, just as the chief was saying, understand that
the problem is a Service-wide problem. We are all in it
together. I am not going to take a commander that has a sexual
assault in a unit and say, ``Shame on you.'' I will say ``shame
on you'' if you don't protect the victim and you don't handle
it well, and you back away from it.
But my sense is we are leaving that environment. We
probably had that environment in the past.
Senator Hagan. I just want to be sure that there is not
negative professional consequences to the commanders who are
doing the job to report these incidents and to prosecute them.
Admiral Greenert?
Admiral Greenert. Senator, if I may? For about 6 months
now, we have had a process in place where the unit commander
briefs a sexual assault to the first flag in the chain of
command. There is--they sit down and say this is what happened.
This is the environment behind it. These are the specifics of
it.
All sexual assaults are reported in our Operations Report,
our operation reporting system. So there is no hiding it, per
se. Now we want to get to the details, bring that together, and
find out----
Senator Hagan. Well, you have to report it in order to get
to that point.
Admiral Greenert. Yes, ma'am. But once they are--once it is
reported, I mean, it is out there. So, again, to General Amos
and General Odierno's point, it is a conversation that we all
have to have. Then quarterly, I sit down with my four-star
commanders and say what are we learning about all of this? What
are our commanders telling us?
So there is a broader conversation, and there can be more
focused action. We do this for big things like collisions,
airplane crashes, and things of that nature. It is embedded in
important operational issues for us.
Senator Hagan. Thank you.
I want to now look at sex offenders in the military and
then how it relates to the civilian component. Back in 2008,
there were guidelines where sex offender registration required
military correctional and supervision personnel to actually
notify State authorities concerning the release of sex
offenders to their States. There are instructions that they
must inform the convicted person of his or her duty to register
and must inform the appropriate officials in the offender's
State and jurisdiction of residence.
The Secretaries concerned ``shall establish a system to
verify that these required notifications have been made.'' I
agree that military personnel convicted of sexual offenses
should be punished and then separated from the Service, out of
the Service. But I also believe our obligation doesn't end at
that point when a sex offender walks out the gates.
So my question is, and perhaps General Chipman and Ary, how
are the Services verifying that these required notifications to
State authorities have been made for sex offenders as they
separate from the military or after they have been convicted?
General Chipman. Senator, part of the issue depends on the
point of departure. For example, from an installation, that
responsible installation would be the notification entity. If
it is from a confinement facility, there are provisions within
the confinement, also the administrative entity that supports
the confinement facility that would make those notifications.
Where we have a challenge is when that ex-soldier or ex-
prisoner then moves to another State, and how do we follow up
to ensure that that individual has then notified? Is that our
follow-on obligation to ensure that that gaining State is also
aware of this sex offender?
Senator Hagan. What State do they report it, and are you
positive that that reporting takes place?
General Chipman. In other words, when they move, they have
an obligation----
Senator Hagan. Right. Well, no, when they actually--when
they get out the first time.
General Chipman. Well, from the point of the State in which
they separate or in which they are discharged.
Senator Hagan. General Ary?
General Ary. We have a similar process. Both the brig
system will do the notification, and then NCIS will do a
notification for qualifying offenses.
Senator Hagan. You are positive this takes place?
General Ary. It is required. I think making sure it happens
in each and every case to the follow-on States and the moving
challenges, that is going to be an issue. But it is in the
system.
Senator Hagan. The individuals here, do you see reports
like that that this has, in fact, been done?
Admiral DeRenzi. Yes, ma'am. Those reports come up through
the brig system. Our brigs are responsible. They notify the
individual that he or she has to register as a sex offender,
and they notify the State that the offender is going to so that
the State is on alert that we are going to be releasing someone
who has to register as a sex offender when they move.
As the general said, when the individual doesn't receive
confinement, the NCIS does that for us.
[Additional information follows:]
Secretary of the Navy Instruction 5800.14A provides instructions
for notification of sex offender status prior to release from military
confinement, or notification by the Naval Criminal Investigative
Service (NCIS) if the sex offender was not confined.
Prior to the permanent release from confinement, the
correctional facility (brig) will advise the prisoner of the
registration requirements for the State the prisoner intends to
reside within upon release.
Prior to the release of the prisoner, the confinement
facility will provide written notice of the prisoner's
impending release to:
the chief law enforcement officer of the State
in which the prisoner intends to reside upon release;
the chief law enforcement officer of the local
jurisdiction in which the prisoner intends to reside;
and
the State or local agency responsible for the
receipt or maintenance of sex offender registration in
that jurisdiction.
If the offender was not sentenced to confinement, or
the offender is not confined in a military confinement
facility, no later than one working day after completion of the
judicial proceeding. the Convening Authority will provide the
Results of Trial indicating sex offender registration or
notification requirements to NCIS.
NCIS will then notify the State and local law
enforcement officials and the agency responsible for sex
offender registration/notification in the jurisdiction of which
the convicted servicemember intends to reside, work, or attend
school.
Senator Hagan. Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator Hagan.
We thank you, this panel very, very much. We thank those
with whom you serve. Thank you for your service, and also your
families for your service.
This panel is excused, and we will now call our second
panel.
We are going to take a 5-minute break for the sake of our
reporter here. [Recess.]
We now welcome our second panel, a panel of commanders.
Colonel Donna W. Martin, U.S. Army, Commander of the 202nd
Military Police Group.
Captain Stephen J. Coughlin--did I pronounce your name
correctly?
Captain Coughlin. It is Coughlin, sir.
Chairman Levin. Coughlin. Thank you, Captain. U.S. Navy,
Commodore, Destroyer Squadron Two.
Colonel Tracy W. King, U.S. Marine Corps, Commander, Combat
Logistics Regiment 15.
Colonel Jeannie M. Leavitt--did I pronounce your name
correctly? U.S. Air Force, Commander of the 4th Fighter Wing.
We welcome you all. We thank you for your service and those
with whom you work, and we will call you in the order that I
just stated.
So, Colonel Martin, welcome, and please limit your
testimony to 5 minutes. Colonel?
STATEMENT OF COL DONNA W. MARTIN, USA, COMMANDER, 202ND
MILITARY POLICE GROUP
Colonel Martin. Chairman Levin, Ranking Member Inhofe, and
distinguished members of the committee, thank you for the
opportunity to testify before you today.
My name is Colonel Donna Martin, and for the past 2 years,
I have commanded the 202nd Military Police Group CID, which
provides world-class investigative and protective services to
the U.S. European Command, U.S. Africa Command, and U.S.
Central Command. Our mission is to protect and safeguard DOD
personnel and resources.
I lead personnel assigned to 13 military installations
throughout Germany, Italy, Belgium, and Kosovo. I have
commanded military police units at the company, battalion, and
brigade levels. My experience with and authority under the UCMJ
has grown at each stage of command.
As a company commander, I attended a Company Commander-
First Sergeant Pre-Command Course, which included instruction
on military justice. The Company Commander-First Sergeant
Course emphasizes the role and relationship between the Judge
Advocate and the commander. This relationship is critical. It
is a relationship that is built on mutual trust and respect.
From my time as a company commander through brigade command, I
have received instruction on military justice, and I have
relied upon my Judge Advocate as I have considered military
justice actions.
Military justice becomes more complex as you become more
senior. Prior to assuming my duties as battalion commander, I
attended the Senior Officer Legal Orientation Course at the
Army's Judge Advocate General School.
This course acquaints senior Army officers with the legal
responsibilities and issues commonly faced by battalion,
brigade, and installation commanders and by those commanders
assuming special court-martial convening authority. As a
battalion commander, I relied heavily on my past instruction,
along with the advice of my Judge Advocate in making military
justice decisions.
I currently serve as the commander of the Army's premier
felony investigative unit in Europe. Being a CID commander not
only gives me the inherent authorities of command, but it also
exposes me to the crime trends throughout the units in Europe.
Part of my mission is to educate and inform leaders at all
levels of possible causes for crime trends and assist in the
development of strategies to prevent further crimes.
We have conducted over 100 crime trend analysis briefings
in Europe, specifically oriented to a requesting unit. In my
capacity as a CID commander, I have had the unique opportunity
to build a Special Victims Unit consisting of both skilled
sexual assault investigators and a special victims prosecutor,
all of whom receive additional specialized training.
This collaborative team develops the facts, builds a
rapport with the victim, and advises the commander so that he
or she can make an informed decision regarding adjudication.
The Special Victims Unit is notified of and tracks every
allegation of sexual assault. They confer early and often with
investigators to ensure a thorough and professional
investigation.
We are in constant contact with the commanders that we
support as investigators. My criminal investigators offer
commanders additional resources to combat sexual assault,
included targeted prime analysis briefings, newcomers
briefings, and a sharing of best practices aimed at solidifying
our commitment to providing the best possible investigative
support so that commanders can execute their UCMJ authorities.
In summary, I would just reiterate that I have been
educated in military justice at each stage of command, and I
have worked closely with Judge Advocates at every step. It is
of paramount importance that commanders are allowed to continue
to be the center of every formation, setting and enforcing
standards and disciplining those who do not.
The commander is responsible for all that happens or fails
to happen in his or her unit. They set the standard, and we
enforce them. The UCMJ provides me with all the tools I need to
deal with misconduct in my unit from low-level offenses to the
most serious, including murder and rape. I cannot and should
not relegate my responsibility to maintain discipline to a
staff officer or someone else outside of the chain of command.
Thank you for the opportunity to speak with you today. I
look forward to answering your questions.
Chairman Levin. Thank you very much, Colonel.
Captain Coughlin?
STATEMENT OF CAPT STEPHEN J. COUGHLIN, USN, COMMODORE,
DESTROYER SQUADRON TWO
Captain Coughlin. Good afternoon, Mr. Chairman and members
of the committee. Thank you for allowing me this opportunity to
speak with you today and to provide any information that may be
useful on how we in the Navy are responding to the crime of
sexual assault from the perspective of a unit-level naval
commander.
I am serving in my third command assignment at sea, and I
am currently the commander of Destroyer Squadron Two, home
ported in Norfolk, VA. My squadron is comprised of 8 Arleigh
Burke-class destroyers, consisting of just under 2,500
personnel. These units deploy across the globe independently as
ballistic missile defense ships or components of a carrier
strike group.
I am a career service warfare officer and a graduate of the
U.S. Naval Academy. Beginning in Annapolis, I have been a
leader in a mixed-gender environment throughout my career. From
the beginning, we were all taught to recognize the value of
each individual sailor and annually trained in sexual assault
prevention and response, fraternization, equal opportunity, and
other aspects of military law and accountability.
More specifically, prior to every leadership position I
have held, I have received mandatory refresher training on
these subjects, particularly in sexual assault. In addition, I
have had legal counsel and technical guidance by a local or
embedded SJA at every command that I have been assigned to, and
like any prudent commander, I have never hesitated to seek
advice for any case that I have handled.
In all those cases, the use of the UCMJ authorities enable
me to set a tone, shape a culture, establish good order and
discipline in my organization by quickly and visibly taking
action to hold those under my command accountable for
misconduct and to protect those I am responsible to with the
preventive measures enabled by the UCMJ.
As the commodore of a destroyer squadron, I ensure all of
my commanding officers are trained on the UCMJ and that they
use it as a tool for maintaining a squadron-wide environment
where all personnel are treated with respect and dignity and
where rules and regulations are not violated.
This is a vital component of the commander's ability to
establish the conditions where the result is unit efficiency,
team cohesion, and trust up and down the chain of command.
Since the commander of a military unit is responsible and
accountable in every respect for the welfare of all assigned
personnel, there must be authorities in place for that
commander to take appropriate actions for every infraction and
disturbance that negatively affects his or her people.
Any change to this will erode the commander's ability to
command by reducing his or her effectiveness in the eyes of the
crew. Taking authority away from unit commanders could have
direct adverse effects, such as warfighting inefficiencies,
noncompliance with battle orders and rules of engagement, and
the lack of damage control and fire fighting effectiveness in
moments of crisis.
In short, the authority of a naval commander at sea is
essential for fighting the ship. The failure of a commander to
exercise his authority, in turn, should and does result in the
immediate removal of that commander, a practice the Navy
persistently maintains.
Based on my unit-level perspective, the process for victim
reporting, with the option for a restricted or unrestricted
report and the many avenues available for reporting sexual
assault, has encouraged more victims to come forward and
receive the care and support that they need.
I have also noticed the effects of the new fleet-wide
training initiatives that have been targeted at smaller groups
and have us openly and candidly talking to each other about
violent crimes, the importance of bystander intervention, the
role of alcohol, and related topics.
Our current training efforts are not the typical ``death by
PowerPoint'' or block-checking exercises, but personal and
meaningful facilitated engagement that is building trust and
changing our culture.
Thank you for this opportunity to be here today and discuss
this very important issue in our military, and I look forward
to your questions.
Chairman Levin. Thank you very much, Captain.
Colonel King.
STATEMENT OF COL. TRACY W. KING, USMC, COMMANDER, COMBAT
LOGISTICS REGIMENT 15
Colonel King. Chairman Levin, Ranking Member Inhofe, and
members of the committee, I am honored and humbled at this
opportunity to address you today on this critical issue.
Preventing sexual assault or any other form of misconduct
in my regiment is my personal responsibility. It is a
responsibility I don't take lightly.
My name is Colonel Tracy King, and I have the honor of
leading approximately 3,000 men and women of Combat Logistics
Regiment 15. I have commanded marines and sailors of platoon,
company, battalion, and most recently in my current assignment
as a regimental commander. I have served in all three Marine
expeditionary forces and with all elements of the Marine Air-
Ground Task Force. My operational experiences include numerous
deployments in the Middle and Far East.
Like all commanders at my level, I have received legal
training on numerous occasions to include the Senior Officer
Legal Course at Newport, RI, the Naval War College, and most
recently at the Commanders Course just last year.
Accountability in my regiment begins and ends with me. This
includes the prevention and adjudication of any form of
misconduct, especially all instances of sexual assault.
Please allow me to be blunt. My job is to ensure that my
regiment is ready to fight today's fight today. This kind of
readiness demands a level of unit cohesion that can only stem
from strong bonds between marines and complete trust between
marines and their commander. I cannot afford and my Commandant
will not allow an environment absent that trust.
Thank you again for holding this important hearing. I look
forward to the opportunity to answer your questions.
Chairman Levin. Thank you very much, Colonel.
Colonel Leavitt.
STATEMENT OF COL. JEANNIE M. LEAVITT, USAF, COMMANDER, 4TH
FIGHTER WING
Colonel Leavitt. Good afternoon. Chairman Levin, Ranking
Member Inhofe, and distinguished members of the committee,
thank you for the invitation to join you today.
My name is Colonel Jeannie Leavitt, and for the past year,
it has been my privilege to command the 5,000 men and women of
the 4th Fighter Wing, located at Seymour Johnson Air Force
Base, NC.
Our mission is to deliver dominant Strike Eagle air power
any time and any place when called upon to do so in defense of
our great Nation. Within a matter of hours, we can deploy to
provide precision combat air power and hold targets at risk
anywhere in the world.
I have been in the U.S. Air Force for more than 21 years. I
am an F-15E instructor pilot with more than 2,600 hours,
including more than 300 combat hours over Iraq and Afghanistan.
I have served at various State-side locations as well as in
South Korea, and I have deployed to locations in Saudi Arabia,
Kuwait, Turkey, Bahrain, Qatar, and Afghanistan. I have
commanded at the squadron and wing levels.
My experience with the military justice system began well
before I became a commander. From pre-commissioning academics
to continuing coursework, training, education, and leadership
briefings, these experiences instilled in me a deep sense of
the vital role military justice plays in maintaining a
disciplined force. As a result, I take my duties and
responsibilities as a commander very seriously today.
As the commander of the 4th Fighter Wing, I am responsible
to ensure that our airmen are properly trained and equipped to
go into harm's way at a moment's notice, should the need arise.
Our Nation has entrusted the lives of America's sons and
daughters to our military, and ultimately, it is the commander
who shoulders that responsibility.
An absolutely indispensible attribute of a combat-ready
force is discipline. Commanders must have the ability to hold
airmen accountable for their behavior. This is what enables a
highly disciplined force, which increases the lethality of our
weapons systems and improves the safety of our airmen.
Discipline is not punishment. It is a state of readiness
that allows flawless execution of a mission. A disciplined
airman follows orders. The UCMJ gives commanders the ability to
enforce the high standards they set.
I often address 4th Fighter Wing airmen and reiterate my
expectations of them. I expect them to abide by the Air Force
core values of integrity first, service before self, and
excellence in all we do. I also expect them to be professional
and disciplined and to always have respect for others. When I
talk about respect, I emphasize that there is absolutely no
tolerance for sexual assault.
If a sexual assault happens, we will ensure the victim is
taken care of and ensure any guilty people are held
accountable. Sexual assault is a vile crime against the victim
and against society. It erodes trust, damages the unit, and
weakens our military.
The UCMJ gives commanders the ability to prosecute the
guilty and hold them accountable for their actions. As we
continue our efforts to eradicate sexual assault, we must
strive to set a climate where prevention is the norm, a climate
where airmen feel the duty and desire to protect one another.
We must aggressively combat sexual assault to ensure we
remain the world's greatest military. I won't set a goal of
anything below 100 percent bombs on target for my fighter wing,
and I won't set a goal of anything below 100 percent
eradication of this wretched problem.
Thank you again for the chance to testify before this
committee today. I look forward to answering your questions.
Chairman Levin. Thank you very much, Colonel.
We will have a 6-minute round for questions.
When a commander offers an Article 15 or a nonjudicial
punishment (NJP), the accused has a right to decline the
punishment and to insist upon a trial by a court-martial
instead. If the accused does that, however, he or she risks
more serious punishment that could be assessed by a court-
martial. Is that correct?
Colonel King. That is correct, sir.
Chairman Levin. Okay. Now let me ask each of you, is the
availability of NJP, under Article 15 of the UCMJ, to quickly
and efficiently punish servicemembers for some serious
offenses, let us say barracks larceny, for instance, is that an
important tool for the commander?
Let me start first with you, Colonel Martin. Is the
availability of NJP under Article 15, is that an important tool
for the commander?
Colonel Martin. Thank you, Senator.
Yes, it is an absolute important tool for the commander to
have. Number one, to be able to effect discipline in my unit, I
must have the tools to do that. The UCMJ allows me to do that.
But it also sends a message in my unit of what the standard
is. So, if I, as a commander, don't have a tolerance for, say,
barracks larceny in this case, then I have the tool to punish
that offender under the article, Article 15.
Thank you.
Chairman Levin. Okay. Thank you.
Captain?
Captain Coughlin. Yes, sir. Absolutely, without question.
That is probably the number-one tool for the commander to
quickly and visibly establish discipline in his unit based on
some infraction of a regulation.
Chairman Levin. Okay. Colonel King?
Colonel King. Sir, without question. It is quick. It is
effective. So, yes, sir. It is an effective tool.
Chairman Levin. Okay. Colonel Leavitt?
Colonel Leavitt. Yes, sir. The Article 15 is absolutely a
critical tool in the commander's toolbox.
Chairman Levin. Now the question is whether we take away
the--one of the questions that has been raised in one of the
bills before us is whether we should remove from the commander
the authority to refer cases for trial by court-martial.
Now, first of all, what impact would that have on the
commander's authority and control over those who are under his
or her command? Why don't we start at the other end? Colonel
Leavitt?
Colonel Leavitt. Yes, sir. I think it is absolutely
critical that the commander has the ability to prosecute
offenses. You know they say that actions speak louder than
words. I need to be able to back up my words. When I say there
is absolutely no tolerance for sexual assault, I need to have
the ability to back that up.
I need to be able to take action against any perpetrators
and hold people accountable. That is part of my responsibility
as a commander.
Chairman Levin. Now when you say to hold someone
accountable, do you mean by, for instance, referring a case for
trial by court-martial?
Colonel Leavitt. Yes, sir.
Chairman Levin. Okay. Colonel King?
Colonel King. Sir, I will give you a straightforward
answer. If you remove my authority to convene a court-martial,
my suspicion is that the overwhelming majority of marines will
refuse NJP.
Chairman Levin. Will do what?
Colonel King. They will refuse NJP. They will not accept
it. They are not going to do it. They are going to take their
chances with the person they have never met, a convening
authority that is not there with them every single day. I think
they will refuse it.
Especially for the high-order cases where I can refer
charges, the preponderance of evidence supports that the event
has occurred, but I am not quite sure whether or not I can get
beyond a reasonable doubt, they are going to never accept
Article 15, if I am not the convening authority.
Chairman Levin. A nonjudicial punishment?
Colonel King. Yes, sir. They are not----
Chairman Levin. So your ability to successfully use the
tool of NJP, in your judgment, is dependent upon, at least in
some cases, having the power to refer a matter to a general
court-martial?
Colonel King. That is correct, sir.
Chairman Levin. Okay. Captain Coughlin?
Captain Coughlin. Sir, in my mind, it comes down to a very
simple matter of trust, and I know we mentioned that earlier
today. But I want to refer back to what the Chief of Naval
Operations mentioned in his testimony about this charge of
command that we use in the Navy, and there is a passage in that
that refers to trust.
I would just like to read before you. ``As the commanding
officer, you must build trust with those officers and sailors
under your command. You build trust through your character and
in your actions, which demonstrate professional competence,
judgment, good sense, and respect for those you lead.''
Now every person who takes command of a naval vessel reads
this, acknowledges it, and signs it, and that is credibility
and trust. I have to be viewed as being trusted by my chain of
command in the eyes of my crew. That gives me credibility and,
therefore, leads to good order and discipline.
Chairman Levin. Thank you. Colonel Martin?
Colonel Martin. Senator, I would agree with my colleagues
on the panel that having that ability to refer a case to court-
martial is crucial. Not only to the commander's credibility,
but we also speak of trust in this matter as well. It is a
crucial element.
I do believe exactly what Colonel King said that soldiers
knowing or understanding that you don't have the authority as a
commander to refer a case to court-martial, they will never
take--they will never accept an Article 15.
Chairman Levin. All right. The commander has a broader goal
when considering whether to refer a case to a court-martial,
such as protecting his or her troops and sending a message
that, for instance, the conduct at issue--sexual misconduct,
barracks stuff, whatever--will not be tolerated.
Would you be concerned that professional prosecutors,
without the responsibilities of a commander, might actually be
less likely to pursue court-martials in those--in close cases?
Colonel Martin?
Colonel Martin. Yes, Senator. I think that because the
commander is so in tune to discipline and setting standards
inside of their units that they would fiercely pursue NJP, and
I don't think that someone outside of the chain of command or a
staff officer would have that same passion for discipline
inside of their unit.
Chairman Levin. Okay. Now we are also saying, my question,
though, is might a commander be more likely to pursue a court-
martial than even an outside independent officer because of the
desire of a commander to send a message to his unit?
Colonel Martin. Yes, Senator. I do believe the commander
would.
Chairman Levin. Captain Coughlin?
Captain Coughlin. Sir, I think it goes to the severity of
the crime. I mean, there are some crimes that clearly need to
go to a higher level, and I think most commanders have that
sense and judgment when to elevate it. When questioned, that is
where they seek the advice of the SJA.
Chairman Levin. Okay. Colonel King?
Colonel King. Sir, my comment on that would be that
commanders at our level don't even consider judicial economy. I
think that if we had a separate and distinct panel of civilian
prosecutors that judicial economy is something that is always
factored in, whether or not it is worthwhile to try the case. I
don't even consider that.
What I consider is, number one, protecting the victim;
number two, achieving justice for whatever crime was committed;
and also the message that I send to the thousands of marines
that are aptly watching what is going on. Even if I fail to
achieve a conviction at whatever level, I can still send a
powerful message to them that this kind of conduct, even
alleged, even not proven, is completely unacceptable.
Chairman Levin. Colonel Leavitt?
Colonel Leavitt. Yes, Senator. I could absolutely see the
scenario where a prosecutor may not choose to prosecute a case
or recommend prosecuting a case because the likelihood of a
conviction. However, as a commander, I absolutely want to
prosecute the case because of the message it sends so that my
airmen understand that they will be held accountable.
Then we will let the jury decide what happened in the case
and whether or not it will be convicted. But that message is so
important, whereas an independent prosecutor may not see the
need to take it to trial if the burden--if the proof is not
necessarily going to lead to a conviction.
Chairman Levin. Thank you.
Senator Inhofe.
Senator Inhofe. Mr. Chairman, I don't think I have ever
heard four opening statements so precise and specific. I am
real impressed.
Of course, with all of your commands that you have had,
Colonel Martin, including CID, and you, Captain, and of course,
Colonel Leavitt, as a fellow flight instructor, I know how you
all feel about discipline.
Colonel King, I was listening to you. I can tell that you
are a very well-educated man. Where did you get that education?
Colonel King. Boomer Sooner, sir.
Senator Inhofe. Oh, Oklahoma. There you go. [Laughter.]
I wouldn't expect that you folks have had time, since it
just came out, to have read and digested the Defense Legal
Policy Board report. I know you will be doing it, and it is
certainly appropriate to what our discussion is today.
I would like just to quote one thing out of it and ask for
your opinions. The quote is, ``The notion that commanders have
the ability to deal swiftly, fairly, completely, and visibly
with all misconduct, both in and out of the field environment,
is necessary to achieve effective deterrence and discipline.
Executing fair, prompt military justice reinforces command
responsibility, authority, and accountability.''
I would like to ask you, in your view, would creating a
centralized initial disposition authority with oversight by an
O-6 Judge Advocate, combined with the centralized authority to
detail judges and members of courts-martial, impact the
qualities of portability and agility of the military justice
system? Then getting back to the four qualities, how would a
system like this impede your ability to deal with misconduct
swiftly, fairly, competently, and visibly?
Can you give me any thoughts on that? Start with you
Colonel Martin.
Colonel Martin. Thank you, Senator.
One of the things that as I think about this, I think about
a case in question that I had, maybe anecdotally, about one of
the times when I had to relieve a senior noncommissioned
officer in my command. What happened was the senior
noncommissioned officer was having an inappropriate
relationship with a junior member of the command.
So, while it wasn't a sexual relationship, it was
inappropriate because of the rank differential, and my ability
to deal with that was certainly swift. It gave me the ability
to send a message, number one, to the victim, the very junior
enlisted member of that offense, that I took her complaint,
because she did complain about it, I took her complaint very
seriously. Just because he was a very senior member, she knew
that I would act on that, on the issue.
That spread across my unit. It was very, very transparent,
and it affected very positively the morale in the unit. So just
having that ability to affect those is very, very positive.
Senator Inhofe. Well said. Captain Coughlin?
Captain Coughlin. Sir, my first thought on that is just
possibly the logistics behind providing that kind of support in
dispersed naval forces, and the ability to act quickly by the
commander is what is going to set the tone and establish those
conditions.
Some of this information, depending on it may have a half-
life, but to deal with it quickly is essential.
Senator Inhofe. That is good. Colonel King?
Colonel King. Senator, resident in the four folks you see
sitting right here today is a nexus that I think is important.
That is, we tell our marines--it comes from our mouths--this is
the standard we want to hold you to.
We tell them why we have that standard. These are the
things that we are going to achieve, and then we hold them to
that standard. That is actually the same person.
Right now, we have the tools to do what I just described.
It is not always precise, but it works, and they know. The
deterrent value, the prevention of misconduct is actually where
I know I spend most of my time. I don't want it to occur. So I
attempt to set the conditions where it can't flourish.
That is what is most important, and that is what I think we
need to be very cautious about changing.
Senator Inhofe. Well said. Colonel Leavitt?
Colonel Leavitt. Yes, Senator. I believe that the
commander's ability to issue swift and fair justice is critical
to enforcing the high standards we set. When we are able to
enforce those standards, that is when we are able to build
discipline and trust, and that is when we build combat
capability, and that is when we have combat effectiveness. That
is how we become victorious, and that is how we maintain our
state as the best military in the world.
I think this portion of it is critical that you allow a
commander to command by being able to enforce the standards
they set.
Senator Inhofe. Yes. Well, thank you.
Mr. Chairman, I think this has been a really good panel to
get people on the ground, doing it on a day-to-day basis, as
opposed to looking at all the theories and all that. So, I
appreciate your responses very much.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Inhofe.
Senator Reed.
Senator Reed. Well, thank you, Mr. Chairman.
Thank you, ladies and gentlemen, for your service to the
Nation and to your individual Services.
Let me put my two questions, and they are not rhetorical. I
am searching, with your guidance, for answers.
I commanded a paratrooper company a long time ago. It was
not mixed gender so this issue of sexual assault was not as
central as it is today. But I have given Article 15s, and I
have referred people to general court-martials, and I have seen
some of my soldiers actually sent to Fort Leavenworth. It was
not a good day for either one of us.
There are, I think, two or three issues that I would like
to explore. First of all, and I say this not rhetorically, but
how do you separate a chain of command from a legal process in
the fact that--and I think there is a presumption if we had
this independent process outside the chain of command, it will
encourage reporting. It will be much more effective.
But the reality in a company, particularly is if something
bad happens, most people know about it. If the company
commander knows about it last, that is probably the worst thing
for the company and for the company commander.
But just in sort of practical detail, if a serious offense,
even if it is reported through an independent channel, very
quickly CID agents will show up in the company. Company mates
will be--I use the term generically, but it applies to
squadrons and also ships. You will have individual soldiers who
have to be interviewed.
Then you will have to take some action as a company
commander. It might not be the formal referral of charges. Do
you separate the individuals? Do you transfer an individual out
of the company, et cetera? Will that be perceived as
prejudicial or discriminatory or retribution?
Again, this is the reflection of someone who 30-plus years
ago, being kind, had to do this, but not in the same context
today. So your comments, Colonel Martin and then down the row,
about this issue.
Colonel Martin. Thank you, Senator.
I think the anecdote that I gave may suit this question
very well with my sergeant major and a very junior victim in my
command. We moved the victim in this case, but I suspended the
sergeant major of his duties. She moved by her request to go to
another installation, and I suspended him of his duties.
I think that responsibility has to lie with the commander,
and the commander has to make difficult choices because we
always have to do what is best for our organization. So, that
is in the forefront of our minds at all time.
That discipline that we have all talked about and setting
the tone, those are actions that the commander has to take. So
separating or bifurcating that process of the command from the
legal authority, I think, would set us back in discipline.
Senator Reed. Captain?
Captain Coughlin. Sir, accountability is such a broad term,
and I think when you try to separate one element of
accountability from my responsibility as a commanding officer,
that would be confusing. I don't think people under my command
really could list a definite list of what elements of
accountability did I own. I think you add confusion to the
chain of command, and a crew of a ship or ships in a squadron
will eventually wonder who is really doing all of the
commanding.
The question about investigation, an outside entity comes
in, conducts an investigation. I do that. I conduct command
investigations that are thorough by using the Judge Advocate
General Manual (JAGMAN), and we are trained on doing that. It
is not uncommon.
Senator Reed. Colonel King, briefly?
Colonel King. Senator, I don't think you can separate it.
In fact, it is my opinion that if we do separate these two
things that you are talking about, you are actually going to
have a significant decrease in reporting. That is my opinion. I
can't prove a negative, but that is my opinion.
I would be very hesitant to do this. I know I have read
some studies in the past year since this has become our number
one priority that show that reporting in the civilian community
is even worse. Well, they don't have a chain of command out
there. So I can't--I am attempting to rationalize that in my
mind right now.
I actually think that our commanders' involvement and how
we have really taken this at issue is going to get after the
reporting issue because reporting is the bridge to everything.
It is the bridge to victim services. It is the bridge to
justice. So it is about reporting.
You pull those two apart, reporting is going to go down.
Senator Reed. Let me follow up quickly. Colonel Leavitt,
your comments on this question, and then I have another
question which I want to address.
Colonel Leavitt. Yes, sir. I agree that the command and the
legal aspect have to be hand-in-hand. For me to be able to
enforce the standards I have set, I have to be able to take
action when people don't follow the guidance I give. I have to
be able to hold people accountable.
The command team works in conjunction with legal. So I have
advice on any legal matters from my Judge Advocate.
Senator Reed. Colonel King, let me go back to your comment
because there is another--this is part of the complex nature of
this issue. There are compelling statistics that there are
numerous cases of improper sexual contact between members of
the military. Then there are also and I think very compelling
statistics that a lot of them go unreported.
When you ask the young marine, the young sailor, the young
soldier or airman why, it is ``I don't trust the commander. I
don't trust the whole system.'' I think there is enough there
not to dismiss that as sort of, well, it is worse in the
civilian life. The intention of many of the proposals is to
provide that kind of trust, et cetera.
So how do you respond to this issue most specifically, and
if anyone else has a quick comment also, how do you respond to
this issue of--because it is all about trust. Colonel?
Colonel King. Sir, I can only speak from my own experience.
My experience with actually working through sexual assaults is
actually pretty limited. But in my experience, this is such a
personal crime. It is so embarrassing.
That is what in my experience causes the lack of reporting.
That is the number-one reason. It is embarrassing, sir. You
have an 18-year-old kid who just wants to do well, who is
embarrassed by it. That is what causes it.
Also, sir, in my experience, sir, I have never met a
commander that wouldn't jump--wouldn't stop time when they hear
that something like this is occurring. I have never seen that.
I have never smelled it. I have never heard of it.
Now I read the newspapers, too, sir, and I see what is
going on out there. But I don't see it where I work.
Senator Reed. Anyone else? Captain?
Captain Coughlin. Yes, sir. Just to add to that, also
personal experience. My experience is that people under my
charge trust the leadership. I know that from reading command
climate surveys, speaking to sailors face-to-face on my ships.
I think they are uncomfortable, they are not confident with
the process. They are not as familiar with it as we are. They
know that these things take a long time, and just the thought
of going through that process, even if it is swiftly acted upon
at the command, is, I think, a huge concern.
Senator Reed. Anyone else have a comment on this? I have
one final question. I apologize to my colleagues.
You know it is ultimately about leadership, and that is
accountability and responsibility. I have no doubt, Colonel, if
you will let, or even without your knowledge, an intoxicated
pilot get in one of your aircraft, you would be relieved.
Colonel, if an intoxicated supply sergeant drove a truck into a
wall, you would be relieved, even if you had nothing to do with
that.
Colonel, same thing, one of your military police drove 80
miles an hour because they were under the influence. Do you
feel that the same responsibility would be extracted if there
were an incident of a serious sexual assault in your unit,
i.e., you would be relieved almost without question? Colonel?
Colonel Leavitt. Senator, I believe it is absolutely the
commander's responsibility to set the climate where people know
there is zero tolerance for sexual assault and that if anything
happens, it is absolutely everyone's responsibility to report
that, to take care of the victim.
Senator Reed. It is actually everyone's responsibility to
prevent someone getting in the aircraft who is intoxicated. But
if it happens, you would be gone. I have no doubt about that,
or at least I have a sense of that.
My point is if the chain of command is going to be the
chain of command, then commanders have to understand pretty
quickly that there are some things that if it happens, even if
they had no ability to deter it, they would be responsible for
it and they would accept it, salute, and say, ``Yes, sir. I
understand.''
Colonel King. Sir, a proven sexual assault occurs in my
command and I don't report it, I am gone. There is no question
in my mind.
Captain Coughlin. Yes, sir. Same here, and also if it has
become known through an investigation that I have tolerated a
climate that accepts any kind of behavior like that, then I
should be accountable for that.
Senator Reed. I presume you concur, Colonel?
Colonel Martin. Absolutely, Senator.
Senator Reed. Thank you.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Reed.
Senator Ayotte.
Senator Ayotte. Thank you, Mr. Chairman.
I want to thank the witnesses for being here and for your
service to our country.
I wanted to ask Colonel Leavitt whether you have had any
experience with the special victims' counsel in the Air Force,
the pilot program?
Colonel Leavitt. Yes, Senator. I have spoken with--one of
my prosecutors is a special victims' counsel and we've spoken
in broad terms.
He said that it has been very well received, and truly, it
gives victims a voice. It gives them an understanding of how
the process works. It makes them feel like someone is on their
side to help them through the process for them to understand
what options they have available.
Senator Ayotte. Because one issue we are struggling with is
if you look at the recent Sexual Assault Prevention and
Response (SAPR) report, one of the real fundamental issues is
that some people aren't coming forward because they have
expressed that they have heard other victims talk about a
negative experience in the situation that they went through.
I wanted to get the impression from the other branches if
you have any understanding what the Air Force program is and
what your thought is of their program of having a special
victims' counsel represent victims within the system?
Colonel Martin. Thank you, Senator. I will go next.
In the Army, we have a Special Victims Unit. That Special
Victims Unit is made up of a sexual assault investigator. It is
also made up of a special victims prosecutor, and it is also in
coordination with a victim witness liaison. All of these
resources are available to the victim to help them through the
process, establish a rapport, which is actually the foundation
of our investigation, and then it works very, very well.
The interview techniques that we have developed in the
Army, called the Forensic Experimental Trauma Interviews
technique, where we use a lot of different questioning
techniques, I think that word has spread. Because I guess I
watched ``The Invisible War,'' too. So, the CID agent in ``The
Invisible War'' talks about how we had a mantra where we tried
to prove, when we were talking to the victim, you disprove it
that something didn't happen.
Now we don't do that. We don't take that approach. We spend
so much time with the victim establishing a rapport, I think
that spreads, and so, we have more reporting.
We also see an uptick in victims who initially did a
restricted report now come forward and want to do an
unrestricted report.
Senator Ayotte. Colonel, the one thing I will say is what
the Air Force has is that the individuals that would be the
advocate in the Army, are they trained lawyers? I mean,
meaning, that their pilot has trained lawyers helping victims.
Do you have the same thing happening in the Army and other
branches?
Colonel Martin. Yes, Senator. We have a special victims
prosecutor who is a trained attorney.
Senator Ayotte. They represent the person with the same
authority as the special victims' counsel?
Colonel Martin. Yes, Senator.
Senator Ayotte. I would like to understand, if you can get
me some more information about that because I understood--
Senator Murray and I have a bill that extends what the Air
Force is doing to every single branch, has 33 cosponsors in the
U.S. Senate, and it was our understanding that the Air Force
had this pilot. So if there are similar programs in other
branches, I would like to get more information on that because
our understanding is that the Air Force pilot program really
had somewhat of a unique standing in the Services.
Colonel Martin. I will certainly provide that to you,
Senator.
[The information referred to follows:]
I would like to clarify that the Army does not have a program
modeled on the U.S. Air Force Special Victims Counsel. I was referring
to the Army Special Victim Prosecutor (SVP) program.
The Army has 23 SVPs with 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.
As a brigade commander, I look forward to the results of the Air
Force's special victim counsel pilot program and recognize the value of
all efforts that enhance victim care and satisfaction. Within my
Service, the Army is engaged in hiring several hundred victim advocates
as directed by law. We are also actively training our legal assistance
attorneys and victim-witness liaisons to better advocate on behalf of
victims. The Army has 300 legal assistance attorneys currently
assisting and advocating for victims within a confidential attorney-
client relationship.
As a Military Police Commander, I have seen firsthand the
professional, comprehensive services available to victims of sexual
offenses. I am confident that the Army's Special Victim Capability
consisting of specially selected and trained prosecutors,
investigators, paralegals and victim witness personnel working as a
coordinated team is the best opportunity for effective, sustainable
victim care.
Senator Ayotte. Thank you.
Colonel Leavitt. Senator, just one thing to add in terms of
our process. The special victims' counsel is separate from the
prosecution chain. They are not part of the prosecution for
that sexual assault. They are there purely for support for the
victim.
Senator Ayotte. That is a huge difference. Of course,
absolutely. In fact, if you are in the prosecution chain, then
you have a different purpose than if you are there just to
solely advocate for the victim and who may have a different
opinion on the plea result in a case, who may want their
counsel to express that opinion to the prosecutor who has a
different opinion.
Victims having their own voice is really important. It is
something that has happened in certainly the civilian sector. I
appreciate your clarifying that distinction for me because my
vision of it, as I didn't understand it, for how it works in
the Army is much more what happens in the Air Force.
Because I think victims can have very different feelings
about a disposition and also if they feel they are part of
the--if they are just treated within the prosecution, that is
different than someone representing just their interests.
I wanted to ask about the situation at Lackland Air Force
Base; can you help me, Colonel, to understand what that tells
us about some of the issues we have with basic training, the
culture during basic training, and the fact that there were
certainly basically victims there that were either through
inappropriate sexual contact or, in some instances, criminal
rape type situations in Lackland. What is your view on this
issue with regard to basic training, and how much of a problem
do you think this is?
Do you all think we should be prohibiting sexual contact
between military instructors and trainees during basic
training? Because I see this as a situation where, as you are
in basic training, you are very new, most of them are young,
and they want to succeed.
If there is contact between the person that they are
reporting to that is training them, then there is a real
coercion issue there. Could you give me some insight on that,
what you think?
Colonel Leavitt. Senator, I haven't been to Lackland
anytime recently. I am familiar from reading the papers. But my
view is that any kind of climate or situation that allows
sexual assault or rape to happen is completely unacceptable,
and people should be held accountable. That kind of climate,
there should be zero tolerance.
Senator Ayotte. What about sexual conduct in general--
doesn't that create a potential for coercion while someone is
in basic training between someone who is a trainee and the
person that they are reporting to? I mean, what kind of culture
would that create within that unit within the trainees as well?
Colonel King. Senator, any form of contact that wasn't
professional, that wasn't part of the curriculum, is contrary
to good order and discipline. I will tell you upfront I have no
problem with what you are proposing. I think it will help.
But I also say that we do that now. We just, obviously,
messed up in that one case. I can only speak from my personal
experience. My personal experience, traveling through the
Marine Corps, is that the level of institutional control, boot
camp, when it is higher, the marines are actually safer.
That is what I have seen with my own eyes, and that is a
little bit contrary to the point you are making, but that is
what I have seen.
Captain Coughlin. Ma'am, certainly at a basic training
environment, there should be a huge level of control and
regimentation, and there is also a chain of command, just like
any place else. In fact, if you go to the Navy's basic training
site, it mirrors ships and divisions and departments on ships.
There is a clear chain of command. All those same rules
should apply, and anything inappropriate is obviously a
violation.
Colonel Martin. Senator, I would agree. I would concur. I
have no issue with what you are proposing either. I don't
believe there should be a sexual relationship. It is not the
place. That is not why they are there. It does erode discipline
in that environment.
Senator Ayotte. Thank you all. Appreciate it.
Chairman Levin. Thank you, Senator Ayotte.
Senator McCaskill.
Senator McCaskill. Thank you.
Thank you all for being here.
I am a little taken aback. It sounds like you all are very
bullish on the status quo, just listening to your testimony
from a distance. I just want to tell you that with this Senator
and I think other Senators, the status quo is not acceptable.
I will start with that, and let me first ask all four of
you, have any of you referred a sexual assault case for a
court-martial? Start with Colonel Martin.
Colonel Martin. Yes, Senator. I have.
Senator McCaskill. Captain Coughlin?
Captain Coughlin. No, ma'am. I have not.
Senator McCaskill. Colonel King?
Colonel King. Yes, ma'am.
Senator McCaskill. Colonel Leavitt?
Colonel Leavitt. Yes, Senator. I have.
Senator McCaskill. Okay. Have any of you referred a sexual
assault case for court-martial when your JAG officer did not
recommend it?
Colonel Martin. Yes, Senator. I have.
Senator McCaskill. You have? Colonel King? No? Colonel
Leavitt?
Colonel Leavitt. No, ma'am.
Senator McCaskill. Has there been an instance where your
JAG has recommended a court-martial, and you have instead taken
an Article 15 and done a NJP. Colonel Martin?
Colonel Martin. No, Senator.
Captain Coughlin. No, ma'am.
Senator McCaskill. Colonel King?
Colonel King. For a sexual assault, ma'am?
Senator McCaskill. Yes.
Colonel King. No, ma'am.
Senator McCaskill. Colonel Leavitt?
Colonel Leavitt. No, Senator.
Senator McCaskill. Okay. The reason I asked this is because
there is a difference between discipline and punishment, and I
see that Article 15 and NJP, I certainly appreciated the points
that Senator Reed was making with you on this regard. But one
of the issues here is removing the problem versus punishing the
felon.
Do you think, any of you think that there may be a tendency
for commanders to say, okay, I have enough on him over here to
go to a court-martial. But maybe the court-martial is not a
slam dunk, and I want to remove the problem. So let us just
revert to an Article 15, get him out of here. Then I remove the
problem, and then we don't have the problem in existence
anymore.
Colonel Leavitt. No, Senator. Absolutely not.
If I have a case of sexual assault, I absolutely want to
prosecute it. I want it to be visible. I want the unit to
understand that there is absolutely zero tolerance. So, if I
just make the problem go away, I have eroded the trust and
confidence that that unit has in its leadership.
So I do not see a case that that would happen.
Senator McCaskill. Colonel King?
Colonel King. Senator, I am not a lawyer, but I have had
somewhat legal training, and I have done a couple of court-
martials. What I have learned with regards to sexual assault is
these are hard to prove because they normally revolve around
whether or not consent was given.
Senator McCaskill. It is about believability, isn't it?
Colonel King. It is, and that is----
Senator McCaskill. It is about the finders of the facts
being able to hear the testimony in a courtroom and decide who
is telling the truth.
Colonel King. Yes, ma'am.
Senator McCaskill. Because you don't have an opportunity to
talk to that victim, do you?
Colonel King. Yes, ma'am. I don't like that, but it is
absolutely true. In many cases, I can get to where--I can get
above the 51 percent where I can prefer charges, but I can
never get above 90 percent. I just can't. There is not enough
evidence.
Senator McCaskill. Well, what is the 51 percent and the 90
percent? What are you referring to?
Colonel King. Normally, ma'am, I would decide that I can
prefer charges when one of three things happen. The findings of
a formal investigation. So an investigation comes back from
NCIS that says this occurred.
The conviction of a criminal court out in town or the
findings of a civil case out in town. Again, that is
preponderance of the evidence.
Or when just all the evidence as I took it in got me to
believe that, you know what, it is more likely this occurred
than it didn't occur. When I reach that level, I am comfortable
with sending charges forward.
Senator McCaskill. Okay, but you are saying that you have
never disagreed with your professional lawyers who have made
recommendations on these cases?
Colonel King. No, Senator.
Senator McCaskill. Okay. When you decide to do an Article
15, for whatever reason, a NJP as opposed to a court-martial,
have any of you ever had an opportunity to talk to the victim
about that before you did it?
Captain Coughlin. Ma'am, depending on the crime, we have a
process on the----
Senator McCaskill. We are just talking about sexual assault
today.
Captain Coughlin. Okay. No, ma'am. I have not.
Senator McCaskill. Anybody ever talk to a victim before
doing an Article 15 in lieu of a court-martial? No. Don't you
think you should? Don't you think that victim at that point--I
mean, this is a huge decision you are making.
One of the things we are struggling with here is how many
cases are going to trial versus how many are reported. We don't
know many incidents there are because all we know is how many
have been reported because the only thing that you guys collect
is sexual contact, unwanted sexual contact. Well, that can be a
far cry from a rape.
If we know there have only been 3,300 or so many reported
and if we only know there has been several hundred of that that
have gone to trial, the huge difference there, a lot of that is
NJP. A lot of that is Article 15. But I don't sense that the
victim is being consulted about this momentous decision to
avoid a criminal conviction that will mean prison versus a
demotion or 60 days without pay or even an administrative
separation from the military.
Colonel Leavitt. Senator, I can only speak for the 4th
Fighter Wing specifically. Since January 2012, we have had six
unrestricted cases. Five of those either have gone or are going
to courts-martial. The only one that did not was when the
victim recanted.
So, under oath, the individual swore that it was consensual
in all instances. So NJP was never even considered.
Senator McCaskill. Anybody who had an Article 15 where it
might have been appropriate to talk to the victim before you
did it? No?
Well, you see the point I am making? I like it, I mean,
believe me, when I was a prosecutor, there were cases that fell
apart for reasons that were not within the control of the
victim, and I would have liked to have a backup of something I
could do to get on this guy's record because very rarely does
anybody do this once or twice.
I want to ask you this, do you all feel like you have had
enough training about the difference between sexual harassment
and sexual assault?
Colonel Martin. Yes, Senator. I do.
Captain Coughlin. Yes, Senator.
Senator McCaskill. You do?
Colonel King. Yes, ma'am.
Senator McCaskill. I would tell you--and I know I am out of
time, I just want to say this on the record. General Franklin,
in the Aviano case, when he felt compelled to justify what he
had done, he wrote--have you all read his letter that he wrote?
I recommend you read it because it was astoundingly
ignorant. He opened it by stating that she didn't get a ride
home when she had a chance. Are you fricking kidding me? That
that is somehow relevant to whether or not he crawled in bed
with her and tried to have sex with her?
I mean, that was his first thing he started recounting, and
what a great husband he was and how their marriage was picture
perfect. All of this completely irrelevant to whether or not he
committed the crime.
So, if you are making these decisions, which you are, and
if you have the ability to look at these cases, I recommend his
letter to you as a poster case of a lack of training and
understanding the nature of sexual assault. You can have a
perfect marriage and be a predator, and believe me, there
aren't very many wives that step forward and admit that their
husbands, and there aren't very many husbands that would step
forward and admit that their wives were what is being accused
of them being.
It is not unusual for those people to come forward and try
to justify that they were innocent, I just want to make sure.
You all are here, and you are on the front lines. I want to
make sure you read that letter, and if you need it--I am sure
you can get it through your command. But if you need it, my
office would be happy to provide it to you.
Thank you all for being here.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator McCaskill.
Just for the record, a number of times the NJP acronym has
been used. I think we all know what it means. You all know what
it means. But just for the record, that is nonjudicial
punishment.
Okay. Senator Gillibrand?
Senator Gillibrand. Thank you all for being here today.
Thank you for your service.
I have been disturbed by some of the testimony in this
panel. There seems to be a lack of awareness of incidents where
a victim does not feel he or she has received justice and does
not feel that they can go to their command because they feel
they will either be marginalized, retaliated against, or
blamed.
There are so many instances of this, it is astounding to me
that you don't know them personally or haven't seen them. I
don't know have you seen ``The Invisible War.'' I don't know
what due diligence you have done, but there is a real problem.
You have 26,000 cases of unwanted sexual contact, sexual
assault, or rape. As Senator McCaskill pointed out, we don't
know how many of each.
We have 3,300 reported cases, and of the 3,300 reported
cases just from last year alone, only 1 in 10 go to trial. Once
it goes to trial, we have a pretty good conviction rate. But
why is 1 in 10 going to trial, and why is only 1 in 100 cases
actually resulting in conviction? We have a serious issue with
a victim's willingness to report.
Colonel Leavitt, I recently learned of a disturbing case of
Airman First Class Jessica Hinves. She reported that she was
raped by a coworker who broke into her room at 3 a.m.
She said, ``Two days before the court hearing, his
commander called me at a conference at the JAG office, and he
said he didn't believe that the offender acted like a
gentleman, but there wasn't reason to prosecute. I was
speechless. Legal had been telling me this was going through
court. We had the court date set for several months, and 2 days
before, his commander stopped it.
``I later found out the commander had no legal education or
background, and he had only been in command for 4 days.''
Her rapist was given the award for airman of the quarter,
and she was transferred to another base. Please explain to me
how this incident would provide any victim of sexual assault in
the military comfort that if they are willing to come forward,
to have the courage to tell their story, report that rape, that
they have any chance of receiving impartial justice when the
decision to prosecute is left within the chain of command?
Now your own personal record sounds very strong, Colonel,
but I don't know if that is true for everyone in your position.
Colonel Leavitt. Yes, Senator. I am familiar with the case,
happened a few years ago, and I have a little bit of summary
information. I was not there. I don't know why the commander
chose what he did.
However, I feel it is very important that we set a climate
so people feel comfortable to come forward because I was very
clear. In terms of ``The Invisible War,'' when our new chief
took command, he quickly made this a huge emphasis item, and it
was very, very clear. Early November, I called in all of my
commanders, all of my first sergeants, and together in a
theater, we all watched ``The Invisible War.''
We talked in detail about what we can do, how we can set an
environment where people feel it is okay to come forward
because I was crystal clear with them. I am not judging you by
whether or not you have sexual assaults. I am judging you by
what you do if there is one.
You need to set the climate to make sure that everyone
knows it is unacceptable. If it happens, we will take care of
the victim, and we will bring justice to the perpetrator.
Senator Gillibrand. If 62 percent of the victims who have
actually come forward to report a sexual assault or rape
believe they have been retaliated against, how do you think you
are going to instill that trust?
Colonel Leavitt. I think you have to build that trust,
ma'am. That is what I have been working on since I took command
a year ago, is trying to build that trust.
Senator Gillibrand. How long do you think that will take?
How many more victims have to suffer through a rape and a
sexual assault until you rebuild that trust?
Why wouldn't you let someone who is experienced to make
that decision, who is a prosecutor, so that you have an
objective reviewer, someone who can't be biased in any way? Why
wouldn't you allow that to happen, to instill better discipline
and order? Because if you don't have trust, you have nothing.
Colonel Leavitt. Yes, Senator. I truly believe that I need
to be able to back up my words. So when I tell my commanders
that there is zero tolerance, that I will not tolerate any
sexual assault, if I can't back it up, if I have to now turn to
a separate entity to say now I really want to prosecute, please
do that.
Because there could be cases where my legal advice given to
me is we shouldn't prosecute because we don't have enough
evidence, but I need to send that message that it is
unacceptable because people in the unit know. They know what
happened.
Even though we may not get a conviction, it is very
important to send that message that there is no tolerance. As a
commander, I need to be able to do that, even if legal is not
advising to do so.
Senator Gillibrand. Colonel King, you said that you have
never seen this instance of a commander not moving forward. In
2006, not a mile and a half from where we sit today, Marine
Lieutenant Elle Helmer was attacked and raped by a superior
officer. According to Marine Lieutenant Helmer, she immediately
appealed to her rapist's supervisor, who refused to press
charges or significantly punish the assailant.
She has reported that he said, ``You are from Colorado. You
are tough. You need to pick yourself up and dust yourself off.
I can't babysit you all the time.''
In this instance of extreme sexual violence, not only was
Lieutenant Helmer's attacker not prosecuted, she was
investigated for public intoxication and conduct unbecoming.
She was ultimately forced to leave the Marine Corps. Her
accused rapist remains a marine in good standing.
Given these kind of stories, this one from Lieutenant
Helmer, the statements from your commander, Marine Corps
General Amos, saying that sexual assault victims do not report
because, ``They don't trust us. They don't trust the command.
They don't trust the leadership.'' Even the Commandant of the
Marine Corps say the trust of the chain of command does not
exist now.
Do you not agree that this must have a chilling effect on
reporting?
Colonel King. Senator, I wasn't at 8th and I Street. I
can't speak to those circumstances. What I do know about it is,
is that there were--there was collateral misconduct on the part
of some of the members, and that was what was adjudicated. I
can't speak to the charge of sexual assault.
What I can tell you is what we are doing in my unit. We are
doing ethical decision games. We do have a positive command
climate. Senator, and my unit is kind of unique in the Marine
Corps. I have a little less than 3,000 marines. I have 16
percent women. That is a lot, especially in the Marine Corps.
The Marine Corps has about 7 percent women.
I have a significant amount of women in my unit. I have two
cases right now, two. I know, just from reading the literature
that is out there, that I have a reporting issue. I am not
saying I don't have a reporting issue. I am going after that.
But those are the numbers that I work with right now.
Senator Gillibrand. Thank you.
Colonel King. Thank you.
Chairman Levin. Thank you, Senator Gillibrand.
Senator Blumenthal.
Senator Blumenthal. Colonel King, in one of your answers,
you describe the way you make a decision about whether to
pursue charges. I know you are not a lawyer, and by the way,
lawyers are sometimes confused about these standards as well.
But you said that you looked at whether it was more likely that
it happened or not, or whether there was a preponderance of
evidence, or whether you were 90 percent sure.
The 90 percent sure, I guess, is guilt beyond a reasonable
doubt. Those are three separate, different standards. I guess
one of the reasons why a lot of folks feel that it makes sense
to have a trained prosecutor making these decisions rather than
the commanding officer is that the standards are easily
confused. They are difficult to discern.
I have heard the charge given to the jury about reasonable
doubt, and I must tell you, I wonder sometimes whether the jury
understands it, not to mention sometimes the judges in the way
that they describe it.
I wonder whether you can tell us, and this is a question
really for all the members of the panel, to pursue Senator
Gillibrand's line of questioning, whether maybe somebody who
does this for a living, so to speak, who day-in and day-out
thinks about what those standards mean, sees a lot of different
cases, makes these decisions every day, and maybe consults with
you. But at the end of the day says this is how we can win this
case. We can win it. We can pursue it. Even if we are not sure
we can win it, after consulting with the commanding officer of
the unit, this will serve the good order and discipline of the
unit?
Colonel King. Senator, thank you for that question. I will
start off, if you don't mind.
What I meant to say was when I am considering an alleged
act of misconduct of any kind, it has to get above a
preponderance of the evidence in order for me to refer charges
to a court-martial. That is a barrier that I am not making up.
That is in the manual for courts-martial, and it is generally
seen as 51 percent.
There are three ways I can get there, and those are the
ways that I laid out. But that is a long ways between a
preponderance of the evidence and beyond a reasonable doubt,
which is a very, very high bar. A lot of cases of misconduct
and, unfortunately, a lot of cases of alleged sexual assault
fall into that gray area. That is the problem that we have with
our cases.
But to get specifically to your question, sir, with
respect, I don't agree with you. I don't agree. I think that
having that authority resident inside of the commander who is
responsible for the discipline of that unit is what is
required.
Thank you.
Senator Blumenthal. Let me ask you this. Suppose there were
a fund, a restitution fund to compensate victims and maybe
encourage them to come forward. Right now, as I said earlier
today, somebody is entitled to restitution if their car is hit
by a truck in some cases.
Wouldn't it make sense to have a victim or survivor be
entitled to some kind of compensation? Anybody, I will open it
to anyone.
Captain Coughlin. Sir, I think you are asking about
incentivizing the reporting through monetary gain, and my
intuition tells me that because of the severity of this crime--
and I have asked the SARCs in Norfolk at the Fleet and Family
Support Center just how severe is this crime? It is orders of
magnitude greater than any other kind of crime you commit to
somebody.
So I personally don't think any kind of compensation would
encourage people much more to come forward. But----
Senator Blumenthal. Don't you think maybe they are entitled
to it because of the harm they have suffered?
Captain Coughlin. They may be entitled to something, but
they would have to come forward, and we would have to
investigate and go through that process in order to give them
that entitlement, I would think.
Senator Blumenthal. Well, no, I am not talking about
rewarding them for reporting. I am talking about if there is,
for example, a court-martial and conviction or even if there is
some discipline. In other words, a result, an adjudicated
result, not just an allegation.
Captain Coughlin. I think that would get back to my role in
that process, and again, I am not an expert on this either. But
as long as I am viewed as the commander, as being central to
that process and the one that is accountable for solving the
problem, I think that is what it comes back to, any kind of
deviation from what we have right now.
Senator Blumenthal. Let me ask you this. How about some
kind of bill of rights for victims or survivors so that if
there is a delay, if their credibility is challenged, if their
sexual history is raised, they have some ability to be
represented and to have a right to redress?
Captain Coughlin. Yes, sir. I think they deserve all the
rights that we can afford them. They have rights now, and there
is a process now that through victim advocacy and the SARC
system. I think no matter what you call it, they have to
believe it, ultimately, in order to come forward.
Senator Blumenthal. They have to believe that their rights
will be vindicated?
Captain Coughlin. Yes, sir.
Senator Blumenthal. Wouldn't you agree that right now there
is that lack of credibility and trust?
Captain Coughlin. I think it depends on the unit. Again, I
can only speak to my command, and I don't think I have a--I
can't prove it. I can't prove there is something going on right
now that is not being reported.
Senator Gillibrand. It is being reported.
Senator Blumenthal. We know from the numbers, though, and
you do, that there is a lack of reporting. Doesn't that reflect
also a lack of trust and credibility?
Captain Coughlin. Yes, sir.
Senator Blumenthal. Anybody disagree?
Colonel King. I don't disagree, but I will make the point
it doesn't only reflect just that. It could also reflect the
nature of the crime.
Senator Blumenthal. Which raises the issue of
embarrassment----
Colonel King. This crime is so personal----
Senator Blumenthal. Embarrassment, shame, which you
mentioned earlier.
Colonel King. Right. I have done a cursory look at
universities, for example. They have even worse numbers of
reporting. Other institutions, cities, they have the same. So
what is that a lack of trust in?
Senator Blumenthal. So you may be absolutely right and
Senator Gillibrand has just pointed my attention to these
graphs on victim reporting, which reflect perhaps a lower rate
of reporting than other institutions. But the fact of the
matter is the rate is low, and the Commandant of the Marine
Corps pointed to the fact that it has increased 31 percent,
which he cited as progress. I agree.
He said, and I also agree, that eventually the numbers of
reporting and the numbers of crime will meet each other.
Hopefully, the numbers of criminal incidents will come down,
and the numbers of reporting will rise, which will eventually
produce better reporting and more deterrence. Because you can't
have reporting--you can't have prosecution without reporting.
You can't have deterrence without prosecution.
I think you would agree, would you not, that deterrence is
a very powerful means, the fear of punishment?
Colonel King. Without question, Senator.
Senator Blumenthal. My time has expired. I thank the
chairman.
Thank you all for your service and for your dedication to
dealing with this problem.
Thank you.
Chairman Levin. Thank you, Senator Blumenthal.
Senator Donnelly.
Senator Donnelly. Thank you, Mr. Chairman.
Thank you all for your service.
Just to follow up, do you think it is easier for a member
of your command to tell someone else about a sexual assault
rather than their commander, who they live with every day and
who they see every day, that they might be more embarrassed to
tell you than to tell a victims assistance person?
Captain Coughlin. Sir, there are a lot of ways of reporting
this, not just through the chain of command. You can make a 911
call. There is a help line.
Senator Donnelly. Right.
Captain Coughlin. I think we are getting that training out
there and those resources available, and I don't think there
is--it depends on the level of trust again, whether a member is
going to go right to their chain of command. That is certainly
the easiest way to do it, but there are many other ways to
report.
Senator Donnelly. Do you feel that it would make--it
reflects that a commander is less of a commander because you
don't have full responsibility for this process?
Captain Coughlin. Yes, sir. I think I need full
responsibility and accountability for any form of welfare for
somebody in my command.
Senator Donnelly. Well, then let me follow up with, and
this isn't to give you a hard time, but the legal training that
you then have. What legal training do you have?
Captain Coughlin. At all the command schools I have gone to
in my career, essentially in the Navy, every time you go to a
ship in a different level of leadership, you go through a
pipeline, depending on the ship you are going to. It all
includes legal training.
You actually do case studies, and you do JAGMAN cases, and
you have a handbook and you have resources available to you.
Senator Donnelly. How does it make you less of a commander
to not have full responsibility for this?
Captain Coughlin. Because my job is to be accountable for
everything in this command, all forms of welfare for my crew.
So whether it is safe navigation or it is proper healthcare or
pay problems or violent crimes, it all falls within the
commanding officer's responsibility and accountability to
solve.
Senator Donnelly. What type of training do you give your
sailors in regards to sexual assault and how serious this is
taken? This would be for all of you. How do you get the message
across when we have seen so many awful cases? How do you get
the message across that this is serious?
Captain Coughlin. Well, sir, we have instituted a new
method of rolling out training to the fleet. We have had the
SAPR-L leadership training at that level, then the SAPR fleet
wide, and these are targeted at small groups.
It is video driven. There are vignettes. There are case
studies. There is participation. It is very interactive. It is
facilitated by fleet concentration area SARC, professionally
trained people.
I feel it is very effective. I feel like junior sailors
understand methods of reporting, the severity of this crime,
and how they can get help if they need it.
Senator Donnelly. Colonel Martin?
Colonel Martin. Yes, Senator. I think one of the most
effective training methods that we used was the viewing of
``The Invisible War.'' As an investigative unit watching that,
and then it was amazing to me how many of my special agents
still questioned the victim's response.
I think what was very important as we watched that movie
was to talk about the lack of trust that the victims had for
the chain of command, to talk about how they felt revictimized,
especially in our area, in the investigation of the crime. What
was very important to us and what we spent a great deal of time
on is the interview technique and how we treat victims and how
we believe every victim should be treated with respect during
the investigative process. Very powerful.
Senator Donnelly. Let me ask you this. Okay, so they have
watched the movie. Are there any documents that they sign off,
``Hey, I have read this? I understand the serious nature of
this.'' Or you mentioned that even after watching the movie,
some of the folks questioned the validity of some of the
claims.
I don't want to put words in your mouth, but how more than
just watching that movie is the point driven home?
Colonel Martin. Senator, it is not just watching the movie.
It is the discussion that goes on while the movie and then
after the movie is being played. That discussion about how we
treat victims and even in our case how we investigate, how we
interview victims was very, very powerful.
We have changed significantly in the criminal investigation
role in how we interview victims. We have gone from a system
where we put the blame on the victim or try to make the victim
tell us specifically what happened all the time. Instead, what
we do now is we try to build that rapport with the victim, and
so it establishes a trust in the system that we can actually
get to what happened, make her or him feel comfortable.
Senator Donnelly. Is there a class or classes given, for
instance, a group gets to one of the forts, do they have a
class on this? This is critical and serious. This is a sacred
obligation to have one another's back, and we will not stand
for that being violated.
Is there any formal process that you use?
Colonel Martin. Yes, Senator. That message comes from me,
the commander of that unit.
Senator Donnelly. Is there any formal process that you use.
Hey, here is what I told them. Here is the way the Army does
it. Here is step one, two, three, four.
I mean, you know you tell them this is serious. Then they
watch the movie, and then they are done. Is there anything more
formal than that?
Colonel King. Senator, I can tell you from a Marine Corps
perspective, we have what we call ``Take a Stand'' training,
and that is every noncommissioned officer (NCO) in the Marine
Corps, and the Army has something that is very similar to it.
It is about 60,000 guys go to 40 hours of training a week.
That is a significant training commitment. I can name a
handful of other things that are that significant. We also have
command team training. So command team is commander, sergeant
major, and whoever else he directs, chaplain. I always bring my
chaplain with me. That is where we get about another week's
worth of training that is specified for the command teams.
Following the ``Take a Stand'' and the command team
training, we have all-hands training, and that is just what it
sounds like. Get in a theater, let us talk about this for an
hour.
You heard the Commandant mention his campaign plan. During
Phase 1, he even upped that ante. All 85 general officers were
brought to Quantico. I have never heard of that before. I have
never heard of it since. They had one subject. It was sexual
assault.
So he started by reading them his white letter, talking to
all of his general officers, sending them back out, and then
making 60,000 NCOs take ``Take a Stand,'' which is a formal
training continuum, do the command team training, and do the
all-hands training.
Senator Donnelly. You feel confident every marine from here
to there has been fully immersed in that culture to tell them
no more?
Colonel King. Above 95 percent, yes, Senator.
Senator Donnelly. Okay. Thank you very much.
Thank you, Mr. Chairman.
Chairman Levin. Thank you very much.
Senator Kaine.
Senator Kaine. Thank you, Mr. Chairman.
I think this has been a helpful panel, but I feel a little
bit of it has gotten into kind of a tug of war over your
reactions to proposals that we might make on this side of the
aisle, and that is as it ought to be. I want to set aside any
proposals from this side of the dais and ask you just to be
problem solvers with us here and not to talk about what is
being done, but just to engage your problem-solving skills
because you are dealing with folks on the front line all the
time.
Colonel King said reporting is key. The key to this thing
is reporting. I think a number of the other Senators have said
the same thing throughout the course of the panel. But the
stats that were given from the DOD survey show that this is--if
reporting is the key, that we clearly have a lot of problems.
Seven out of eight people do not report. Seven out of eight
who have an experience of unwanted sexual contact do not
report, and 90 percent of them report that it is either because
of fear of retaliation or the negative experience of other
victims that they have seen. That they are not treated right or
they are not treated significantly.
Of the one of eight who do report, 62 percent say they
experience some form of retaliation, 38 percent do not. So if
reporting is key, and I think we all believe that to be the
case, and if we are not likely to solve this problem, absent a
culture that allows reporting to occur more significantly,
based on your own experience in dealing with your people in
each of your Service branches, what is the reason for the lack
of reporting?
What do you think can be done that will make a culture or
create a culture where reporting is easier for folks to do?
Captain Coughlin. Sir, a couple of thoughts come to mind
about the retaliation, which is preventing the reporting, and I
don't think we have had enough time yet to see the effect of
the expedited transfer option by the victim. I think once that
starts being leveraged and victims know that is what is going
to happen, I think that is going to reduce some retaliation. It
should reduce all of it if you transfer them swiftly.
Another option is military protective orders. Really use
them. Really enforce them and keep the people retaliating away
from a victim.
Senator Kaine. Other thoughts?
Colonel Martin. Just to key on that, too, is you must set
the condition in your command where others know that
retaliation will never be tolerated and set a zero tolerance
for retaliation as well.
Senator Kaine. Colonel King or Colonel Leavitt?
Colonel Leavitt. Yes, Senator. I agree that there has to be
a climate, a climate where victims feel that they can come
forward, and command needs to understand at all levels that
they will be held accountable if they do not identify sexual
assaults when they happen.
Now there are a lot of other avenues, like, in our case,
our SARC. She is very visible throughout our wing. She briefs
at every ride start, at every first-term airman center. I mean,
she briefs at unit level. She is out and about and visible.
On every marquee on my base, it cycles through, and one of
the things that cycles through is ``Do you need to talk to the
SARC?'' with her number. It is going to take some time. We are
trying to get the word out. We are trying to change that
climate to make sure people understand, victims understand they
can come forward. We will take care of them, and we will hold
people accountable.
Senator Kaine. Colonel Leavitt, real quick before Colonel
King answers. The special victims' counsel pilot project within
the Air Force, maybe one of the fears of reporting is the fear
that you are going to be isolated and alone. You could be
ostracized. The retaliation may not be from command, but it may
be from folks within your unit if you report.
Is the structure of the special victims' counsel set up
to--so that a victim knows, well, I have an ally. I have an
advocate. I am not going to be completely isolated if I have
somebody going through this with me?
Colonel Leavitt. Yes, Senator. The special victims' counsel
does exactly that. I mentioned it gives the victim a voice. It
also empowers them. It helps them understand the rapid
transfer, that that option is available.
It helps them understand that maybe I should go
unrestricted because they are offered the special victims'
counsel whether it is a restricted or unrestricted report. What
we have seen is the number of restricted cases that shift into
unrestricted has increased when they are able to talk to a
special victims' counsel and understand what options they have
available and how the whole process works.
So we have----
Senator Kaine. Just to make sure I--because this is new
terminology to me. This is my first instance of dealing with
the UCMJ-type setup. Somebody comes in and makes a restricted
complaint, meaning I want to tell you about it, but I don't
really want it known other than in our conversation.
But then as the victim who describes what has happened gets
more comfortable with what the process will be, you have seen
in the special victims' counsel scenario that they become more
willing to go ahead and make it an unrestricted complaint that
would be known within the chain of command?
Colonel Leavitt. Yes, Senator. Because whether they make a
restricted or unrestricted case, they are offered special
victims' counsel. Even with the restricted report, they can
still have that ally, that expert who can help them through the
process. Once they understand it, then they have been more
willing to make it unrestricted, and then we are able to
prosecute.
Senator Kaine. Colonel King, how about your thoughts about
how to fix this, setting aside anything we have proposed to fix
it?
Colonel King. You told us to do problem-solving, right,
Senator? You should have seen me when I was 18. I knew
everything, and I really couldn't be told anything. Senator, I
have a regiment full of those guys right now.
Around 60 or 70 percent of my ranks are young men and women
who are right out of high school who are bullet proof. When I
hear terms, Senator, like the chain of command is retaliating,
what I think that that mostly means is peer pressure. I
remember what peer pressure felt like. I have two teenage kids
right now, and that is front and foremost in their world.
So they don't want to be different. These are--they have
volunteered to wear the Nation's cloth. They don't want to be
different. Anything that makes them different feels like
retaliation.
Again, I can only speak from my own experience. I have
never seen the chain of command retaliate, and I haven't done
anything else my entire adult life.
Senator Kaine. Just to be fair, Mr. Chairman, the stats
reported in the DOD report do not suggest fear of retaliation
from the chain of command. It is just fear of retaliation
generally. So that could encompass what you are saying.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Kaine.
Senator King.
Senator King. Colonel King, you used the words that were
the first words of my note for my first question, which is peer
pressure. I am not asking for policy or prescriptions, but just
for your analysis of what is going on in the field right now.
Is the peer pressure against sexual assault, or is it against
reporting sexual assault?
Try to tell me what you are hearing and seeing.
Colonel King. Senator, I would say that--I would honestly
tell you that there is peer pressure against reporting right
now, but the tide is changing. I believe that. I can't give you
a number. I can't tell you when.
But there is a lot of peer pressure out there. I mean,
these are young, strong, driven men and women who we ask to do
some pretty amazing stuff. The primary group bonding that they
go through in order to do that stuff that their Nation asks for
them, I mean, the sense of belonging is very, very powerful.
That character, that, for lack of a better term,
personality, it can have some negative connotations. So, yes, I
would honestly tell you that sometimes it is peer pressure that
causes them not to report. Sometimes they will just tell a
friend.
In my experience, I have learned about misconduct in a very
circuitous fashion. When it does get to my level, which is
truly the chain of command, I know myself and the ladies and
gentlemen that are sitting up here, we immediately act,
immediately.
Senator King. The real question before us all is how do we
reverse that impulse at the grassroots level in terms of this
is unacceptable conduct, that is the sexual assault, and
reporting is okay? I mean, it seems to me that is really the
nub of this problem.
Because we can talk about generals and officers and
admirals, but it has really got to happen in and amongst the
troops. Colonel?
Colonel Leavitt. Yes, Senator. That is absolutely critical,
going to the grassroots. We have to create a climate and an
environment where the peer pressure is that you don't commit
sexual assault and you don't tolerate it. You step in, and you
stop it. That is something we are trying to get to.
Our chief has had increased emphasis on sexual assault from
day one, how we prevent it, what we do about it, how we
respond. In late November, he had a global wing commander call,
unprecedented. Never had all wing commanders around the world
been brought to one location, and they were brought to one
location with one goal in mind--how to address the problem of
sexual assault.
We all watched ``The Invisible War'' together and talked in
great depth because he said you are the ones who are going to
have to make this change, the wing commanders. You set that
climate. You set that environment, and you need to make that
change.
Following that, I had a series of commanders calls, and we
looked at a clip from ``The Invisible War,'' and we talked
about it. We talked about that climate and that culture. We had
a health and welfare inspection where we went through, and we
hit the reset button. What is acceptable? What kind of
environment is respectful, has professionalism, discipline
written all over it?
Every class that comes in of new airmen, first-term airmen,
I go brief them in detail. I make sure it is crystal clear in
their minds what the standard is, what is acceptable and what
is not. Because I truly believe it is going to have to be
grassroots. We are going to have to create that peer pressure
and that culture where we hold ourselves to a higher standard,
and that is not acceptable in our Air Force or our military.
Senator King. Well, I lived through the period where we
went from drinking and driving being a kind of semi-humorous,
``How did you get home last night? I don't remember. Ha-ha-
ha.'' To ``That is not acceptable.'' It came not only from the
legal system, but from your colleagues.
It came from your peers, and that was what really changed
that culture, which there has been a remarkable change in the
last 35 or 40 years.
Here is my question. Should retaliation be an offense? If
someone retaliates against someone for reporting, should that,
in itself, be some kind of punishable offense?
Captain Coughlin. Sir, that is like any kind of a crime
against a shipmate. That is unacceptable. Yes, that should be a
punishable offense.
Senator King. Do we need language to that effect, or does
the code already have sufficient language?
Captain Coughlin. I have all the tools I need to take care
of that in my command right now through nonjudicial punishment.
Senator King. Do you recall any evidence or any occasion
where someone has been disciplined for retaliation in a case
like this?
Captain Coughlin. I can't prove it was retaliation for a
report of a sexual misconduct, but there have been many cases
of nonjudicial punishment where two sailors get into a fight.
That is punishable. That is not good order. That is not
discipline. That is not teamwork.
We prosecute those things within the lifelines all the
time.
Senator King. I would suggest that this might be an area
to, again, get the word out that if the word gets back that
somebody is being retaliated against in some way--shunned,
ostracized, whatever--that that in itself ought to be, in some
way, punishable, not necessarily with a court-martial, but
nonjudicial discipline.
Captain Coughlin. Sir, another method gets back to the
grassroots theory is bystander intervention that is being very,
very focused upon in the fleet-wide training, and then reward
that, reward that kind of bystander intervention, and you are
kind of attacking the problem from the other end. So that then,
hopefully, as we get more run time on this, people will come
forward more.
Senator King. One final question. A great deal of
discussion here this morning has been about taking these
decisions out of the chain of command. What about an
alternative whereby if you decide not to prosecute, that that
has to be signed off on affirmatively by your JAG officer. If
the JAG officer disagrees, it gets bumped up a level.
I am trying to find something that doesn't violate the
chain of command, but at the same time provides a check and
balance to give people the confidence that this is real, they
are going to get a fair hearing.
Colonel Martin. Senator, there is already a process where
if a JAG advises a commander to go forward on a case and they
decide not to, the commander does, then the JAG can take it to
the next higher commander.
Senator King. My question is the key word you used was
``can.'' Should that be ``shall''? In other words, should it be
an automatic proposition if the JAG officer disagrees that it
goes up, not a further discretionary decision?
Colonel Martin. I think if there is an agreement, and the
JAG feels very strongly about it, then he shall go forward.
Senator King. Any other thoughts you have? Colonel King?
Colonel King. Senator, I wouldn't have a problem with that
at all. We are so close with our JAGs. I mean, since I have
been a battalion and a regimental commander, I don't have these
conversations without them. I honestly thought that we did what
you are describing anyways.
Now I never went against their recommendation, but I
thought we did that. I know he would go to the general.
Senator King. Okay.
Colonel King. So I would be fighting this fight anyway.
Senator King. Thank you very much, and thank you all for
your service.
Chairman Levin. Thank you very much, Senator King.
Senator Sessions.
Senator Sessions. Thank you very much, and I am sorry I
missed much of the morning. I am ranking on the Budget
Committee, and we had a hearing I had to attend.
This is an important subject, and we are proud that you are
here to testify about it. I had time in the Army Reserve. I
even held a JAG slot, but I never was Charlottesville trained.
So, I am a pretty weak JAG officer, not like Senator Lindsay
Graham, who actually served in those areas.
But my experience with JAG officers are that they are not--
they don't see themselves like the average corporate counsel
for some CEO. They see themselves as an advocate for the values
of the United States military and proper enforcement of the
law.
First, let me ask you, would it generally be so that the
JAG officers work hard and are prepared to be aggressive in
prosecuting cases that involve sexual misconduct, or do you
think there is a lack of aggressiveness in that regard?
Captain Coughlin. Senator, all my experience with SJAs is
that they are very aggressive. They are very plugged in, and
they view themselves as to support me in making a good
decision.
Senator Sessions. What I remember in advanced officer
school, we had an African American that had not cleared the
course, and we complained to the JAG officer. He happened to be
from Alabama, and he grilled--we had a hearing. He grilled that
colonel shockingly, really, and he ended up reversing the
position.
I would say that my observation with JAG officers are they
are courageous and independent and not afraid to take on
difficult cases.
I am not fully familiar with your roles at this point in
your career. But are our captains, colonels, majors, are they
talking with their officers and leadership team, NCOs, about
this problem today, and is it being emphasized in a regular way
in your command? If there is a problem, do you call your
leadership team together, is it being discussed with them?
Captain Coughlin. Yes, sir. It is a huge focus. There is
fleet-wide training that is ongoing.
Senator Sessions. Now does that happen--been emphasized
more in recent months as a result of some of the reports we
have seen?
Captain Coughlin. I have seen since 2011, we have been
aggressively tracking this problem and attacking it. The Navy
is going to have a stand-down from the 10th of June to the 1st
of July Navy-wide. We have rolled out fleet-wide training, at
the fleet level and leadership level.
I can't think of many more things that are more focused
than this right now in the Navy.
Senator Sessions. There is no doubt that a person would
from the lowest rank on up know that this is an increasingly
important emphasis from the command? You have already done
that? That has already been done?
Captain Coughlin. Yes, sir.
Senator Sessions. Mr. Chairman, I just had a letter and a
document here that were given to me. Morality in Media. Pat
Trueman used to be in the Department of Justice. I knew him
when he was there. Points out that a picture here of a
newsstand in an Air Force base exchange with sexually explicit
magazines being sold.
We live in a culture that is awash in sexual activity. If
it is not sold on base, it is right off base. There are videos
and so forth that can be obtained, and it creates some
problems, I think.
Let me just say this. Let us say that you had a female
soldier who had felt she was assaulted by an NCO, higher rank.
What would happen? When that comes to your attention--Colonel
Martin, I see you nodding--what would you do? Do you think what
you would do is typical of what other officers would do?
Colonel Martin. Senator, I nod because this is exactly a
situation that I had in my command where I had a young female
who was sexually harassed by a senior noncommissioned officer.
That noncommissioned officer was relieved of his duties, and
then at her request, she was transferred to another unit.
Senator Sessions. If it were criminal assault, is a JAG
officer notified first or the Defense Investigative Services,
or who would investigate the facts of the case?
Colonel Martin. That would have been investigated by CID.
Senator Sessions. You did that?
Colonel Martin. That is correct.
Senator Sessions. Okay.
Colonel King. Senator, just to be clear, we are not allowed
to investigate allegations of sexual assault.
Senator Sessions. How does it work?
Colonel King. Our commands are not. That has to be
investigated by NCIS, in our case.
Senator Sessions. All right. Then who do they make a report
to?
Colonel King. The report comes back to the convening
authority, sir, which in this case would be one of us.
Senator Sessions. Then you would take--you would convene a
court-martial or not convene a court-martial proceeding? But
there is a procedure for that to be done.
I am just trying to--for the people who are wondering how
this happens in the real world--I am trying to flesh that out,
what happens in the real world is that a complaint is not
ignored, first. Is that correct? Would you all agree with that?
Then there are mechanisms to investigate and, if necessary,
prosecute those cases, and the person can be removed from the
military, placed in jail, or given other kinds of discipline as
a result of misbehavior.
Colonel King. Sir, in a recent change, any substantiated
allegation of sexual assault results in automatic processing
for discharge. So now we normally----
Senator Sessions. Automatic processing?
Colonel King. Automatic processing. Now we hold that in
abeyance if there is legal proceedings still going on. We don't
want to discharge someone who we are going to have a general
court-martial for.
But if that court-martial proceeds forward and comes back
with a verdict of not guilty, then we can process them. That is
a recent change.
Senator Sessions. I don't know how many million people are
in all our branches of Service. What? Three million, Mr.
Chairman? Most of them from 18 to 30, let us say. If you had a
city of 3 million with a lot of young men and some women, we
know there will be certain problems. We know that just
mathematically.
I do believe the military has a serious commitment. I have
read and heard General Dempsey's comments today, and I really
believe he is focused on reversing these bad reports that we
are seeing that are unacceptable, and whether legislation is
needed or not, we will see. It is very important that each of
you, to the lowest level, are aggressive in ensuring that we
have a safe workplace.
I thank you for what you have done and your service to your
country.
Chairman Levin. Thank you, Senator Sessions.
Senator Hagan.
Senator Hagan. Thank you, Mr. Chairman.
First, I want to say to Colonel Leavitt, congratulations
for being the first female wing commander in the history of the
Air Force, we are pleased that you are here today.
I know a lot of the conversation this afternoon has been
centered around making the command environment where victims
are comfortable reporting crimes of sexual assault, and these
victims in this process need to feel that they are going to be
listened to, that they are going to be protected. They are
going to be cared for, their case will be taken at the
appropriate level of investigation. Hopefully, they are not
going to be retaliated against, and the stigma, hopefully, will
not stick with the victim.
Colonel Leavitt, I know General Welsh was talking about the
pilot program for the special victims' counsel. Have you been
directly involved with one of these pilot programs?
Colonel Leavitt. Senator, I do have familiarity with the
special victims' counsel. One of the prosecutors that works in
my chain of command, he is a special victims' counsel. Now he
can't give me any specifics, but what I did is ask him about
the program and how it was working. He said it has been very
positive feedback.
It really gives a victim a voice. It empowers them. It
helps them under the process and understand what options they
have. In cases, it has been able to allow people who initially
file the restricted report, once they understand the whole
process and they feel they have an ally, they are willing to go
to an unrestricted report, in which case we are able to
prosecute.
Senator Hagan. So how many current victims get access to a
special victims' counselor?
Colonel Leavitt. Ma'am, any victim, anyone who makes a case
for sexual assault, if they file either a restricted or
unrestricted report, they are offered special victims' counsel.
Senator Hagan. Is that true in the other branches?
Colonel King. Ma'am, we don't have a Special Victims Unit.
We do have complex trial teams. It is more training our
litigators, our prosecutors to properly try these cases. One of
the things that we noticed----
Senator Hagan. But that is not available to the victim from
day one?
Colonel King. No, ma'am. The reason for that is, in my
opinion, we do the take care of the victim side of it pretty
well today. I know the Commandant has said we are going to look
at the special victim unit. I think it is a great idea.
Senator Hagan. Why don't you give me a run-through as to
what happens for the victim?
Colonel King. For the support mechanisms they have? They
have--in every unit, we have a response coordinator who really
handles the process once the report has been done. We also have
a uniformed victim advocate. So that person is specifically
trained to not only be there in those initial phases of the
very--reporting that very traumatic experience, but to open up
all of the things that are available to help a victim, which
are mostly on the installation side.
That uniformed victim advocate will walk through with that
victim every step of whatever counseling or whatever medical
help they need. Does that answer your question, Senator?
Senator Hagan. It does. Over the last 20 years, States have
gotten involved in special victims' counsel. They have been
involved with advocates for sexual assault victims, domestic
shelters, domestic violence, all sorts of these issues. I want
to be sure that these resources that are available at the State
levels, that the military either makes use of them or actually
is following what is going on.
I guess, Colonel Martin, in your case--and tell me if I am
correct--that you oversee the investigators who are
investigating many of these crimes?
Colonel Martin. Yes, Senator. I do.
Senator Hagan. One question I have is you were talking
about ``The Invisible War'' and that some of your investigators
find it hard to believe the victim.
Colonel Martin. No, Senator, what I was saying was the
discussion was centered around where we have come from when we
started investigations to the additional training that we have
given our agents, to where they are now and how we treat
victims. They all believe that all victims should be treated
with dignity and respect.
Senator Hagan. Okay. I have seen ``The Invisible War,'' and
I am pleased that some of you have actually witnessed it and
are using it. But it wasn't put together as a training
mechanism, and I want to be sure that the training that goes
into the people that help the victim when they present at a
hospital stand by their side.
This is a traumatic situation. So much has been done on the
civilian side over the last 20 years that I want to be sure
that the military is using that as good examples of best
practices. I think the special victims' counsel is certainly an
area that all the branches need to be moving into, and I am
certainly hoping that this doesn't just be a pilot program,
that it continues to be a program that is acted upon.
Do you feel it is appropriate, Colonel Leavitt, to dispose
of sexual assault or other serious offenses at the O-6 level of
command?
Colonel Leavitt. Senator, I believe that the commander
needs to have the ability to back up what they say. They need
to be able to enforce the standards they set. So, if I say
there is no acceptable level of sexual assault, I need to be
able to back that up, not look to an independent counsel and
ask them to then take it to courts-martial.
Senator Hagan. I am concerned about how the victims are
continually being treated, and why are they not reporting at a
larger number than they are right now? I have heard the
testimony, and I have heard we have a zero tolerance. We are
going to do this. We are going to do better.
What specific steps are going to change that reporting
behavior? If you could just quickly, Colonel Martin?
Colonel Martin. Senator, I think command climate would
change that reporting. Positive command climate and belief that
the chain of command is going to----
Senator Hagan. Have we not been doing that for the last
couple of years?
Colonel Martin. Yes, ma'am. But I think we just have to
continue. We have to reiterate our concern for our victims.
Senator Hagan. Captain Coughlin?
Captain Coughlin. That is the hardest question of all,
ma'am. We have good command climates, and I am comfortable that
my commanding officers are addressing this problem and talking
to me about it, and we are adjudicating it the best we can.
But the stigma associated with this is the tough thing to
get through, and I just think we have to break down those
barriers little by little by little, and hopefully, those who
would have a tendency to not report would then come forward.
Colonel King. Senator, I think it is going to take
continuous pressure and time. I don't think this is an
intractable problem, but it is definitely a hard one. It is a
complex one. It is going to take some time.
Colonel Leavitt. Yes, Senator. I think it is going to be a
continuous process in order to improve the environment and
ensure that victims do feel comfortable, and we have done a
number of things, but we have to continue it.
There is a big, increased emphasis I have seen with our new
chief and his focus for our airmen.
Senator Hagan. Well, hopefully, the victims will start
coming forward in higher numbers. It should also, I hope,
discourage the perpetrators of sexual violence to also take
note and realize that this is a crime, and it is unacceptable
in the military and in the civilian world.
Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator Hagan.
We very much appreciate this panel. We appreciate the
service that you and the men and women with whom you serve, and
your families. We thank you for coming forward today and giving
us your own testimony from your own perspectives. It is
extremely important that we hear from you, helpful to this
committee and, I hope, helpful to the final outcome of our
deliberations.
You are now all excused with our thanks. We will move
immediately to the third panel. [Pause.]
Our final panel, a panel of outside witnesses, and we are
welcoming first Ms. Nancy Parrish, president of Protect Our
Defenders.
Ms. Anu Bhagwati, Executive Director and Co-Founder of the
Service Women's Action Network. Major General, Retired, John
Altenburg, chairman of the American Bar Association's Standing
Committee on Armed Forces Law.
Colonel Lawrence Morris, Retired, General Counsel of
Catholic University.
We are grateful for your presence, and for your patience
here today. We will call on you in the order in which I
introduced you. First, Ms. Parrish?
STATEMENT OF MS. NANCY PARRISH, PRESIDENT,
PROTECT OUR DEFENDERS
Ms. Parrish. Thank you, Mr. Chairman.
Protect Our Defenders regularly receives pleas from current
sexual assault victims whose attempts to report are thwarted,
mishandled, or made to disappear. We try to intervene, hire
lawyers, block retaliation, reverse errant medical diagnoses.
Servicemembers with outstanding records after they report
are often isolated in psych wards, investigated, and forced
out. One soldier explained, ``I got raped. When I told my squad
leader, I got shut down. I waited, spoke with my platoon
leaders. I got told if I say another word, I would be charged
with adultery.
``I told my new squad leader. In December 2012, they
chaptered me on an adjustment disorder. He is free, wears the
uniform. It represents a protective shield if you are a rapist
with rank.''
A mom reported, ``In April 2012, servicemembers gave our
daughter cigarettes laced with embalming fluid and raped her.
She was locked up, denied requests for expedited transfer.
Weeks later, an Article 15 and an attempt to discharge with
errant medical diagnoses.''
Last year, an active duty officer of 18 years said, ``I was
deployed overseas. The first advice you get, always carry a
knife, not for battle, to cut the person who tries to rape you.
I was drugged and raped. Check the base inspector general (IG)
records. See how many complaints were pushed under the rug.''
Lieutenant Adam Cohen was violently sexually assaulted and
endured botched investigations. Today, he faces command
retaliation, harassment, threats to his life, and finds himself
the investigation target.
Several months ago, a commander wrote, ``I have a young
female soldier. I encouraged her reporting. I have been
disappointed in the lack of support given by her command higher
than me. I would appreciate any direction you could advise.''
Congress must assume its responsibility and not approach
reform based only on what military leaders would like to
accept. Common sense tweaks to a dysfunctional biased system
will not fix this.
Place the duty to determine whether to go forward to trial
with trained senior prosecutors. Third-party accountability
will help fix the culture and legitimize the system.
Why should a legal decision be left to a non-lawyer often
connected with those involved and with vested interest? How
could this consistently produce justice? In deployed areas,
justice would still occur with the JAG system.
Remove Good Military Character (GMC) defense from trial.
Instruction on GMC tells members that it, on its own, can raise
reasonable doubt. Only if the accused has committed another
crime can you impeach at trial.
Remove commanders' authority to reduce sentences. Provide
victims with absolute legal representation to protect their
rights, not just advice. Judges, not juries, should pronounce
sentences.
Military juries are notorious for light sentencing. Mandate
minimum sentencing guidelines. Juries should be selected
randomly, not by someone who may have an agenda.
Many insist that absolute command discretion is required to
maintain good order and discipline. Yet when victims are
punished and perpetrators go free, troops know it, and trust is
undermined.
Whether you agree with how our allies have set up their
outside system, the bottom line is it hasn't reduced a
commander's ability to train and lead warfighters. Many have
stressed the critical involvement of commanders in addressing
this crisis. We agree. Commanders must create a command climate
that minimizes these incidences.
Commanders must be held accountable. Status quo supporters
have failed to explain how placing the disposition authority in
the hands of capable prosecutors would undermine effectiveness.
The opposite is true. Today, more reports may mean a commander
is fair and effective, and a commander with no reports may be
intimidating victims and burying offenses.
Third-party accountability will help legitimize the system
and fix the culture. Victims will report, retaliations shrink,
and prosecutions increase. Today, there is absolutely no
tracking of how a convening authority performs this part-time
duty.
Forceful leadership and accountability is also required.
Recently, General Franklin, exhibiting faulty analysis and
bias, set aside the sexual assault conviction of Colonel
Wilkerson. Leadership's only response? Franklin acted within
his authority.
Of course, he did. That is the problem. What about his duty
to promote good order and discipline and see justice served? He
failed on both counts. Will he be held accountable?
Furthermore, Franklin's commander, General Breedlove,
speaking before 500 majors, rising commanders, publicly
defended Franklin's analysis and erroneously attacked the
prosecution. This circling the wagons above the interests of
the service is common.
The panel today said they rarely relieved anyone for having
a climate of sexual assault. What does it take?
Survivors have found their voice. Americans are watching.
Fundamental change is required. It will come. How long will it
take?
[The prepared statement of Ms. Parrish follows:]
Prepared Statement by Ms. Nancy Parrish
Chairman Levin and members of the Senate Armed Service Committee,
thank you for holding this hearing and for your visible determination
to address the critical issue of military sexual assault. Thank you for
the opportunity to address your committee today.
Protect Our Defenders is a human rights organization that works
with victims of military sexual assault, providing support services and
advocating for military justice reform. Our experience working directly
with sexual assault survivors, active duty and veteran, as well as our
work educating the public and policymakers on this issue have left us
critically aware of the shortfalls within the current system and the
need to implement fundamental reforms.
The argument currently circulating that sexual assault reform is an
old problem, predominantly solved through recent changes in the law, is
simply not correct.
It is well understood that the numbers are going up not down.
We regularly receive desperate pleas from current victims of sexual
assault, who are having their attempts to report thwarted, mishandled,
or swept under the rug.
Increasingly we intervene, hiring lawyers, to block retaliation and
reverse errant medical diagnoses. We frequently hear from highly rated
servicemembers, who soon after they report, suffer persecution, are
isolated in psych wards with wrongful diagnoses, or become targets of
investigations. Soon after, they are frequently being forced out of the
Service.
One soldier explained, quote: ``I got raped by this bastard. . . .
When I tried to talk to my squad leader I got shut down and reminded
that he (the rapist) was a Senior NCO. . . . I waited and spoke with my
platoon SFC (sergeant first class) and lieutenant, [And, they told my
perpetrator.] . . . . Then, I got told if I say another word to ANYONE,
I was going to be charged with Adultery. . . . I was sent back to the
States . . . . I told my squad leader . . . and the next thing . . . I
get told they are chaptering me on an adjustment disorder. . . . I am
one of the `unreported statistics' but not without trying. . . . He is
free and able to do it again as long as he wears the Uniform. . . . The
Uniform represents a Protective Shield if you're a rapist with rank.''
A mother reported to us, quote: ``Our daughter's career and life
nearly ended on base 4/7/12, days before her tech training was to
begin. That day other servicemember(s) gave her cigarettes laced with
embalming fluid and raped her . . . she was locked up, prescribed
medications, denied repeated requests for expedited transfer. . . .
Only weeks later, Command initiated an Article 15 letter of reprimand
and proceeded to discharge her with an errant medical diagnosis. (This
was later overturned with outside legal assistance.) She endured months
of anguish, hospitalizations, humiliation, punishment . . . having to
clean and work in the area where she was assaulted a second time--
raped, sodomized, threatened reporting further, and forced to live in
close proximity to her perpetrators. . . . (A letter is attached the to
committee from the mother.)
Last year, an officer of 18 years, still on active duty, said: I
was deployed overseas. The first advice you get when you get there . .
. ALWAYS carry a knife. Even in the daylight, almost every woman
carried a knife. Not for battle against the Taliban, but to cut the
person who tries to rape her. I was drugged and raped . . . if you
report people are going to ostracize you. . . . If you report rape you
are done. . . . Check their crime records here, and [see] how many IG
complaints were pushed under the rug . . . why? Because, the IG office
is also a deployment position. They don't want to deal with big issues,
because it takes too long to investigate.''
USAF Lieutenant Adam Cohen is on active duty. He deployed three
times for Operation Enduring Freedom, flying over 40 combat missions in
Afghanistan.
Lieutenant Cohen is an example of a failed system, a system that
permits the weakest within it to suffer manipulation and castigation
for having the temerity to come forth with an allegation of sexual
assault. According to Lieutenant Cohen, for years he suffered
blackmail, at the hands of his assailant and his assailant's friends,
designed to keep him from coming forward with his allegation. When he
finally came forward, he was initially ignored by Air Force law
enforcement. Pressing his claim further, he was punished by
investigators and manipulated into providing evidence that was meant
not to hold his assailant accountable, but rather to prosecute him.
Through the actions of the Air Force, Lieutenant Cohen's alleged
assailant (still on active duty) is statutorily barred from
prosecution, while Lieutenant Cohen remains the subject of a
constitutionally suspect prosecution. He has been retaliated against,
attacked, and denied an expedited transfer. Upon learning the expedited
transfer was denied, SVC Major Bellflower asked the commander to
provide a safety plan. If we are to make any headway in curbing sexual
assault in the military, we must act to protect those that come
forward, by ensuring that the system does not punish them for doing so.
(SVC Counsel, Major John Bellflower's redacted report is attached with
his permission. Also attached with permission is Lieutenant Cohen's
background and statement.) There should be a Department of Defense
(DOD) investigation of the entire matter.
Several months ago, a commander wrote: ``I have a young female
soldier. . . . As her commander . . . I have supported and encouraged
her reporting, but have been disappointed in the way it has been
handled and the lack of support given to her by her command (higher
than me). I would appreciate . . . any direction you could advise. . .
. As I am still in the Command, discretion would be appreciated.''
Civilian oversight of our military is a founding principle of our
democracy. Yet, for decades we have seen Congress approach reform
efforts with great deference, to what military leaders would like to
accept This has remained the case, even after it became painfully
evident the reforms to date were not sufficient and that the failure is
quite damaging. This failure has come at great cost to our
servicemembers, our military, and our national security.
The rising numbers of unreported cases of rapes and sexual assault,
coupled with unacceptably low prosecution rates have left victims
discouraged, intimidated, disdained, retaliated against, and all too
often, broken. They are dismissed by a legal system, tightly controlled
within the chain of command. Many victims are coerced to keep their
complaints unrecorded and officially unheard. In sum, the criminals are
not prosecuted and victims are persecuted.
There are three fundamental issues regarding this crisis plaguing
the military:
The broken justice system, which is biased toward
retaliating against the victim, while protecting the often
higher-ranking perpetrator;
A culture of objectifying and denigrating women and
refusal to recognize male victims; and,
A failure of military leadership to exhibit resolve
and forcefully and effectively address this issue.
On May 22, 2013, former General Counsel to the Pentagon, Mr. Jeh
Johnson said, ``I have recently come to the conclusion . . . the
problem, I believe has become so pervasive. The bad behavior so
pervasive, we need to look at fundamental change in the military
justice system itself.'' These are powerful words from the Nation's
former top military legal official.
Congress must assume its responsibility and no longer approach
reform based on what military leaders would like to accept. We cannot
afford to simply continue to make marginal changes.
The military leadership has long insisted that absolute command
discretion is required in order to maintain good order and discipline,
and to ensure mission readiness and unit cohesion. Yet, when victims
are punished and perpetrators go free and everyone knows it to be the
case, trust, the essential ingredient to an effective, functioning
military is undermined. It would also undermine unit cohesion and
trust, if as defense counsels frequently argue, commanders, in response
to political pressure, simply pursue witch-hunts against anyone
accused. Why have the commander in a position where so many people may
question their objectivity, both those that believe the victim and
those that support the accused? We need to remove from the process all
those with a personal interest or even an appearance of potential
conflict of interest and bias.
Our military leaders have consistently failed to specifically
explain how or why removing the convening authority from commanders and
placing it in the hands of capable and trained prosecutors would cause
this alleged break down in the system. They said the same about
repealing Don't Ask Don't Tell. Commanders would still have a multitude
of tools at their disposal to maintain good order and discipline. We
need only look to our closest ally, the United Kingdom in this regard.
For commanders, administering justice and referring cases to court-
martial is only a small part of their job. The Convening Authority has
many other high priority, non-judicial responsibilities that consume
the majority of their time and attention. Why should a legal decision
be left to a non-lawyer, particularly someone often directly connected
with those involved and with an inherent interest in the outcome? How
could one expect this to consistently produce unbiased justice?
Taking administration of the legal process out of the chain will
increase accountability. Many members of the military have stressed
that it is critical that commanders remain accountable for the climate
within their command. We agree. After taking legal decisions out of the
chain, commanding officers will still be required and able to create
and maintain a command climate that will minimize the occurrences of
these incidences. With the responsibility to administer the legal
process out of their hands, the reality and perception of victims will
be that the system is more legitimate and fair. More victims will
report, more prosecutions will occur and commanders will be held more
accurately accountable for the climate they maintain.
The current system produces a perverse consequence. There is no
good way to know which commander is doing a better job. Which is
better, a commander who has 20 victims come forward in his unit or a
commander who has zero reports. Today the truth is not knowable.
Victims have little or no faith in the system and the system lacks
transparency. The commander with 20 reports may be doing a good job,
encouraging and fairly dealing with reports. The commander with no
reports may not tolerate repor,ting and his unit may actually have a
much greater incidence of sexual assault
Taking responsibility and authority for administering the legal
process out of the chain will increase accountability. Victims will
understand that they will more likely get a fair shake. More victims
will report. As more report, it will become clearer which commanders
are creating a good climate, strong unit cohesion, and good order and
discipline and which are not.
Congress must face reality. For justice to prevail, you must end
commanders' unfettered authority over the legal aspects of military
justice. Nothing less will end the damaging cycle of scandal and
continued incidence.
The civil justice system provides an apt model for how the military
justice system could work well. To make the military justice system
more effective, we would recommend the following changes:
1. As in civilian justice, place the duty to determine whether to
go forward to trial (the disposition authority), into the hands of
professionally trained senior prosecutors.
Although you will not likely hear it in this room, many
commanders would prefer such a change.
2. Require that court-martial panels be randomly selected from a
pool of eligible candidates, in a manor similar to the civilian justice
process. As in the civilian process, there should be exceptions for
those with conflicts precluding assignment.
3. The chief judge of each Service should continue to assign
judges as required.
4. DOD should establish minimum sentencing guidelines, which
follow the well-established civilian Federal system.
5. Assign military judges the exclusive responsibility to
administer sentences. Military panel members are not trained as to what
is appropriate and are notorious for inappropriately light sentences.
6. Rely totally on the appeals courts for post trial assessment
of legal issues.
7. Elevate authority to overturn or reduce sentences to the
Service Secretaries or Chief of Staffs. As in the civilian systems,
overturning conviction or reduction of sentencing should be a last
resort, only available after completion of any appeals process, with
decisions taken by a fully independent, unbiased, previously uninvolved
authority.
8. Remove Good Military Character defense from the trial, as well
as pre-trial proceedings. The ability to raise reasonable doubt based
solely on the accused military record is biased and should be not be
relevant to findings of guilt in criminal matters. There is no civilian
equivalent. Imagine a rapist being set free merely because he has a
good reputation as an auto mechanic, a popular teacher, or business
executive. It is offensive to the notion of justice.
9. Provide that all Services should have Special Victims Counsels
empowered to provide actual legal representation to help victims
protect their rights. Do not eviscerate the Air Force Special Victims
Counsel program. If access to counsel were provided, retaliation would
be greatly reduced.
10. Create an independent, victim centered, protective reporting
process.
11. Mandate that each Service create a military justice track for
JAGs. The current system does not sufficiently nurture military justice
expertise. The Navy has recently implemented such a track It enables
talented JAGs, who enjoy litigation, to specialize in justice and
continuously serve in that capacity.
Reforming the military justice system is necessary but, alone, will
not be sufficient to end this epidemic. Only with forceful leadership
from the top and accountability throughout the command structure, will
we see the necessary positive shift in the military culture and less
negative attitudes toward victims of sexual assault. Good laws alone do
not create good government.
This issue was brought to light most recently in the sexual assault
case at Aviano Air Base. Lieutenant General Craig Franklin set aside
the conviction of fellow pilot, Lieutenant Colonel Wilkerson,
overturning the guilty verdict rendered by a court-martial panel of
five colonels he personally selected, and against the recommendation of
his legal advisor.
Lieutenant General Franklin's letter explaining his decision to
overturn the conviction clearly exhibits faulty analysis, misjudgment,
and personal bias. Protect Our Defender's analysis of the General's
explanation, with extensive excerpts from trial record, has been
previously provided to the committee. No one, after a careful, unbiased
analysis of the trial record, could reasonably conclude that General
Franklin's action was well-reasoned and balanced, solely based on the
facts of the case. It appears that he simply could not believe or
accept that this fellow fighter pilot would commit such an act.
Lieutenant General Franklin's twisted reasoning and reliance on the
accused's alleged strong character and veracity is an awkward attempt
to justify and reconcile his own belief in a fellow pilot, rather than
rely on the evidence at trial. This bias coupled with his gratuitous
exercise of unilateral and unchecked authority is an archetypical
example of what plagues the military justice system.
There was bipartisan condemnation of Lieutenant General Franklin's
action and subsequent explanation. Yet, the only response from the
Pentagon has thus far been that Lieutenant General Franklin acted
within his authority. Of course he did. That is the problem. What about
his duty to promote good order and discipline? What about his duty to
see that justice is served? Having failed on both counts, will he be
held accountable? Thus far, we see no sign that his career will even be
affected.
To further compound the egregious and reverberating effects of this
decision, on March 15, Lieutenant General Franklin's commander, General
Breedlove, speaking before 500 Majors and rising commanders at the Air
Command and Staff College, publicly defended Franklin's decision on the
merits and falsely attacked the prosecution team. There is no way, had
he carefully reviewed the record, that General Breedlove could have
rationally reached his conclusion. It appears as though he may have
simply read and accepted Lieutenant General Franklin's account. This
sort of ``circling the wagons'' mentality, where the bad actions of one
or a few individuals are defended, over the best interests of the
Service and the troops, is all too common.
The Aviano case was and is a stark opportunity for DOD and the Air
Force top leadership to exercise their responsibility and stated
commitment to hold accountable those who countenance sexual offenses.
The facts are on the record, very clear, and easy to analyze. Instead,
General Breedlove doubled down and supported Franklin on the merits in
a very public and gratuitous manor. The Pentagon, thus far, has
correctly and repeatedly stated that Franklin acted within his
authority. There is thundering silence from the Pentagon regarding
whether any one even doubts that he made the right decision. Such
silence emboldens predators and those who would be inclined to protect
predators or sweep this issue under the rug. It sends a chilling signal
to victims who must decide whether to report and can only be deeply
demoralizing to investigators, prosecutors, and panel members, who face
similar cases every day.
Ultimately, our military leaders must understand that they will be
held personally accountable for their decisions on this issue. Those,
as the President recently said, who are doing the right thing should be
incentivized. However, it is even more important that those leaders who
countenance sexual assault and protect predators must themselves suffer
severe consequences. They must be relieved of command. Right now, all
too often, the opposite occurs. Commanders fail to effectively address
the issue, predators survive and advance in rank, and victims suffer
retaliation and are pushed out of the Service.
The bottom line is the culture will not change until top leaders
take strong action and leaders who fail to do their duty are clearly
and swiftly held accountable.
Legislation currently pending before the Senate Armed Services
Committee includes many crucial measures, particularly those in the
Military Justice Improvement Act, which, if passed, would improve the
situation regarding rape and sexual assault in the military, and could,
if effectively implemented, go a long way to prevent future crimes. The
reform must be sweeping to make appreciable change.
The failure of the military to effectively deal with this cancer
has been very damaging to the thousands of victims, the quality of our
military, and the prestige and honor of our troops. Americans are
finally, starkly aware of this crisis, and on August 2, 2012, according
to Stars and Stripes, General Welsh stated, ``[Sexual assault] just has
the potential to rip the fabric of your force apart. I think it is
doing that to a certain extent now.'' We agree.
Survivors have found their voice. The American people are paying
attention. There is no longer any doubt that change will come. The
question is how long will it take and, meanwhile, at what cost to our
service men and women, our military as a whole, and our prestige around
the world.
We are extremely grateful for the work and attention the Senate
Armed Services Committee is devoting to this issue. We are encouraged
by many of the proposed reforms. We believe that, along with our
additional proposals, they, if enacted and effectively implemented,
will result in significant improvement over the status quo.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Levin. Thank you very much, Ms. Parrish.
Now Ms. Bhagwati?
STATEMENT OF MS. ANU BHAGWATI, EXECUTIVE DIRECTOR AND CO-
FOUNDER, SERVICE WOMEN'S ACTION NETWORK
Ms. Bhagwati. Good afternoon, Chairman Levin, Ranking
Member Inhofe, and members of the Armed Services Committee.
Thank you for convening this hearing and for the privilege
of testifying before you today.
My name is Anu Bhagwati. I am the executive director of
Service Women's Action Network (SWAN) and a former Marine Corps
captain.
SWAN has been at the forefront of working to end military
sexual violence since 2007. We are nonpartisan. We are veterans
led, and we are a nonprofit organization. It is our mission to
transform military culture by securing equal opportunity and
freedom to serve without discrimination, harassment, and
assault, and to reform veterans services to ensure high-quality
healthcare and benefits for women veterans and their families.
I would like to begin by saying that I have a deep abiding
love for the military that comes from spending 5 years serving
as an officer of marines. I want to see our servicemembers
succeed and our Armed Forces thrive.
The issue of sexual violence in the military has been a
priority for our organization since its inception. Daily
interactions with servicemembers and veterans on our legal and
social services help line have shown us that the impact of
sexual violence, the impact that it has had on our military in
terms of recruitment, readiness, and retention is profound, and
the pain and damage to individual survivors is, in many cases,
irreparable.
Even more distressing, the continued failure of the
military to address this situation has caused troops to
completely lose faith in their leadership and in the military's
criminal justice system. This is evident in abysmally low
reporting rates for sexual assault.
Servicemembers tell us that they do not report for two
reasons primarily. They fear retaliation, and they are
convinced that nothing will happen to their perpetrator.
With approximately 26,000 members of the military having
experienced some form of sexual assault over the past year
alone, this issue calls for immediate attention. Sexual
violence presents a challenge to the force that requires the
same level of planning, leadership, and execution that goes
into the most critical military operations. Resolving this
crisis will require a comprehensive approach as well as a joint
effort by DOD, Congress, the White House, and outside experts
and advocates.
Issues that must be addressed include victim services,
protection from retaliation, military justice reform that
reevaluates the role of the commander and removes bias against
both victim and the accused, and wholesale changes to military
culture.
These issue areas require solutions that transcend
traditions or rhetoric. Everything must be put on the table,
and a climate of cooperation and change must prevail if we are
to restore the military's standing in the eyes of its own
members, the Nation, and the world.
SWAN believes that part of this change requires a dramatic
increase of accession rates of women in the Service branches
and all commissioning sources. The answer to the sexual
violence crisis in part lies with the need to drastically
increase women's presence in the Armed Forces. Until women are
afforded the same access to all jobs and assignments as men,
until sex discrimination ends, we will also have a military
that condones sexual harassment and assault.
We simply cannot expect to recruit or retain enough women
in the force when they are treated so poorly, and we cannot
expect military culture to improve with so few women at the
highest echelons of enlisted and officer leadership.
As you may know, I come to this hearing having personally
experienced and witnessed widespread discrimination and sexual
harassment during my own military career, having witnessed my
own senior officers sweep numerous cases of rape and sexual
assault under the rug, and having experienced personal and
professional retaliation for reporting abuse in my unit.
I know intimately what intimidation by the chain of command
feels like. I know deeply what long-term personal trauma from
reporting these incidents feels like. I know deeply how it
feels to lose a career I loved because of my own commanding
officers doing nothing to support my troops or me when we did
the right thing.
For any servicemembers, veterans, or civilians who are here
in this room or who are watching this hearing today who have
experienced rape, military sexual assault, or harassment,
please know that you are not alone. I believe you, and millions
of Americans across this Nation believe you.
We know that the military justice system has not worked
effectively for you. We know that the trauma, fear,
intimidation, and retaliation you experienced is a travesty of
justice. It is a violation of everything that your fellow
servicemembers swore to uphold. It is a betrayal of the oaths
that your officers swore to uphold.
You didn't deserve this when you volunteered to serve your
Nation. I am so proud of you for making it through each and
every day while your fellow brothers and sisters in arms may
have blamed you for what was never your fault, while your chain
of command and even your own families may not have believed or
supported you, while the VA made it nearly impossible for you
to get the benefits you deserved, making you feel again and
again that like what happened to you was your fault and not the
fault of those who violated your trust.
Mr. Chairman, we are facing a crisis in the ranks. Our
military today is a hostile environment in which women and men
must put up with all kinds of degrading behavior, not random
acts, but rather routine rites of passage that are still
condoned by senior enlisted and officer leaders--going to strip
clubs, brothels, red light districts both within the United
States and overseas, exposure to violent, bestial pornography,
rape jokes, and constant verbal harassment.
We should not be surprised that in the age of Steubenville,
it is also not safe to be a woman at the Service Academies,
where a culture of silence and the glorification of student
athletes has allowed a culture of sexual violence and
mistreatment of women cadets and midshipmen to flourish.
In a culture that is so deeply rooted in sexist tradition
in which sexual assault of men occurs even more often than
sexual assault of women; in which sexualized hazing and abuse
rituals to allegedly toughen up our male servicemembers are
routine; in which service women practically become numb to
sexual harassment because it is so common; when even service
women often do not support fellow service women who are abused
or harassed because few of them want to be considered
troublemakers or rabble rousers; in this kind of proud warrior
society, where stepping in line is the norm and the very idea
of being a victim is considered antithetical to everything we
were taught is strong, heroic, and valued, we need to think
well outside the box to find transformative solutions.
In the interest of time, I have submitted several Senate
bills in my testimony, which SWAN supports for the record. I
will just highlight three bills at this time.
The first is Senate bill 871, the Combating Military Sexual
Assault Act. The second is Senate bill 1032, the BE SAFE Act.
The third is Senate bill 967, the Military Justice Improvement
Act, a critical bill that professionalizes the military justice
system by ensuring that trained, professional, impartial
prosecutors control the keys to the courthouse for felony-level
crimes while still allowing commanders to maintain judicial
authority over lesser crimes and crimes that are unique to the
military.
Unless and until we professionalize the military justice
system and afford servicemembers at least the same access to
civil redress that civilian victims have, including critical
access to civil suit, we will not change this culture. Military
perpetrators will continue to be serial predators, taking
advantage of a broken system, and tens of thousands of victims
of sexual assaults, sexual harassment, and rape will continue
to suck up their pain year after year and decade after decade
with no hope for justice.
I now urge the committee please put yourselves in the shoes
of the average victim, junior enlisted, powerless, and shamed
into silence and vulnerability. Please think of them and move
this critical legislation forward. To wait any longer is to
welcome the next generation of American victims.
Thank you.
[The prepared statement of Ms. Bhagwati follows:]
Prepared Statement by Ms. Anu Bhagwati
Good Afternoon, Chairman Levin, Ranking Member Inhofe, and members
of the Armed Services Committee. Thank you for convening this hearing,
and for the privilege of testifying before you today.
My name is Anu Bhagwati. I am the Executive Director of Service
Women's Action Network (SWAN) and a former Marine Corps captain. SWAN
has been at the forefront of working to end military sexual violence
since 2007. We are a non-partisan, veterans-led non-profit
organization. It is our mission 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.
I would like to begin by saying that I have a deep, abiding love
for the military that comes from spending 5 years serving as an officer
of marines. I want to see our servicemembers succeed and our Armed
Forces thrive. The issue of sexual violence in the military has been a
priority for our organization since its inception. Daily interactions
on our legal and social services helpline with servicemembers and
veterans have shown us that the impact that sexual violence has had on
our military in terms of recruitment, readiness and retention is
profound, and the pain and damage to individual survivors is in many
cases irreparable. Even more distressing, the continued failure of the
military to address this situation has caused troops to lose faith in
their leadership and in the military's criminal justice system. This is
evident in the abysmally low reporting rates for sexual assaults.
Servicemembers tell us they don't report primarily for two reasons:
they fear retaliation and they are convinced that nothing will happen
to their perpetrator.
With approximately 26,000 members of the military having
experienced some form of sexual assault over the past year alone, this
issue calls for immediate action. Sexual violence presents a challenge
to the force that requires the same level of planning, leadership and
execution that goes into the most critical military operations.
Resolving this crisis will require a comprehensive approach, as well as
a joint effort by the DOD, Congress, the White House and outside
experts and advocates. Issues that must be addressed include victim
services, protection from retaliation, military justice reform that
reevaluates the role of the commander and removes bias against both the
victim and the accused, and wholesale changes to military culture.
These issue areas require solutions that transcend traditions or
rhetoric--everything must be put on the table and a climate of
cooperation and change must prevail if we are to restore our military's
standing in the eyes of its own members, the Nation and the world.
SWAN believes that part of this change requires a dramatic increase
to accession rates of women into all the service branches and all
commissioning sources. The answer to the sexual violence crisis lies in
part with the need to drastically increase women's presence in the
Armed Forces. And until women are afforded the same access to all jobs
and assignments as men, until sex discrimination ends, we will also
have a military that condones sexual harassment and assault. We simply
cannot expect to recruit or retain enough women in the force when they
are treated so poorly. And we cannot expect military culture to improve
with so few women at the highest echelons of enlisted and officer
leadership.
As you may know, I come to this hearing with professional
experience with these issues, having personally experienced and
witnessed widespread discrimination and sexual harassment during my own
military career, having witnessed my own senior officers sweep numerous
cases of rape and sexual assault under the rug, and having experienced
personal and professional retaliation for reporting abuse in my units.
I know intimately what intimidation by my chain of command feels like.
I know deeply what long-term personal trauma from reporting these
incidents feels like. And I know deeply how it feels to lose a career I
loved because my own commanding officers did not support my troops or
me in doing the right thing.
For any servicemembers, veterans, or civilians who are here in this
room or who are watching this hearing today, who have experienced
military rape, sexual assault, or sexual harassment, please know that
you are not alone. I believe you. We believe you, and millions of
Americans across this nation believe you.
We know that the military justice system has not worked effectively
for you. We know that the trauma, fear, intimidation and retaliation
you experienced is a travesty of justice. It is a violation of
everything that your fellow servicemembers swore to uphold. It is a
betrayal of the oaths that your officers swore to uphold. You didn't
deserve this when you volunteered to serve your Nation. I am so proud
of you for making it through each and every day, while your fellow
brothers and sisters in arms may have blamed you for what was never
your fault, while your chain of command and even your own families may
not have believed or supported you, while the VA made it nearly
impossible for you to get the benefits you deserved, making you feel
again and again like what happened to you was your fault and not the
fault of those who violated your trust.
Mr. Chairman, we are facing a crisis in the ranks. Our military
today is a sexually hostile environment in which women and men must put
up with all kinds of degrading behavior, that are not random acts but
rather routine rites of passage that are still condoned by senior
enlisted and officer leaders--going to strip clubs, brothels and red
light districts both within the United States and overseas, exposure to
violent bestial pornography, rape jokes and constant verbal harassment.
We should not be surprised that in the age of Steubenville, it is also
not safe to be a woman at the Service Academies, where a culture of
silence and the glorification of student athletes has allowed a culture
of sexual violence and mistreatment of women cadets and midshipmen to
flourish.
In a culture that is so deeply rooted in sexist traditions, in
which sexual assault of men occurs even more often than sexual assault
of women, in which sexualized hazing and abuse rituals to allegedly
toughen up our male servicemembers are routine, in which service women
practically become numb to sexual harassment because it is so common,
when even service women often do not support fellow service women who
are abused or harassed because few of them want to be considered
trouble-makers or rabble-rousers, in this kind of proud warrior
society, where stepping in line is the norm and the very idea of being
a victim is considered antithetical to everything we are taught is
strong, heroic, and valued, we need to think well outside the box to
find transformative solutions.
Mr. Chairman, several bills related to military sexual violence
have been introduced in recent weeks by members of this committee and
other congressional champions for reform. Some bills address the need
to improve victim services, some address the critical need for UCMJ
reform, and others are focused on the impact that sexual assault and
sexual harassment have on veterans. The majority of these are
bipartisan and bicameral, which speaks to the collective approach
required to see real change happen. I would like to highlight these
bills and urge the committee to give them serious consideration as it
moves forward with this year's National Defense Authorization Act:
S. 538 which modifies the authority of commanders under
Article 60.
S. 548 the Military Sexual Assault Prevention Act which
requires retention of all sexual assault reports, restricted
and unrestricted for 50 years, and requires substantiated
complaints of sexual-related offenses be placed in the
perpetrator's personnel record.
S. 871 the Combating Military Sexual Assault Act which would
require the Air Force's special victims counsel program be
implemented DOD-wide, prohibit sexual acts and contact between
instructors and trainees, provide enhanced oversight
responsibilities to the Sexual Assault Prevention and Response
Offices and make Sexual Assault Response Coordinators available
to all National Guard troops.
S. 967 the Military Justice Improvement Act, a critical bill
that professionalizes the military justice system by ensuring
that trained, professional, impartial prosecutors control the
keys to the courthouse for felony-level crimes while still
allowing commanders to maintain judicial authority over crimes
that are unique to the military and requiring more expeditious
and localized justice to ensure good order and discipline.
S. 992 which would require Sexual Assault Prevention and
Response personnel billets to be nominative positions.
S. 1032 the BE SAFE Act that would mandate dismissal or
dishonorable discharge of those convicted for specific sex
crimes, remove the 5 year statute of limitations on sexual
assault cases and allow for consideration for accused transfer
from the unit.
S. 1041 the Military Crimes Victim Act that extends crime
victims' rights to offenses under the UCMJ.
S. 1050 the Coast Guard STRONG Act that requires the Coast
Guard to implement sexual assault prevention and response
reforms.
S. 1081, the Military Whistle Blowers Enhancement Act which
would help protect victims from retaliation and reprisal by
expanding protections under the existing Whistleblower
Protection Enhancement Act for Federal workers, require timely
Inspector General investigations, ensure discipline for those
who retaliate and improve corrective relief for victims.
Unless and until we professionalize the military justice system,
and afford servicemembers at least the same access to legal redress
that civilian victims have, including critical access to civil suits,
we will not change this culture. Military perpetrators will continue to
be serial predators, taking advantage of a broken system to prey on
victims, and tens of thousands of victims of rape, assault, and
harassment will continue to suck up their pain, trauma, shame and
humiliation, year after year, and decade after decade, with no hope for
justice.
Beyond just punishing bad behavior, a professional, fair and
impartial legal system aids in prevention training. It creates a bright
shining line that is the hallmark of effective military training. If
you do the crime, you do the time. It creates a deterrent and a respect
for laws and regulations. That is what maintains good order and
discipline within the ranks. That is also what will restore the full
faith and confidence of troops in military commanders and the military
justice system.
As entrenched as military sexual violence is right now, SWAN is
convinced that the military can transform its culture, because it has
done so in the past. In the 1980s, the military took decisive action to
counter soaring rates of drinking and driving. It didn't treat driving
under the influence (DUI) as a lapse in professionalism or bad
judgment, as it so often does sexual assault. It didn't just hold
safety stand-downs and attempt to train its way out of the problem.
Instead the military instituted firm, fair policies that made getting a
DUI what the military calls a ``showstopper.'' If you got caught
drinking and driving, you faced discipline, prosecution if appropriate
and an end to your career. In less than 10 years, alcohol related
incidents in the military were brought below civilian statistics. To
this day, servicemembers know what will happen to them if they get
caught drunk behind the wheel. The military treated DUI as a crime,
just like it needs to treat sexual assault as a crime.
I now urge the committee: please put yourselves in the shoes of the
average victim--junior enlisted, powerless, and shamed into silence and
invisibility. Please think of them, and move this critical legislation
forward. To wait any longer is to welcome the next generation of
American victims.
Thank you.
Chairman Levin. Thank you very much, Ms. Bhagwati.
Mr. Altenburg?
STATEMENT OF MG JOHN D. ALTENBURG JR., USA, RETIRED, CHAIRMAN,
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ARMED FORCES LAW
General Altenburg. Thank you, Chairman Levin, Ranking
Member Inhofe, and members of the committee, for allowing me to
testify here today.
These views are my personal views. They do not reflect the
views of DOD, the American Bar Association, or any other
entity.
We all agree, I think, that the problem of sexual assault
in the military is appalling. How to solve this issue is
critical to our Nation's ability to field an effective military
force. I approach this issue from a perspective shaped by three
experiences.
First, my service as an enlisted soldier. Including reserve
time, I was an enlisted soldier for more than 5 years,
including a year in combat.
Second, my service as an Army Judge Advocate for more than
28 years, including almost 8 years personally prosecuting
serious crimes in the United States and Germany and, later,
another 6 years as a SJA in the two busiest general court-
martial jurisdictions in the Army, and I deployed with both of
those organizations. I have prosecuted and I have overseen the
prosecution of numerous rape and sexual assault cases.
The third is the fact that I am the father of five
children. They are all adults now. Two served in the Army,
including my oldest daughter, who served 6 years Active, most
of it deployed, and another 6 years in the Reserve. All of this
after attending and graduating from the military academy at
West Point. My youngest daughter also is considering military
service next year.
Sexual assault in the military is one of the most serious
problems I have seen in more than 45 years observing military
issues. We know from accounts of victims that there has been
inadequate command accountability for addressing this insidious
problem.
Clearly, some leaders have failed to take care of victims,
and many victims have been horribly retraumatized by the
process, frequently because of insensitive leaders.
I agree that change is needed, but many of the changes
already urged and passed by Congress are leading to change that
is needed to cope with this problem. Many of the changes
demanded by victims advocates have only been in place less than
3 years. If we argue for major change, we should check to see
how effective recent changes have been before more major
changes.
There are more than 130 convening authorities across DOD,
who review and approve or disapprove of findings in more than
2,000 cases annually. We must be careful of judgments based on
1 or 2 of those decisions in the last 5 years, compared to the
10,000 decisions by all the other convening authorities.
It is not enough to point out that statistics are misstated
by critics, that survey responses are extrapolated by
mathematicians to reflect 26,000 unwanted sexual contacts but
then translated by critics and journalists to be 26,000 actual
rapes or sexual assaults. This problem is serious. There is no
need to exaggerate statistics.
The military prosecutes sexual assault more aggressively
than most civilian jurisdictions. The military prosecutes many
cases after civilian jurisdictions decline them. Those who
claim otherwise simply don't know the facts.
No commander ever refers a case to a general court-martial
without first reviewing the pretrial advice of his or her SJA.
Those who say that non-lawyers run the prosecution of cases do
not understand how fully commanders understand their quasi-
judicial responsibilities and the direct link those duties have
with the combat readiness of the force.
Nor do critics understand that lawyers are fully engaged in
the exercise of prosecutorial discretion. Rarely does a
commander not follow the recommendation of the SJA. Taking
authority from commanders and giving it to lawyers solves
nothing, in my opinion. It is a 50-year-old solution looking
for a problem to solve. Lawyers are already fully engaged.
Prosecution is critical to prevention, but only leader
accountability will solve this problem in all of its complexity
the same way leader accountability in the 1970s began to solve
race issues and in the 1980s to counter the misuse of alcohol
and drugs and drunk driving.
There have been crises in child abuse and spouse abuse in
the military. In each instance, military leaders created the
change that was required. Withholding disposition authority to
a higher level was instrumental in each of those matters.
Leaders must understand that while sexual assaults occur
with similar frequency in the civilian sector, the military
setting creates two unique circumstances that commanders must
address. One, a unique opportunity for predators unlike
anything outside the military.
The professor or teacher with a student in no way compares
to a military supervisor and a young trainee. Consent as a
practical matter, in my opinion, is impossible for a trainee.
There should be strict liability for supervisors in the
military training environment.
Second, a unique vulnerability of victims, who frequently
don't realize the many ways they can report an assault, that
they could even prefer the charges themselves or go to six or
seven different possible places to report, even personally
prefer charges, as I said. That is because of the intimidating
unit environment for young soldiers, as alluded to earlier.
If we are to modify the military justice system, then it
must be done with care to understand fully the complexity and
the balance of a system and to think through the potential
unintended consequences. Holding leaders accountable can be
approved immediately. The leaders who testified earlier will
see to that.
I look forward to your questions.
Chairman Levin. Thank you very much, Mr. Altenburg.
Mr. Morris?
STATEMENT OF COL LAWRENCE J. MORRIS, USA, RETIRED, GENERAL
COUNSEL, CATHOLIC UNIVERSITY
Colonel Morris. Good afternoon, Chairman Levin, Ranking
Member Inhofe, and distinguished members of the committee.
Thanks for the opportunity to contribute to this important
discussion.
I am here as a citizen, 2 years removed from having served
as the Army's Chief of Advocacy, which is a civilian position
charged with implementing the improved training of Army
prosecutors and defense counsel regarding sexual misconduct.
Before that, I had the great privilege of serving in
uniform for 30 years, 27 of them as a Judge Advocate around the
world, trying about 100 courts-martial both as a prosecutor,
including capital cases, and a defense counsel and then
supervising the trial of many others; serving as the SJA, the
chief legal adviser to general court-martial convening
authorities in the States and while deployed and as the SJA or
general counsel at West Point.
Before I served as the chief prosecutor for the Guantanamo
Bay war crimes trials, I sought the opportunity to serve as the
Army's Chief Public Defender, supervising the 300 or so Judge
Advocates charged with the ethical and independent defense of
their fellow soldiers. I have five brief observations.
First, the military justice system essentially works as a
productive collaboration between commanders and lawyers. Now
though the system is command run, commanders rarely make a move
and certainly not a significant move involving cases of the
complexity and gravity of sexual misconduct without consulting
their counsel.
These aren't episodic or formal occasions. They are
constant and deeply embedded in the law, procedure, and
military culture.
Second, the military justice system is essential for good
order and discipline. Command is a sacred trust, and it must
include the ability to effect discipline in a military whose
sole purpose is to fight and win our Nation's wars.
We do take a risk in giving that awesome power to
commanders, which is why it is notable and damaging when they
breach it. But it is an essential element of the authority and
trust of a servant leader.
Third, the military tries hard cases. I know lots of
civilians who do, too. But I also know that because of the
military's culture and the abundance of resources, that the
military is generally more willing to try the close case
undeterred by possible acquittal.
I did it many times, and I know my experience was not
unique. Cases should never be tried for show or out of
solidarity, but victim trust can be sustained and enhanced when
the victim devotes legal resources and energy to trying a close
case.
Fourth, we must be mindful of soldier rights and command
influence. Dating as far back as Harry Truman's critical
letters from the front, through my generation's service as
Judge Advocates, the greatest concern about military justice
has been its most persistent scourge--unlawful command
influence.
In our rightful zeal to eradicate sexual misconduct, we
must make sure that all participants in the process, all
participants exercise independent and dispassionate judgment in
that in the process, accused soldiers do not face a compromise
of their rights under the Constitution or the UCMJ to fully
defend themselves, including the ability to prepare cases and
call witnesses on their behalf.
Fifth and last, we are right to demand a lot from our
military and our military justice system, but only what each is
reasonably able to accomplish. Any justice system is a reactive
instrument. We do and we should have high expectations of our
military and its justice system, but we also must candidly face
the attitudes toward sexuality that our patriotic volunteers
bring with them into the force and recognize the commitment in
education and leadership that is required to modify them.
Congress should be satisfied that the military is doing all
it can to remove factors that might make sexual misconduct
easier, including the availability of alcohol, unsupervised
living arrangements, and the consumption of pornography.
Our military justice system never has been static, and
there are changes I would recommend to better balance
efficiency and soldier protections. The committee would be well
served to demand carefully prepared data on current practices
and to understand how the commitment to justice is
operationalized in a serious and appropriate manner.
Thanks, and I look forward to your questions.
[The prepared statement of Colonel Morris follows:]
Prepared Statement by COL Lawrence J. Morris, USA, (Ret.)
The commander is indispensable to the military justice system
because the only reason for a military justice system is the
maintenance of good order and discipline. Removing this tool--or
entrusting it to lawyers with no leadership responsibility--would
diminish the authority of command and the quality of the force. We so
often talk about command as a sacred trust that we can forget both the
noun and the adjective: it really is trust, the rightful burden of
leadership placed on commanders by our history, laws, and tradition;
and it really is sacred because the leaders are the servants of those
they lead--a responsibility that translates to caring for the led with
an intensity and comprehensiveness that has no civilian equivalent.
We have the most robust military justice system in the world, not
only because we are the world's most powerful military, but because we
are the world's best led, most disciplined, and most ethical force.
Leaders do not lead primarily out of fear or fear of consequences--but
they need to have available to them an array of consequences to justly
and swiftly address misconduct. Commanders' responsibility under the
Uniform Code of Military Justice (UCMJ) is not one more additional duty
but is woven into the mantle of command, part of who they are, an
indispensable element of their authority and their commitment to
mission and people.
I speak from the perspective of a judge advocate privileged to have
served 27 years on active duty, most of them in or near the courtroom.
I followed my time in uniform with 2 years' service as the civilian
chief of advocacy for the Army, responsible for implementing the
special victim prosecutor program and the training and development of
prosecutors and defense counsel. My greatest concern is that the
committee understands how the system really works--how closely
commanders and lawyers are tied together so that it does not impose a
remedy that does not fix the problem.
In every unit at all levels of our military, commanders consult
their judge advocates on the full array of disciplinary options--a
uniquely rich continuum that runs from ``admonishment'' (getting in the
face of a subordinate quickly to correct an error) through a range of
administrative and nonjudicial measures, all the way to the felony-
level general court-martial. I know that there are captains and
lieutenants across the Services who have developed practices similar to
what I did as a young prosecutor, keeping a copy of the punitive
articles of the UCMJ and the discussion to R.C.M. 401 (which explains
all of the factors, many peculiar to the military, that leaders should
consider in deciding whether to punish and how to calibrate that
punishment) under the glass on my desk to be able to talk through not
just the possible offenses but the rationale behind selecting a
disciplinary choice. The leaders benefit from a judge advocate's best
advice--what the law requires, what the evidence will support, the
likely outcome--and we lawyers benefit from the leader's perspective on
the impact of the infraction in their unit, factors that might not be
as obvious or intuitive to us at our remove. As one of many examples,
after a few years as a prosecutor I was evaluating a case involving a
soldier who drowned after horseplay among buddies on a boat on a cold
German lake. It was a true tragedy--friends whose conduct got out of
control--but the brigade commander whom I advised, nearing his 30th
year in the Army, explained to me why, in the Transportation Corps, his
soldiers had to be ``on'' regarding safety at all times, and that the
tragedy was more profound because it reflected such a departure from
that mindset. Such commander-lawyer collaborations happen all day every
day across our military, a seamless and collaborative dialogue meant to
bring the appropriate discipline in each individual case. Of course
these conversations occur with particular care and urgency regarding
sexual misconduct, especially when the victim is a military member and
even more so when in the same unit.
Besides the constant advice, the law requires a commander to obtain
the written advice of his senior legal advisor, the staff judge
advocate, on several matters, including jurisdiction and the
availability of evidence, before he can send a case to a general court-
martial; in this pivotal circumstance the lawyer holds the keys to the
courtroom, and a commander is disabled from convening a general court-
martial without that independent advice. Therefore, the suggestion that
increased lawyer involvement would mean better preparation and trial of
sexual misconduct might not appreciate the extent to which lawyers
already are involved in the preparation and development of a case, not
to mention their actual authority, as in their pretrial advice for a
general court-martial.
These are among the unique features of the military justice system,
many of them stemming from the demands placed on servicemembers and
leaders for which there is no civilian equivalent--disciplinary
measures that can be administered with justice and efficiency around
the world during wartime and peace. Because it is an instrument of
command, however, the system also carries the potential to be distorted
by command influence or control, a risk well known to most observers of
and participants in the system. In addition to all my years in the
courtroom I also served as the chief of criminal law for the Army's
largest group of prosecutors, and the deputy staff judge advocate and
staff judge advocate in different combat divisions. In my years as the
chief of the criminal law department at the Army's law school I not
only taught judge advocates but rising battalion, brigade and division
commanders as they prepared for their judicial roles. On many occasions
I took difficult cases of sexual misconduct, as well as child sexual
abuse, to commanders. In many instances there was no guarantee of
conviction but there was a strong reason to try the case and we were
able to develop the victim's confidence. In all instances the
commanders underwrote risk and took the cases to trial; I have no doubt
that many of these cases would not have been tried by civilian courts
either because of lack of resources or concern about acquittal. I know
from my direct experience that in many of these instances the local
civilian jurisdiction that could have tried the case, in places as
disparate as Oklahoma, Panama, Korea, New York, and Germany, was
pleased to have the military take the chance on the case. It was also
essential that the command brought those cases, signifying the
leadership's interest in servicemembers' conduct whether on or off
duty, on the installation or off. This should be taken into account in
considering how confusing it would be to set apart a category of
offenses, such as sexual misconduct or common law crimes, from the rest
of the offenses under the UCMJ. A commander's unitary authority to
attack all criminal misconduct is essential to his effectiveness and to
the military's and society's expectations of the commander. The Supreme
Court recognized the wisdom of the military's ability to attack all
such misconduct in Solorio v. United States, 483 U.S. 435 (1987) when
it removed the service connection requirement from military
prosecutions; Congress should honor that analysis in refusing to
fragment accountability and responsibility for addressing servicemember
misconduct.
It was not long ago that the military justice system was criticized
by courts and commentators for insufficiently protecting the rights of
accused soldiers; though it has rightly regained a reputation for
balanced justice, it must maintain and earn that with each wave of our
All-Volunteer Force. My first assignment as a judge advocate was as a
defense counsel and the last job I sought in the Army was as its chief
public defender, responsible for our 300 uniformed defense counsel
around the world. There are several protections under the UCMJ that
civilians would covet--including a broader privilege against self-
incrimination, more liberal right to counsel, and much more liberal
rules in its ``grand jury'' proceeding. Those protections also include
Article 60, the authority of a commander who convened a court to
disapprove the findings or sentence. While I agree that it is
reasonable to require a commander to state his reasons for granting
such relief--most any judicial officer anywhere carries a similar
obligation of accountability--modifying or removing this authority
still represents a reduction in servicemember protections without a
compensating change elsewhere. The committee should be careful when
making any change, however slight, in the carefully calibrated and
long-developed balance between command interests and protection of
servicemembers--in a system in which any servicemember can swear out
charges and where you can be sentenced to life in prison based on the
votes of four members of a 5-person jury. Still, the greatest worry of
a servicemember suspected or accused of a crime is that the command can
run the system in a way that keeps his ample rights and protections
from taking flesh in the reality of the disciplinary process. These
concerns would persist under a lawyer-run system, as the lawyers would
work for and with commanders, and we must be most vigilant to keep
unlawful influence from sprouting in informal ways, such as speech and
conduct that can telegraph to leaders that they should dispose of cases
in a certain manner or that would undermine an accused's sixth
amendment right to a fair trial by intimidating potential witnesses or
chilling the cooperation or candor of leaders or fellow servicemembers.
Soldiers trust our system, a hard-earned but evanescent confidence that
is the product of generations of careful practice, backed by draconian
sanctions for unlawful influence; if servicemembers do not consider the
system to be essentially fair it will forfeit its legitimacy and
undermine the effectiveness of leaders and the lawyers who advise them.
All of which only reminds us of the inherent limitations of any justice
system.
The military justice system certainly is an appropriate instrument
for attacking sexual misconduct; moreover, the availability of
nonjudicial and administrative measures means that it can attack
``precursor'' conduct short of sexual assault because it has tools
unavailable to the civilian world. But military justice, like any
justice system, is primarily reactive and blunt. It addresses conduct
after it occurs. While general deterrence is an appropriate purpose for
a justice system, and we should have confidence that a potential
criminal calculates the consequences when contemplating criminal
behavior, this focus on the consequence stage illustrates the inherent
limitations of justice--and its dependency on culture more than
anything to set society's standards. Our young volunteers come to us
from a society that sends at best conflicting messages about human
sexuality, with the edifying aspects and elements of responsibility and
respect often buried under its dulling ubiquity and focuses on
``consequence management.'' Our servicemembers are the products of the
values and examples set by moms and dads, schools and churches, movies
and music. The military has an admirable history of being at the lead
on social change--racial equality--and on behavioral change--alcohol
and drugs; it recently proved its flexibility and fidelity to civilian
leadership in implementing the gay rights policy. But all of those
changes required education and leadership--and justice was but a
component of it. It is equally true with sexual misconduct. We must
candidly deal with the experiences and attitudes of those whom society
entrusts to us and immerse them in a culture of team work, honor and
respect, one reason that the emphasis on stinging consequences for
sexual misconduct by leaders involved in basic training and the first
duty station is especially important. Unlike some initiatives, there
are multiple components to the effort against sexual misconduct because
sexuality is unique in the human dynamic and especially tough to try
because cases are heavily testimonial. When the military was concerned
with chubby recruits it gave them extra PT and adjusted the recipe card
for SOS. When it was concerned about drunken driving it cut off alcohol
sales during the duty day and hit all ranks with mandatory reprimands
for DUI. Mandatory drug testing caused drug use to plummet and
sustained and credible testing kept it low. None of these measures
eradicated the conduct but all of them brought it under control. Sexual
misconduct involves a more profound reorientation of attitudes, and
merits tough and just consequences--but also involves reducing the
opportunities for misconduct by paying attention to the availability of
alcohol, combined with virtually unsupervised living arrangements for
large numbers of young, single people. Attention also should be paid to
the pornography epidemic in society and strong evidence of its heavy
consumption in the ranks.
To say that attacking this problem requires a bit of judicial
humility does not mean reticence or a lack of ambition. The problem can
be attacked with the same unity of effort that has characterized prior
successes, and the consequence portion of that continuum should always
be scrutinized to ensure it is both just and fair. Society holds the
military higher in esteem than almost any institution--and its ability
to lead and manage social change is as much a part of that reputation
as fighting with ethical ferocity. The military justice system is as
old as our country but the UCMJ is only a little over 60 years old. As
with many of my colleagues, I could suggest to you several changes I
would make if I had the authority to do so--but they all must come
about after careful study and anticipation of collateral consequences.
Congress must answer the fundamental questions implicit in some of the
legislation you are considering, including whether it is the system or
the people employing it who are the greater concern and how you would
measure change--do we think reports are not currently made that would
be made? That cases would be tried that are not tried? More
convictions? Harsher sentences?
The system should not remain static, but Congress should require
hard data on sexual misconduct, candor and clarity regarding living
arrangements and supervision, study of cultural influences that our
members bring with them as well as the culture they enter--and how the
justice system enforces good order and discipline in a manner that is
fair, swift, and just.
Chairman Levin. Thank you all.
First is the question of retaliation, what we know long
before today's hearing, but it has been emphasized at today's
hearing is that most of the women who do not report, or most of
the troops that don't report--men or women--do not do so
because they are afraid of retaliation.
A huge percentage are very much afraid of humiliation or
embarrassment. But it is the retaliation issue which we want to
put some focus on, or at least I want and I think all of us
want to put some focus on.
The question is whether or not, and I think, Ms. Bhagwati,
you made reference to one of the bills here, Senator
Gillibrand's bill, which would require that serious offenses be
sent to a new disposition authority outside of the chain of
command for a determination of whether the allegation should be
prosecuted at a general or special court-martial.
My question is how would doing that stop retaliation? That
is the question I guess I will ask of you, Ms. Bhagwati.
Ms. Bhagwati. Well, the first thing it will do is restore
faith and trust in the system. Right now, victims don't have
any of that. They have lost all hope in the military justice
system, unfortunately.
Retaliation happens in many respects. We see on a day-to-
day basis that our callers, both servicemembers and veterans
who have recently been discharged, have been punished with
anything from personal retaliation from roommates and family
members to professional retaliation by their chain of command
from the lowest levels to the highest levels, platoon sergeants
all the way up the chain.
They are also retaliated in more kind of insidious ways.
They are given false diagnoses, mental health diagnoses, like
personality disorders, which bar them from service, which force
them to be discharged, which ban them from getting VA services,
VA benefits. So it is comprehensive retaliation.
Chairman Levin. Mr. Altenburg, let me ask you a question
about the investigation process. Colonel King said that the
investigation in the Marines, and I think this is generally
true, is handled by professional investigators. Is that your
understanding?
General Altenburg. That is my understanding, and that is a
recent change, I mean, in the last 3 years, I think.
Chairman Levin. Now have you read the bill, Senator
Gillibrand's bill?
General Altenburg. I have.
Chairman Levin. If there were a new disposition authority
created, independent of the chain of command that would make a
determination of whether allegations should be prosecuted at a
court-martial or not, would that affect the investigation
process?
General Altenburg. I don't think it would necessarily. If
they left the investigation with the CID in the Army, the NCIS
in the other Service, and the Air Force Office of Special
Investigations, then they would do their investigation, and
then it would get passed, I guess, to this court-martial
command is what it was called 50 years ago when people tried to
do that.
Chairman Levin. All right. Now in terms of who would make
the decision, as you read the bill, who would make the
decision, the determination as to whether an offense meets the
threshold of a serious offense that would have to be referred
to the new disposition authority? Who would make that
determination?
General Altenburg. Excuse me, sir. I assume a lawyer would.
Just as now, lawyers make no command decisions----
Chairman Levin. Lawyer, which lawyer, where?
General Altenburg. Prosecution, a prosecutor.
Chairman Levin. In that same independent office? I mean,
that is the threshold question as to whether or not there is
evidence of a serious offense or not so that that new
independent approach would be triggered. Who would make that,
as you read the bill?
General Altenburg. As I read the bill, a lawyer and the SJA
would make that call, as I read the bill.
Senator Levin, if you please----
Chairman Levin. Does anyone else have a--yes, go on. Go on.
General Altenburg. I beg your indulgence in making a couple
of comments, one related to retaliation, the other regarding
investigations. Investigations have now become mandatorily done
by the professional investigative services. That is a change
that was a response to this problem.
Second, with regard to retaliation, I think it is even more
complex and subtle than Ms. Bhagwati talks about. I agree with
everything that she said, that she has experienced. But it is
so subtle that it can just be soldiers attending an
investigative hearing and glowering at the victim to make her
feel uncomfortable.
Chairman Levin. Do you have any suggestions as to how we
can get to the peer pressure type of retaliation?
General Altenburg. I think the only way to get to that is
through the command, is through leadership. They have to seize
this issue. They have to understand the cultural dimensions of
it, realize how unique the military is in terms of the
vulnerabilities of the victim, and the opportunity for this
predator mentality that it is like a wolf around a pack of
sheep that seeks out different types of people and tests them
and probes them and then finally decides to strike when they
are one-on-one.
I mean, whether they do it subliminally or whether they do
it with malice aforethought, they are predators to the Nth
degree, and many of them, we are finding from studies, are
repeat offenders and they are serial offenders. Some of the
things that have been suggested to keep people from coming in
the military who have that kind of background will be--will
help solve this.
But that mentality and that culture is what the leaders
have to attack. The same way they attacked racism in the 1970s
and the 1980s. There were racist lieutenant colonels and
colonels, and they got discovered. They got out.
You couldn't cope. You couldn't deal without modifying your
behavior or getting out, and we have done that with several
other social issues. It takes leadership. That doesn't mean
that all the leaders are going to be the good people and the
ones that get it, but that is how we will effect change in this
culture.
Chairman Levin. Senator Inhofe?
Senator Inhofe. Thank you, Mr. Chairman.
First of all, Ms. Bhagwati, I appreciate your comments
about the Naval Academy. I am concerned enough about it that I
called Admiral Mike Miller, who visited this morning, the
superintendent up there. This is a deplorable situation that we
need to pursue.
Not being a lawyer, I am going to ask a question a little
bit differently than the chairman did of the two. Perhaps you,
Colonel Morris, or you, General Altenburg. On the second panel,
I asked a question that came out of a recommendation from this
Defense Legal Policy Board report. Now, that is just a week
old, and so I doubt seriously that everybody has spent some
time reading it.
They feel very strongly about the notion that commanders
have the ability to deal swiftly, fairly, competently, and
visibly. I asked the question of that panel, and of course, you
guys are JAGs so you would come from a different perspective,
perhaps, that creating the centralized initial disposition
authority with an oversight by an O-6 Judge Advocate.
How would a system like this, or would it, impede with the
ability to deal with misconduct using those four
characteristics--swiftly, fairly, competently, and visibly? Any
thoughts about that, either one of you?
Colonel Morris. Senator, I think that there is no doubt
that lawyers can and always have accurately been able to assess
the evidence, assist in the energizing of investigators, and
give their best legal analysis and advice to commanders. So in
terms of analyzing a case, there would be no degradation in a
kind of a JAG unique bubble there, working those cases.
The concern is what you would give up, and what you would
give up is the unitary aspect of a commander being responsible
for everything that happens in his unit. The military justice
system is a component of that. It is not the only one,
obviously. If you lead just out of fear or lead just out of
consequence, you are not a full-spectrum leader.
But to be able fully to lead, you need to be able to have
the ability directly to effect discipline, which means a full
range of punishments. I mean, we are talking at the court-
martial end of the spectrum. But what the military justice
system provides is punishments that civilians would love to
have, from admonition, reprimand, nonjudicial punishment.
A lot of the conduct that is kind of the low level and
sometimes precursor conduct to serious sexual misconduct can be
addressed directly, severely, and swiftly with that range of
sanctions available to commanders.
Senator Inhofe. I appreciate that answer because that also
answered my second question, which was to have you go into this
range that they would have that is not found in the civilian
approach to this. You have done that very well.
Let me ask you something. As I read as a non-lawyer, one of
the proposals would, and I use the word ``require,'' would
require the defense to request interviews with the complaining
witness in a sexual assault case, but would prohibit the
defense from interviewing the complaining witness unless it was
in the presence of the trial counsel, counsel for the witness,
or the outside counsel.
Now General Altenburg and Colonel Morris, do you think that
that restriction on the defense would be workable in a military
justice case?
General Altenburg. I would say, first of all, that no one
can force a victim to talk to a defense counsel. I mean, it
may, as a practical matter, impede the trial of the case. But
certainly before an investigative hearing----
Senator Inhofe. It says prohibit. So go ahead.
General Altenburg. The proposal would prohibit the defense
lawyer from talking to the victim?
Senator Inhofe. From interviewing, yes.
General Altenburg. I think it--I understand why victims
don't want to talk to the defense lawyer. I get that. But in
our system of justice in this country, they have to talk to the
defense lawyer eventually. They have to be confronted.
I think that is something that would tilt the delicate
balance of military justice too much against the accused. It
would impede the preparation of trial.
Senator Inhofe. Would it impede it enough to question the
constitutionality of such an arrangement?
General Altenburg. I am not qualified, I don't feel
qualified at all to comment on the Constitution. But I have no
doubt that there would be a motion in every case where that was
exercised. The defense would have a motion at trial that they
were prohibited from preparing for trial, and they couldn't
adequately defend their client because they couldn't----
Senator Inhofe. I see. Any thoughts on that, Colonel?
Colonel Morris. Similar, Senator. The concern would be,
ultimately, it is your Sixth Amendment right to confront a
witness, which only has to happen in the courtroom. The
question would be then whether that Sixth Amendment right is
effectively exercised, depending on your ability to prepare.
I don't think it would be automatically unconstitutional to
limit access to the victim ahead of time. But as always, it
ends up with what details otherwise attach to that.
One other piece of that is the Article 32 investigation, a
unique process to the military. It is often and inaccurately
analogized as the military's grand jury. But it is a required
step before a case can go to a general court-martial.
In that process, the Government most always would present
its witnesses, which is an opportunity, a controlled
opportunity for the defense to cross-examine a complaining
victim, a complaining witness there.
Senator Inhofe. I see. I see.
Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator Inhofe.
Senator Reed.
Senator Reed. Thank you very much, Mr. Chairman.
Thank you, witnesses, for your testimony. It is
extraordinarily helpful dealing with an issue of great not only
significance, but that goes to the essence of our military
force.
Colonel Morris, just as a point of reference, when did you
leave Active Service?
Colonel Morris. 2009, Senator.
Senator Reed. 2009, and one of the issues that everyone has
spoken about is accountability, and I think Ms. Bhagwati and
her experiences suggest that there really isn't very good
accountability when you go--when your squad leader ignores you,
when your platoon leader ignores you, et cetera.
From your most recent perspective, how common was it for a
company commander to be relieved for or have a bad report done
because he or she was indifferent to complaints by subordinates
about mistreatment and sexual misconduct?
Colonel Morris. I would think I would remember if I knew of
any.
Senator Reed. Yes.
Colonel Morris. My experience, of course, was quite the
opposite, that they were highly energized and that you had an
intensive and immediate collaboration. It is really three
parties--the leader, the lawyer, and the law enforcement
person--and all of them working closely together.
Senator Reed. If the chain of command wants to retain these
powers under UCMJ, it has to be a chain of command that is
accountable. We all agree on that. What I think we are looking
for, and I am going to ask Ms. Bhagwati to comment, too, is
that it is hard to put a finger on specific cases where squad
leaders, platoon leaders, et cetera, who are indifferent.
It goes back to Major General Altenburg's point. If you
were insensitive and made insensitive racial comments, if you
were--had other behaviors back in the 1970s, you would not last
very long, in the 1980s, in the 1990s, et cetera. The question
is, do you think we are getting close to that, or we are just
beginning that process now with respect to sexual assault?
If we can't get there through the existing rules, then we
are going to have to make some changes. So, General Altenburg?
General Altenburg. I think, candidly, that we are just
getting at it in the last year or 2. I think that for a variety
of reasons, including fighting two wars, I guess, it wasn't the
priority that it should have been and certainly that it is now.
I think that commanders must get it first, and then they
have to work their way through the rest of the people that work
for them, that the commanders are starting to understand the
dimensions of this. They are starting to learn that false
allegations are a very low rate, even though the conventional
wisdom among men is that they are high.
Things like that. As they become more knowledgeable about
this issue, then they will do a better job of getting a handle
on it. It is subtle. It is complex, and so is the change.
I mean, it is somebody caring enough to get up from the
computer and go out and make sure he is talking to the troops
and make sure he is looking them in the eye when he is talking
to them about whether it is in the motor pool or whether it is
at formation or on physical training in the morning and
watching how they operate and what they say.
Good leaders have always done that, and the kind of
mediocre leaders that Ms. Bhagwati is talking about have never
done that. Those kind of people have always been a problem for
us.
Senator Reed. Let me ask you another question, and I want
Ms. Bhagwati to have an opportunity to respond. There is a
certain sort of a macro issue here. We have a warrior culture,
which has been dominated for centuries by males.
We have an expectation that these now men and women will be
able to destroy our enemies, literally, and at the same time
give their own lives for their comrades and for their country.
In that culture, is it likely that we will find people who
function very highly as warriors, but are in fact, as you
describe, the sexual predators and that it is hard for the
system to sort those out. It is hard for individual commanders
to say, okay, I am going to really make an example of this, my
best soldier.
General Altenburg. I don't think now it is hard for a
commander to do that. As they learn how invidious this conduct,
this behavior is, I think that more and more of them are going
to be willing to go after this.
Senator Reed. Thank you.
General Altenburg. What is remarkable is that it is a
manhood ``boys will be boys'' problem that enlightened
commanders will get a handle on. I visited Ms. Bhagwati's web
site last night, and I was--or yesterday, and I was looking at
some of the documents that she had submitted somewhere. There
were bad songs, ribald songs, people talking about going in the
bars and hitting on women and their teammates and all the rest
of it.
I thought to myself as I read it, this is 10 years old, Ms.
Bhagwati, why do you have this stuff out here? I mean, I know
that was our culture 10 years ago, and it was a 2012 document
from a unit. That is appalling.
Senator Reed. Thank you.
Ms. Bhagwati, please, can you comment on--you have a lot to
comment on.
Ms. Bhagwati. Senator Reed, I think, if you are suggesting
that the military somehow kind of creates a culture of rape or
there is something----
Senator Reed. No, I am not.
Ms. Bhagwati. No. Because I would disagree with that. I
don't think the military creates rapists. I think, however, we
still condone sexual violence in the day-to-day, which is
different. That when we still mistreat women, and I have not
met a woman in the military yet who has not experienced some
form of discrimination or harassment.
When that is sort of the average experience of a woman in
the military, a culture of harassment is created, and sexual
predators will thrive in that culture. These serial predators
that are entering the ranks, they are hitting a target-rich
environment. They really are.
I think until we create systems and policies, until we
tighten the military justice system, until we potentially open
up additional forms of redress like civil suits to
servicemembers--I think we really have to think outside the box
here--we are not going to change that culture. The presence of
women at the highest echelons of leadership is really
important.
We talked today about a presence of women in the Senate
making a difference. Well, the presence of women in the
military also will make a difference, but only if there is a
critical mass of women. Right now, there aren't enough women at
the top.
Ms. Parrish. Senator Reed?
Senator Reed. Surely.
Ms. Parrish. If I could say that this problem predated our
most recent wars. It predated the increase in women in the
military. Over half the victims are male. For 25 years, we have
had scandal, self-investigation, reports pointing to failed
leadership, reforms failing to address the core issue.
Until you remove the bias and conflict of interest out of
the chain of command, you will not solve this problem. The
retaliation is not about peer pressure. The retaliation is
about the lower-ranking victim being disbelieved by the higher-
ranking perpetrators and their friends.
It is about accountability. As I said in my statement, when
General Franklin overturned the conviction of Colonel Wilkerson
and then his commander, General Breedlove, supported his action
and those even who sat on the panel this morning also
applauding General Franklin, that accountability, that failure
to hold him accountable, that is--will continue to cause a
command climate that is promoting sexual assault.
Senator Reed. I agree with you. I think it is about
accountability. It is about command climate. But that is about
commanders stepping up and commanding. Part of that might be
better UCMJ procedures, but we could improve the UCMJ, but if
we don't have commanders who are ready to stand up for their
troops, then we are not going to solve this problem. We are not
going to fight effectively.
Ms. Parrish. But sir, if I could just say, until you change
the culture, and civil rights, when it came to integrating
blacks in the military, first, there was a Civil Rights Act.
Fundamental reform was passed.
Then military commanders decided that it was time to create
rules and enforce them. You need fundamental reform.
Chairman Levin. Thank you, Senator Reed.
Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
I would like to thank each of the witnesses for being here
today, for providing testimony on this tremendously important
topic.
I would also like to thank the committee for focusing
attention on this issue. There is no more solemn obligation we
have than to stand up for and protect the men and women who
have stepped forward to join our military and to defend our
Nation.
When young men and women volunteer to be part of the armed
services, they are willingly putting themselves in harm's way
and subjecting themselves to risk of violence or death at the
hands of our enemies. But they are not putting themselves
willingly at risk to assault or violence from their superiors,
from their colleagues, from other Americans. So, I applaud the
efforts of those witnesses here today and the efforts of this
committee to get to the bottom of this issue because it goes
fundamentally to the trust and the duty of protection we owe
the men and women who are defending us.
I would note my wife and I have two little girls now. They
are 5 and 2. So they are not of age where military service is
at least an immediate prospect. But the reports we have heard
about the prevalence of sexual assault and harassment should
disturb every parent, every mother, every father, every
brother, every sister, everyone who would want our children and
loved ones to be able to serve in a capacity where they can
trust their colleagues to be shoulder-to-shoulder defending our
Nation.
I would like to begin with several questions addressed to
all of the panel, the first of which is DOD has estimated, as I
understand it, that in 2011 there were roughly 19,000 sexual
assaults in the military. I want to ask the members of the
panel, in your judgment, how accurate is that assessment, and
how widespread, how prevalent is sexual assault today in the
military?
I would address that to any members of the panel that would
care to answer.
General Altenburg. I will start. There was a 2010 survey
that was probably from the previous year that showed 19,000.
There was a 2012 survey that showed 26,000 unwanted sexual
contacts. Hard to tell how many of that is sexual assault. Too
many, that is for sure, and it indicates a big problem.
But journalists especially have taken those numbers, 19,000
in 2010 and 26,000 in 2012, and called them sexual assaults. It
could have been if I put my hand on Ms. Bhagwati's shoulder and
she didn't like it and thought it was unwanted sexual contact,
she would have reported that in the survey.
I don't know what number of those reported unwanted sexual
contacts are like that and what number are sexual assaults. I
suspect that if we drilled down, the number of actual sexual
assaults is pretty darned disgusting anyway. So, the number is
way too high. But it is also, it is an extrapolation based on
how many answered the survey, multiply it by the end strength,
and you come up with a mathematician's figure of this is what
it is.
At any rate, it is obvious, based on the testimony of many,
many people, that it is far too prevalent in the military, that
we have unique circumstances that allow it to flourish, and
that it is going to be a--it is a great challenge to the
leadership to get at this.
Senator Cruz. Are there others who would care to amplify on
the topic?
Ms. Parrish. Yes, sir. The problem is getting worse. It is
not improving. Until more victims report, there will not be
more prosecutions. You will not have more victims report until
you remove the bias out of the process.
Professional prosecutors must be able to look at this
professionally. Convening authorities have this job as a part
time. They are not trained, and they are biased and conflicted.
They believe the higher-ranking perpetrator.
Until you remove that from the system, you are not going to
fix it. Until more victims report, you won't have more
prosecutions.
Transparency is vital. Third-party accountability, that is
what prosecutors outside the normal chain will bring to this.
There will be no solution. The problem is getting worse. There
are more and more victims coming forward.
Over the weekend, I received a call from one of the
victims' moms in Fort Hood. When it is unconscionable that we
give any more time--the patience and deference we have shown
our military leaders to address this problem has come at great
costs to our service men and women. It is time to do what our
allies have done.
You won't ever get rid of rapes or assaults, but you can
punish the perpetrators, and you can stop the retaliation.
Senator Cruz. Thank you for that.
Let me follow up on Ms. Parrish's comment with a final
question to the panel, which is, in your judgment, what are the
major impediments to reporting and prosecuting sexual assault
today in the military? Are they cultural or structural or
legal? What are the most important changes that, in your
judgment, could be implemented to change that?
Ms. Bhagwati. I would start certainly with
professionalizing the criminal justice system, which Senator
Gillibrand's bill certainly will do, while still allowing
commanders to deal with lesser crimes and military-specific
crimes. Also there is really no deterrent right now to sexual
assault in the military, and I think access to civil remedies
is a very important part of this conversation, and I hope and
encourage that Members of Congress will work on that in this
coming year.
When you can't--we talk about retaliation, there are
several bills on the table which will do a great many things
for victims services and to improve the military criminal
justice system. But civil remedies is what will deal with the
issue of retaliation, and that is what is available to civilian
victims in the civilian workforce, where harassment and
discrimination and assault is also prevalent. But if the
criminal justice system fails us, in the civilian world we have
access to civil suits. That is the fallback.
So I would strongly suggest that.
Colonel Morris. Senator Cruz, I would suggest two things.
One is continued, sustained addressing of the conduct at all
levels. The least of the concerns is the ability effectively to
prosecute rape cases. The greater concern, not because of
consequence, obviously, because of the gravity of those, you
don't need to wake somebody up to pay attention to a rape.
There is an awful lot of conduct short of rape that is
repellant, degrading, and harms mission. A clearer intolerance
for that will do a lot to not just weed out people before their
conduct becomes more serious, but attack to a degree the
conduct and the atmosphere that has been suggested as
constituting retaliation. I am not sure ``retaliation'' is
exactly the right word, but we sure know that there is no crime
that is harder to report that a person feels more uncomfortable
about reporting.
Fixing some of those things by using the whole array of the
justice system can do something to redress that, and then
sometimes action so swift that it makes people's heads turn.
Look, this afternoon's action at West Point. Just stop the
functioning of the rugby team for a while, while everybody
wakes up and pays attention.
Senator Cruz. Thank you very much.
Chairman Levin. Thank you, Senator Cruz.
Senator McCaskill.
Senator McCaskill. Thank you, Mr. Chairman.
Let me shift gears a little bit and talk to particularly
Ms. Parrish and Ms. Bhagwati about victims' experience as they
begin down this road. I am curious about the unique situation
that a victim finds herself in, in that where do you go? Do you
go to a civilian hospital? Do you go to the medical facility on
base? Do you go to a local police department? Do you go to a
military police department? Do you go to the SARC?
In your experience in working with these victims, what is
impacting their decision about where they go? Because that
initial contact, in my experience, is more determinative of
what comes after than almost anything else. I am wanting to
know what your sense is of that because maybe that is another
area where we need to focus on getting more information out
about the best place to go.
Because as you guys know, the civilian prosecutors can file
charges. So can the military. One can choose not to, the other
one can. They can both file charges. They can both file
different charges. They can wait until one to get finished, the
other one can begin.
No one has been able to really explain to me in a way that
I can put down on paper how this is working in all these
instances.
Ms. Parrish. Victim reporting for a victim is very
confusing, and depending on the individual circumstance,
whether they go to the hospital, whether they go to a SARC, and
then depending on where you go, whether it is automatically an
unrestricted--if you go to an investigator or your command--or
if you go to a hospital, then you have a choice, those are very
confusing to a victim. They are not sure what to do or where to
turn in that regard.
We know that victims' privacy rights through that process
are often violated early on.
Senator McCaskill. Have you all made suggestions that we
could maybe consider in the defense authorization bill of a
requirement that people entering the military get some kind of
form in writing that what their choices are and what the pros
and cons are of those so that you know?
I mean, my experience is the civilian system, and the vast
majority of our victim reports came through the emergency rooms
and/or 911 and/or someone showing up at the police department.
Those were the three primary ways that victims entered the
system.
There is probably about another two dozen ways that they
can enter the system with a sexual assault in the military.
Have you given much thought as to how we could empower the
victim earlier so that they are making the right choices, so
that they get the help at the initial stage?
Ms. Bhagwati. We have referred clients to the Air Force's
special victims' counsel program. It has been, I think, a
remarkably positive development. Certainly Senator Ayotte's and
Senator Murray's bill would bring that program to the rest of
the Service branches. I don't think there has been anything
quite as effective as that on the table.
Senator McCaskill. Okay. That is great. Tell me about the
healthcare piece of this. Are all of these victims being
offered emergency contraception when they are going to medical
facilities, either on base or off base if they are reporting a
rape?
Ms. Parrish. Not in our experience, Senator. When they go
to these different health facilities, depending on the
situation, it is often a time when the form of prejudice
against the victim, that retaliation begins to take place in
subtle ways.
Quickly a victim who reports finds themselves being
evaluated, be given a psych evaluation, and before you know it,
the attention is turned on his or her stability, mental
ability, mental health situation. All of a sudden, it becomes
this, are they--a personality disorder, is it bipolar disorder?
We have hired lawyers and sent them in to bases to fight
these errant medical diagnoses. The process of victim reporting
is all part of the--and then into the investigation.
Senator McCaskill. So you are saying, Ms. Parrish, that in
the medical facilities on bases they do not have a rape
protocol?
Ms. Parrish. If they do, the victims that we have talked
with don't know it.
Senator McCaskill. Would you agree with that, Ms. Bhagwati,
that there is not a rape protocol in the medical facilities on
military bases in this country and abroad?
Ms. Bhagwati. There is a rape protocol, but in terms of the
access to emergency contraception or now it is federally funded
abortions, there is some disparity there. We are not sure that
this is happening in every facility.
Senator McCaskill. Well, obviously, if we are talking about
a medical facility at the time of report, in most instances, we
are just talking about the morning after pill.
Ms. Bhagwati. Right.
Senator McCaskill. We are talking about emergency
contraception because you have been raped.
Ms. Bhagwati. I couldn't say.
Senator McCaskill. Okay. I think that is something we need
to look into further and find out about that.
The last question I have is for the lawyers. Just briefly,
because I am out of time, in your experience--because I have
talked to a lot of prosecutors about this--who is making the
call? Is it a deferral to the civilian prosecutors first, and
if they refuse to file, then a consideration of court-martial
in the military? Or is there a give-and-take?
I mean, is it ``I will take this one, and you take the next
one?'' I mean, in your experience, how did that work in terms
of that dual jurisdiction, which is unique in this sense.
People don't realize the Federal Government doesn't have
jurisdiction over rape in 99.9 percent of the cases. This is
really the only place I am aware of that you have this dual
jurisdiction that exists from the get-go.
General Altenburg. We had it in Germany also. But in my
experience in the United States, it is a question of equities
and comity, the same way it is between a U.S. attorney in
Raleigh, an assistant U.S. attorney, and a State attorney in a
bank robbery. If it is above a certain amount, maybe the Feds
say they will take it.
When a crime is committed off post near a military base,
usually the Staff Judge Advocate has a working relationship
with the assistant district attorney or the district attorney.
If they feel the equities are on their side because the victims
were mostly civilian residents, then they take it.
But there is a discussion, and there is a give-and-take
and, in my experience, handled very professionally. Usually,
there is kind of a consensus, well, this one, this soldier, you
are a soldier, but he killed four of your citizens in an
Italian restaurant, 3 miles from post. I deferred to the
prosecutor.
I say I was ready to take it. We wanted to take it. We
wanted to prosecute it. But I certainly understood why he
wanted to prosecute it, and I deferred to him.
Senator McCaskill. So it is a case-by-case basis?
General Altenburg. Yes, ma'am.
Senator McCaskill. Colonel Morris?
Colonel Morris. Senator McCaskill, not so different in my
experience, except that in--oh, sorry. Similar experience.
Almost all of my experience was civilians being willing to have
us take the case. Some of it was a resource decision, but in
general when they had a confidence in our ability to bring a
case to an effective conclusion.
In Germany, in Oklahoma, and then later in my career, when
I was the SJA in northern New York, we visited all the local
district attorneys, and there were a couple who had thought
they were dissatisfied with outcomes in the military justice
system. We were able to assure them of our approach and in all
cases obtained kind of clearance to prosecute. Really,
technically, a clearance is not required. It is in some ways a
race to the courthouse.
But a willingness to have us do so, and it wasn't--it was
motivated mainly out of good order and discipline, but also out
of a sense of commitment to those neighboring communities and
part of our fidelity to them and our accountability to them,
even though the primary concern is the soldier's accountability
in our system.
Senator McCaskill. Thank you.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator McCaskill.
Senator Shaheen.
Senator Shaheen. Thank you, Mr. Chairman.
Thank you all very much for being here this afternoon. I do
think it is very important for us to hear from experts who have
worked both within the military and outside about what has
worked to address sexual assault and rape.
I wonder, Ms. Bhagwati, one of the things, one of the
pieces of legislation that Senator Fischer and I have
introduced is legislation that would make the highest-level
sexual assault prevention and response positions nominative
ones. The change would, I think, help facilitate getting people
with more experience and more committed to upholding the values
of the position. It would also, I think, better hold the
commanding officers responsible for those appointments.
I wonder if you could speak to whether you think that would
be helpful?
Ms. Bhagwati. I do think it would be helpful.
Senator Shaheen. Is there anything in particular that you
would advise us as we are thinking about that or that you would
advise the military to do?
Ms. Bhagwati. We have talked a lot today or I have heard a
lot today about the qualifications of an officer with moral
leadership. I think with over a decade of deployments right
now, we need to think outside the box a little bit on who is
the right person for a sexual assault, sexual harassment
leadership position.
Someone with kind of--someone who has proven himself or
herself on the battlefield may not be the best person. Maybe he
or she would be, but there need to be sort of tests for that
kind of moral courage in terms of sticking up for someone who
maybe the rest of the unit wouldn't have stuck up for.
We see that routinely. I am not sure how to measure that. I
just know that we don't see it very often.
Senator Shaheen. Thank you.
Ms. Parrish, I think you may have mentioned a case that we
have heard about in our office of an Air Force lieutenant who
has contacted us who alleged that he was sexually assaulted and
that his case has been ignored by base investigators. I won't
get into the details of the case, but one of the issues is that
he says that he has been denied an expedited transfer out of
the base.
I wonder if you would comment on whether that should be one
of the usual responses or appropriate responses to somebody who
is in this situation, that they be removed from the situation
and where they were victimized?
Ms. Parrish. Well, and I would just say, yes, Senator
Shaheen. The special victims' counsel, John Bellflower, in
fact, and I commend--I have attached it to my testimony--had an
extensive report on the case that you are speaking of. In this
case, he was denied expedited transfer.
We find while it is a good thing at times, expedited
transfer requests, some victims say, yes, I was offered an
expedited transfer, but to a job less than what I have now. Why
am I being punished for being protected and trying to be sent
off base? I am now being asked to make sandwiches for the
pilots when once I was on another track in a successful career.
Why do I have to leave? Why can't he leave?
I think that is an issue. But also a lot of times victims
are told, you don't qualify for expedited transfer. There is
this informal conversation going on that those who count the
numbers are unaware of, where victims are often just even
denied that opportunity.
It is very, very difficult. That is why it is more than--
you can fix pieces of this, but until you remove the bias and
conflict of interest out of the legal process, you are not
going to solve this problem.
You can tweak it around the edges. Requiring that special
victims can represent a victim to protect their privacy rights
rather than just give them advice, that they can file motions
on behalf of the victim. If there is not a remedy, there is not
a right.
Those are huge problems, and they need to be addressed, but
you have to remove the bias out of the system.
Senator Shaheen. Let me ask another question for anybody
who would like to respond to it. Admiral Papp this morning
talked about the responsibility that he thought each member of
the Coast Guard should have when it came to anything that they
saw relative to sexual assault or harassment and reporting
that. In the State of New Hampshire when I was Governor, we had
a personnel policy that applied to all State employees that
said anyone who knew or heard of a report of sexual harassment
or sexual assault was required to report that to the personnel
officer.
I wonder if you think that that kind of a policy within the
military, recognizing you would have to designate who the
appropriate person to report to, and given the chain of command
issues, that clearly would need to be looked at. Would it be
helpful asking everybody to assume responsibility for this
issue to say that if you hear about a case, you have a
requirement to report?
Ms. Bhagwati. I think you would have to consider that very
carefully. I think that victim's agency needs to be considered
carefully and that in many cases a victim would probably prefer
not to have that happen, for reasons of confidentiality,
safety, retaliation.
I mean, these are very real fears. They are well-justified
fears. I would look into that a little more, see what the
community thinks about that.
Senator Shaheen. Okay. Anybody else want to comment on
that? [No response.]
All right. Thank you all very much.
Chairman Levin. Thank you, Senator Shaheen.
Senator Gillibrand.
Senator Gillibrand. Thank you, Mr. Chairman.
Thank you, each of you, for your testimony.
Ms. Bhagwati, we have heard a lot of testimony today. The
previous panel, for example, talked a lot about good order and
discipline, and they believed that maintaining the
decisionmaking, the disposition authority over these cases had
to stay within the chain of command for them to be able to
instill good order and discipline.
They didn't seem to take into account different proposals
that would have elevated the decisionmaking for the disposition
authority well beyond their level and their tier of seniority.
Please explain to me your opinion on what removing Article 30
and Article 22 would have on good order and discipline, and how
do you believe good order and discipline would be maintained
without those two decisionmaking authorities?
Ms. Bhagwati. I believe giving trained prosecutors the
authority to convene court-martials to determine judges and
juries and also backend authority would remove--would remove
bias from the system, would also free up commander time to do
other extremely important duties, namely operational ones.
I mean, your legislation specifically authorizes commanders
to still have authority over a great deal of judicial matters,
not just nonjudicial, but also lesser crimes. I mean, it is a
very sensible approach. It is something that I think the
military could easily implement.
Certainly victims, again, would be much more, much more
trusting of the system, much more willing to step forward.
Senator Gillibrand. You were a commander yourself. Can you
explain to me specifically, everyone who testified in the last
panel and everyone who testified on the first panel said it is
impossible. If I don't get to decide whether to go to trial or
not, it is impossible for people to respect me that I am going
to take sexual assault seriously.
What could those commanders do to be taken seriously on
sexual assaults and rape in the military if they don't make
that one decision?
Ms. Bhagwati. I really think this is a multipronged
approach. This is not really only about military justice
reform. We need more women in the military. In order to create
a culture that is welcoming of all people, women have to be a
part of that culture. Men will also benefit when women are part
of this culture and are truly accepted.
So, my first instinct is to say commanders don't have all
the tools, yes, that is true. But you will never have a perfect
criminal justice system either. You need additional things
within that system. You need access to civil remedies to open
the possibility, to acknowledge that there is widespread
retaliation.
Senator Gillibrand. Ms. Parrish, can you talk a little bit
about--you also are of the view that you have to take the
decisionmaking on whether to proceed to a trial outside the
chain of command. Why do you believe that, and why do you think
it will result in better good order and discipline?
Ms. Parrish. Well, it is required to change the culture.
You won't change the culture until you have accountability, and
you won't have accountability until you have transparency. So,
good order and discipline will not--is lacking now within our
unit, within these units.
I would like to just take a moment and read a comment from
a victim who had tried to report four separate times, was in
the middle of a combat zone, said, ``He, the rapist, comes to
my truck as I am getting it ready for another mission. I shut
down inside. I was lead driver in our convey, and I kept hoping
to hit an improvised explosive device (IED) after that.''
Unit cohesion, good order and discipline? This young
soldier tried four times to report, and what was her thinking
at that moment when she was getting ready to get in her truck
to lead the convoy? How can I--``I hope I hit an IED.''
What will that do for mission readiness and unit cohesion?
It is undermined every day by disbelieving the victim. You must
remove the bias and conflict of interest. We have seen it for
20 years. It is not going to change until you fundamentally
reform the system, until you have professional prosecutors
looking at these cases.
Senator Gillibrand. For other cases that you have heard
from victims, can you please describe to us what they tell you,
why there is so little reporting? If there are only 3,000 cases
reported a year and then only 1 in 10 go to trial, there is
just a huge falloff in the amount that are reported. What are
they telling you about the chain of command that is creating an
impediment?
Ms. Parrish. They don't report because they are
disbelieved. They don't report because the often higher-ranking
perpetrator is buddies with those that they must report to.
They don't report because they are told when they are given
their options to report that, oh, by the way, you were
drinking. You are under age. You will be charged with
collateral misconduct.
You don't report because the thought that you have heard
from your friend who tried to report that--and you see what
happens to them, and they are being drummed out and diagnosed
with a personality disorder. These things are not going to
change at any tweaks to the system, even common sense tweaks
that are good. It is still not going to fundamentally address
this issue.
Senator Gillibrand. Thank you.
Thank you, Mr. Chairman.
Chairman Levin. Thank you so much.
Next is Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman. Again, thank
you for holding this hearing.
Thank you to the entire panel for being here today.
Just as a parenthetical, beginning with Ms. Parrish, you
say that the soldier tried to report four times. Could you
clarify what you mean by ``tried to report''?
Ms. Parrish. Sure. What I mean by that is they first went
to their leader, their immediate supervisor, their superior,
and were told that not to speak ill of that higher-ranking
individual. Then they tried again to report to a platoon leader
and was told that they would be charged with adultery if they
wanted to move forward with an official report.
Senator Blumenthal. She would be charged with adultery?
Ms. Parrish. Adultery. That is right.
Senator Blumenthal. How often, I think this point is
critical, are victims or survivors, in effect, threatened with
prosecution themselves?
Ms. Parrish. Well, we don't know the numbers, but I can
tell you we hear it all the time.
Senator Blumenthal. Would you say it is a predominant
reason that discourages victims from reporting, or is it just
incidental and occasional?
Ms. Parrish. I would say it is significant.
Senator Blumenthal. If you had to rank it, from your
experience, compared with other reasons, what would be the top
three or top five would you say?
Ms. Parrish. Well, I think retaliation at all levels would
be number one.
Senator Blumenthal. That would be a form of retaliation.
Ms. Parrish. Well, yes, you are right.
Senator Blumenthal. You will be charged with drinking. You
will be charged with adultery. You will be charged with conduct
unbecoming.
Ms. Parrish. Right. Well, being disbelieved and knowing
that the odds are, based on what you see, that you won't be--
that you will not be believed. Then also just the way in
which--for women, the way in which they are harassed and
treated generally and that there is no, all the way up the
chain, the jokes, the walking into a mess hall and finding
yourself what is described as a catwalk, where your gender and
your looks are debased. Superiors at all levels who are in that
mess hall treat--that is accepted.
There are--until you--until you affect that type of
harassment and retaliation, it is just not going to get fixed.
Senator Blumenthal. But let me just, for the purposes of
our conversation here, repeat to you what a number of witnesses
have said earlier. Specifically, for example, General Odierno
made the point that separating the prosecution authority from
the chain of command, from the commanding authority, won't
necessarily prevent that kind of shame, embarrassment,
disapproval alone. It has to be part of broader changes.
As I understand your argument, it is one, the change
potentially in the prosecuting authority is one step in the
right direction, but it won't deal with that phenomenon, will
it?
Ms. Parrish. Well, you have to--you have to hold leaders
accountable----
Senator Blumenthal. Right.
Ms. Parrish.--for their actions, as in the case of General
Franklin, who has not been held accountable for his actions.
Until you hold, until victims see higher-ups being held
accountable, that is part of changing the culture. You must
change the culture, and you have to make commanders more
accountable for having command climates that ignore sexual
harassment and assault.
Senator Blumenthal. Let me ask, Ms. Bhagwati, in terms of
victims' bill of rights, is this something that should be in
the UCMJ? A number of witnesses this morning said we don't
really see the need for it because it is already there in the
rules.
Ms. Bhagwati. Are you referring to the issue of collateral
misconduct or----
Senator Blumenthal. I am sorry. I mean, for example, rights
of victims to be heard in the course of a courts-martial, if
they wish to be. In punishment or protection against
interrogation, victims' rights in terms of what needs to be
protected in the process.
Ms. Bhagwati. I would have to think about that a little
bit. I mean, the criminal justice system, as I understand it,
is really designed to provide a fair and impartial trial to the
accused. So, a victim is more likely to find his or her day in
court in a civil system, a civil court system.
Senator Blumenthal. How often does that happen?
Ms. Bhagwati. Well, it doesn't happen at all because
servicemembers don't have access to civil suits.
Senator Blumenthal. What about restitution or compensation
for the victim?
Ms. Bhagwati. I think it is a very good idea.
Senator Blumenthal. Do you have any thoughts about what
process should result in restitution? In other words, whether
it ought to be a separate proceeding or part of the criminal
proceeding?
Ms. Bhagwati. I would have to look into it, but it is a
good start.
Senator Blumenthal. Thank you.
My time has expired. I want to thank all of the experts who
are here today for your great work and for being here.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Blumenthal.
Senator Kaine.
Senator Kaine. Thank you, Mr. Chairman.
To the witnesses, thanks for your patience through a long
day.
I also appreciated the opportunity to hear Ms. Bhagwati
testify earlier at the hearing that Senator Gillibrand called
in the Personnel Subcommittee and also another witness from
your organization, Ms. Parrish. Thank you for helping us work
this through.
I spent a lot of time in courts as an attorney, but never
in military court. So I am still trying to come up to speed on
the different procedures, and a comment through earlier panels
that I wanted to just follow up on a little bit was restricted
versus unrestricted complaints or reports.
Is there sort of a common standard and is it commonly known
among the military that in instances of sexual assault, you can
file a restricted report?
Ms. Bhagwati. I believe in this last annual report from the
DOD, well over 90 percent of servicemembers said that they were
told, that they had been educated about the difference between
restricted and unrestricted reporting. I don't think that is a
challenge anymore.
Senator Kaine. Do other witnesses feel the same, that
whether you are serving on a base in Germany or you are going
through boot camp at Pendleton, folks are aware that in an
instance like this you can file a restricted report and have
some confidentiality that would connect with the report? Is
that now standard, and is it known?
Ms. Parrish. I think it is known, Senator Kaine. But I
think the problem, as we see so few reports, whether restricted
or unrestricted. The problem is even if they report restricted
that the word gets out.
So the reason for creating restricted reporting was so that
privacy could be maintained. But that is rarely the instance.
Very quickly word is out that you have reported, and then the
retaliation begins, often.
Senator Kaine. Were you going to say something, Colonel
Morris?
Colonel Morris. Just, Senator, I think a restricted report
is a vote of partial confidence in the system by a victim who
is hedging her bets because she doesn't have enough trust in
the system. So I think, as you analyze those statistics, you
want to figure out what the context means. It means you have
problems there, but it also means that is a population whose
trust we have not gained.
It is a frustrating statistic to a prosecutor because that
is conduct that you would love to be able to address and bring
full accountability for that you cannot, because that victim is
signifying her lack of trust.
Senator Kaine. It could be a lack of trust or lack of
information. I am not sure what the procedure is like. Before I
decide how far I want to go, I would like to get more
information. Would you agree that might be----
Colonel Morris. It sure serves its purpose by inviting that
person who has that reticence, for whatever reason, at least to
begin to come into the process.
Senator Kaine. How recent is the phenomenon of allowing and
having it broadly understood that you can file on a restricted
basis?
Colonel Morris. It is recent, but I can't pick the year. So
several years.
Senator Kaine. Do you know, last 10 years or last 20 years,
Ms. Bhagwati?
General Altenburg. Last 3 years. I think the last 3 years,
Senator, I would say.
Senator Kaine. Last 3 years. Is restricted reporting
limited to reporting with respect to crimes of sexual assault
or unwanted sexual conduct, or is restricted reporting allowed
for other kinds of violations of military discipline?
General Altenburg. Senator Kaine, it is my understanding--I
have been out of the Army for 10 years. But it is my
understanding that victim advocates recommended strongly that
we allow restricted reporting because when there was not
restricted reporting and a victim wanted to report, it had to
go to the CID. The chain of command was going to find out. You
were all in.
There were some victims who at least wanted treatment,
somebody to talk to about it, sometimes medical treatment, and
whatever else she may or he may need. It was recommended, and
the DOD picked up and said, all right, we are going to allow
restricted reporting. The victim makes the call.
Senator Kaine. Ms. Bhagwati, you testified a little bit
earlier and there has been a lot of testimony today about the
special victims' counsel pilot within the Air Force. I think,
if I remember the testimony earlier correctly, that one of the
things they are seeing is the number of people who come in with
restricted reports, but then as they work with their advocate
and come to understand the system that they then change their
restricted report into an unrestricted report. Are you hearing
the same thing in your work?
Ms. Bhagwati. That is right, and I believe General Harding
instituted this program in part because victims who had filed
unrestricted reports were feeling intimidated through the trial
process and were backing out of those cases. This was in part a
reaction to that and to encourage victims to stay in the
process.
Once you have that buffer, there is very little that can, I
think, give especially a junior enlisted servicemember that
kind of authority and buffer like an attorney, his or her own
designated counsel. Because a victim in a criminal case is
merely a witness. It is not her or his trial, right?
Senator Kaine. Right.
Ms. Bhagwati. Having that counsel is a huge asset.
Senator Kaine. In the first panel there was a question, do
you have the tools that you need to deal with this problem?
They all said we think we have the tools we need.
General Welsh from the Air Force, I think, said with
respect to the special victims' counsel that it is a pilot
program and that it is narrow and additional resources, both
dollars, and having the number of trained people to handle
this, to think about doing it either Air Force-wide or DOD-
wide, that that definitely would require some additional, and
thoughtful granting of resources to the DOD.
Ms. Parrish. Well, that is why I think, Senator, you should
require a military justice expertise track, and the Navy has
one. I think it is very important in that regard.
Right now, we don't properly value military justice
expertise, and it is a huge problem. In terms of the special
victims' counsel program, we must provide victims with absolute
legal representation rights, not just advice. I worry about
some of the legislation that is currently proposed. It is that
you will study representation and that providing advice is what
will be required. That concerns us greatly.
We filed an amicus brief in a case right before the highest
U.S. Court of Appeals for the Armed Forces right now on the
special victims' counsel program, whether or not that victim
was entitled to legal representation to protect her privacy
rights, from disclosing her prior sexual history or medical
health records. That is regularly violated throughout this
process, and unless you have a special victims' counsel that is
required to represent the victim, to file motions on behalf of
the victim, not just to provide advice. Providing advice won't
protect a victim in a court procedure.
You have to have the requirement that they have
representation. Advice is meaningless when the defense counsel
is filing motions left and right, and you have no one there to
do it on your behalf.
Senator Kaine. Colonel Morris?
Colonel Morris. Senator Kaine, I think it will be useful
for all the Services to analyze the results that come from the
Air Force, but there is more than one model for it, and the
model--a model that the Army has developed over time includes
victim witness liaisons at least 20 years running, special
victim prosecutors, which was a significant cultural change and
probably only seemed so in sort of the inside baseball of the
Army.
But the military counsel have almost always, for as long as
anybody can remember, been organic to the unit, to the
installation. For 4 years running now, the Army has had these
special victim prosecutors, now 22, 23, or so, who are
regionally around the world and come in to infuse their
expertise on cases.
That has required some adjustment away from the model of
the local prosecutor owns the case, addressing in part Ms.
Parrish's concern about a sort of a career track of Judge
Advocates. The best special victim counsel is the prosecutor.
The prosecutor should have such a comprehensive investment
in the case that that includes a developed from the first
minute relationship of trust with that victim. Because if he
does not have that, that victim is unwilling to bear the risks
from civilian life only intensified in the military, the risk
and hassle of even in the best case working their way through
the complicated process for a trial like that.
But it is reinforcing the authority and obligation on a
trial counsel, the prosecutor, parallel to that of a commander
that doesn't give any wiggle room, doesn't give any chance to
dilute the level of accountability for bringing that case to a
conclusion.
Chairman Levin. Thank you very much, Senator Kaine.
Senator King?
Senator King. First, thanks to the panel. I hope it goes
without saying that this committee is deeply interested in the
solution to this problem. In my short experience here, I have
never seen a committee spend as much time focused on a single
issue as this committee has on this issue.
There is going to be consensus, I believe, in the committee
on a number of the options and alternatives that have been put
forward in various bills. The one that I think where there is
still some differences and discussions is Senator Gillibrand's
bill that would essentially take the prosecutorial decision out
of the chain of command.
That is where I want to focus my question because I am
struggling to decide myself about where to come down on that.
The first question I have is what is the data on commanders
failing to prosecute?
In other words, is there data that indicates that in a
significant number of cases, a commander at whatever level, and
it is at the O-6 level in these cases, has decided not to
prosecute? Do we have any information on that, do you know, Ms.
Parrish?
Ms. Parrish. I don't. We only know the statistics that the
DOD has put out, and few cases move to prosecution.
Senator King. I am sorry?
Ms. Parrish. According to the numbers, DOD has recently put
out, few--there are few cases that move to prosecution and then
conviction. Preferring charges, prosecutors tell us that,
contrary to what we have heard in Senator Gillibrand's
subcommittee, that often cases are not preferred.
There is just no--there is no way of right now being able
to determine a convening authority's, how effective they are in
their process, I think. I don't know how you ever dig down deep
enough to come up with that data. I think you just have to look
at the results, and the result is victims don't report. There
are few prosecutions. There are fewer convictions.
Senator King. I understand that, but one of the issues is
reporting, which you just mentioned. What evidence is there
that the failure to report is a result of the victim's
perception that the commander isn't going to prosecute the
case?
Do you see what I mean? Obviously, there are a lot of
complicated reasons to not report. Is that one of them, and how
do you know?
Ms. Parrish. It certainly is one of them. Well, because
they see. Their own experience is what is before them, and they
see that often times the perpetrator is not brought up on
charges, that victims report and are disbelieved. That higher-
ranking perpetrators are more believed.
That is part of the chain of command. That is part of the
higher ranking you are, the more on your lapel, the more you
are believed, the more credibility you have. Until you create
some objectivity in the process where there is no bias and
influence and prejudice against the victim, the lower-ranking
individual in the situation, you are not going to solve this
problem.
Senator King. One of the things you have talked about, all
of you have talked about is accountability. By removing this
decision from the chain of command, aren't you relieving that
commander of the accountability?
Ms. Parrish. Absolutely not. Because he will still have the
responsibility for his command, for the climate and culture in
his command. He will be required to create a climate that has
no tolerance for sexual harassment. It goes hand-in-hand. It is
not either/or.
Senator King. Final question along these lines, two other
questions. Retaliation has kept coming up and has come up a
number of times in this hearing.
What would you think of the idea of making retaliation
itself a punishable offense? Retaliation for reporting of a
sexual assault is punishable by 10 days in the brig, or
whatever. Do you have any thoughts on that?
Ms. Parrish. Well, retaliation happens in several forms,
and it is not always so obvious. But I am for it, personally.
But just to make my point, we see reports where there are
subtle changes into the way in which the process moves forward.
During the investigatory process, for example, Article 32
hearings are often a black hole upon which a victim's--their
testimony is twisted to the point upon which they decide not to
move forward in a case.
There are so many ways in which retaliation is hard to
prove other than the fact that the victim is on her way out
once reporting, even restricted or unrestricted.
Senator King. Other thoughts on this idea of retaliation
being an offense? Colonel?
Colonel Morris. There are enough specifications in the UCMJ
to address it now. There is a particular punitive article that
is unique to the UCMJ, essentially for corrupting the judicial
process. That is one, if not cruelty and maltreatment, if not
harassment, if not hazing.
It is more a matter of a commander paying attention to and
squashing that conduct with the tools that are available to
him, as opposed to needing a particular new offense. I think it
is well covered now.
May I answer a couple other concerns?
Senator King. Yes.
Colonel Morris. Just the issue of the statistics, failure
to prosecute and all that, I mean, it would be important to
seek a serious audit. Maybe take several installations from
different Services to look at reports and look at what they
have yielded.
The only numbers I know of any significance are the Army's
of the last year or so. We had about 1,268 formal reports that
worked its way through several other disposition options, and
about 200 some of them were general courts-martial. So about a
third of the general courts-martial for that year were rapes or
serious sexual assaults, remembering again with 700 or so
courts-martial, you have 40,000 incidents of nonjudicial
punishment.
The last point was on relieving the commanders of
accountability. That is the crux of what the committee is
struggling with, I understand. To then say but the commander is
still responsible for the climate, that now less powerful, less
effective commander from whom the system can less effectively
insist on accountability because now the ability to enforce all
that climate that he is trying to set would have been taken
away from him.
Senator King. Thank you.
Mr. Chairman, may I follow with one question? Thank you.
Ms. Bhagwati, one of the things we were discussing earlier
in the other panels was a kind of middle ground, where the
command decision remained in the chain of command, but it had
to be concurred in by the JAG officer, and if it wasn't, it
would automatically be bumped up a level. Do you have any
thoughts about that as a kind of compromise between taking it
out of the chain of command and leaving it as is?
Ms. Bhagwati. Bumped up to the O-7 level?
Senator King. Yes.
Ms. Bhagwati. The problem there is you have fewer O-7s than
O-6s, but also I don't think there is that much difference in
the mind of a victim or even the accused, for that matter,
between an O-6 and an O-7. You still have the same chain of
command. You still have the same bias in the system.
Frankly, I think in terms of running a program like that,
again, there are only so many generals within the military.
That is certainly a proposal we considered about 3 or 4 years
ago, and it didn't fly.
Senator King. I take it that your opinion is similar to Ms.
Parrish that the structural solution is to take this decision
out of the chain of command, and you feel that will make a
substantive difference in the amount of reporting and,
presumably, the amount of prosecuting?
Ms. Bhagwati. Yes, but I would still, I think, remind the
committee that Senator Gillibrand's bill doesn't completely
remove judicial authority from commanders. It removes the
authority in some cases to include sex crimes that would
require more than 1 year of confinement.
Senator King. Felony-level cases?
Ms. Bhagwati. Right. Commanders would still have the
authority over many other crimes, as well as nonjudicial
punishment.
Senator King. Thank you.
I want to thank you, Mr. Chairman, for holding these
hearings. This has been important and been a very illuminating
day. I appreciate it.
Chairman Levin. Thank you. Thank you all.
Let me first thank this panel before I close. Ms. Parrish,
Ms. Bhagwati, General Altenburg, Colonel Morris, you have made
a major contribution to this committee. Those of you who
represent organizations, we thank your organizations that you
represent.
This committee has no greater responsibility than to
protect the men and women who wear the uniform of this country.
We are going to carry out that responsibility in the next few
weeks. I can't tell you precisely how we will end up doing that
as a committee, but I can only tell you that we will act as a
committee in our bill.
I have no doubt that we will take significant actions. I
can't tell you precisely which. That will be decided by the
committee after a markup in the subcommittee and then a markup
in the full committee. I have no doubt that, in fact, we will
take actions in this area.
We have received three statements with a request that they
be made part of the record, and they will be made part of the
record.
[The information referred to follows:]
Prepared Statement by Commander John B. Wells, USN, Retired
oversight: pending legislation regarding sexual assaults in the
military
By way of introduction I am a retired Navy Commander who served 22
years of active duty as a surface warfare officer. My career included
10 years at sea, the last 2 as the Executive Officer (second in
command) of a mixed gender ship. That crew consisted of approximately
900 men and 300 women and we deployed to the North Atlantic, the Indian
Ocean, and the Persian Gulf. As I also spent 6 years in command ashore,
I was a Special Court-Martial convening authority and administrative
separation board convening authority. I also served on courts-martial.
I completed law school via a night program while still on active
duty. I began to practice military law upon my retirement in 1994. I
have defended personnel of all Services before courts-martial,
administrative separation boards and in Federal court proceedings. I
also seek veterans benefits for former military members.
Military-Veterans Advocacy, Inc. is a Louisiana non-profit
corporation formed late last year to defend military personnel and
advocate both legislatively and judicially for veterans. As its unpaid
Executive Director I have advocated for veterans legislation in both
the House and Senate. A 501(c)(3) designation has been requested and is
pending. Prior to assuming this position reserved as the unpaid
Director of Legal and Legislative Affairs for the Blue Water Navy
Vietnam Veterans Association.
I have reviewed the pending sexual assault legislation, especially
Senator Gillibrand's bill, S. 697, with some trepidation. The
legislation seems to me to be a well meaning attempt to solve a
terrible problem with the wrong solution. The central core of all
pending legislation is to remove or limit the convening authority's
power under Article 60 to set aside a conviction or grant clemency. I
believe that this approach is misguided and will result in severe and
unintended consequences.
S. 697 strips the convening authority of his referral and clemency
powers for Articles 80-82, 92, 118-132, and 134 of the Uniform Code of
Military Justice. It requires an 0-6 JAG with ``significant'' court-
martial experience to act as a special prosecutor with authority to
review and refer charges. ``Significant'' is not defined. There are
frankly not enough JAG 0-6s to perform this mission, which is somewhat
duplicative of the role of the Article 32 Investigating Officer.
Article 92 criminalizes the failure to obey an order and/or
dereliction of duty. This is a purely military offense and referral/
clemency powers should not be taken away from the convening authority.
While this might be intended to encompass orders concerning
fraternization/sexual harassment, it also includes thousands of other
orders violations. Accordingly, a person charged for failure to perform
a quarterly stamp inventory would come under the enhanced review by the
O-6 Special Prosecutor. Dereliction of duty violations such as failure
to properly annotate a log would also come within the purview of this
enhanced review. Not exempting this Article form S-697 would make its
enforcement simply impossible.
The same holds true for Article 134. This article includes indecent
assault, but also covers 52 enumerated offenses from ``abusing public
animal'' to ``wearing unauthorized insignia decoration, badge, ribbon,
device or lapel button.'' The charge also allows for the creation of
novel specifications. An example of a recent specification brought
under Article 134 was lying to one's landlord. Any Federal or State
crime brought under the Assimilated Crimes Act is also charged under
Article 134. Obviously enforcement of the enhanced review/referral
requirement concerning Article 134 would be unmanageable.
Under S. 697, the convening authority will be denied authority to
grant clemency in cases of minor crimes. For example, should a female
officer be in the situation of discovering her husband's infidelity and
in a bout of depression and recrimination engage in a one night stand,
the convening authority would be denied, irrespective of her fine
service and upstanding character, the ability to set aside a
conviction. Additionally, a person who engaged in homosexual conduct,
finding himself convicted of At. 125, could not seek clemency if S. 697
is enacted. There are many other examples. I have only had one case
where the conviction was set aside. The case involved a reservist
recalled to active duty subsequent to September 11, who was convicted
of travel fraud. Based on evidence not admissible at trial, the
convening authority determined that the accused's action was based on
misunderstanding of very confusing regulations. He properly set aside
the conviction.
The commander plays an important role in ensuring the integrity of
the military justice system. Senator Gillibrand recently asked why the
Article 60 authority promotes good order and discipline. The short
answer is that it acts as a safety valve. Though seldom used, it
enhances faith and confidence in a system often criticized as arbitrary
and unfair. After a conviction, the commander must review and consider
the record of trial and the advice of his lawyer, known as the staff
judge advocate. He may consider evidence not admitted at trial and
clemency requests. He must be convinced beyond a reasonable doubt that
the accused is guilty. Setting aside a conviction is very rare and is
never done frivolously. But it is an important review designed to
balance inequities between the military and civilian justice system.
There is a significant difference between a military and civilian
trial. Most people do not realize that Court-Martial panel members are
not randomly selected but are appointed by the commander. Instead of 12
members, there can be as few as 3 for a Special and 5 for a General
Court-Martial. Attorneys are only allowed one peremptory challenge and
it takes only a two-thirds vote of the panel to convict. Of course,
these panel members are often susceptible to command influence. The
commander's Art. 60 powers are used to off set some of these government
friendly regulations.
Unfortunately, the statements of the President, the Secretary of
Defense, and various lawmakers are having a chilling effect. Commanders
are now less likely to set aside convictions, even when warranted, for
fear of criticism or negative effects on their own careers. Senator
McCaskill recently put a hold on the nomination of a female commander
who had also set aside a sexual assault conviction, to be Vice
Commander of the U.S. Space Command. I will guarantee that the actions
and the legislation will give rise to command influence motions that if
granted could paralyze the military justice system.
Curtailing Art. 60 powers will not solve the sexual assault problem
but may lead to more false reports. The commander's authority is not
the problem. If it is abused the commander can and should be
disciplined. The problem is that sexual assault cases often lack
physical evidence or witnesses. These ``he said-she said'' cases should
be completely investigated at an Article 32 investigation, the military
equivalent of a grand jury.
Strengthening the Article 32 investigation process is the key to
encouraging the reporting of legitimate sexual assault cases. Only
experienced judge advocates, who have served as both a prosecutor and
defense counsel should be assigned as Investigating Officers. Fact
finding will be conducted in a more informal and relaxed setting. Most
of the rules of evidence do not apply. A victim can testify by video
teleconferencing or telephone. Faced with a strong case against him,
aguilty person will be more likely to plead, thus sparing the victim an
arduous trial and cross-examination.
The Article 32 also protects the rights of the accused. Unlike a
grand jury, the accused or his counsel cross-examines witnesses and
presents evidence. However, an Article 32, until recently, had no
subpoena powers and its decision is not binding. The Army even assigns
non lawyers to conduct the proceeding. If probable cause is not found
that finding should be binding.
Congress should not force victims of sexual assault into a court-
martial. At a trial, the accused has confrontation and cross-
examination rights that will only retraumatize a victim. Being forced
to provide testimony while facing her assaulter could result in the
victim reliving the experience.
At the Article 32, however, the victim can testify telephonically,
via video conferencing or behind a shield. The Military Rules of
Evidence do not generally apply and it is a more informal and less
threatening proceeding. Working uniforms rather than formal dress
uniforms are normally worn. The trappings of a court room are generally
absent. No imposing judge is present.
The Article 32 investigation, if properly conducted, will flush out
the facts surrounding the case. As a defense counsel, I can assure you
that if the evidence points to guilt, I will be seeking a plea
agreement. As a result of this type of agreement, the victim testifies
only if he or she wished to do so. It will spare the victim the rigors
of a trial.
The present Article 32 structure is not sufficient, however. I
recommend the following changes to the statute to provide the
investigating officer the tools he or she needs to ferret out the
facts.
The investigating officer must be 0-4 Judge Advocate
qualified under Art 27(b) who has served as both a trial
counsel and a defense counsel.
A verbatim transcript will be made on all
investigations in which referral to a court martial is
recommended.
The action of the investigating officer is binding on
the convening authority except when a defect such as
jurisdiction or the failure to state an offense is identified
pursuant to Art. 34.
Testimony can be provided live or by video
conferencing, however victims of sexual abuse and child sexual
abuse may also testify behind a screen or other device to
shield them from the accused.
The provisions of Art. 37 (command influence) and Art.
46 (equal access to witnesses and evidence) shall apply to
Article 32 iInvestigations. The Investigating Officer may
exercise contempt powers under Article 48.
All offenses punishable by confinement for more than 1
year shall be referred to an Art. 32 for investigation.
The Military Rules of Evidence other than Mil. R.
Evid. 301, 302, 303, 305, 412, and Section V--shall not apply
in pretrial investigations under this section.
While it is easy to become enraged by the estimated number of
sexual assaults in the military, it must be remembered that the
methodology is based upon surveys with no corroboration. Not all of
these claimed sexual assaults really happened. As a defense counsel, I
have tried a number of sexual assault cases. In most cases, the accused
was proven to be innocent.
In one case, an E-6 recruiter was convicted of raping a recruit.
After 7 years and 1 month of confinement, he was released as a result
of an appeal. At the rehearing we provided testimony that the
complaining witness and bragged about using the rape claim to get out
of the Navy, laughed about putting an innocent man in jail and tried to
sue the military under the Federal Tort Claims Act. After this E-6 was
acquitted of rape and indecent assault the U.S. Attorney refused to
prosecute the complaining witness.
On another occasion a female officer filed rape charges against her
boyfriend after he asked to cool the relationship. The accused passed
four polygraphs by three different polygraphers. We produced evidence
that the complaining witness was being egged on by her new boy friend,
an enlisted man. After she refused to take a polygraph the convening
authority dismissed the charge.
Another woman met her ex-boyfriend and invited him to her barracks
for sex. After an argument she filed rape charges stating that she was
too drunk to consent. When her cell phone records were seized there
were numerous telephone calls and texts from her to him inviting him to
her room for sex. The convening authority dismissed the charges. Prior
to the receipt of the phone records, the woman used the incident to
secure an early discharge.
Another enlisted woman claimed that she was gang raped by three
officers, one of whom I represented. The Article 32 Investigating
Officer found her testimony incredible and recommended dismissal. The
convening authority referred the charges. DNA evidence showed that my
client's epithelial cells were found on a condom and he was convicted
of consensual sexual misconduct. Several years later the U.S. Army
Criminal Information Lab disclosed that the serologist had fabricated
test results in order to show increased productivity. A re-test
exonerated my client. The U.S. Court of Federal Claims referred the
matter to the Service Judge Advocate General who set aside the
conviction.
There are other numerous cases of prosecutorial misconduct and
command influence. Many are documented in the December 16, 2002 issue
of U.S. News & World Report. http://www.usnews.com/usnews/news/
articles/021216/l6justice.htm. The problems with the serologists at the
U.S. Army Criminal Information Lab are documented in a newspaper
series. http://www.mcclatchydc.com/201l/12/29/134411/were-army-crime-
lab-problems-withheld.html#.UaaRvpso71U. An analysis of recent rape
cases was performed by McClatchy and is shown at http://
www.mcclatchydc.com/2011/11/28/131523/militarys-newly-aggressive-
rape.html#.UaaSVZso7IU.
What is also noteworthy is that in raw numbers the number of males
assaulted exceeds the number of females. With the growing acceptance of
homosexuals being forced on the military, male on male sexual assaults
are expected to increase. The refusal of males to report sexual abuse
is even more widespread than a fear of reporting by females. A concern
of reprisal is less of an issue with males than shame or fear of a loss
of manhood. This problem will only get worse.
S. 697 and the other bills introduced into the Senate have not
called for any kind of examination of how the repeal of ``Don't Ask
Don't Tell'' has affected male sexual assault. The bill seems to be
aimed only at protecting females. While a sexual assault against a
female is wrong and has terrible consequences for the victim, the same
holds true for a homosexual assault on a male. In protecting the women,
we must ensure that we protect the men as well. We must also protect
the rights of the accused. Strengthening the Article 32 investigation
will help achieve that goal. Stripping convening authorities of their
Art. 60 powers will not.
If Congress decides to take this right away from the accused, in an
attempt to civilianize the process, fairness demands that they examine
other provisions of the laws governing courts-martial. Accordingly, I
would recommend the following changes to Chapter 47 of Title 10:
proposed change to 10 u.s.c. Sec. 816
General Courts-Martial shall be composed of 12
members.
Special Courts-Martial shall be composed of six
members.
In a General Courts-Martial the Trial Counsel and
Defense Counsel shall have 12 peremptory challenges.
In a Special Courts-Martial, the Trial Counsel and
Defense Counsel shall have six peremptory challenges.
proposed changes to 10 u.s.c. Sec. 825
All courts-martial members are selected random by
paygrade and shall be allocated so that no member is junior to
the accused.
proposed change to 10 u.s.c. Sec. 852
Require a unanimous verdict to convict.
Additionally, Congress should countermand MRE 707 which precludes
polygraph evidence from being admitted to a court-martial. Polygraph
science has come a long way and if a proper foundation can be laid
under Daubert v. Merrill Dow Pharmaceuticals, it should be available to
the members. Polygraphs were admissible at courts-martial until the
enactment of MRE 707. While the Supreme Court upheld MRE 707 in United
States v. Scheffer, 523 U.S. 303 (1998), they did not rule polygraphs
per se inadmissible. The majority and prevailing rule in the civilian
community is to allow for the admission of polygraphs in Federal
courts--at least in some cases. See, United States v. Posado, 517 F.3d
428, 434 (5th Cir. 1995) and its progeny.
A failure to discipline those who assault women is unacceptable. In
ensuring the guilty are disciplined, however, we cannot send innocent
men to prison. Sexual abuse allegations must be taken seriously but
they cannot become the subject of a witch hunt. The focus should be on
finding the truth and not on promoting a social or political agenda.
Thank you for considering this testimony.
______
Prepared Statement by Ms. Tina Clemans
Memorial Day, a day of ``observance'', a day of reflection on all
that our U.S. Armed Forces have done to make this country strong. A day
in honor of U.S. countrymen and women who sacrifice their life in
defense and service of the United States of America.
Today is a fitting day for a mother to ask for observance, for
change in our Armed Forces and legislation to save lives. Observance of
an uncivil war within our own--an epidemic in corruption of power and
unnecessary loss of life and service to an alarming number of men and
women.
Our daughter enlisted in the Air Force in December 2011. Like her
father, uncle, grandfathers, and great grandfather before her, she did
so to serve her country. Like fellow service men and women, she worked
hard to earn this right: she completed extensive documentation; mental,
physical, and placement exams; investigations; basic military training,
top secret clearance, and assignment for technical training April 11,
2012.
Records show on April 6, 2012, our daughter went to the base
medical clinic and was treated for insomnia due to stress about
problems with her roommate. Records note she was worried someone was
``out to get her'' but not suicidal, no claims of suicidal thoughts--
Records state she is ``Low Risk''.
Our daughter's career and life nearly ended on base April 7, 2012,
days before her tech training was to begin. The day another
servicemember(s) gave her cigarettes laced with embalming fluid. She
had no idea the cigarettes contained a date-rape drug that causes
complete black outs, severe hallucinations, memory loss, and
consciousness--and ultimately her basic rights and career.
Terrified and alone, she called family who advised her to go
directly to Command to report the assault and drugging. She did so.
Instead of being admitted in a hospital where she could have received a
rape kit, an official investigation/report, counseling, and appropriate
care, she was taken to a mental health facility. She was not aware, or
in any condition, to voluntarily admit herself to a facility where she
was locked up in a suicide ward, prescribed medications for a
personality disorder she does not have. She was denied repeated
requests for expedited transfer per DOD directive. At the same time,
she was given an Article 15 and Letter of Reprimand. She endured months
of anguish, hospitalizations, humiliation, punishment and torture--
having to clean and work in the area where she was assaulted a second
time--raped, sodomized, threatened with death for reporting further and
forced to live in close proximity to her perpetrators. Days later she
is punished for missing PT formations while heavily medicated and ill
suffering PTSD, after her mother's request for the base IG to
investigate her situation. A general had this data, too.
Documentation, records, and exhibits we have prove these statements
and more. Worse, due to Chain of Command having ultimate authority in
MST investigations, the system and programs currently in place failed
to protect our daughter. She was denied expedited and humanitarian
transfers to safety and left for dead on base, brutally assaulted,
beaten unconscious, and raped that second time in July, days after her
release from hospitalization. Skin grey, lips blue, naked, broken and
bleeding, she was taken by ambulance July 29, 2012 to Shannon Medical
Center.
When she came to in the ambulance and hospital, she complained of
severe head pain, bleeding and blurred vision to several people,
including medical staff. We have no records of an x-ray
Due to lack of action and failure of programs in place. I had to
move from Washington state to Texas to keep my daughter alive; to fight
for her rights when she was unable to do so, when and where DOD
directive and programs for victims were ignored and denied by Chain of
Command.
Three generals and their administration knew about our daughter's
situation and facts. Nearly a half dozen congressional leaders inquired
and wrote letters on her behalf, to no avail. Only after an outside
advocate, and I enlisted the help of Senator Tsongas, co-author of the
Defense Strong Act, did our daughter receive a humanitarian transfer
agonizing months late. Long after those in command denied her basic
rights, lied about reports/info being filed to her and her family,
ridiculed her before her unit and peers. If not for legal
representation having been donated by the advocacy of Protect Our
Defenders and support of family, she would have been left to live with
a dishonorable discharge and no benefits to help with healing, recovery
and the shame of it all.
Our daughter and countless silent others, deserve better, they
deserve action, here, now.
Decades of casualties, of broken promises to reform programs and
legislation have taken a staggering toll. Allowing Chain of Command to
oversee proceedings, cases and victims costs lives, careers and
billions in denied care/benefits to service men and women. Action and
Reform are long overdue; accountability, care, legislation and programs
for victims are only as good as those who enforce them.
We had to fight hard to save our daughter and win her appeal. Her
honorable discharge with a disability rating was recently granted. Over
a year after the first assault--we are waiting for VA diagnosis for
extent of damage to her brain from severe trauma to her head (still
untreated), mind, body, and soul. She will never be the same. PTSD,
terrifying nightmares and flashbacks may abate, but her life and career
could have been drastically different had Chain of Command not been in
control of her MST investigations, obtaining appropriate care and
counseling outside the proximity of abusers, or had the power to deny/
ignore DOD directive and legislation.
Please, act now to help those who serve to protect--remove Chain of
Command from MST investigations to prevent abuse of power that has
spanned decades unchecked. Protect our defenders; If not for their
sacrifice and service, we would not be the United States of America.
Our daughter is Airman Myah Bilton-Smith, a young woman who worked
hard and was so very excited to serve her country. Please take action,
demand action not broken promises to reform.
Thank you for your time and observance of this grave matter.
______
Prepared Statement by Amos N. Guiora
I write with respect to the hearing scheduled for Tuesday, June 4,
2013 before the Senate Armed Services Committee addressing pending
legislation regarding sexual assaults in the military.
By way of background: I served for 19 years (1986-2005) in the
Judge Advocate General's Corps of the Israel Defense Forces, retiring
as a Lieutenant Colonel. In the course of my career I served as the
Judge Advocate to IDF Navy and Home Front Command, as a Judge of the
Gaza Strip Military Court, as the Legal Advisor to the Gaza Strip, and
as Commander of the IDF School of Military Law.
The significance is that I have served as both a Judge Advocate and
Legal Advisor. It is in this context that I hope my comments below will
be of help to the committee.
The Israeli system is profoundly different from the current
American system. The primary difference relates to the ``balance of
power'' between the commander and the Judge Advocate. In short, while
serving as Judge Advocate to the Navy and Home Front Command I was
solely entrusted with the decision to order the filing of an indictment
against a soldier or officer. The commander was granted no authority in
the matter. While I notified the commander of my charging decision and
was open to his input, the decision was exclusively mine (in
consultation with my own commander, The Judge Advocate General).
The decision to create a system whereby indictment decisions are in
the exclusive bailiwick of the Judge Advocate reflects a profound
belief that the separation between Judge Advocates and commanders is
necessary in order to prevent undue command influence. It is, needless
to say, a bone of contention, particularly when commanders are of the
opinion that an indictment decision may impact Israeli national
security.
While commanders understandably express reservations as to their
lack of a role in the decision making, the system properly (and
effectively) minimizes command influence in the criminal process to
maintain fuller accountability and impartiality in meeting out justice.
That process, it is important to add, is distinct from the
disciplinary process that is within the commanders' jurisdiction.
However, a word of caution is in order: when the Judge Advocate
receives the case file from the Military Police Investigation Unit
there are four possible courses of action: filing an indictment;
transferring the file to the commander for a disciplinary hearing;
closing the file; and ordering further investigation.
A related note, it is also important to add that the Israeli
Supreme Court (sitting as the High Court of Justice) has the power to
issue an ex parte order nisi against IDF commanders in response to
petitions filed either by aggrieved individuals or human rights
organizations acting on behalf of the aggrieved, even though minimal
standing requirements have not been met. I call this to your attention
as it shows that commanders are subject to rigorous and robust judicial
review (by the Israel Supreme Court) in other respects.
There is little doubt that recent high profile prosecutions have
significantly enhanced the trust Israel Defense Forces soldiers feel in
reporting instances of sexual assaults and harassment. A recent report
reflecting an 80 percent increase in complaints filed with respect to
sexual assault and harassment suggests an increase in soldiers'
confidence that their complaints will be forcefully dealt with. The
cause for this is, arguably, two-fold: the requirement imposed on
commanders to immediately report all instances of sexual assault and
harassment and the forceful prosecution policy implemented by JAG
officers who are not in the ``chain of command.''
It would be my pleasure to answer any questions you and the
committee may have; needless to say, should the committee so decide, it
would be my honor to testify. I take the liberty to add that I have
twice testified before Congress, once before the Senate Judiciary
Committee regarding U.S. detention policies (I was asked to compare to
Israeli practices and models) and once before the House Homeland
Security Committee.
Chairman Levin. Questions for the record have been asked of
a number of our witnesses on other panels. If questions are
asked of any of you, I hope that you would respond to those
questions for the record as promptly as possible. I expect
there will be additional questions for the record, that we
would very much appreciate your responding to, as we appreciate
the testimony that you have given us today.
With that, we will stand adjourned.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator Carl Levin
unresolved issues with legislative proposal for new disposition
authority
1. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and Admiral Kenney, if legislation is enacted
that requires that serious offenses be sent to a new disposition
authority outside of the chain of command for a determination of
whether the allegations should be prosecuted at a general or special
court-martial, who would make the determination of whether an offense
meets the threshold of a serious offense that must be referred to the
new disposition authority for consideration?
General Chipman. The legislative proposal (S. 967) does not set
forth who would make the determination of whether an offense meets the
threshold of a serious offense that must be referred to the new
disposition authority for consideration. Current statutes, regulations,
and policies set forth a comprehensive and interconnected set of
procedures and responsibilities for multiple first responders,
commanders, investigators, and prosecutors that govern the reporting,
investigation, victim response and accountability for sexual assault.
Implementation of S. 967 would represent the most significant amendment
to the Uniform Code of Military Justice (UCMJ) since 1968, without
consideration of the second- and third-order effects on the system.
This change would generate legal challenges, confusion and
inefficiency. The proposal should be studied by the Joint Services
Committee and the section 576 Response System Panel before such a
dramatic change to the UCMJ is directed.
Legislative proposal S. 1197 and previously, S. 967, define serious
offenses by designating specified Articles under the UCMJ as prohibited
from initial disposition by a member of the accused servicemember's
chain of command. Under S. 967, those offenses included Articles 92,
118-132, and 134, UCMJ. S. 1197 amended S. 967 to remove Articles 92
and 134, UCMJ, from the offenses prohibited from initial disposition by
the accused's chain of command. All UCMJ offenses not authorized for
chain of command disposition must be disposed of by a new disposition
authority outside the chain of command. This officer, according to S.
1197, must decide first, whether the offense should go to a court-
martial and second, whether it should go to a General or Special court-
martial.
Admiral DeRenzi. On April 20, 2012, the Secretary of Defense
withheld initial disposition authority from all commanders within the
Department of Defense (DOD) who do not possess at least special court-
martial convening authority and who are not in the grade of O-6 or
higher with respect to the following alleged offenses: rape, in
violation of Article 120 of the UCMJ; sexual assault, in violation of
Article 120 of the UCMJ; forcible sodomy, in violation of Article 125
of the UCMJ; and all attempts to commit such offenses, in violation of
Article 80 of the UCMJ. This withholding applies to all other alleged
offenses arising from or relating to the same incidents(s), whether
committed by the alleged perpetrator or the alleged victim of the rape,
sexual assault, forcible sodomy, or the attempts thereof. The sexual
assault initial disposition authority (SA-IDA) must review the
investigation into the allegations and consult with a judge advocate
before making any disposition decision.
The Secretary of Defense policy provides appropriate senior officer
oversight of the disposition of sexual assault allegations. The
Secretary of Defense retains the authority to amend the policy based
upon experience over time, if necessary. A detailed assessment of any
specific proposal to send other serious offenses outside of the chain
of command would be necessary to determine the appropriate disposition
authority.
General Harding. There are a number of potential options. Using the
May 16, 2013 draft of the Military Justice Improvement Act, it would
appear all non-uniquely military offenses which have a maximum
confinement of greater than 1-year would be forwarded to this new
disposition authority as a matter of law. Commanders would then retain
disposition authority over uniquely military offenses as defined in
section 2(A)2 of the proposed act and any other offense with 1-year or
less maximum confinement. Judge Advocates, investigators and local
commanders would review each case at the local level to determine
whether a case meets the requirements for forwarding to the new
disposition authority or would be retained by the commander for
disposition.
General Ary. Under S. 967, the ``determination whether to try
[serious offenses] by court-martial'' must be made by an O-6 judge
advocate with significant trial experience. A ``serious offense'' is
defined as a charged offense under which the maximum punishment
authorized includes confinement for more than 1 year, and that is not
on the list of ``excluded offenses.'' Because confinement for 1-year is
generally the benchmark for defining a felony offense in civilian
jurisdictions, this new disposition authority can be referred to as the
Felony Initial Disposition Authority (Felony IDA), even though the
proposal does not identify a title for the disposition authority.
The proposal is silent on the procedures by which ``serious
offenses'' would be referred to the Felony IDA for a disposition
decision. The lack of clarity on this matter would have a tremendous
effect on the processing of a vast majority of Marine Corps' criminal
allegations, not just ``serious offenses.'' Under Rule for Court-
Martial (RCM) 601, all known offenses are ordinarily referred to a
single court-martial. While the preference for joinder in the
discussion to RCM 601 is not binding on a convening authority, as a
matter of practice the vast majority of offenses are referred to a
single court-martial for the sake of judicial economy and swift
administration of justice. If a Felony IDA only had jurisdiction over
serious offenses, however, there would be no single jurisdictional
authority to ensure all offenses went to the same court-martial. This
would result in parallel prosecutions in separate courts; one IDA-
determined court for the ``serious'' offenses and one commander-
determined court for the ``not serious'' offenses. This would create an
enormous strain on resources (prosecutors, defense counsel, judges,
court reporters, et cetera) and potentially slow down all prosecutions.
As an example, in a case involving an alleged rape (``serious
offense''), drug distribution (not ``serious''), disrespect toward a
superior officer (not ``serious''), and false official statement (not
``serious''), only the alleged rape would be sent to the Felony IDA.
The remaining offenses would require a separate court-martial.
Regardless of what offenses are forwarded to the Felony IDA for a
disposition decision, the Marine Corps believes that the commander of
the accused, through consultation with his or her staff judge advocate
(SJA) and servicing prosecution office (the unit that would actually
draft the charges), would be responsible for forwarding cases involving
``serious offenses'' to the Felony IDA. In the Marine Corps, the SA-
IDA, who is an O-6 special court-martial convening authority or higher,
would be responsible for forwarding an allegation of sexual assault to
the Felony IDA. A ``sexual assault'' for SA-IDA purposes in the Marine
Corps includes any non-consensual sexual act or contact between adults,
forcible sodomy, child sex crime, or attempts to commit those offens
Admiral Kenney. Coast Guard policy requires all actual, alleged, or
suspected felony violations of the UCMJ to be reported to Coast Guard
Investigative Service (CGIS). This requires commands to report to CGIS
a wide range of offenses, including rape, sexual assault, or abusive
sexual contact. Presumably, legislation would define a serious offense.
Otherwise, the Coast Guard would specify in policy what constitutes a
``serious offense'' requiring referral to an independent disposition
authority. Our current reporting policy and practice suggests that all
potential Article 120 offenses would reach the disposition authority.
Whether by statute or policy, unit commanders would be required to
report potential ``serious offense'' allegations to CGIS for
investigation. The ultimate decision on a specific case would likely
rest with the new disposition authority on what constitutes a ``serious
offense.'' Moreover, a military judge would likely grant a motion to
dismiss for improper referral of a ``serious offense'' if the charge
was referred to court-martial by a military commander and not by the
new disposition authority.
2. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and Admiral Kenney, if a sexual assault occurs on
a ship or battlefield, what are the responsibilities of the on-site
commander?
General Chipman. Under current Army regulations, battlefield
commanders have initial and continuing responsibilities for the morale,
safety, and welfare of their soldiers, including victims. Commanders
are responsible for referring all allegations of sexual assault to
Criminal Investigative Division (CID), contacting the Staff Judge
Advocate, contacting higher headquarters, contacting the Sexual Assault
Response Coordinator (SARC), providing updates to the victim and
ensuring appropriate victim response. Removal of the commander from the
disposition process could affect all of the commander's current
responsibilities and shift those responsibilities to an authority
outside the chain of command who might not be present in the combat
zone. Removing disposition authority from the on-site commander will
undermine the commander's ability to fulfill his or her
responsibilities for the morale, safety, and welfare of the soldiers.
The legislative proposal, S. 967, does not address effects on the
current responsibilities of an on-site battlefield commander after a
sexual assault occurs. Current statutes, regulations and policies set
forth a comprehensive and interconnected set of procedures and
responsibilities for multiple first responders, commanders,
investigators, and prosecutors that govern the reporting,
investigation, victim response and accountability for sexual assault.
Implementation of S. 967 would represent the most significant amendment
to the UCMJ since 1968, without consideration of the second- and third-
order effects on the system. This change would generate legal
challenges, confusion and inefficiency. The proposal should be studied
by the Joint Services Committee and the section 576 Response System
Panel before such a dramatic change to the UCMJ is directed.
Admiral DeRenzi. Commanders, both on ships and on battlefields, are
required to take certain immediate actions upon receipt of an
allegation of sexual assault. Commanders are tasked to support the
victim, report the allegation, and refer all Unrestricted Reports of
sexual assault to the appropriate Military Criminal Investigative
Organization for investigation. This change reflects the requirement
outlined in our policy, DODI 6495.02.
Commanders are responsible for ensuring victims are provided
information on and access to appropriate services. This includes, but
is not limited to: providing for the immediate safety and security of
the victim, medical services, access to a victim advocate and SARC, the
right to request an expedited transfer, all rights delineated under the
Victim and Witness Assistance Program, and legal assistance. Commanders
may also issue Military Protective Orders, transfer the alleged
offender, or order the alleged offender into pre-trial confinement when
warranted.
Upon receiving an allegation of sexual assault, a commander must
submit a Special Incident Report under Chief of Naval Operations
Instruction F3100.6J. This incident report is sent to the commander's
immediate superior in command, the Chief of Naval Operations, the
Director of the Naval Criminal Investigative Service (NCIS), and the
Judge Advocate General. The policy requires commanders to make an
initial voice report followed by a written report that provides details
known at the time. In addition to the written report, commanders are
required to make a face-to-face report to the first flag officer in the
chain of command within 30 days of the allegation.
On April 20, 2012, the Secretary of Defense withheld initial
disposition authority from all commanders within DOD who do not possess
at least special court-martial convening authority and who are not in
the grade of O-6 or higher with respect to the following alleged
offenses: rape, in violation of Article 120 of the UCMJ; sexual
assault, in violation of Article 120 of the UCMJ; forcible sodomy, in
violation of Article 125 of the UCMJ; and all attempts to commit such
offenses, in violation of Article 80 of the UCMJ. This withholding
applies to all other alleged offenses arising from or relating to the
same incidents(s), whether committed by the alleged perpetrator or the
alleged victim of the rape, sexual assault, forcible sodomy, or the
attempts thereof. Thus if the commander does not qualify as a SA-IDA
under the Secretary of Defense policy, the commander must forward the
investigation into the alleged offenses to a commander who does qualify
as a SA-IDA. The SA-IDA must review the investigation into the
allegations and consult with a judge advocate before making any
disposition decision.
General Harding. The responsibilities are the same for a commander
regardless of location. First and foremost, a commander ensures the
safety of the members of his unit and nearly simultaneously should
ensure an appropriate investigation is initiated. If appropriate, a
commander may issue a military protective order, remove an accused from
his duty section, recommend placing an accused in pretrial confinement
or grant a victim an expedited transfer, if requested.
General Ary. In the absence of implementing policies or regulations
regarding the implementation of S. 967, the Marine Corps believes that
the responsibilities of the commander would remain the same until
charges are drafted. The proposal states that the Felony IDA will act
``[w]ith respect to charges under chapter 47 of title 10, United States
Code (the Uniform Code of Military Justice).'' However, the proposal is
otherwise silent on the procedures prior to charges being preferred and
after the initial disposition decision. Therefore, the commander would
likely proceed as he or she currently does upon receipt of a sexual
assault allegation. This includes reporting the allegation to NCIS;
providing victim advocate and SARCs to the victim; making legal
assistance attorneys available to consult with the victim; processing
expedited transfer requests; filing a Serious Incident Report to the
Commandant of the Marine Corps; filing an 8-day brief to the first
general officer in the victim's chain of command; making a pre-trial
confinement decision; possibly removing the accused from the command;
facilitating the expedited transfer of the victim, if requested; and
issuing military protective orders as needed. These actions would be
required on a ship, on the battlefield, and in garrison, and would all
be taken after consultation with the commander's staff judge advocate.
Even though S. 967 should not affect the above listed requirements,
there are two significant procedural requirements not addressed by S.
967, the Article 32 investigation and Article 34 pretrial advice
requirement. These two issues could create fatal jurisdictional
problems with the effective prosecution of offenses under S. 967.
The first issue is that S. 967 does not address the Article 32
investigation, which is required prior to referring charges to general
court-martial. The Article 32 investigation is an important check on
the government and ensures that the accused is not brought to trial on
a case that lacks merit. The proposal says the Felony IDA's
``determination to try such charges,'' and at which forum, ``shall be
binding on any applicable convening authority.'' There is no
explanation of what specific action is being taken with the Felony
IDA's ``determination:'' is it an initial disposition decision under
RCM 306; is it preferral of charges under RCM 307; or is it referral of
charges under RCM 601? These are all separate and distinct steps which
are apparently merged into one action by the Felony IDA. Because an
Article 32 is a jurisdictional requirement before a general court-
martial can be convened, its absence may be viewed as reversible error
by an appellate court.
The second issue with S. 967 is that it ignores the requirement for
a staff judge advocate to provide pretrial advice after the Article 32
investigation in accordance with Article 34. The IDA is not a commander
and cannot receive the Article 34 advice, and there is also no
commander with a disposition decision to make who can be advised under
Article 34. Because Article 34 is a jurisdictional requirement, its
absence may also create reversible error.
Admiral Kenney. The first response and continuous obligation by
unit commanders will always be ensuring the safety and security of a
victim. Commanders will determine if the victim desires or needs any
emergency medical care. Victims will be advised of the restricted and
unrestricted reporting options, and advised of their right to, and the
benefits of, a medical forensic examination regardless of their
reporting option. If underway and a feasible port destination is not
readily available, arrangements will be made to medevac the victim for
emergency medical care and/or a medical forensic examination.
Commanders will also determine if the victim desires or needs
protection. In port, commanders will determine the nature of pretrial
restraint to impose on the accused that may include pretrial
confinement. The commander will also consider temporary or permanent
reassignment of the accused or the victim and imposition of a military
protective order against the offender to ensure the safety of the
victim. If the incident occurs underway, commanders have the inherent
authority to restrict or confine the offender.
In the event of an unrestricted report of sexual assault, unit
commanders must immediately report the incident to CGIS and the SARC.
Under Coast Guard policy, only CGIS may conduct a formal criminal
investigation involving sexual assault offenses with unrestricted
reports. Agency policy prohibits command field-level investigation into
allegations of sexual assault.
While some cutters in the Coast Guard are less than a day's trip
from the nearest port call, many cutters may be underway from port.
Because CGIS agents are not assigned to Coast Guard cutters, there may
be situations where providing a CGIS agent will pose logistical
challenges. The SARC, CGIS and the servicing legal office will work
closely with the cutter's command to provide an agent to the cutter as
expeditiously as possible.
In addition to addressing safety concerns and complying with Coast
Guard reporting requirements and the victims' election of either a
restricted or unrestricted reporting option, a commander is responsible
for ensuring the victim understands the availability and benefits of
having a victim advocate.
3. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and Admiral Kenney, does the onsite commander
have to send the alleged perpetrator, victim, and witnesses back to a
secure location so they are available to the disposition authority?
General Chipman. The legislative proposal (S. 967) does not address
whether the independent disposition authority will review a written
record of the law enforcement investigation, or whether the alleged
perpetrator, victim, and witnesses have to be available, in person, to
the disposition authority. Under current procedures in place, a sexual
assault allegation made in a deployed setting can be investigated and
prosecuted onsite without significant interruption of operations. One
of the essential features of the UCMJ and the central role of the
commander is portability. With over 60,000 troops deployed currently
and as many as 100,000 at the height of operations over the past 10
years, commanders must be able to administer discipline wherever they
are and in full transparent view of troops to ensure faith and trust in
our system. If S. 967 was implemented, the portability and visibility
of the system would be impacted. Removing disposition authority from
the on-site commander will undermine the commander's ability to fulfill
his or her responsibilities for the morale, safety and welfare of the
soldiers. This could also create perceptions in the unit that victims
have made an allegation merely to remove themselves from the combat
zone. Current statutes, regulations and policies set forth a
comprehensive and interconnected set of procedures and responsibilities
for multiple first responders, commanders, investigators, and
prosecutors that govern the reporting, investigation, victim response
and accountability for sexual assault. Implementation of S. 967 would
represent the most significant amendment to the UCMJ since 1968,
without consideration of the second- and third-order effects on the
system. This change would generate legal challenges, confusion and
inefficiency. The proposal should be studied by the Joint Services
Committee and the section 576 Response System Panel before such a
dramatic change to the UCMJ is directed.
Admiral DeRenzi. In most cases, the initial disposition authority
can review evidence, consult with his or her judge advocate, and render
an initial disposition decision without the physical presence of the
alleged perpetrator, victim, and witnesses. The NCIS's report of
investigation generally provides the initial disposition authority
sufficient information concerning the alleged offense(s). Should
additional information be required, NCIS will gather the information
and submit a supplementary report of investigation to the disposition
authority. Of course, should the disposition authority convene a court-
martial to try an accused servicemember, then the physical presence of
the accused, the victim, and witnesses would be required. However,
courts-martial have been successfully conducted in deployed
environments.
General Harding. The flexibility and reach of the UCMJ is one of
its essential elements which has allowed for courts-martial in combat
zones since the inception of the UCMJ. However, depending on the
circumstances, a commander may also choose to send individuals back for
a variety of reasons, to include their own safety or health.
General Ary. Currently, commanders can make all disposition
decisions at the location of the alleged crime, whether it is in a
forward deployed location or in garrison. Because the commander has
administrative control of those parties, he or she is able to ensure
that they are available to participate in the investigation and
military justice process. If the commander was no longer the
disposition authority, it is unclear if the commander would need to
send the accused, victim, and witnesses to the location of the new
disposition authority.
Admiral Kenney. Current practice does not require transfer of
witnesses, victims, or alleged offenders to the location of the
disposition authority. Under Coast Guard's Sexual Assault Prevention
and Response (SAPR) Program, a victim of sexual assault will be
reassigned if requested by the victim or if in the victim's best
interest and a transfer does not compromise or hamper ongoing
investigative activity. Likewise, reassignment of the alleged offender
is made when it is in the best interest of the victim and the unit.
Reassignment decisions are made in conjunction with the commander,
staff judge advocate, CGIS agent, victim advocate, and the victim.
In the event of an unrestricted report, victims and witnesses are
advised to fully cooperate with the investigation, are made available
to both government and defense counsel, and may be compelled to travel
to an Article 32 hearing, a court-martial proceeding, or other required
venue.
Initial disposition of cases usually occurs after CGIS agents have
completed their investigation and the staff judge advocate has formally
provided independent legal advice to the convening authority.
4. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and Admiral Kenney, what effect would this
legislation have on the commander's authority to place an accused in
pre-trial confinement pending investigation and disposition of the
offense?
General Chipman. The legislative proposal, S. 967, does not address
the commander's ability to place an accused in pre-trial confinement
pending investigation and disposition of the offense.
RCM 304 governs pre-trial restraint and provides commanders with
the primary responsibility for determination of appropriate actions
under the rule. Under the proposed statutory scheme, commanders may
still place an accused in pre-trial confinement but they no longer have
the ability to control the timing of the preferral and referral of
court-martial charges to ensure that the accused's constitutional
rights to a speedy trial are not infringed upon, especially in cases
that involve non excludable offenses. For non excludable offenses, the
initial disposition authority is an independent O-6 Judge Advocate and
the convening authority resides in a centralized body of officers
geographically located elsewhere. The proposed legislation fails to
consider the delays that will result in waiting for the O-6 Judge
Advocate to prefer charges, in appointing and conducting a pretrial
Article 32 investigation, and then obtaining referral of the case by a
convening authority who is often at a different location. The potential
adverse impact on the speedy trial rights of the accused under this
proposal, may result in a chilling effect on a commander's use of
pretrial confinement which in turn could adversely impact the
maintenance of good order and discipline and the health, safety, and
welfare of soldiers in some cases. Current statutes, regulations and
policies set forth a comprehensive and interconnected set of procedures
and responsibilities for multiple first responders, commanders,
investigators, and prosecutors that govern the reporting,
investigation, victim response and accountability for sexual assault.
Implementation of S. 967 would represent the most significant amendment
to the UCMJ since 1968, without consideration of the second- and third-
order effects on the system. This change would generate legal
challenges, confusion and inefficiency. The proposal should be studied
by the Joint Services Committee and the section 576 Response System
Panel before such a dramatic change to the UCMJ is directed.
Admiral DeRenzi. Commanders ordering an accused servicemember into
pretrial confinement are required to make an initial probable cause
determination, provide written justification of that determination, and
ensure timely periodic reviews of continued confinement. Commanders who
order servicemembers into pretrial confinement must coordinate with
initial disposition authorities to ensure compliance with the
applicable rules; however, there will be little negative impact to the
commander's authority.
Pursuant to Rule for Courts-Martial (RCM) 305, prior to ordering a
servicemember into pretrial confinement, the commander ordering
confinement must ensure that probable cause exists that the accused
committed an offense under the UCMJ and that lesser forms of restraint
are insufficient. Within 48 hours of the initiation of confinement, the
commander must ensure a neutral and detached officer reviews the
initial confinement decision. Within 72 hours, the commander must
document the grounds for his or her determination in a written
memorandum, along with the reasons for continued pretrial confinement.
Finally, a review of ``the probable cause determination and necessity
for continued pretrial confinement'' by a ``neutral and detached
officer appointed in accordance with regulations prescribed by the
Secretary concerned'' must be made within seven days of the initial
confinement decision.
General Harding. As it is currently drafted, it does not appear the
Military Justice Improvement Act would impact a commander's ability to
place an individual in pretrial confinement as provided in Articles 9-
13 of the UCMJ.
General Ary. The authority of a commander to place an accused in
pre-trial confinement pending investigation and disposition of the
offense derives from Article 9, UCMJ, which allows ``commissioned
officers'' to order persons into arrest or confinement for probable
cause. Because the authority to order a person into pretrial
confinement is not tied to a convening authority, commanders would
retain the authority to place the accused in pretrial confinement.
Even though commanders would retain this authority, the creation of
a new disposition authority severely limits the commander's authority.
If the new disposition authority decided not to go forward with the
misconduct that was the basis for the commander's pretrial confinement
decision, the commander would have to immediately remove the accused
from pre-trial confinement.
There is one other pre-trial confinement complication that is
related to a new disposition authority. Placing an accused into pre-
trial confinement starts the ``speedy trial'' clock. Sometimes the
decision to place an accused in pre-trial confinement is made before
all of the investigation is complete and the command is aware of the
full nature of the misconduct, and how it will most likely be charged.
Before a commander can charge a case, it must be fully investigated and
reviewed. This alone can create speedy trial concerns in complicated
cases. If the new disposition authority would need additional time,
after the time already used by the commander while the accused was
confined, to review all of the evidence in order to make an independent
and informed disposition decision, there is an increased risk that the
government will have difficulty bringing the accused to trial in a
timely manner.
Admiral Kenney. Unit commanders are not restricted by existing
policy or this proposed legislation from taking all necessary
discretionary actions related to the alleged offender. This would
include placing a suspected offender in pretrial restraint, which
includes the possibility of pretrial confinement, as well as issuing a
military protective order against the offender.
5. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and Admiral Kenney, if the new disposition
authority does not refer an allegation to a general or special court-
martial, can the commander offer the accused an Article 15 for the
offense considered by the disposition authority, and if the accused
refuses the Article 15 and demands trial by court-martial, what does
the commander do?
General Chipman. The legislative proposal, S. 967, does not address
what a commander's option will be if the disposition authority does not
refer an allegation to a court-martial and the commander offers the
accused an Article 15 for the same offense. It is possible that a
defense counsel would advise an accused soldier to turn down the
Article 15 (or summary court-martial) knowing that the commander does
not have the ability to then proceed with a special or general court-
martial.
Implementation of S. 967 could remove non-judicial disciplinary
options for a commander in the event the new disposition authority
declines to refer charges to a court-martial. This will leave
misconduct unpunished that is currently punishable under the UCMJ.
Current statutes, regulations and policies set forth a
comprehensive and interconnected set of procedures and responsibilities
for multiple first responders, commanders, investigators, and
prosecutors that govern the reporting, investigation, victim response
and accountability for sexual assault. Implementation of S. 967 would
represent the most significant amendment to the UCMJ since 1968,
without consideration of the second- and third-order effects on the
system. This change would generate legal challenges, confusion and
inefficiency. The proposal should be studied by the Joint Services
Committee and the section 576 Response System Panel before such a
dramatic change to the UCMJ is directed.
Admiral DeRenzi. On April 20, 2012, the Secretary of Defense
withheld initial disposition authority from all commanders within DOD
who do not possess at least special court-martial convening authority
and who are not in the grade of O-6 or higher with respect to the
following alleged offenses: rape, in violation of Article 120 of the
UCMJ; sexual assault, in violation of Article 120 of the UCMJ; forcible
sodomy, in violation of Article 125 of the UCMJ; and all attempts to
commit such offenses, in violation of Article 80 of the UCMJ. This
withholding applies to all other alleged offenses arising from or
relating to the same incidents(s), whether committed by the alleged
perpetrator or the alleged victim of the rape, sexual assault, forcible
sodomy, or the attempts thereof. Therefore, if the commander does not
qualify as a SA-IDA under the Secretary of Defense policy, the
commander must forward the investigation into the alleged offenses to a
commander who does qualify as a SA-IDA. The SA-IDA must review the
investigation into the allegations and consult with a judge advocate
before making any disposition decision.
Under RCM 306, a superior commander may withhold the authority to
dispose of offenses in individual cases, types of cases, or generally.
Therefore, an SA-IDA may limit the authority of a subordinate commander
to impose Article 15 non-judicial punishment (NJP) after an initial
disposition decision has been made.
However, if the subordinate commander's authority has not been
limited under RCM 306, he or she retains the discretion to impose
Article 15 NJP for an offense that was previously considered by the SA-
IDA. If the accused refuses Article 15 and demands trial by court-
martial, the subordinate commander may convene and refer the charges to
a court-martial.
General Harding. Assuming this is a case that must be sent to the
new disposition authority under section 2(A) of the Military Justice
Improvement Act and was returned from the new disposition authority for
a commander to take appropriate action, a commander could offer an
Article 15. If the member refused the Article 15 and demanded trial by
court-martial, the commander would either dismiss the Article 15 and
possibly offer administrative punishment (e.g., letter of reprimand) or
refer it back to the new disposition authority with a renewed
recommendation that the new disposition authority refer the case to a
court-martial.
General Ary. Non-judicial punishment (NJP) is a leadership tool
providing military commanders a prompt and essential means of
maintaining good order and discipline. In order to impose NJP, a
servicemember is notified by the commander of the nature of the
misconduct of which he is accused, the evidence supporting the
accusation, and the commander's intent to impose NJP. Article 15, UCMJ,
affords the servicemember a right to turn down NJP and demand trial by
court-martial except for those accused attached to or embarked on a
vessel. Under the proposed legislation, the ability of the commander
will be compromised.
For offenses requiring disposition by the proposed legislation's
Felony IDA, jurisdiction lies with the Felony IDA, not the commander.
Therefore, the commander would not be able to NJP the marine initially.
The Felony IDA would not have NJP authority under Article 15 because it
only inures to commanders. Additionally, if the Felony IDA decides not
to take the case to special court-martial (SPCM) or general court-
martial (GCM), that decision is binding on the commander. When this
``do not prosecute'' decision is made a commander can only offer
disposition of the case at a lesser forum such as NJP, and the marine
could simply refuse. Once NJP is refused, there is no remaining option
to punish the marine. Under the current system, however, a Marine who
refuses NJP can be taken to a SPCM or GCM. As an example of this, 10
U.S.C. section 923 (Article 123) is the military's punitive forgery
statute, and has a maximum punishment of 5 years. Forgery can be
anything from falsifying an order, an inherently military offense but a
serious one, to trying to alter a liberty card, a disciplinary
infraction that must be punished, but is not likely to be viewed as a
felony-level offense. Both of these examples are most appropriately
handled within the command. Under the proposed legislation, however,
forgery is considered a serious offense and jurisdiction only belongs
to the IDA. This means that a commanding officer may not have any
authority to instill discipline related to forgery-related misconduct.
Admiral Kenney. A commander could dispose of a case by NJP after an
independent disposition authority chooses not to refer charges to a
general or special court-martial. Administration of NJP would, however,
be complicated by severing the convening authority function from
commanders because some coordination between the independent
disposition authority and commander would have to occur so the
commander would be informed of the matter and the decision of the
disposition authority not to proceed, and coordination would have to
occur again where an accused declines NJP and a convening authority
must decide whether and to what level of court-martial the case should
be referred.
Except in rare situations where a servicemember is attached to or
embarked on a vessel, a military member may reject NJP and demand trial
by court-martial. In most cases, servicemembers accept NJP when
offered. Currently, a commander can refer a case to court-martial if a
member refuses NJP. If a commander lacks the ability to refer cases to
court-martial, we expect that a member would be more likely to refuse
NJP knowing that an independent disposition authority has already
declined to refer the charges to a courts-martial. This result would
have negative consequences on the exercise of command authority.
Commanders must ensure mission accomplishment and do so by maintaining
unit readiness and enforcing discipline. Dividing the authority to
impose NJP from the ability to refer cases to court-martial would
weaken command authority, which would be exacerbated where accused have
a structural incentive to refuse NJP.
6. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and Admiral Kenney, would the commander still
have the authority to issue no-contact orders and to assign the alleged
perpetrator and victim to duties so that they would not have to work
with each other?
General Chipman. The legislative proposal, S. 967, does not address
the authority of commanders to issue no-contact orders and to transfer/
reassign offenders and victims.
It is assumed that these authorities would remain with the
commander. However, many administrative actions taken pre-trial require
that the actions be made with a view toward court-martial. It is
unclear whether commanders will still be able to make these decisions
if disposition authority is taken away from the command. Current
statutes, regulations and policies set forth a comprehensive and
interconnected set of procedures and responsibilities for multiple
first responders, commanders, investigators, and prosecutors that
govern the reporting, investigation, victim response and accountability
for sexual assault. Implementation of S. 967 would represent the most
significant amendment to the UCMJ since 1968, without consideration of
the second- and third-order effects on the system. This change would
generate legal challenges, confusion and inefficiency. The proposal
should be studied by the Joint Services Committee and the section 576
Response System Panel before such a dramatic change to the UCMJ is
directed.
Admiral DeRenzi. Commanders currently have the authority to issue
Military Protective Orders (MPOs), transfer the alleged perpetrator or
order the alleged perpetrator into pretrial confinement when warranted,
and conduct an ``expedited transfer'' of a victim, if the victim so
requests. This authority is based upon the commander's responsibility
for safety and good order and discipline and is independent of court-
martial convening authority and initial disposition authority.
Therefore, a commander's authority to issue MPOs or transfer the
alleged perpetrator or victim would be unaffected by changes in court-
martial process.
General Harding. Commanders would still retain their inherent
authority to command their units. This would include issuing no-contact
orders and moving personnel within their unit.
General Ary. In the absence of implementing policies or regulations
regarding the implementation of S. 967, the Marine Corps believes that
the responsibilities of the commander would remain the same until
charges are drafted. The proposal states that the Felony IDA will act
``[w]ith respect to charges under chapter 47 of title 10, U.S.C. (the
Uniform Code of Military Justice).'' However, the proposal is otherwise
silent on the procedures prior to ``charges'' being preferred and after
the initial disposition decision. Therefore, the commander would likely
proceed as he or she currently does upon receipt of a sexual assault
allegation. This includes reporting to NCIS; providing victim advocate
and SARCs to the victim; making legal assistance attorneys available to
consult with the victim; processing expedited transfer requests; filing
a Serious Incident Report to the Commandant of the Marine Corps; filing
an 8-day brief to the first general officer in the victim's chain of
command; making a pre-trial confinement decision; possibly removing the
accused from the command; facilitating the expedited transfer of the
victim, if requested; and issuing military protective orders as needed.
These actions would all be taken after consultation with the
commander's staff judge advocate.
Admiral Kenney. Yes. It is within the commander's inherent
authority to issue military no-contact orders as well as reassign
members within their command. Moreover, under the Coast Guard's SAPR
Program, a victim of sexual assault will be reassigned if requested by
the victim or it is in the victim's best interest and a transfer does
not compromise or hamper ongoing investigative activity. Likewise,
reassignment of the alleged offender is made when it is in the best
interest of the victim and the unit. Reassignment decisions are made in
conjunction with the commander, staff judge advocate, CGIS agent,
victim advocate, and the victim.
7. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and Admiral Kenney, would an accused have a right
to be represented by a lawyer before the new disposition authority?
General Chipman. The legislative proposal, S. 967, does not address
the right to counsel for an accused before the disposition authority,
nor does it define the process for the disposition decision.
Under current policy, an accused soldier may seek the advice of a
trial defense attorney at any time during an investigation. Once
charges are preferred, if the accused has not already sought the advice
of a trial defense counsel, a counsel will be detailed to represent the
soldier.
Current statutes, regulations and policies set forth a
comprehensive and interconnected set of procedures and responsibilities
for multiple first responders, commanders, investigators, and
prosecutors that govern the reporting, investigation, victim response
and accountability for sexual assault. Implementation of S. 967 that
would represent the most significant amendment to the UCMJ since 1968
without consideration of the second- and third-order effects on the
system will generate legal challenges, confusion and inefficiency.
Admiral DeRenzi. The right to receive advice and representation of
counsel would not be affected by legislation requiring a new
disposition authority. An initial disposition authority considers
investigation reports from the NCIS and, in consultation with a judge
advocate, makes an initial disposition decision. Later proceedings
require the presence of the accused, counsel, victim, and witnesses;
however, the initial disposition determination does not.
Prior to charges being preferred, servicemembers may seek advice
from counsel pertaining to their rights during an investigation,
Article 15 NJP, administrative proceedings, and court-martial.
The UCMJ requires that defense counsel be detailed to an accused
facing charges at general or special court-martial. The right to
counsel extends to pre-trial hearings, such as Article 32
investigations. The authority to assign detailed defense counsel to a
particular case rests with the commanding officer of the cognizant
Defense Service Office, and not the convening or disposition authority.
General Harding. It appears an accused would retain the ability to
be represented by counsel before the new disposition authority to the
same extent he is eligible to be represented by counsel before the
convening authority today.
General Ary. The accused's right to be represented by a lawyer
before the new disposition authority is not discussed in S. 967. The
Marine Corps believes that the accused would maintain the same rights
to counsel currently in place for marines charged with violations of
the UCMJ. Military defense counsel are assigned to an accused after
preferral of charges by the Defense Services Organization. Under
Article 27, a military accused has a right to counsel during a special
or general court-martial (including an Article 32 hearing). A marine
does not have a right to be represented by counsel at NJP, or while any
alleged criminal offenses are being investigated by the law
enforcement.
Because the new disposition authority is responsible for making an
initial disposition decision, based upon a review of law enforcement
investigations, the Marine Corps does not believe that an accused would
have a right to military a lawyer before the new disposition authority.
Admiral Kenney. Yes. All accused are entitled to no-cost,
independent military defense counsel or may seek civilian counsel. The
right to consult with an attorney may be invoked when a servicemember
is advised of Article 31(b) rights against self-incrimination. The
right to representation by a military defense counsel attaches when
charges are preferred against a servicemember.
8. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and Admiral Kenney, how many of these new
disposition authorities would you need and where would they be located?
General Chipman. The Army estimates that we would need
approximately 74 new disposition authorities to ensure the timely and
efficient processing of UCMJ actions. The new disposition authorities
would need to be co-located with, although not assigned to, the command
to allow the military justice process to remain portable, local and
visible.
The 74 new disposition authorities would need to be dedicated to
this task only given the volume of work. The legislative proposal S.
967 covers offenses under Articles 92 and 118-133 with maximum
punishments of more than 1 year in confinement. Army fiscal year 2012
crime statistics indicate that there were 18,945 allegations of unique
offenses (committed by 13,816 unique offenders) that would have
required review by the new disposition authority.
S. 967 requires that the new disposition authority be outside the
chain of command of the member subject to the charges. Presumably, this
would disqualify the use of Staff Judge Advocates, who are assigned to
the same command as the General Court-Martial Convening Authority, and
are currently the advisors to the convening authority on military
justice matters. Therefore, a separate 0-6 disposition authority would
be required at each of the 74 current General Court-Martial Convening
Authorities.
The Army would require new authorizations to fill the new
disposition authority positions. S. 967 requires the new disposition
authority be an 0-6 colonel with significant trial experience. The Army
Judge Advocate General Corps currently has 152 colonels. Of the 152
colonels: 95 colonels would not be eligible to serve as a new
disposition authority as they are currently serving as Staff Judge
Advocates, military judges, criminal appellate attorneys, or in defense
counsel supervisory positions. Of the remaining 57 colonels, 11
colonels are in military professional education schools, 10 Colonels
work in DOD positions, and the remaining 36 colonels are assigned to
non-criminal law positions. Not all of these Colonels have significant
trial experience.
If S. 967 were imposed, the Army would require additional
authorizations but would not be able to immediately fill those
authorizations with personnel that meet the requirements of S. 967. The
Army's potential bridging strategy, to assign existing colonels with
significant trial experience as disposition authorities as a collateral
duty, would generate inefficiencies and a backlog of cases to be
disposed of.\1\
---------------------------------------------------------------------------
\1\ If an offender is alleged to have committed offenses, some of
which fall under the jurisdiction of the new disposition authority and
some of which still fall under the jurisdiction of the commander, it is
unclear under the new legislation how these offenders would be handled
and what Constitutional issues would arise if an offender was subjected
to multiple disciplinary proceedings for a single course of misconduct.
---------------------------------------------------------------------------
Admiral DeRenzi. On April 20, 2012, the Secretary of Defense
withheld initial disposition authority from all commanders within DOD
who do not possess at least special court-martial convening authority
and who are not in the grade of O-6 or higher with respect to the
following alleged offenses: rape, in violation of Article 120 of the
UCMJ; sexual assault, in violation of Article 120 of the UCMJ; forcible
sodomy, in violation of Article 125 of the UCMJ; and all attempts to
commit such offenses, in violation of Article 80 of the UCMJ. This
withholding applies to all other alleged offenses arising from or
relating to the same incidents(s), whether committed by the alleged
perpetrator or the alleged victim of the rape, sexual assault, forcible
sodomy, or the attempts thereof. The SA-IDA must review the
investigation into the allegations and consult with a judge advocate
before making any disposition decision.
A detailed assessment of any specific proposal to change the
current SA-IDA construct would be necessary to determine location and
resource requirements.
General Harding. There were 875 total courts-martial in the Air
Force in calendar year 2012 (includes general, special and summary
courts-martial). Of those, 330 would have gone to an O-6 JAG convening
authority for disposition under the Military Justice Improvement Act.
Given this number, we would require 7 disposition authorities and 26
support personnel, for a total of 33. This would allow for the timely
review of all cases forwarded to the office. Further, we would likely
centralize the office in one location to capture efficiencies in
staffing and allow for cases to be shifted from one authority to
another if the situation required it.
General Ary. The Marine Corps believes there is a substantial risk
that the commander's ability to ensure good order and discipline will
be severely limited if the commander is removed from the initial
military justice disposition decision in certain cases. The following
paragraphs detail the specific resourcing impact that the current
proposal would have on military justice in the Marine Corps.
The Marine Corps estimates that in the last 2 fiscal years, under
the current proposal to remove the commander from the initial
disposition of certain offenses, approximately 82 percent of GCMs and
46 percent of SPCMs would require a disposition decision by the O-6
judge advocate, (Felony IDA). The number of cases that would actually
go to trial, however, does not fully represent the number of cases that
would require Felony IDA involvement. On average, Marine Corps Legal
Services Support Sections (LSSS) receive 2567 requests for legal
services (RLS) per year that result in an average of 538 GCMs and
SPCMs. That leaves 2029 RLSs that the LSSSs review but that do not end
up at a GCM or SPCM. The Marine Corps does not have the ability to
accurately count what offenses were initially listed in each RLS, but
it is very likely that a significant number of those RLSs initially
contained Felony IDA-level offenses that would have required Felony IDA
case review and analysis.
The Marine Corps would organize its new Felony IDA offices along a
regional construct that aligns with our Legal Services Support Areas
(LSSA--East, West, Pacific, and National Capital Region). To implement
this requirement, the Marine Corps would place two Felony IDAs within
each LSSA, one to handle cases within operational commands (i.e.,
Marine Expeditionary Force) and one to handle cases within the Marine
Corps Installations Command (MCICOM). Two Felony IDAs are needed per
region to comply with the requirement in the current proposal for the
Felony IDA to not be in the chain of command of the victim or the
accused. The total Marine Corps requirement, therefore, would be eight
Felony IDAs to handle all cases involving an offense requiring a Felony
IDA decision. The existing Regional Trial Counsel (RTC) offices'
structure and personnel in each region would provide the Felony IDAs
with investigation review, command liaison, and legal research support.
Additionally, the Marine Corps would establish the newly required
Office of the Chief of Staff on Courts-Martial at Headquarters Marine
Corps. This office would serve as a back-up Felony IDA in cases where
the regional Felony IDAs were conflicted out (e.g., a MEF accused and
an MCICOM victim), and also serve as the GCMCA for deployed military
justice cases. This office would be led by an experienced O-6 judge
advocate and have a staff of four additional officers, four Legal
Services Support Specialists, and one civilian.
The Marine Corps would therefore require an increase of nine
additional O-6 billets to meet the Felony IDA requirement. The current
colonel LSSS officers-in-charge (OIC) O-6 judge advocates) would remain
in place to supervise trial support for cases that do not require GCMCA
action, legal assistance, civil law, and review. All GCMCA SJAs would
also remain in place because commanders' requirements to have a legal
advisor on many different legal issues remain.
The mission placed on the RTC offices to support the Felony IDAs
creates a supervisory void for the remaining trial counsel in each
region that would handle the non-Felony IDA cases (case analysis/
preparation, liaison with the convening authority). The RTC is
currently responsible for all training and supervision of these trial
counsel. To fill this responsibility, the Marine Corps would need one
O-4 judge advocate in each region (four total) to act as the OIC for
the remaining trial counsel in the region, and one O-3 judge advocate
per region (four total) to act as the OIC's deputy. Additionally,
support staff would be needed for regional GCMCAs that would be
appointed under the proposal. Altogether, the Marine Corps estimates
the need for 49 additional billets to implement the Felony IDA concept.
Admiral Kenney. Coast Guard judge advocates currently report to
their local chain of command. Because the proposed legislation places
judge advocates in a separate and independent entity outside the
control of commanders, a detailed examination is required to thoroughly
assess the required resources needed and potential geographic
locations.
______
Questions Submitted by Senator Mark Udall
reprisal
9. Senator Udall. General Odierno, Admiral Greenert, General Amos,
General Welsh, and Admiral Papp, many victims of sexual assault are
afraid to come forward for fear of reprisal by lower level commanders
or noncommissioned officers (NCO). Part of empowering officers with
command responsibilities is to hold them accountable for maintaining
good order and discipline. Reprisal or retaliation for victims that
come forward is not good order and discipline. What steps need to be
taken to truly hold members of a unit, their NCOs, and commanders
accountable for retaliation against victims?
General Odierno. Retaliation against victims is prohibited under
the UCMJ and under Army regulations. Commanders must take a central
role in both setting a command climate in which victims feel
comfortable reporting and in holding soldiers accountable if they
retaliate against a victim, including anyone in the chain of command.
Commanders who fail to execute either of these responsibilities will
also be held accountable. Since 2009, the Army has relieved 36
commanders for failure to set an appropriate command climate, including
issues related to sexual assault and harassment. As the Chief of Staff
of the Army, I have made it clear to commanders that, when it comes to
taking care of soldiers, the fight against sexual assault and sexual
harassment is my number one priority.
Admiral Greenert. There are eight independent means for victims to
bring a complaint of reprisal and/or retaliation against any individual
in their chain of command. Specifically, victims may file a reprisal
and/or retaliation complaint with (1) the Naval Inspector General (IG),
(2) DOD IG, (3) equal opportunity advisor, (4) law enforcement
personnel, (5) a Member of Congress, or (6) submit a complaint against
their commanding officer under Article 138 of the UCMJ, or (7) raise a
complaint against any other superior in the chain of command under
Article 1150 of U.S. Navy Regulations, or (8) make an anonymous
complaint to an IG Hotline. Complaints brought by victims under any of
these alternatives result in an independent investigation and
subsequent review by flag officers in the chain of command. If the
complaint is substantiated, appropriate administrative or disciplinary
action will be taken.
We have a number of means to hold personnel accountable for acts of
retaliation against victims. Personnel accused of retaliation may be
charged under several different UCMJ articles:
Article 78 (accessory after the fact)
Article 92 (failure to obey order or regulation)
Article 93 (cruelty and maltreatment)
Article 98 (Noncompliance with procedural rules)
Article 107(false official statements)
Article 117 (provoking speech or gestures)
Article 133 (conduct unbecoming an officer and a
gentleman)
Article 134 (general offense prejudicial to good order
and discipline)
In these circumstances, numerous administrative actions will be
available, as well.
This is our issue to solve. Commanders are accountable for
establishing command climates of dignity and respect, incorporating
sexual assault prevention measures into their commands, providing
responsive victim support, ensuring all unrestricted sexual assault
allegations are promptly reported to NCIS and investigated, and holding
offenders appropriately accountable. It is a clear and concise part of
the ``Charge of Command.'' This covenant is acknowledged (by signature)
by every commander of a Navy unit.
We will continue to focus on providing commanders the appropriate
tools to remain effective, accountable leaders, and hold these
commanders accountable for the safety and well being of the sailors
under their command.
General Amos. A commander's responsibility for his or her command
is absolute until the commander is relieved of responsibility by their
chain of command. Ultimately, the most practical service-driven
administrative tool for holding commanders accountable is the ability
to relieve him or her from command due to a loss in confidence. This
action is immediate and final.
Commanders receiving a reprisal allegation against a member of his
or her command shall fully investigate the matter and take appropriate
administrative or punitive action under the UCMJ. There are also
multiple reporting mechanisms that allow victims to report upon members
in their chain of command. A marine may file an IG complaint, which may
be anonymous to avoid the possibility of reprisal. In addition, the
Military Whistleblower Protection Act (10 U.S.C. Sec. 1034) also
protects victims from reprisal as a result of communications to
Congress or the IG. In response to a complaint, the IG, would direct an
investigation into the matter and recommend appropriate punitive or
administrative action.
Victims may additionally submit a Complaint of Wrongs under Article
138 of the UCMJ, which requires redress if a commanding officer wronged
a victim. If the commanding officer refuses to redress the wrong, the
victim can forward the complaint to the next officer exercising general
court-martial convening authority. Finally, if any retaliation
negatively impacted the victim's records, the victim may petition the
Board for Correction of Naval Records, which has authority to remove
injustices from current and former victim records.
General Welsh. The UCMJ provides tools for commanders to maintain
good order and discipline and hold their airmen accountable. We expect
our commanders to create a respectful and professional environment
where every airman can maximize their potential to meet our mission
requirements. When this does not occur, we hold commanders
appropriately accountable, as we have done in the past and will
continue to do so in the future. We do so utilizing a wide range of
available administrative and disciplinary options.
The statistical data provides a number of reasons that cause
victims not to report, and we are pursuing lines of effort to address
those concerns. From the 2012 Workplace & Gender Relations Survey of
Active Duty Members, of the 67 percent of women who did not report, the
reasons in 2012 were:
------------------------------------------------------------------------
Air Force
Reason DOD (percent) (percent)
------------------------------------------------------------------------
Did not want anyone to know............. 70 79
Felt uncomfortable making a report...... 66 73
Did not think their report would be kept 51 NR
confidential...........................
Did not think anything would be done.... 50 NR
Thought they would be labeled a 47 40
troublemaker...........................
Were afraid of retaliation/reprisals 47 NR
from the person(s) who did it or from
their friends..........................
Heard about negative experiences other 43 NR
victims went through who reported their
situation..............................
------------------------------------------------------------------------
NR = Not reportable due to low reliability as the number of responses
were too low to provide a statistically relevant amount.
Additionally, the Air Force contracted Gallup in 2010 to study the
barriers to reporting and broke the data out by gender and type of
criminal act to better target our efforts. The Air Force will conduct a
follow-on survey in fiscal year 2014 to evaluate against the 2010
baseline. Table 12 from the Findings from the 2010 Prevalence/Incidence
Survey of Sexual Assault in the Air Force is included below:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
SARCs and Victim Advocates brief victims in their care to let them
know immediately if the victims feel reprisal. Should this occur, the
victim will be advised to file a complaint with the IG in person, on-
line, or through the 1-800 number. The IG will investigate and the
parties will be held accountable. Additionally, as of February 2013, we
have enhanced our SAPR training programs to include educating our
Commanders and Senior Enlisted about biases and helping victims of
trauma to heal. These lessons will help immensely with giving our
leadership the tools they need during the turbulence of an assault in
their unit and to increase the trust that the victims have in the
entire process.
Admiral Papp. The Military Whistleblower Protection Act, 10 U.S.C.
Sec. 1034, prohibits any person from taking, withholding, or
threatening any personnel action against a member of the Armed Forces
as reprisal for making or preparing any protected communications. A
protected communication is any lawful communication to a Member of
Congress or an Inspector General, as well as any communication made to
a person or organization designated under competent regulations to
receive such communications, which a member of the Armed Forces
reasonably believes reports a violation of law or regulation, including
sexual assault, sexual harassment, unlawful discrimination, gross
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial or specific danger to public health or safety.
The Coast Guard Whistleblower Protection Regulation, 33 C.F.R. Part
53, establishes policy and implements Title 10 U.S.C. Sec. 1034 to
provide protections against reprisal to members of the Coast Guard.
Reprisal occurs when a responsible management official takes or
threatens to take an unfavorable personnel action, or withholds or
threatens to withhold a favorable personnel action against a member of
the Coast Guard because he or she made or was preparing to make a
protected communication. A personnel action is any action taken against
a member of the Coast Guard that affects or has the potential to affect
that member's current position or career. Examples would include:
performance evaluations, transfer or reassignment, changes to duties or
responsibilities, disciplinary or other corrective actions, denial of
reenlistment, decisions concerning awards, promotions or training,
decisions concerning pay or benefits, referrals for mental health
evaluations, access to classified material, and authorization to carry
weapons.
Retaliation for reporting any UCMJ offense, whether it's the
alleged offender, NCOs or anyone else within the command will not be
tolerated. Victims of sexual assault who experience retaliation are
encouraged to report the retaliation to their supervisor, Chain of
Command, Victim Advocate, SARC, or Special Victim Counsel.
Members who retaliate against a victim of sexual assault may be
held accountable in a number of ways.
First, every military member--officer and enlisted--receives
employee evaluations. To the extent the individual has failed to
perform their expected duties--either negligently or willfully--that
failure in performance or conduct will be captured in their evaluation.
Members who take retaliatory action against a victim would receive poor
evaluations, which have a range of negative career consequences such
as: failure to promote, prohibitions on attending training, and failure
to be selected for command cadre positions.
Second, members in command may be relieved for cause.
Third, in the case of officers, retaliation may be serious enough
to warrant a Board of Inquiry to determine whether that officer should
be separated from active duty. Similarly, enlisted personnel may be
separated from the Service through an administrative board process.
Last, if after a thorough investigation, there is probable cause to
believe that a servicemember has committed an offense under the UCMJ,
that member could face NJP or, if the offense is more serious, trial by
court-martial.
opportunities for women
10. Senator Udall. General Odierno, Admiral Greenert, General Amos,
General Welsh, and Admiral Papp, do you believe that opening up all
military occupations and specialties to women would help end the sexual
assault crisis?
General Odierno. The Army's approach to expanding positions and
occupations to women includes reinforcement training on equal
opportunity and sexual harassment and assault prevention and response.
The feedback received from opening the maneuver battalion headquarters
in nine Brigade Combat Teams indicates this training was effective in
men and women treating each other with dignity and respect. The
expansion of opportunities will enable our soldiers to develop and
maintain professional relationships and, to the extent that this will
contribute to the culture change the Army needs, it could potentially
contribute to a reduction in sexual assaults.
Admiral Greenert. The Navy supports the Secretary of Defense's
decision to open all occupational specialties to women. Within the
Navy, we have already opened 88 percent of our billets to women so it
is very difficult to speculate that opening additional billets to women
will, by itself, end sexual assault in our Navy. We believe addressing
command climate, accompanied by specific actions directed at the safety
and security of our sailors, will decrease the incidence of sexual
assault in the Navy.
General Amos. In 2012, the Marine Corps implemented its ``Exception
to Policy (ETP).'' Since that time, approximately 463 job opportunities
for female officers and staff NCOs have opened in previously closed
units with open Military Occupational Specialties (ex. assignment of a
female supply officer to a tank battalion). Since repeal of the
Secretary of Defense policy excluding women from combat positions, the
Marine Corps has continued to refer to these assignments as the ETP.
Due to the success of the ETP program, the Marine Corps plans on
expanding the ETP to include Marine NCOs at all closed units except for
infantry and infantry-like units this fall. Since the implementation of
the Marine Corps' ETP program, the Marine Corps has not received any
correlative data that supports a relationship between opening
previously closed units to women and its impact on the sexual assault
statistics. It is too early to tell how changes in the assignment
process will impact sexual assault rates in the Marine Corps.
General Welsh. Sexual Assault is not based on military occupation.
Sexual assault is a crime of power, disrespect and control. Women have
been in combat for years. Seeing women in more combat jobs could cause
an overt recognition of their equal skill sets, but I do not believe it
alone will hasten cultural change. It is one piece of a multipronged
approach to changing biases and preconceived notions.
Admiral Papp. All military occupations and specialties within the
Coast Guard are open to women.
11. Senator Udall. General Odierno, Admiral Greenert, General Amos,
General Welsh, and Admiral Papp, if women are allowed to serve in all
occupations and in units currently closed to them, would that speed up
the cultural change necessary to end this crisis?
General Odierno. The Army's approach to expanding positions and
occupations to women includes reinforcement training on equal
opportunity and sexual harassment and assault prevention and response.
The feedback received from opening the maneuver battalion headquarters
in nine Brigade Combat Teams indicates this training was effective in
men and women treating each other with dignity and respect. The
expansion of opportunities will enable our soldiers to develop and
maintain professional relationships and, to the extent that this will
contribute to the culture change the Army needs, it could potentially
contribute to a reduction in sexual assaults.
Admiral Greenert. We currently have 88 percent of our billets open
to women. I cannot predict if the additional 12 percent of billets will
bring about a cultural change to reduce sexual assaults. We believe
assuring a safe environment and command climate of dignity and respect,
accompanied by specific actions directed at the safety and security of
our sailors, will decrease the incidence of sexual assault in the Navy.
General Amos. We do not have any data that suggests integrating
women into previously closed units or Military Occupational Specialties
has any effect on sexual assault rates in the Marine Corps. However, we
are actively monitoring this transition for any relevant trends as we
further integrate female marines into Military Occupational Specialties
and units that were previously closed to them.
However the following is the list of what we have done to speed up
the changes necessary to fight sexual assault:
Delivered over 25 CMC briefings to all officers and
staff NCOs across 3 continents
Issued three formal letters to all marines addressing
with them sexual assault, leadership, and command climate
concerns of the Commandant of the Marine Corps
Held a leadership summit for all commanding generals,
commanding officers, and senior enlisted advisors
Conducted a 2-day SAPR General Officer Symposium
Conducted a Sergeants Major Symposium with all Senior
Enlisted Advisors across the Corps
Conducted standardized enterprise-level training for
all marines across the force
Produced and distributed three videos on sexual
assault prevention by CMC and the Sergeant Major of the Marine
Corps
Created a CMC command climate survey conducted within
30 days of a commandeer assuming command; this tool has already
proven effective in stamping out toxic leadership
Published all courts-martial results on
www.marines.mil accessible to all marines in furtherance of
general deterrence
Implemented ``Take a Stand'' bystander intervention
training, identified as a service-wide best practice
Implemented Ethical Decision Scenarios to promote
healthy and candid small group conversations about prevention
at the smallest unit level
Established Sexual Assault Response Teams (SART)
coordinated by the Marine Corps Installations SARC and made up
of the following personnel: NCIS investigator, CID military
police officer, SARC/Victim Advocate, Judge Advocate/Trial
Counsel, and a mental health services representative and Sexual
Assault Forensic Examiner.
For those installations where an immediate SART
response capability is not available, the SART includes
community representatives, local law enforcement, rape crisis
centers, district attorneys, Federal task forces, existing
civilian SARTs, or nongovernmental organizations specializing
in sexual assault
All SAPR personnel now receive 40 hours of focused
sexual assault advocacy training and go through an
accreditation process administered by the National Organization
for Victim Assistance (NOVA)
Added 47 new full-time civilian SARCs and VAs and
nearly 1,000 collateral duty SARCs and Uniformed Victim
Advocates (UVAs)
24/7 help-lines
SECNAV has authorized the addition of 50 additional
NCIS agents
Reorganization of the entire Marine Corps Judge
Advocate community to include establishment of Complex Trial
Teams supervised by Regional Trial Counsel (a Lieutenant
Colonel with significant litigation experience)
Embedded CID agents and Highly Qualified Experts
(HQEs) within Regional Complex Trial Teams
Continue to utilize the Defense Equal Opportunity
Management Organization Climate Survey (DEOCS)
Implemented of the CMC Command Climate Survey taken
within 30 days of a commander assuming command
General Welsh. Cultural change takes time. While there is no single
cure, no magic bullet to fixing sexual assault, creating an environment
of dignity and respect is imperative to improving the Air Force
culture. Women have been in combat for years, and seeing women in more
combat jobs could cause an overt recognition of their equal skill sets,
but I do not believe it alone will hasten cultural change. It is one
piece of a multipronged approach to changing biases and preconceived
notions.
Admiral Papp. Women officer and enlisted personnel are not
restricted from any military occupation and/or from serving at any
Coast Guard unit. However, there are some afloat units (cutters) that
cannot accommodate women onboard because they do not have berthing
areas that are segregated to allow for males and females to have the
necessary privacy.
health care options
12. Senator Udall. General Odierno, Admiral Greenert, General Amos,
General Welsh, and Admiral Papp, the Government Accountability Office
(GAO) issued a report of January 29, 2013, that found military health
providers do not have a consistent understanding of the
responsibilities associated with caring for sexual assault victims. The
report also noted that many health care providers do not understand
what restricted sexual assault reporting entails or what is expected of
military health care providers in those cases. What has been done since
the GAO report was issued to address this shortcoming and how will you
commit to ensuring that all military health care providers have
received this essential training?
General Odierno. After the January 2013 GAO-13-182 report was
published, the DOD released DOD Instruction (DODI) 6495.02, Sexual
Assault Prevention and Response Program Procedures, 28 March 2013,
which includes two medical enclosures addressing healthcare provider
procedures and responsibilities. This policy clearly delineates
restricted and unrestricted reporting options and the procedures
associated with each option. DOD concurred with the GAO report
recommendation to take steps to improve compliance with completing
annual refresher training on sexual assault response and prevention.
The U.S. Army Medical Command follows DOD policy guidance requiring
all personnel assigned to the Military Treatment Facility (MTF), to
include healthcare providers involved in the direct or indirect
delivery health services or patient care, to receive initial and annual
refresher Sexual Assault Prevention/Response Training. This training
specifically explains the difference between ``Reporting Information
for Restricted and Unrestricted Options.''
The Army Medical Command is currently updating Regulation 40-36 (21
Jan 2009), Medical Facility Management of Sexual Assault, to implement
DODI 6495.02. This regulation will set the appropriate standards for
how Army healthcare providers will respond to sexual assault patients.
Sexual assault medical information is maintained in accordance with
current Health Insurance Portability and Accountability Act (HIPAA)
guidelines regardless of whether the victim elects Restricted or
Unrestricted reporting. Improper disclosure of covered communications
and improper release of medical information are prohibited and may
result in disciplinary actions under the UCMJ, loss of credentials, or
other adverse personnel or administrative actions.
Admiral Greenert. The Navy is committed to providing quality
medical care to victims of sexual assault. All Navy Military Treatment
Facilities will have the sexual assault medical-forensic examination
(SAFE) capability no later than September 30, 2013. This certification
includes reporting procedures. Additionally, we have established and
are enforcing training requirements for all healthcare providers that
conduct SAFE exams. These training requirements are tracked on a weekly
basis and include:
A patient-centered medical-forensic examination
covering the patient interview, evidence collection and
analysis, survivor experiences, pre-trial preparation and court
testimony as a factual witness.
Navy specific training, including restricted and
unrestricted reporting and the policy guidance on both.
Finally, we conduct competency assessments for non-licensed
independent practitioners (Registered Nurses and Independent Duty
Corpsmen).
General Amos. Navy personnel assigned to Marine Corps units are
required to participate in annual SAPR training that emphasizes the
differences between restricted and unrestricted reporting. General
health care personnel receive initial and annual refresher training on
the following essential training tasks: sexual assault response
policies for DOD, DON, as well as DOD confidentiality policy rules and
limitations; victim advocacy resources; medical treatment resources;
sexual assault victim interview best practices; and overview of the
sexual assault examination process. In addition, all health care
personnel are required to familiarize themselves with local military
treatment facility SAPR policies and procedures.
General Welsh. The March 2013 update to Department of Defense
Instruction (DODI) 6495.02 outlined new requirements for ``First
Responder Training for Healthcare Personnel.'' This training is
required in addition to all other DOD and Air Force-directed SAPR
training. The training specifically targets the knowledge and skills
required to provide appropriate care and support to sexual assault
victims.
``First Responder Training for Healthcare Personnel'' is required
by DODI 6495.02 on an annual basis and Healthcare Providers are among
those required to take this training. The number of Air Force
Healthcare Personnel who completed ``First Responder Training for
Healthcare Personnel'' jumped from 6,000 in 2010 to greater than 24,000
in 2012. The Air Force Medical Service will continue to capitalize on
this successful training venue, developing revisions and placing
additional emphasis on key areas of concern as those needs occur.
Revisions to existing training have been submitted with a targeted
release date of July 2013. The revision focuses on enhancing healthcare
personnel understanding of critical areas of concern: the DODI 6495.02
update heightened emphasis on Restricted Reports, the role of the SARC,
victim privacy, and penalties for violation of patient confidentiality
and privacy.
In fiscal year 2014 the Air Force Medical Operations Agency Mental
Health Division will fund the development of a computer-based training
module to provide additional training for all Air Force mental health
providers involved with the mental health treatment of survivors of
sexual assault and trauma. The estimated completion date is February 1,
2014.
Air Force Instruction (AFI) 44-102, Medical Care Management,
Chapter 16.5, is the governing AFI for SAPR clinical program
management. Significant revisions regarding provider training were made
to this Instruction in January 2012. Further revisions have also been
submitted to expand the list of strategic tools that Healthcare
Providers are required to be familiar with and requires those tools to
be readily available to Healthcare Providers. The strategic tools
referenced include: the U.S. Department of Justice, ``A National
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents,'' Office on Violence Against Women, April 2013; DODI
6495.02, SAPR Program Procedures, 28 March 2013; and AFI 36-6001, SAPR.
Web links for these references are also provided in the instruction.
With this amplified emphasis on critical training information,
nodes and resources, Air Force Healthcare Personnel and Providers have
the foundation to understand the complexities of providing healthcare
to the sexual assault victim. To monitor progress and compliance of
this program, many of the changes noted here are being added as Unit
Effectiveness Inspection items that require Air Force Medical Treatment
Facility Executive Staff oversight and will be monitored under the new
Air Force Inspection System.
Admiral Papp. Mandatory all hands training was conducted in April
2013 at every unit (including medical facilities) to reinforce the
policies and procedures regarding the report of sexual assault cases.
In addition, the Coast Guard Director of Health and Safety Directorate
(CG-11) tasked the Coast Guard Health, Safety, and Work Life Service
Center (HSWL SC) with oversight of a mandatory sexual assault drill at
every Coast Guard HSWL regional practice site during the month of
April. Confirmation was received prior to the end of the month that all
facilities had complied, as well as that they had completed the Coast
Guard-wide General Mandatory Training (GMT) on the subject.
The Coast Guard Operational Medical Division (CG-1121) and CG-111
are currently in the process of updating Section 6.J. of the SAPR
Program Instruction governing the role and responsibilities of Medical
Officers (MO) and Health Care Providers (HCP) in the Coast Guard when
caring for a victim of sexual assault. This revision will clarify the
importance of qualified personnel performing forensic examinations, the
duty of MO and HCP to fully inform the victim of Restricted vs.
Unrestricted Reporting options, and the duty to provide care to the
victim even if not performing the forensic examination (consistent with
the principles of the Patient Centered Wellness Home).
sexual assault response coordinators
13. Senator Udall. General Odierno, Admiral Greenert, General Amos,
General Welsh, and Admiral Papp, would you consider making victim's
advocates and SARCs competitive assignments selected by senior leaders
though a board selection process?
General Odierno. We are assessing all means to ensure we select the
best people for these positions. On May 28, 2013, the Secretary of the
Army directed the Assistant Secretary of the Army (Manpower and Reserve
Affairs) to establish a department-wide working group ``to explore
other options for ensuring the qualifications and suitability of, and
incentivizing service as, a SARC or SAPR victim advocate to ensure that
the best-qualified and most suitable individuals seek out and are
selected for service in these positions.'' The group's recommendations
will be provided to the Secretary of the Army not later than October
31, 2013.
Admiral Greenert. Navy has been very successful in applying a
competitive selection process to hire highly-qualified civilians for
full-time SARC and victim advocate positions, pursuant to section 584
of Public Law 112-81 (National Defense Authorization Act (NDAA) for
Fiscal Year 2012). In each case, a selection committee reviews
applicant qualifications for each position, interviews the most highly-
qualified applicants and forwards a recommendation to the selecting
official, who, in most cases, is the installation commanding officer or
region commander. Command victim advocates who perform this as a
collateral duty are selected by the unit commanding officer based on
recommendations from his leadership team. These military personnel are
trained and certified by the full-time civilian installation SARC and
victim advocates.
General Amos. The selection process we have in place is rigorous
and designed to ensure that knowledgeable advocates are present
everywhere throughout the Marine Corps. A central role of the commander
includes selecting and appointing all SARCs and UVAs. The minimum
qualifications for SARCs include a 4-year degree in behavioral health
or social science and 4 years of experience that demonstrates acquired
knowledge of behavioral health or social science equivalent.
SAPR victim advocates are selected based on their proven ability to
provide direct support to individuals or groups experiencing
victimization, or an appropriate combination of education and
experience that demonstrates possession of this knowledge. In
particular, SAPR victim advocates must be able to utilize intervention
strategies to stop victimization, reduce incidences of re-
victimization, and work effectively within a multi-disciplinary
environment during crisis situations.
Commanders are required to select UVAs from the rank of sergeant or
higher. Candidates must not have any adverse fitness reports, history
of sexual harassment or sexual assault allegations, courts-martial,
drug-related incidents, domestic violence allegations, or referrals to
the command-directed Family Advocacy Program. Additionally, UVA
candidates must not have any NJPs or alcohol-related incidents within
the last 3 years. All SAPR personnel must be credentialed by the
National Organization of Victim Assistance, which requires the
completion of a 40-hour specialized advocacy training program and 16
hours of continuing education annually.
General Welsh. Yes. The Air Force SAPR Office would consider making
SARCs and victim advocates competitive assignments selected by senior
leaders through a board selection process.
The Air Force may either conduct a board selection process or the
Personnel Officer Developmental Team may conduct the selection of
military SARCs. The full-time civilian victim advocates and civilian
SARCs are currently selected through the Air Force civilian hiring
process. We can also explore options to modify this hiring process, as
long as those changes are compliant with law and the Office of
Personnel Management regulations.
Admiral Papp. No, Coast Guard victim advocates are volunteers and
are therefore personally motivated to assist sexual assault victims and
help with prevention efforts. Coast Guard SARCs are competitively hired
GS-12s and the majority are mental health providers.
14. Senator Udall. General Odierno, Admiral Greenert, General Amos,
General Welsh, and Admiral Papp, how can the personnel culture be
changed so that these are highly sought after and competitive
assignments?
General Odierno. We are actively exploring this important personnel
assignment issue. On May 28, 2013, the Secretary of the Army directed
the assistant Secretary of the Army (Manpower & Reserve Affairs) to
establish a department-wide working group ``to explore other options
for ensuring the qualifications and suitability of, and incentivizing
service as, a SARC or SAPR victim advocates to ensure that the best-
qualified and most suitable individuals seek out and are selected for
service in these positions.'' The group's recommendations will be
provided to the Secretary of the Army not later than October 31, 2013.
Admiral Greenert. By opting to fill statutorily-required SARC and
victim advocates positions with civilian employees, we are identifying
the most highly-qualified applicants who have a genuine desire to make
a difference in this area, and who are fully focused on SAPR, without
distractions from competing military priorities. Significant emphasis
is placed on the importance of these positions in the Navy SAPR
program, and we have designed a career path to foster progression from
victim advocates to installation SARC to regional SARC, as assigned
personnel gain experience and training. Our goal is to establish and
foster a dedicated and highly qualified cadre of SAPR Program
professionals who we can retain by providing opportunities for
training, experience, and growth through a rewarding career path and
upward mobility.
General Amos. Commanders play the largest role in preventing sexual
assault and holding offenders accountable and our command screening
process is highly competitive. Our Commanders understand that if he or
she fails to gain the trust and confidence of his or her marines in
garrison; he or she will be unsuccessful in leading them in combat.
Marine commanders also recognize that command climates where sexual
assault is tolerated have no place in today's Marine Corps. If a
commander fails to adequately address sexual assault in his unit, he or
she will be relieved of their command.
The requirements for assignment as a SARC are strict and intended
to result in the assignment of the most qualified personnel. Two types
of SARC assignments are available, Installation SARCs and Command
SARCs, the most prestigious of which is the Installation SARC.
Installation commanders are required to appoint an Installation SARC
and Installation SARCs shall be full-time civilian employees who must
undergo a highly selective and competitive hiring process. Command
SARCs will be uniformed officers of the rank of O-4/Major and above or
Chief Warrant Officer 3 through Chief Warrant Officer 5. Therefore the
Command SARCs have served between 10 and 30 years in the Marine Corps.
To put this in perspective, a typical Marine Corps combat arms
battalion has only two majors assigned to the unit--the executive
officer and the operational officer--who serve as second and third in
command of the unit. As a result, SARCs are only assigned to highly
qualified and trained civilian personnel at the installations or to a
representative of the command deck, all highly sought after and
competitive assignments.
General Welsh. The personnel culture can be enhanced by making this
a competitive and nominative process for military officers and
civilians, while emphasizing to commanders that they ``push'' their
most outstanding officers for these SAPR jobs. Only officers with the
maturity, demeanor, and compassion to lead this vitally important
mission should be considered. Officers selected for SARC positions will
be expected to quickly develop the knowledge and skills we expect from
our applicants for civilian SARC positions. Civilians should have
knowledge of laws, regulations, executive orders, and a wide range of
social work principles and have the ability to recommend and/or
implement solutions for improvements. In addition, advertising the
nomination criteria across the Air Force via commander's calls, base
newspapers, Air Force Times, civilian personnel and USAJobs will help
keep leadership informed on the opportunities to serve in SAPR
positions. The key to recruitment is command emphasis and desirable
follow-on assignments that provide upward development and acknowledge
this career field.
Admiral Papp. These positions are already highly sought after and
competitive.
______
Questions Submitted by Senator Joe Donnelly
sexual assault and suicide prevention
15. Senator Donnelly. General Dempsey, General Odierno, Admiral
Greenert, General Amos, General Welsh, and Admiral Papp, sexual assault
has been found to increase the risk for death by suicide by as much as
14 times for female victims compared to women who have never been
assaulted, even after controlling for psychiatric diagnoses present
prior to the assault. According to results of a new study by
researchers at the University of Utah, military personnel have
experienced increased risk of suicidal thoughts or actions if they were
the victims of physical or violent sexual assault as adults. How does
the current system respond to the psychological needs of a sexual
assault victim and are there specific suicide prevention trainings and/
or discussions with a victim?
General Dempsey. Our immediate concern is to ensure victims of
sexual assault receive timely access to comprehensive medical and
psychological services. Medical practitioners are required to assess
the sexual assault victim's need for behavioral health services and
make provisions for a referral, if necessary or requested by the
victim. If it is determined that a victim is at risk for suicide,
appropriate care will be provided and prevention/intervention measures
will be implemented. The Department is working hard to encourage
victims of sexual assault to get the treatment and counseling they need
or desire. Victims are offered trauma counseling and receive assistance
to help during the healing and recovery process. Behavioral health
services remain available to all servicemembers at any time of need.
General Odierno. Sexual assault patients are given priority in
military medical treatment facilities and treated as emergency cases
regardless of whether physical injuries are evident. Patients' needs
are assessed for immediate medical or mental health intervention
regardless of their behavior because when severely traumatized, sexual
assault patients may appear to be calm, indifferent, jocular, angry,
emotionally distraught or even uncooperative or hostile towards those
who are trying to help. By ensuring sexual assault victims receive
sensitive care and support and are not revictimized as a result of
reporting the incident, many of the factors that lead to suicidal
ideation may be averted. Soldiers are entitled to continuing no-cost
medical care, to include behavioral health care.
Admiral Greenert. The mental health care of sexual assault victims
is a priority within the Navy. When a sexual assault is reported, the
command Victim Advocate is notified immediately and care is provided
with the same priority as other emergency health care. Victim Advocates
are in contact with trained mental health providers who are available
at all Navy Medicine sites to treat trauma-related psychological health
issues. Treatment is available on an outpatient basis for any sexual
assault victim who desires such care.
Trained mental health providers are also located within our primary
care settings as part of the Navy's Behavioral Health Integration
Program (BHIP). This program is available at 26 Navy Medicine primary
care clinics today and will be available at all 69 primary care clinics
with patient populations greater than 3,000 by the end of fiscal year
2016. By placing trained mental health providers in a primary care
setting, BHIP helps remove much of the stigma that is associated with
mental health care, which can be particularly important for victims of
sexual assault.
We recognize that servicemembers who have experienced traumatic
events are at heightened risk for behavioral health problems, and may,
in turn, be at a higher risk for suicide. In light of this, Navy
Medicine policies provide detailed guidance for the evaluation and
disposition of all patients presenting with suicidal ideation,
regardless of the type of event that may have precipitated these
suicidal thoughts. We seek to ensure that all potentially suicidal
servicemembers are identified and encouraged to seek care. This is done
by training health care providers in the screening and assessment of
suicidal patients, and through the application of counter-stigma and
bystander intervention practices that encourage all patients with
suicidal thoughts to seek help.
General Amos. SAPR personnel are required to inform sexual assault
victims of all available medical, mental health, and counseling
resources. If an urgent concern for the victim's well-being is
identified, SAPR personnel will immediately notify medical services.
Additionally, support is available via our online DSTRESS Line or our
toll-free line. These resources are available to marines, attached
sailors, and their family members, providing ``one of their own'' to
speak with about whatever challenges they may be facing, including
thoughts of suicide.
The Military Healthcare System provides a full spectrum of care for
sexual assault victims. If a victim goes to an emergency room for care,
either the emergency physician assesses the need for immediate mental
health consultation (e.g. thoughts of suicide) or the patient requests
care. If mental health support is not needed immediately, the victim is
advised before discharge from the emergency room that mental health
support is available. This support ranges from support provided by the
victim's primary care provider, with consultation from a mental health
specialist, through outpatient care, to inpatient hospitalization as
needed. Suicide is addressed as part of an overall course of assessment
and treatment is tailored to each patient on a case by case basis.
Suicide prevention awareness and prevention training is integrated
throughout the Marine Corps.
Additionally we have implemented the requirement for Commander's to
complete an 8-day SAPR Brief for use as a comprehensive checklist to
ensure victims receive support services within the first 8 days
following the initial report. The 8-day SAPR Brief is forwarded to the
first O-6 in the chain of command or next General Officer in the chain
of command if the Commander is an O-6. The 8-day SAPR brief is an
enforcement mechanism that holds Commanders accountability for caring
for victims of sexual assault. As part of the checklist, Commanders
ensure victims receive medical treatment, access to counseling and
Chaplain services, and assignment to a Uniformed Victim Advocate or
Victim Advocate. The SAPR 8-day brief is recognized as a DOD best
practice, and serves as an additional tool in suicide prevention.
General Welsh. The Air Force responds to the psychological needs of
sexual assault victims through medical care, victim advocates, and
SARCs. SARCs are trained to recognize and work with people who have
experienced trauma. SARCs also receive specific training to work with
victims of sexual assault. The training includes education on
individual and cumulative risk factors for suicide and identifying both
indirect and direct suicidal warnings signs. In addition, sexual
assault victims are assigned a victim advocate who receives Air Force-
mandated annual training on suicide prevention. The Air Force does not
have specific suicide prevention training for victims, but offers
sexual assault victims mental health services. For those victims who
seek mental health services, mental health providers follow The Air
Force Guide to Managing Suicidal Behavior when assessing for suicide
risk. Additionally, the Air Force requires annual training on the Air
Force Guide to Managing Suicidal Behavior in accordance with Air Force
Instruction 90-505. Some airmen may not choose to report an incident of
sexual assault; however, commanders and supervisors have a duty and
responsibility to monitor all airmen in their units for signs of
suicidal tendencies and behavior.
All Air Force personnel receive annual suicide prevention training,
including victims of sexual assault, SARCs and victim advocates. Annual
suicide prevention training is carefully crafted to: (1) educate on
suicide risk factors and warning signs using the Ask, Care, Escort
(ACE) model; (2) provide an overview of available resources; (3)
attempt to reduce barriers to help seeking; and (4) promote responsible
help-seeking behaviors.
Admiral Papp. Coast Guard SARCs are also trained as Employee
Assistance Program Coordinators (EAPC) and are fully aware of all the
services available through both the Coast Guard SAPR Program and EAP to
assist with the psychological needs of victims.
administrative separation and accrual of veterans' benefits
16. Senator Donnelly. General Dempsey, S. 548, the Military Sexual
Assault Prevention Act of 2013, requires the administrative separation
of any member of the military who is convicted of rape, sexual assault,
forcible sodomy, or an attempt thereof. Do you support the requirement
to discharge any servicemember convicted of sexual assault?
General Dempsey. Yes, I support requiring administrative discharge
for individuals convicted of the most serious sexual offenses,
including rape, sexual assault forcible sodomy, or attempts to commit
those offenses. All Services currently mandate that individuals who
have been convicted of serious offenses, including sexual assault, and
who have not already received a punitive discharge, be processed for
administrative discharge.
17. Senator Donnelly. General Dempsey, if a servicemember is
administratively separated from service, what veterans' benefits
accrue?
General Dempsey. A servicemember's veterans' benefits are based on
the characterization of the administrative discharge he or she
receives. There are three characterizations: honorable, general (under
honorable conditions), and under other than honorable conditions. Both
current laws and Department of Veterans Affairs regulations restrict
the most important veterans' benefits to those servicemembers who
receive an honorable or general discharge. However, each individual
agency, State, or awarding entity oversees its own application of these
benefits.
18. Senator Donnelly. General Dempsey, in your opinion, should a
servicemember discharged for a sexual offense be allowed veterans'
benefits?
General Dempsey. If a servicemember receives a punitive discharge
at court-martial, or a less-than-honorable administrative discharge,
stemming from a sexual assault, that individual will only receive those
benefits allowed by law. The current law Reserves the most important
veterans' benefits to those personnel who receive an honorable or
general discharge.
______
Questions Submitted by Senator Mazie K. Hirono
sexual assaults in the military
19. Senator Hirono. General Dempsey, General Odierno, Admiral
Greenert, General Amos, General Welsh, and Admiral Papp, DOD has been
trying to work on the issue of sexual assault for a significant period
of time. DOD established the SAPR program in 2005. I am interested in
your thoughts as to why we are still where we are today in terms of
this terrible crime in the military. What have been the biggest hurdles
and what has to be changed to stamp out this terrible crime which hurts
our military in so many ways and what is most important in terms of
fixing it as we move forward?
General Dempsey. Since 2005, while we have taken deliberate steps
to better understand, identify, and reduce predatory and high-risk
behaviors which can lead to sexual assaults, our efforts have focused
more specifically on victim response. Our renewed commitment, as
published in the Joint Strategic Direction to the Force in May 2012,
emphasizes a balanced approach. Our biggest hurdles continue to be: (1)
our ability to preserve a culture of trust and respect consistent with
our core values; and (2) to create and maintain an environment where
those predatory and high-risk behaviors that precede sexual assault are
not tolerated. As leaders, we must not tolerate a climate that could be
perceived as complacent towards sexual harassment or assault. When
confronted with a case of assault, we must be aggressive in our pursuit
of justice to hold offenders appropriately accountable and continue to
build a support system. In order to hold offenders and leaders at every
level appropriately accountable, victims must report inappropriate
sexual behavior. We all must identify ways to improve our ability to
prevent and respond to sexual assault.
General Odierno. I think the biggest hurdle has been the fact that
we have been an Army at war for almost 12 years, with all the stress
and strain that entails. Sexual assault is a national problem, and the
Army is not immune from the larger culture. However, because ours is an
institution based on discipline and trust, the Army has a special
responsibility to make sure we get this right. Sexual harassment and
sexual assault are antithetical to our Army values--what has to change
is a culture that has been evolving over time, but too slowly. We must
and will create a positive command climate built on trust and respect
in which every person is able to thrive and achieve their full
potential. Leaders must take action to establish and sustain standards
at every level and take steps to create a positive command climate.
Every soldier must believe that when an incident of sexual assault or
harassment is reported, that the chain of command will respond quickly
to protect the victim and hold the perpetrators accountable.
Admiral Greenert. Our most significant hurdle is sustaining the
changes needed to eliminate sexual assault within the force while
bringing in approximately 40,000 new sailors each year. Every 4 years,
we effectively replace half of our workforce. The result is a constant
cycle of indoctrinating new sailors into a system of core values that
may or may not reflect the values they brought with them upon entering
the Service.
The most important and effective mechanism for sustaining change
with this constant influx of new personnel is creating climates of
professionalism, respect, and core values at the individual command
level. At the command level, we reach the individual sailor and are
most effective at changing the way they view themselves and other
sailors. At the individual unit level where sailors work, and often
live, we create climates of dignity and respect that prevent sexual
assaults, respond when prevention fails, support victims and ensure
prosecution and accountability of offenders. An important element is
overcoming the stigma of reporting and the perception it could affect
the individual sailor's reputation and standing within command unit.
Commanding officers are at the front line of this work and we hold them
accountable for this change.
The cumulative effect of individual command climate changes is an
institutional climate change. We work to sustain institutional change
through training and education programs, taking specific actions
directed at the safety and security of our sailors, ensuring
appropriate accountability for the perpetrators, and providing strong
support for the victims. Our efforts at the institutional level are
designed to reinforce the work done at the individual command level to
promote professionalism, respect, core values and trust--and in which
every sailor exercises the personal courage to intervene when others
are engaging in, or are subjected to, inappropriate behaviors of any
kind.
General Amos. One of the largest hurdles to tackling the sexual
assault crisis within DOD has been under-reporting as a result of the
mistrust between victims and their chain of command. Since launching
our June 2012 SAPR Campaign Plan, the Marine Corps has experienced an
increase in unrestricted to restricted reporting conversion rates, and
a 31 percent increase in our reporting rates. We interpret this rise in
reporting to reflect an increased trust of victims of sexual assault
that their leadership will do the right thing, provide the care they
need, and hold offenders accountable.
The sexual assault training conducted across the Marine Corps
encourages a step up and step in approach to preventing sexual assault,
and focuses on bystander intervention; both approaches shifting the
focus from victim prevention to community prevention.
Another hurdle we have faced is raising the priority of victim care
within a system of competing interests. In response, we have
professionalized the level of care we provide our victims. All SAPR
personnel are required to complete 40 hours of sexual assault advocacy
training through an accreditation process administered by the NOVA. We
have hired 47 full-time positions in support of nearly 100 highly-
trained, full-time civilian SARCs and victim advocates and nearly 1,000
collateral-duty SARCs and UVAs. SAPR personnel are handpicked by
commanding officers; Command SARCs are required to be officers (major
or above or CWO3-CWO5) or their civilian equivalent. Installation SARCs
are full-time civilian employees.
Our greatest asset to overcoming any hurdles is commander
involvement and constructive dialogue. Engaged leadership remains the
key to changing our culture and our commitment to combat sexual assault
is unrelenting.
General Welsh. When the SAPR program stood up in 2005 the main
focus was to have our airmen understand that sexual assault in DOD
ranges from touching to completed rape, and our available reporting
options and services. From 2005 to 2010 we were victim/response focused
and wanted to ensure our airmen understood there were services
available. In 2010, we began bystander intervention which taught our
forces how to intervene and recognize a potentially dangerous
situation. It took until 2012 to have all 448,000 of our military and
civilians trained. These initiatives have helped us immeasurably to
enable victims to heal but I agree the time has come for a new
approach. The biggest hurdles in SAPR are fully understanding the root
cause for sexual assault, providing an environment of trust in which
the victim feels safe to come forward, and changing the culture and
climate. All airmen should treat each other with dignity and respect
and have absolute trust in one another. If a sexual crime of any nature
occurs, the victim should feel entirely safe to come forward and allow
the opportunity for the perpetrator to be held accountable.
In addition, we need to instill in our airman the skills of how to
recognize a predator. Further, we need to hold those responsible for
sexual assault accountable for their conduct. To accomplish this we
have hired more Office of Special Investigation agents to investigate
and work with forensic evidence, increased special victims counsel to
help victims, and trained prosecutors in working with victims of
trauma. Finally, we have invested resources to help us determine and
assess sexual assault/harassment in the Air Force. In the fiscal year
2014, we will roll out the follow-on to the Gallup survey conducted in
2010. This new survey will help us determine if sexual assault
prevention programs are making a positive impact.
Admiral Papp. Sexual assault is a terrible crime across society,
and as a microcosm of society, it is an issue that we all are dealing
with. The military must be the catalyst for change and we must
eliminate sexual assault from our ranks. It takes time to change a
culture and societal attitudes and biases, and that is not an excuse
but a reality. As leaders and members of the armed forces, we must
eliminate sexual assault from our midst, but we know there is no
``silver bullet'; to solve this prevalent problem. We have stood up a
Military Campaign Office to work with our SAPR Program, as well as with
the DOD, to continue reviewing, strategizing, training, and looking at
all angles to develop an effective strategy that will succeed.
20. Senator Hirono. General Dempsey, General Odierno, Admiral
Greenert, General Amos, General Welsh, and Admiral Papp, please
describe the sexual assault prevention training that takes place for
new recruits to include basic training for new enlistees as well as for
the Service Academies and other accessions.
General Dempsey. The Department requires the Military Services to
conduct sexual assault training during all accession (officer and
enlisted) programs and at the Service Academies. The training includes
the entire cycle of prevention, reporting, response, and
accountability. The Services are expanding SAPR training to include
Recruit Sustainment Programs prior to arrival at Basic Training. I
defer to Service Chiefs to provide additional details on their Service
programs.
General Odierno. To educate new soldiers in an attention-getting
and intriguing manner the Army developed a set of 10 ``Sex Rules''
which break down the elements of sexual harassment and sexual assault
and define them in simple, relatable terms. By linking each Sex Rule to
an Army Value, this focused sexual assault prevention training helps
establish the social behavior expected of all soldiers.
The new Initial Entry Training (IET) also includes 90 minutes of
facilitated instruction and incorporates a live, two-person, audience
interactive ``Sex Signals'' production. This program includes skits
dealing with dating, consent, rape, body language, gender relations,
alcohol use and intervention.
Basic Officer Leader Course-Accession (BOLC-A) and the U.S.
Military Academy (USMA) curriculum includes 3 hours of facilitated
instruction, supplemented with Sexual Harassment/Assault Response and
Prevention (SHARP) web-based training, ``Sex Rules'' messaging, subject
matter experts, hip pocket reinforcement training, and Sex Signals
during summer camp (ROTC) and during fall semester at USMA.
Basic Officer Leadership Course-Branch (BOLC-B) curriculum is
similar to our IET training (90 minutes of facilitated training, sex
rules for reinforcement training, and sex signals).
Admiral Greenert. Recruit Training Command. Prospective recruits in
transit to Recruit Training Command (RTC) receive SAPR training, which
covers sexual harassment, staff-to-student contact, and the
responsibility of reporting inappropriate behavior. During the second
week of recruit training, recruits receive additional training, during
which they are provided the definition of sexual assault, unrestricted
and restricted reporting options, the role of SARCs and victim
advocates, contact information for SAPR personnel and guidance on
acceptable behavior.
Officer Candidate School. Students at Officer Candidate School
(OCS) receive similar training during the first week of OCS, but also
attend SAPR-Leadership (SAPR-L) training, which emphasizes the role of
leaders in preventing sexual assault and creating an appropriate
command climate.
U.S. Naval Academy. U.S. Naval Academy (USNA) midshipmen attend
Sexual Harassment and Assault Prevention Education, a 30-hour tiered
program, aligned with the 4-year USNA leadership curriculum, which
utilizes a small-group discussion format focused on broadening sexual
harassment and assault awareness, and fostering each midshipman's role
as an active bystander. Fourth-class midshipmen (freshmen) receive
initial SAPR indoctrination within 14 days of arrival at USNA followed
by a refresher brief from the USNA SAPR staff. Content includes
discussions on sexual harassment, sexual assault and consent,
restricted and unrestricted reporting, and an overview of available
support personnel (e.g., SARC, Victim Advocates, chaplains). Each
midshipman receives a SAPR wallet card containing phone numbers,
reporting options, and USNA SAPRO website information.
NROTC, SSO, STA-21, and MECEP. Navy Reserve Officer Training Corps
(NROC) and Strategic Sealift Officer (SSO) fall and spring first-year
orientation programs include SAPR-Fleet (SAPR-F) training at the
beginning of each academic year. New students who do not attend
freshman orientation receive SAPR-F training within 14 days of arrival.
SAPR-F training is repeated for sophomore and junior students in all
programs within the first 60 days of each academic year. Students in
their final year attend leadership-level (SAPR-L) training within 90
days of the start of the academic year. Each unit tailors SAPR-F and
SAPR-L training to include campus-specific information and guidance.
General Amos. SAPR training has been incorporated into the Delayed
Entry Program, Recruit Training, and Military Occupational Specialty
(MOS) schools. Prior to attending either Recruit Training or Officer
Candidates School (OCS), all selectees receive newly developed values-
based training. The training focuses on the ``whole of character'' and
ethical behavior expected of marines; instilling a refined and
sustained understanding of our core values of Honor, Courage, and
Commitment. The training curriculum reinforces our foundational
principles; that the success of the Marine Corps relies within the
character of all marines and their ability to make sound ethical
decisions in any situation. The training includes scenarios that
address sexual assault, sexual harassment, racial discrimination,
alcohol abuse, and hazing. Upon completion of the training, recruits,
and candidates are required to sign a Statement of Understanding
affirming their transformation and acceptance of the Marine Corps
ethos.
Recruits and candidates receive sexual assault training within the
first 14 days of both Recruit Training and Officer Candidates School
(OCS). This training communicates the nature of sexual assault in the
military environment and includes the entire cycle of prevention,
reporting, response, and accountability procedures. The program
emphasizes all available reporting options, including the limitations
of each option, and methods of prevention, such as bystander
intervention. Later in the training, senior drill instructors discuss
sexual assault with all recruits. The total training is 7\1/2\ hours,
administered during several classes.
General Welsh. Basic trainees are briefed by their group commander
on the first day of basic military training (BMT) regarding sexual
assault prevention as well as how they should expect to be treated.
This training includes the definition of sexual assault, identifies who
is available to help and how to contact them, the ``Rights of an
Airman,'' what constitutes restricted and unrestricted reporting, and
what assistance is available to them if they were assaulted before
entering the military. This is the same information presented to
existing members of the Air Force, but in a format digestible to new
airmen. Squadron commanders also brief the first week and courses are
taught by SAPR professional trainers for a total of 6 hours of training
by week 4.
The Air Force Academy has a program dedicated to teaching the
cadets over the 4 year period; cadets receive the same training taught
at BMT and continue with social skill training, peer mentoring and life
skills; they have a total of 10 hours of training over the 4 years.
Reserve Officers' Training Corps and Officer Training School follow the
same training path as BMT. Our goal is to standardize officer training
across all accession sources as much as is practical.
Admiral Papp. New recruits at the Coast Guard Training Center in
Cape May, NJ, receive online training upon arrival to ensure they
understand the reporting options and who the SARCs and victim advocates
are. Recruits also receive specific SAPR training during their 7 week
basic training course. Cadets at the Coast Guard Academy (CGA) receive
specialized training that is spread out during their 4 years, and there
is also a cadet group titled ``Cadets Against Sexual Assault.'' These
cadets are specifically trained to assist their peers as well as help
the CGA SARC with prevention efforts.
21. Senator Hirono. General Dempsey, General Odierno, Admiral
Greenert, General Amos, General Welsh, and Admiral Papp, after the
initial training, how often is it repeated as these servicemembers
progress in their careers?
General Dempsey. Training is conducted annually and is mandatory
for all servicemembers. Other SAPR training required for servicemembers
includes pre- and post-deployment training, Commander and senior
enlisted training prior to assuming command, and SAPR training at all
levels of professional military education (PME). I defer to Service
Chiefs to provide additional details on their Service programs.
General Odierno. The SHARP Life-Cycle training component consists
of comprehensive education and training across two of the Army's
overlapping domains of training (institutional and operational), and
includes mandatory self-study).
SHARP institutional training includes progressive and sequential
education and training conducted at each of the five levels of PME and
Civilian Education System (CES): Level 1 is Initial entry training;
Level 2 includes Basic Officer Leader--Branch, Warrant Officer Basic
Course, Warrior Leader Course for NCO, and CES Basic; Level 3 includes
Captain Career Course, Warrant Officer Advanced Course, Advance Course
for NCOs, and CES Intermediate; Level 4 includes Intermediate Leader
Education, Warrant Officer Staff Course, Senior Leader Course for NCOs,
and CES Advanced; and Level 5 includes Army War College, Senior Officer
Legal Orientation Course, Warrant Officer Senior Staff Course, Sergeant
Major Course for NCOs, and CES Continuing Education for Senior Leader.
Functional (specialized) courses include: Pre-Command Course (PCC) for
brigade and battalion command teams; Company Commander/First Sergeant
Course; Recruiter, Advanced Individual Training, Platoon Sergeant, and
Drill Sergeant Courses; and CES Action Officer Course, Supervisor
Development Course, and Managers Development Course.
Operational training includes installation orientation, pre- and
post-deployment, and an annual mandatory training requirement for all
Army units/organizations. Part 1 comprises of three hours of
facilitated instruction using video and scenario-based exercises to
reinforce learning. Commands are encouraged to invite sexual assault
Survivors that are willing to share their story into annual training to
help reinforce the serious issue and how it affects soldiers and
families. Part 2 of the mandatory annual training requirement is self-
study distributed learning delivered via the Army Learning Management
System.
Operational training also includes the use of the ``Invisible War''
video, which is used as part of Officer and NCO Professional
Development. The film is a great training tool for taking a hard look
at our system, for understanding the long-term consequences for victims
of sexual assault, and for understanding the public perceptions of
sexual assault in the military. Additionally, some units currently
enter into an independent contact with Catharsis Productions to have
the 90-minute live, two-person, audience interactive ``Sex Signals''
presentation held for their units. This training is currently part of
Initial Entry Training [Basic Combat Training, Basic Officer Leadership
Course-Accession (ROTC), Basic Officer Leadership Course-A (New Second
Lieutenants), and the U.S. Military Academy]. This training consist of
skits dealing with dating, consent, rape and other associated topics
such as body language, gender relations, alcohol use and intervention.
The SHARP Office is also looking into providing a 90-minute
presentation called ``After Burner'' to all operational units in fiscal
year 2014. This is an extension of the ``Sex Signals'' presentation.
One of the primary goals of SHARP training is to facilitate sexual
assault prevention through awareness and education about situations
that may set the conditions for incidents of sexual assault--including
gender relations and alcohol use/abuse. Army SHARP training is intended
to influence soldier behavior. The SHARP training is designed to
communicate and model the desired skill sets, and provide both soldiers
and civilians an opportunity to practice the skill sets.
This is supplemented by monthly discussions between the Chief of
Staff of the Army and/or Vice Chief of Staff of the Army with brigade/
battalion commanders at the Pre-Command Course. Additionally, periodic
commanders' conferences are conducted with all two- and three-star
commanders to ensure everyone understands programs, roles,
responsibilities, and implementation of specific supporting actions by
commanders.
Admiral Greenert. After the SAPR training delivered in their
initial training, all sailors continue to receive SAPR training every
year. In addition, all sailors participate in Sexual Assault Awareness
Month initiatives every April. This year, all sailors also participated
in a Secretary of Defense-directed 2-hour SAPR stand-down.
We have integrated SAPR modules into all courses for enlisted
advancement from E-4 to E-7, in curriculum at the Senior Enlisted
Academy, as well as at Command Leadership School.
We are in the process of integrating SAPR modules into our Navy
Leader Development Continuum. This will ensure that SAPR training is
linked to leadership training throughout every sailor and officer's
career. We expect this integration to be complete by October 1, 2013.
General Amos. Marine Corps regulations mandate that all marines are
required to complete sexual assault prevention and awareness annual
training to ensure a thorough understanding of the nature of sexual
assault in the military environment and the entire cycle of prevention,
reporting, response, and accountability. Annual training requirements
are being customized in a manner specific to grade. All promoted
Corporals and Sergeants, for example, must complete our ``Take A
Stand'' training program to fulfill their annual training requirement,
emphasizing the importance of bystander intervention in their new
leadership roles. Currently, a new bystander intervention training
program is being customized for junior marines (E-1 to E-3) who are our
highest-risk population. Additionally, as part of the 2012 SAPR
Campaign Plan, the Marine Corps implemented revised SAPR training
programs for: Delayed Entry Programs, Recruit Depots, Marine Combat
Training, MOS schools, Enlisted PME, Officer PME schools, and pre-
deployment environments. SAPR training for prospective commanders and
senior enlisted leaders has also been updated to meet all core
competencies and set learning objectives as defined by the Office of
the Secretary of Defense, with further training direction from the
Commandant.
General Welsh. SAPR training began annually in 2005. In 2007, a
workshop with 25 subject matter experts on sexual assault identified
bystander intervention as the most effective prevention effort within
the military culture and environment. To that end, Air Force prevention
initiatives for the last 2 years focused on Bystander Intervention
Training (BIT). Mandatory Air Force-wide BIT began in January 2010 and
was completed in September 2012. Because of the depth and length of
BIT, the Air Force requested and received a DOD waiver to substitute
the BIT training for the otherwise mandated annual training. Over
448,000 airmen (regular, Reserve, and Guard) and civilian supervisors
of military were trained. All airman (regular, Reserve, and Guard, and
civilians) will be briefed, face-to-face, by the base SARC annually.
In addition to annual mandatory training, currently officers may
receive additional training in PME (155 minutes), Pre-command (170
minutes), and Executive Summits (1,050 minutes). Our enlisted force
receives additional training in PME (260 minutes) and duty specific
training for First Sergeants, Chief Master Sergeants, and Military
Training Instructors (60 minutes). We are working to create a new
cradle-to-grave training plan to increase knowledge and awareness of
all Air Force members.
Admiral Papp. SAPR training is an annual mandatory requirement for
all Coast Guard personnel. There are several career checkpoints that
afford further SAPR training, as well as involvement in additional SAPR
trainings, such as the events that occur during Sexual Assault
Awareness Month (SAAM) each April.
22. Senator Hirono. General Dempsey, General Odierno, Admiral
Greenert, General Amos, General Welsh, and Admiral Papp, is it the same
training or is it modified by where people are in their careers?
General Dempsey. SAPR training takes place at multiple levels:
department-wide baseline training, accession training, PME programs,
deployment training, and commander and senior enlisted training. The
training takes into consideration the needs of the audience and their
increased responsibilities at senior ranks. I defer to Service Chiefs
to provide additional details on their Service programs.
General Odierno. The level of SHARP training is different depending
on where a soldier or civilian is in his or her level of professional
development; however, the base of the training is the same.
The operational SHARP Annual Unit Refresher Training (URT) is the
same training presented to all soldiers, civilians, and contractors who
deploy in support of military operations. This facilitated training
includes leader and soldier videos. The training addresses high-risk
behaviors and models skill-sets to effectively intervene to stop
potential sexual assaults.
Admiral Greenert. As enlisted sailors and officers progress through
their careers, expectations of leadership skills, roles and
responsibilities progress. SAPR training is divided into two versions
for junior personnel (``SAPR-Fleet'') and leaders in grades E-7 and
above (SAPR-Leader''). However, training in moral character and the
outcomes we expect from it are modified in leadership training segments
delivered throughout enlisted and officer career paths, commensurate
with their rank and increasing leadership responsibilities. For
example, we expect our junior sailors to respect others and have
integrity. At more senior levels, we expect our enlisted leaders and
junior officers to foster ethical behavior in others. And at the
highest levels, we expect our commanding officers to act as a moral
arbiter for their commands and become exemplars for the Navy in terms
of character.
General Amos. SAPR is tailored across a marine's career to include
annual, pre-deployment, post-deployment, PME schools, and pre-command/
senior enlisted leader SAPR training. SAPR training is also required
during recruit training and at military occupational specialty (MOS)
schools. To ensure SAPR training is current and up to date, we
continually review and update our curriculum to ensure it is
appropriate to the individual's rank and commensurate with his or her
level of responsibility. SAPR training is an annual requirement for all
marines.
Currently all newly promoted corporals and sergeants are required
to complete ``Take a Stand'' training to meet their annual training
requirement in order to reinforce the tenants of leadership and
bystander intervention. In order to maintain the integrity of SAPR
training, only Uniformed Victim Advocates, certified by a master
training team led by an Installation SARC (full-time civilian position)
are permitted to provide ``Take a Stand'' training to NCOs. The course
is taught in a small group discussion format in order to promote
discussion and reduce the stigma associated with sexual assault. Units
are required to report completion of all annual SAPR training via
Marine-On-Line training module or the Marine Corps Total Force System
(MCTFS). Additionally, the Marine Corps has produced a deterrence
training video, titled ``Lost Honor,'' where convicted sexual assault
offenders describe the lost honor they experienced through their
conviction for sexual offenses in the military justice system. This
video has been provided to commanding generals as supplemental training
and is also available on-line to all marines.
General Welsh. When SAPR training began annually in 2005, it was
``one-size-fits-all'' aimed at providing a general understanding of the
new program and its components. In 2007, a workshop with 25 SMEs on
sexual assault identified bystander intervention as the most effective
prevention effort within the military culture and environment. To that
end, Air Force prevention initiatives for the last 2 years focused on
Bystander Intervention Training (BIT). Unlike previous SAPR training,
BIT had breakout groups based on gender and rank. This allowed for
training tailored to a particular audience and/or peer group. Mandatory
AF-wide BIT began in January 2010 and was completed in September 2012.
Over 448,000 airmen (Regular, Reserve, and Guard) and civilian
supervisors of military were trained.
Beginning in 2012, SAPR training was revamped again to ensure
quality, face to face scenario-based training at entry level and
accessions, re-emphasized at PME courses, and on an annual basis.
Commander and Senior Enlisted training has been greatly enhanced to
address leadership responsibilities and challenges. Training is
structured so leaders have the ability to understand SAPR from a base
leadership perspective; it is specialized to recognize the nuances of
victim care from initial reporting to case disposition. Additionally,
First Sergeant training was expanded to include investigation and
prosecution familiarity, hands-on victim assistance scenarios, and
identifying/overcoming biases. Furthermore, we are working to mirror
all officer accessions training to the comprehensive U.S. Air Force
Academy model. Finally, enlisted accessions are trained from A to Z on
the SAPR basics, focusing primarily on reporting options and bystander
intervention. We plan to further augment and re-emphasize training in
technical school. Our goal is to create a cradle-to-grave learning
process for all airmen and continuously build on the foundation they
receive at initial entry through all levels of development focused on
dignity and respect.
Admiral Papp. All personnel receive annual mandatory SAPR training,
and additional trainings are being developed and modified for specific
career levels.
retaliation
23. Senator Hirono. General Dempsey, General Odierno, Admiral
Greenert, General Amos, General Welsh, and Admiral Papp, what happens
in your Service if a superior makes an unwanted sexual proposition
toward a subordinate who rejects and is later subject to retaliation?
General Dempsey. Mission effectiveness and good order and
discipline are bettered through establishing an environment where
servicemembers are free from harassment. Each Service, DOD Component,
and the Joint Staff have military equal opportunity programs designed
to promote the equal opportunity and treatment of its members. In the
situation you describe above, a servicemember has the option to file
either informal or formal discrimination complaints with their equal
opportunity offices. Each equal opportunity office is staffed with
advisors who provide counseling, information, referral, and other
assistance to members who have experienced unlawful discrimination.
When a complaint of sexual harassment is substantiated, the individual
who committed the offensive act may be subject to disciplinary action.
Anyone in a supervisory or management position who is aware of sexual
harassment and fails to take action may also be disciplined.
Additionally, a member who believes they have been subject to
retaliation may seek the assistance of their IG.
General Odierno. Sexual advances by a superior to a subordinate,
whether wanted or unwanted, are punishable under the UCMJ as
fraternization (Art. 134), maltreatment of subordinates (Art. 93),
violation of regulation (Art. 92), conduct unbecoming an officer (Art.
133), or conduct prejudicial to good order and discipline (Art. 134)
depending on the individual facts and circumstances. Any retaliatory
actions taken by a superior against a subordinate as a result of a
rejection of a sexual proposition or advance are also punishable under
the UCMJ as maltreatment, violation of regulations, conduct unbecoming,
or conduct prejudicial to good order and discipline. The
criminalization of sexual harassment and retaliation is an important
tool for military commanders to establish climates of dignity and
respect that is not available in civilian jurisdictions.
Members of the Military who reject unwanted sexual propositions
from a superior member in their chain of command (or from others), who
report it to higher superiors in the chain of command or to others
designed to receive such reports, and who are then retaliated against,
are protected from such retaliation by section 1034 of title 10,
U.S.C., the Military Whistleblower Protection Act. The provisions of
this act are further reinforced in DOD Directive 7050.06, Military
Whistleblower Protection; Army Regulation (AR) 20-1, IG Activities and
Procedures; and AR 600-20, Army Command Policy. Essentially, the
statute and implementing regulations prohibit taking any unfavorable
personnel actions in reprisal for a protected communications. Protected
communications are the disclosures of information that one reasonably
believes constitutes evidence of a violation of law or regulation and
would include allegations of unwanted sexual assaults, propositions, or
similar sexual misconduct.
The statutory guidance and implementing regulations require all
Service IGs to notify the DOD IG of reprisal complaints in accordance
with established procedures. Although the DOD IG has oversight over all
such reprisal complaints, most are referred to the particular Service
IG at the headquarters level for investigation. The Office of the
Department of the Army IG decides which office is in the best position
to gather the evidence and address the facts, normally the local IG.
If a local IG does conduct the investigation, there are protections
built into the system. An IG may not investigate his or her supervisors
and, where conflicts of interest exist, a higher level IG retains the
case for investigation. Furthermore, all of the investigations are
reviewed by the appropriate IG assigned to the appropriate Army Command
(or equivalent organization). That review is then forwarded back up to
a whistleblower reprisal investigations specialist at the Department of
the Army level, and then on to the DOD IG for final review.
The approved results of an IG whistleblower reprisal investigation
are turned over to the chain of command for disciplinary action as
appropriate against any person substantiated for retaliation.
Furthermore, the complainant has direct and priority access to the Army
Board for Correction of Military Records, which retains broad, sweeping
authority to correct any error or injustices in the complainant's
record on behalf of the Secretary of the Army.
Admiral Greenert. Sexual harassment, reprisal, and retaliation have
no place in the Navy. Current regulations provide victims with several
ways to bring a complaint of sexual harassment against anyone in their
chain of command. Victims may file a complaint of sexual harassment,
reprisal, or retaliation with an equal opportunity advisor, law
enforcement personnel, the Naval IG, the DOD IG, or a Member of
Congress; or submit an anonymous complaint via the IG Hotline, submit a
complaint against their commanding officer under Article 138 of the
UCMJ, or raise a complaint against any other superior in the chain of
command under Article 1150 of U.S. Navy Regulations. Complaints brought
by victims under any of these alternatives result in an independent
investigation and subsequent review by senior officers in the chain of
command. If the complaint is substantiated, appropriate administrative
or disciplinary action will be taken.
We have a number of means to hold personnel accountable for acts of
retaliation against victims. Personnel accused of retaliation may be
charged under several different UCMJ articles:
Article 78 (accessory after the fact)
Article 92 (failure to obey order or regulation)
Article 93 (cruelty and maltreatment)
Article 98 (Noncompliance with procedural rules)
Article 107(false official statements)
Article 117 (provoking speech or gestures)
Article 133 (conduct unbecoming an officer and a
gentleman)
Article 134 (general offense prejudicial to good order
and discipline)
In these circumstances, numerous administrative actions will be
available, as well.
General Amos. Commanders receiving a reprisal allegation against a
leader in his or her command are required to investigate the matter and
take appropriate administrative or punitive action under the UCMJ, to
include court-martial, NJP, and/or administrative separation
processing. If a member chooses to file a report against a superior in
their chain of command, there are multiple reporting mechanisms are
available to victims. A marine may file an IG complaint, for example,
which may be anonymous to avoid the possibility of reprisal. The
Military Whistleblower Protection Act (10 U.S.C. Sec. 1034) also
protects victims from reprisal as a result of communications to
Congress or the IG. In response to a complaint, the IG, would direct an
investigation into the matter and recommend appropriate punitive or
administrative action. Victims may additionally submit a Complaint of
Wrongs under Article 138 of the UCMJ, which requires redress if a
commanding officer wronged a victim. If the commanding officer refuses
to redress the wrong, the victim can forward the complaint to the next
officer exercising general court-martial convening authority. Finally,
if any retaliation negatively impacted the victim's records, the victim
may petition the Board for Correction of Naval Records, which has
authority under to remove injustices from current and former victim
records without.
General Welsh. Although sexual harassment generally falls under the
purview of the Equal Opportunity(EO) office, depending on the
circumstances, a criminal investigation may be conducted or the IG may
be involved. The combination of the unwanted sexual proposition and
retaliation based on the rejection may be covered under the UCMJ. Once
a sexual harassment complaint is investigated, the findings are
provided to the subject's commander for appropriate disciplinary
action.
The notification to EO office of the unwanted sexual proposition is
considered a protected communication under 10 USC 1034 and any
retaliatory actions linked to the protected communication would be
investigated by the IG as an allegation of reprisal. The results of the
reprisal investigation would be presented to the subject's commander
for appropriate disciplinary action.
For reference, an unwanted sexual proposition would be considered
sexual harassment under the DOD definition: ``a form of sex
discrimination that involves unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual nature
when:
Submission to such conduct is made either explicitly
or implicitly a term or condition of a person's job, pay, or
career, or
Submission to or rejection of such conduct by a person is used
as a basis for career or employment decisions affecting that
person, or
Such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creates an
intimidating, hostile, or offensive working environment.''
Admiral Papp. If this situation were to occur, Commandant's
Instruction M5350.4C, Civil Rights Manual directs all parties in what
actions must be taken, by whom, and by when. Some of the relevant
requirements follow:
If the aggrieved person reports the incident directly
to the Civil Rights Directorate, the director will conduct an
investigation in accordance with the EEO/EO complaint process.
The victim can report the alleged action to anyone in
the chain of command.
If the alleged offender is the commanding officers and
officers-in-charge (COs/OICs), the victim can report the action
to the next higher authority in the chain of command.
COs/OICs must conduct an investigation into the matter
within 30 days.
COs/OICs must report the incident to the Civil Rights
Directorate (which is in a separate reporting chain from local
commands).
COs/OICs must inform the aggrieved party of his/her
right to pursue an EEO/EO complaint.
Matters that violate UCMJ or Federal law must be
reported to CGISs.
While the investigation proceeds, the Coast Guard
directs involved units to take proactive steps to prevent
retaliation, such as separating the parties.
Any findings of reprisal are subject to penalties as
explained in Question #6 above.
Civil Rights Service Providers (CRSPs) provide guidance and
assistance to commands, employees, and military members to ensure that
all harassment complaints are addressed and handled in a timely manner.
CRSPs are stationed throughout the Nation. Their names and contact
information, along with procedures for entering the complaint process,
are posted conspicuously at all Coast Guard units, to assist personnel
who wish to raise claims of retaliation. As of 2010, CRSPs report up to
the Commandant through the Civil Rights Directorate, not to local
commands. The decisional authority for military retaliation claims is,
therefore, neither the accused individual's nor the complainant's
supervisory chain; claims are decided by the Commandant of the Coast
Guard with appeal rights to the Secretary of Homeland Security.
24. Senator Hirono. General Dempsey, General Odierno, Admiral
Greenert, General Amos, General Welsh, and Admiral Papp, what
protections are in place to ensure that the subordinate's career is not
affected by retaliatory acts by the superior in the military chain of
command?
General Dempsey. Servicemembers are protected under law and DOD
policy from retaliatory personnel actions based on protected
communications. 10 U.S.C. Sec. 1034 prohibits taking (or threatening to
take) an unfavorable personnel action, or withholding (or threatening
to withhold) a favorable personnel action, as a reprisal against a
member of the armed forces for making or preparing protected
communications. Protected communications include complaints that a
servicemember reasonably believes constitutes evidence of violations of
laws or regulations, including allegations of sexual assault and/or
sexual harassment. Retaliatory action may also constitute a violation
of the Articles 92, 133, or 134 of the UCMJ. A servicemember may report
retaliation to their Service Inspectors General, the IG of a DOD
component, or to the DOD IG.
General Odierno. Servicemembers are protected from reprisal and
retaliation under the provisions of section 1034 of title 10, U.S.C.,
the Military Whistleblower Protection Act (MWPA), and DOD and Army
implementing authorities. These authorities prohibit taking or
threatening an unfavorable action or withholding or threatening to
withhold a favorable personnel action in reprisal for making a
protected communication.
A detailed investigation is required to determine whether an
adverse command action was appropriate given a soldier's performance,
conduct, or behavior--or was motivated by reprisal. During an
investigation, the command retains full authority and responsibility to
take appropriate actions with respect to the individuals involved in
the inquiry--to include the complainant--as necessary to maintain good
order and discipline and unit readiness.
In practice, that means a soldier may have received an unfavorable
action in the short-term; but if the inquiry determines the action was
taken in reprisal, the complainant has priority access to the Army
Board for Correction of Military Records (ABCMR). The ABCMR retains
broad, sweeping authority to correct the record for errors or
injustices on behalf of the Secretary of the Army.
When reprisal is found, the soldier receives a redacted copy of the
completed report of investigation along with the appropriate forms to
initiate and facilitate an appeal through the ABCMR. Under the
provisions of the MWPA, soldiers receive direct and priority access to
and review from the ABCMR for actions resulting from a substantiated
reprisal allegation. In the last several years, the ABCMR and the Army
Inspector General Agency have worked closely to ensure soldiers receive
the information necessary to make them whole and correct the soldiers'
records for any inappropriate personnel actions--to the greatest extent
possible.
Admiral Greenert. Existing law and regulations afford significant
protections and recourse with respect to alleged retaliatory acts by
superiors in the military chain of command.
The Military Whistleblower Protection Act, 10 U.S.C. Sec. 1034,
prohibits personnel actions being taken as reprisal against a
servicemember for making or preparing to make a ``protected
communication'' to a Member of Congress, an IG, a member of a DOD law
enforcement organization, or any person in the chain of command. Such
retaliation is also specifically prohibited in the Department of the
Navy by regulation, violation of which is punishable under Article 92
of the UCMJ.
Complaints of reprisal are required to be investigated under the
supervision and oversight of the Naval IG, and servicemembers who make
reprisal complaints are to be specifically informed of the
investigative process and their associated rights. Where allegations of
reprisal are substantiated, the servicemember has the statutory right
to apply for relief with the cognizant Board for the Correction of
Military Records.
Article 138 of the UCMJ and Article 1150 of U.S. Navy Regulations
further permit a sailor to petition for redress of wrongs committed by
a commanding or superior officer to the cognizant general court-martial
convening authority. All such complaints, associated investigations,
and actions by the general court-martial convening authority are
reviewed by the Office of the Judge Advocate General.
A servicemember may also file a formal complaint involving sexual
harassment or unlawful discrimination under the Navy's Equal
Opportunity Program, for which there is a coordinator at every command.
As with Article 138 and 1150 complaints, the associated investigation
is reviewed by the general court-martial convening authority and the
Office of the Judge Advocate General.
Navy Regulations, Article 1155, further provide that no person may
restrict any member of the armed forces in communicating with a Member
of Congress in the member's personal or private capacity.
General Amos. There are also multiple reporting mechanisms that
allow victims to report upon members in their chain of command. A
marine may file an IG complaint, for example, which may be anonymous to
avoid the possibility of reprisal. The Military Whistleblower
Protection Act (10 U.S.C. Sec. 1034) also protects victims from
reprisal as a result of communications to Congress or the IG. In
response to a complaint, the IG, would direct an investigation into the
matter and recommend appropriate punitive or administrative action.
Victims may additionally submit a Complaint of Wrongs under Article 138
of the UCMJ, which requires redress if a commanding officer wronged a
victim. If the commanding officer refuses to redress the wrong, the
victim can forward the complaint to the next officer exercising general
court-martial convening authority. Finally, if any retaliation
negatively impacted the victim's records, the victim may petition the
Board for Correction of Naval Records, which has authority under to
remove injustices from current and former victim records without.
General Welsh. The Office of the IG and 10 U.S.C. Sec. 1034 are in
place to help protect the subordinate's career from retaliatory acts by
the superior in the military chain of command. 10 U.S.C. Sec. 1034
specifically prohibits retaliatory personnel actions following
complaints of wrongdoing to a Member of Congress; an IG; a member of
the DOD audit, inspection, investigation, or law enforcement
organization; or any person in the chain of command, and any person or
organization designated to receive such communications. The Equal
Opportunity office would be one such organization. If the retaliatory
actions are linked to the protected communication, 10 U.S.C. Sec. 1034
would call for the IG to investigate the allegation of reprisal. The
results of the reprisal investigation would be presented to the
subject's commander for appropriate disciplinary action.
For substantiated allegations of reprisal against a military
member, the Air Force Board for Corrections of Military Records will be
notified. They will review the investigation and have the authority to
correct any action taken against the member in reprisal.
Admiral Papp. Subordinates are protected from retaliation in
several ways. As discussed above, many penalties exist to deter
retaliatory acts. Federal and military codes, regulations, and policies
(as summarized below) protect personnel from retaliation.
Military personnel may be punished for illegal
discrimination, harassment, and retaliation under Article 93 of
the UCMJ-Cruelty and Maltreatment. The maximum punishment under
this Article is a dishonorable discharge, forfeiture of all pay
and allowance, and confinement for 1 year.
Article 138 of the UCMJ affords rights to redress
grievances against actions of commanding officers. In addition,
a member may petition or present any grievance to any Member of
Congress (10 U.S.C. Sec. 1034).
The Notification and Federal Employee
Antidiscrimination and Retaliation Act (No FEAR Act) of 2002
protects civilian employees against reprisal and allows them to
report offenses directly to the Office of Special Counsel.
29 C.P.R. Part Sec. 1614 contains provisions to
protect employees against reprisal and make the aggrieved party
``whole.'' While this regulation applies to civilian employees,
through policy issuance, the Coast Guard affords military
members the same protections to the extent possible under the
UCMJ.
command accountability
25. Senator Hirono. General Dempsey, General Odierno, Admiral
Greenert, General Amos, General Welsh, and Admiral Papp, does your
Service annotate in a commander's personnel records the data about the
numbers of sexual assaults which were reported, investigated,
prosecuted, dismissed, et cetera, during the term of their command? If
not, I am interested in your thoughts on adding this information and
maybe command climate information as part of the whole picture of the
candidates as they are considered for future promotions and
assignments.
General Dempsey. Getting accurate data on sex-related crimes is a
challenge in the military, as it is in society. Low numbers may be a
good thing, or low numbers may mask a real problem. I'm more confident
right now assessing our processes--how we take reports, investigate
them, refer cases to trial and prosecute--than I am in our statistical
data. On process, the Service Chiefs have relieved commanders for loss
of confidence in their leadership related to handling sexual assault.
So I'd say we are already going further than recording performance for
future consideration--we are acting immediately when we see something
amiss. That said, I support efforts to better define the breadth and
depth of sexual assault in the ranks statistically.
The commander sets the tone for his or her command. That is why
assessing command climate is essential in evaluating the success and
potential of our leaders, and we capture it in our evaluations in
several ways. Recently, I also initiated 360 degree evaluations on our
general and flag officers, which should provide a more holistic view of
a leader's potential.
General Odierno. The Army does not annotate the personnel records
of commanders with data about the number of sexual assaults that were
reported, investigated, prosecuted, dismissed, or otherwise adjudicated
during the term of their command. However, the officer evaluation
report does contain a field concerning dignity, fairness,
consideration, and equal opportunity. A ``negative'' response on this
portion automatically results in mandatory comments on the evaluation
to substantiate the rating.
Additionally, the Army is in the process of changing the way
command climate information is distributed. Command climate surveys are
required within the officer's initial 30 days for the Active component
and 90 days for the Reserves; again at 6 months for the Active
component and 9 months for the Reserves; and annually thereafter for
all components.
Command climate findings will be given to the officer's next higher
level of leadership. Seniors commander will use these as a mentoring
tool to coach and teach their subordinates. This information will also
provide insight into how the individual officer affects the unit during
his or her tenure.
Admiral Greenert. Under current policy governing the Navy
performance evaluation system, there is no requirement to annotate in a
commander's fitness report or personnel record data about the numbers
of sexual assaults that were reported, investigated, prosecuted, and/or
dismissed during the term of their command.
We hold commanders accountable for their command climate, their
efforts to maintain a safe work environment of dignity and respect, and
the good order and discipline of their commands. Today, we do this by
requiring commanders to assess their organizational climate at regular
intervals, while requiring those with multiple commands under their
leadership to monitor the climates of subordinate commands. We evaluate
our commanders (and all officers) in their regular fitness reports
(performance evaluations used for determination of advancement) in
three areas: Command Climate/Equal Opportunity, Leadership and in
written summary, where documentation of poor command climates would be
listed. We hold our commanders responsible and accountable when they do
not meet acceptable standards.
IG investigations, and fully adjudicated administrative
investigations conducted pursuant to requirements of the Manual of the
Judge Advocate General (JAGMAN), which substantiate adverse
information, such as command climate or leadership failures, can be
placed in a commander's official record and will be considered by
promotion selection boards and in selecting officers for future
assignments.
We believe the current system adequately addresses the issue;
however, we routinely review the Navy fitness report system to ensure
it provides a comprehensive officer assessment consistent with the
prevailing needs of the Navy.
General Amos. The Marine Corps does not annotate in a commander's
personnel records the data about the numbers of sexual assault which
were reported, investigated, prosecuted, dismissed, et cetera, during
the term of their command. However, the Marine Corps uses two separate
Command Climate surveys to measure a commander's effectiveness in
maintaining the trust and confidence of their marines. The DEOCS is
created and distributed through the Marine Corps' cooperation with the
Defense Equal Opportunity Management Institute (DEOMI). All marines
take the DEOCS survey and its results are consolidated and provided to
the commander and the next higher commander in the chain of command. In
addition, I directed the implementation of a new Command Climate
Survey. This Command Climate Survey is required within 30 days of a
commander assuming command and again at the 1 year mark. The results
are required to be briefed to the first O-6 or O-7 in the commander's
chain of command as a way of holding commander accountable.
General Welsh. No, the Air Force does not currently record this
data relating to sexual assaults in commander's personnel records.
Establishing a command climate of dignity and respect is a priority for
Air Force commanders, and incorporating an appropriate, standardized,
SAPR posture is essential to defining a successful Air Force leader.
The Air Force is working with DOD to evaluate the methods used to
assess the performance of military commanders, including command
climate studies and other responsibility standards.
Admiral Papp. Data about the numbers of sexual assaults which were
reported, investigated, prosecuted, dismissed, etc., during the term of
commander's tour is not consistently annotated in the records or
evaluations of officer (commanding officer) or enlisted (officer-in-
charge) personnel. Indicators of command climate deficiencies are
monitored and addressed. If substantiated, a Relief For Cause (RFC)
could result. Corrective action resulting from command climate issues
become part of the member's permanent record and are considered in
subsequent promotion, advancement, and assignment panels.
______
Questions Submitted by Senator Saxby Chambliss
first female sailors on uss dwight d. eisenhower
26. Senator Chambliss. Admiral Greenert, during the period when
female sailors first started to serve aboard U.S. Navy aircraft
carriers, in particular the USS Dwight D. Eisenhower in 1994, there was
a high rate of pregnancies and inappropriate sexual episodes. What
percentage of female sailors became pregnant during the first
deployment of the USS Dwight D. Eisenhower with women serving aboard?
Admiral Greenert. This information is not available as the Navy did
not officially track operational pregnancies prior to 2007.
27. Senator Chambliss. Admiral Greenert, due to the pregnancies
aboard the USS Dwight D. Eisenhower, was there an investigation as to
which pregnancies were from consensual or possible unwanted sexual
acts? Provide the results of the investigation if an investigation was
conducted.
Admiral Greenert. An investigation would have been initiated if a
sailor reported a sexual assault. In 1988, the NCIS began maintaining
records of sexual assault investigations (records are maintained for 50
years). In review of these archives, we found no reported sexual
assaults during the first deployment of USS Eisenhower with women on
board (October 1994-March 1995). Additionally, there were no delayed
reports of sexual assaults upon the ship's return from deployment.
______
Questions Submitted by Senator Roger F. Wicker
sale of sexually explicit material at military exchanges
28. Senator Wicker. General Dempsey, Section 343 of the NDAA for
Fiscal Year 1997 prohibits the sale of material deemed to be sexually
explicit in nature at military exchanges. This legislation grants the
Secretary of Defense authority to determine which products and
materials qualify as sexually explicit and which do not. The lack of a
precise definition for the term sexually explicit in the NDAA for
Fiscal Year 1997 has resulted in the availability of materials at
military exchanges that many would consider as vulgar, misogynistic,
and degrading. Multiple attempts by Congress to rectify this issue
legislatively over the ensuing 15 years have been unsuccessful. The
prominent theme of this hearing, one that I believe was stressed
individually by each of the Joint Chiefs, was the need to continue to
shape the culture of the military into one in which all servicemembers
are treated with respect and dignity. Do you believe that making
sexually explicit material available for sale at military exchanges is
sending the wrong message to servicemembers and may be contributing to
the problem of military sexual assault?
General Dempsey. DOD is committed to upholding both the Military
Honor and Decency Act and First Amendment protections of publishers and
readers, which the men and women in our Armed Forces defend every day.
The Department does not sell sexually explicit materials as defined by
the 1997 NDAA in the military exchanges or other property under the
jurisdiction of DOD. Secretary Hagel recently directed DOD component
heads to conduct a comprehensive visual inspection of all DOD
workplaces to ensure all DOD facilities, including military exchanges
are free of materials that create a degrading or offensive work
environment.
29. Senator Wicker. General Dempsey, do you believe that the
sexually explicit materials that are currently being sold on base may
be contributing to a military culture that tolerates acts of sexual
aggression?
General Dempsey. Section 2495b of title 10, U.S.C. defines
``sexually explicit material.'' The Department, in close coordination
with the General Counsel's Office, applies the law's definition to
determine what materials are deemed sexually explicit and ensures that
material is not allowed to be sold on DOD property. DOD is committed to
upholding both the Military Honor and Decency Act, and publishers and
readers First Amendment protections, which the men and women of the
U.S. Armed Forces defend every day.
30. Senator Wicker. General Dempsey, are any sexually explicit
materials currently prohibited from sale on military installations, or
is the selection of sexually-oriented material available at military
exchanges comparable to what can be found off base?
General Dempsey. DOD established the Resale Activities Board of
Review to review material offered for sale or rental on property under
DOD jurisdiction and make recommendations to the Secretary of Defense
regarding what material should be prohibited from sale or rental in
accordance with 10 U.S.C. section 2495b(a). Since its inception in
1998, the Board has reviewed 418 titles and determined 251 (60 percent)
to be sexually explicit. Of those items determined not sexually
explicit, 48 titles are currently authorized to be sold in military
exchanges. Any material that is determined to be sexually explicit as
defined by section 2495b of title 10, U.S.C. is not offered for sale or
rental on property under DOD jurisdiction. If such materials are found
on store shelves, they are removed.
31. Senator Wicker. General Dempsey, in light of the recent
allegations, would it be appropriate for the Office of the Secretary of
Defense to make another attempt at developing a workable definition of
sexually explicit?
General Dempsey. The term ``sexually explicit'' is defined by law
in section 2495b of title 10, U.S.C. DOD, in close coordination with
the General Counsel's office, applies the law's definition to determine
what materials are deemed sexually explicit and not allowed to be sold
on DOD property. To that end, the Joint Chiefs will provide input as
requested to the Department on revisions to the law's definition of
sexually explicit should the Secretary deem it necessary.
______
Questions Submitted by Senator Kelly Ayotte
lackland air force base scandal and the vulnerability of trainees to
sexual assault
32. Senator Ayotte. General Welsh, in your prepared statement you
confirm that 63 trainees and technical school students were involved in
the scandal at Joint Base San Antonio-Lackland, including 12 victims of
sexual assault. You state that, ``The mending of the BMT environment at
Lackland Air Force Base has taken time . . . '' How was the training
environment damaged at Lackland and why has it taken time to repair the
damage?
General Welsh. We identified five major areas of weakness within
BMT: (1) leadership, where deterrence was found to be hindered by
insufficient leadership oversight; (2) the military training instructor
(MTI) selection and manning process, where the MTI corps consisted of
members with minimal leadership experience and too much power resident
with a single MTI; (3) MTI training and development, where the MTI
culture and training did not adequately emphasize NCO responsibilities;
(4) reporting and detection, which addressed barriers that exist in
reporting by MTIs, trainees, and students; and (5) policy and guidance,
where enduring institutional safeguards are necessary.
Given the nature of the BMT environment, the opportunity for abuse
of power must be understood and eliminated. To guard against
misconduct, BMT incorporates institutional safeguards to dissuade,
deter, detect, and hold accountable individuals who engage in
unprofessional conduct. We found weaknesses in those safeguards and
flaws in the leadership oversight and MTI culture that enabled the
weaknesses to be exploited.
From this information we drew three overarching conclusions: (1)
over time, weaknesses developed in each of the previously described
institutional safeguards; (2) leadership failed to detect and prevent
these weaknesses, and: (3) our MTIs did not sufficiently police
themselves.
Of these three, leadership stood out as the most important area to
address. Strong leadership can overcome weaknesses in institutional
safeguards and/or weaknesses in the MTI culture. Average or weak
leadership will struggle to successfully navigate through the unique
challenges that exist in the BMT environment. Given the singular
importance of leadership in maintaining an effective, safe, and secure
BMT environment, we took aggressive action in this area.
Training squadron commander positions are being filled with high-
potential officers; this is happening now and will be complete by July.
We also increased the number of leadership positions within the
squadrons by adding operations officers and flight commanders to the
rosters. We increased the experience level of leaders by upgrading the
squadron first sergeant positions from master sergeant to senior master
sergeant and the squadron superintendent positions from senior master
sergeant to chief master sergeant. Leadership preparation has also been
strengthened considerably through an expanded leadership orientation
course that places additional emphasis on the potential for abuse of
power, sexual assault, unprofessional relationships, and maltreatment
or maltraining. Finally, we instituted a set of policy changes to
ensure leadership receives timely notification of potential misconduct,
credible allegations of misconduct result in immediate removal from the
training environment, and more appropriate thresholds were set for the
temporary or permanent removal of an MTI from the instructor corps.
Taken together, these actions directed at strengthening the leadership
team provided the most effective means of ensuring that we are well
positioned to address the critical issues impacting BMT today, and that
we maintain this position of strength for the long run. All these
changes will be complete by the end of the summer of 2013.
A second set of initiatives that will pay significant dividends
involves placing MTIs in a stronger position to successfully execute
their duties. In this regard, we believe the single most important
decision they can make is to reduce the MTI duty day, which can extend
as long as 16 hours for weeks at a time. To this end, we will assign
two MTIs to each BMT flight, which will allow splitting the duty day in
half. We will also increase the required grade level for MTI duty to
technical sergeant, which will bring more experience and maturity to
the MTI corps. MTI initial qualification and supplemental training will
also be improved through changes in the qualification training course
and the establishment of a deliberate development program.
Our goal is to raise professionalism in BMT to the highest level
possible. The command cannot achieve this goal unless it selects the
most highly-qualified airmen for MTI duty and then provides them with
high-quality training and a reasonable workday. The changes we've made
concerning MTI selection, professional development, and work period
have contributed significantly to enhancing the ability of MTIs to
execute their duties professionally.
Along with leadership and MTIs, there is a third group of people
who are an instrumental part of the solution set for strengthening the
effectiveness, safety, and security of the BMT environment. This group
is the trainees, who play a critical role in the ability to detect and
deter misconduct. Moreover, we must do better at taking advantage of
the unique opportunity afforded in BMT to prepare our newest airmen to
deal effectively with sexual assault and unprofessional behavior
throughout the remainder of their Air Force careers. This process of
increasing the capacity of our trainees to be part of the solution set
will begin before they enter BMT. From their recruiter, they receive a
briefing that covers sexual assault, sexual harassment, unprofessional
relationships, maltreatment and maltraining, and the reporting of
misconduct during BMT. This briefing is repeated after the trainees
arrive at BMT. Additionally, we increased the number of sexual assault
response counselors (SARC) in BMT. This will not only provide more
trainee contact with SARCs but also increase the portion of the sexual
assault prevention training curriculum instructed by SARCs.
Feedback from trainees is another area where we needed to improve.
AETC improved feedback mechanisms through better positioning of
critique boxes and improved survey mechanisms, and added hotline phones
for direct connection to the SARC.
A significant policy change concerning trainee safety is expansion
of the wingman policy, which now requires trainees to be accompanied by
another trainee any time they are outside a group setting. This single
policy change dramatically decreased the potential for sexual assault
or misconduct since these types of activities almost always occur in a
one-on-one setting.
The misconduct discovered at BMT tore at the foundational trust and
core values that hold the Air Force together. We are fully committed to
enduring solutions for the BMT environment and a zero-tolerance
standard for misconduct or abuse of power in this key training program.
Since discovering the breadth and depth of the misconduct, we engaged
directly and rapidly. The changes mentioned above are nearly complete
and are a result of a measured and thoughtful approach to ensure that
we could tie the initiative to a predictable outcome. We expect to
complete all the structural changes needed except for returning the MTI
corps to 100 percent manning by the end of this summer. Our MTI corps
will be fully manned by the early spring of 2014.fully manning our MTI
corps is critical, but lead time for personnel movement, training and
MTI certification is over six months-we're focused on this and all
other aspects of BMT and we are well underway to completion.
33. Senator Ayotte. General Welsh, you also say that the basic
military environment requires ``high levels of professional conduct.''
You correctly state that our trainees deserve and the American people
expect that sort of professional environment. Why do you believe it is
especially important to demand a high level of professional conduct
between military trainers and military recruits during basic training?
General Welsh. Our military trainers are placed in positions of
trust that demand they train our future airmen to defend our country
and win our Nation's wars. This cannot be accomplished without an
environment of trust and respect. It is especially important to demand
a high level of professional conduct between military trainers and
military recruits during basic training in order to reflect the highest
standards of personal conduct, morality, and professionalism in our Air
Force. The Code of Ethics, the Airman's Creed, and the Air Force Core
Values are basic principles that demand respect and foster the morale,
welfare, and esprit de corps of all airmen.
34. Senator Ayotte. General Dempsey, why do you believe it is
especially important to demand a high level of professional conduct
between military trainers and military recruits during basic training?
General Dempsey. I strongly believe a high level of professional
conduct between trainers and military recruits is crucial during basic
training because it establishes servicemembers' expectations of their
peers and their leadership throughout their careers. Basic training is
the first real opportunity to introduce young recruits to military
life, instill discipline and foster trust. Recently, we have seen how
those who do not respect or share our core values of dignity and
respect can rock the very foundation we are trying to build for those
entrusted in our care.
navy forensic examinations
35. Senator Ayotte. Admiral Greenert, according to a January 2013
GAO report, the Navy does not require that its vessels deploy with a
provider trained to conduct a forensic examination, and will instead
transfer a victim to the nearest trained provider, whether at sea or
ashore. According to GAO, Navy medical providers ``also told us that if
a transfer is not possible they would do their best to conduct the
forensic examination using the instructions provided with examination
kits.'' Is that accurate?
Admiral Greenert. While not all operational commands at the time of
the GAO inspection were trained to complete forensic examinations, the
forensic kits to complete medical-forensic examinations are available
in all shore and operational settings. Training is in progress now and
fully-trained personnel will be in place in all shore and operational
settings by September 30, 2013.
36. Senator Ayotte. Admiral Greenert, what is the Navy doing to
quickly address this unacceptable status quo?
Admiral Greenert. Navy is committed to providing quality care and
follow-up to victims of sexual assault. All Navy Military Treatment
Facilities will have the SAFE capability no later than September 30,
2013. This certification includes reporting procedures. Additionally,
we have established and are enforcing training requirements for all
healthcare providers that conduct SAFE exams. These training
requirements are tracked on a weekly basis and include:
A patient-centered medical-forensic examination
covering the patient interview, evidence collection and
analysis, survivor experiences, pre-trial preparation and court
testimony as a factual witness.
Navy specific training, including restricted and
unrestricted reporting and the policy guidance on both.
Finally, we conduct competency assessments for non-licensed
independent practitioners (registered nurses and independent duty
corpsmen).
guard and reserve victims access to sexual assault response
coordinators
37. Senator Ayotte. General Dempsey, General Odierno, Admiral
Greenert, General Amos, General Welsh, and Admiral Papp, do you believe
that victims of sexual assault in the military should have access to a
SARC or a similarly trained individual who can support victims and help
them access the support and care they need?
General Dempsey. Every victim of sexual assault deserves and
receives the best possible care and support the Department can provide.
The Department has ensured that victims of sexual assault can access
first responders, to include SARCs and SAPR victim advocates, who are
trained and certified. The DOD Sexual Assault Advocate Certification
Program (D-SAACP) was established to standardize sexual assault
response to victims and professionalize victim advocacy roles of SARCs
and SAPR victim advocates. The certification of SARCs and SAPR victim
advocates is guided by a Competencies Framework, which identifies and
organizes the core knowledge, skills, and attitudes for performing
sexual assault victim advocacy.
General Odierno. Yes. DOD requires all sexual assault victims have
access to a trained individual who can support and help victims access
care (counseling and medical and advocacy services). In accordance with
Army policy, victims are provided a variety of options by which they
can reach out for this help by making either a restricted or an
unrestricted report.
Admiral Greenert. Yes.
General Amos. Yes. All SAPR program services are available to our
Reserve component marines. If victims report a sexual assault that
occurred prior to or during periods when they are not performing active
service or inactive training, they are still eligible to receive SAPR
support services from a SARC and a SAPR victim advocate and are
eligible to file a restricted or unrestricted report.
Our fiscal year 2013 initiative to increase SAPR personnel across
the Marine Corps included the addition of five new positions, three
full-time civilian Command SARCs and two full-time civilian SAPR victim
advocates, all dedicated to Marine Forces Reserve and located at the
4th Marine Division, 4th Marine Aircraft Wing, and 4th Marine Logistics
Group. All five positions have been filled through a competitive
selection process with qualified professionals.
General Welsh. Absolutely! Victims of sexual assault in the
military should have access to a full spectrum of care. We provide
medical care, spiritual counseling, and legal support to all victims
regardless of the reporting option they choose.
Admiral Papp. Absolutely.
38. Senator Ayotte. General Dempsey, do you believe that members of
the Guard and Reserve who are victims of sexual assault should have the
same access to SARCs as Active Duty members?
General Dempsey. Yes. National Guard (NG) and Reserve component
members who are sexually assaulted when performing inactive duty
training and Active service have the same access to SARC support as
Active Duty members. If reporting a sexual assault that occurred prior
to or while not performing active service or inactive training, NG and
Reserve component members are eligible to receive limited SAPR support
services from a SARC and a SAPR victim advocates.
39. Senator Ayotte. General Dempsey, do you agree that SARCs be
available to members of the National Guard and Reserve at all times
regardless of whether they are operating under title 10 or title 32
authority?
General Dempsey. National Guard (NG) and Reserve component members
who are sexually assaulted when performing active service, as defined
in 10 U.S.C. section 101(d)(3), and inactive duty training have the
same access to SARC support as Active Duty members. Full-time State
SARCs have been in place for the NG since 2008. Our efforts are
cognizant of a National Guard member's status under Title 32 to ensure
State authorities are not compromised.
______
Questions Submitted by Senator Carl Levin
comparison with military justice systems of certain u.s. allies
40. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and General Altenburg, the United Kingdom,
Canada, Australia, Germany, and Israel have changed their military
justice systems to significantly reduce the role and authority of
military commanders. Have you examined the military justice systems of
these allies? If so, how do they differ from the military justice
system in the U.S. military?
General Chipman. Army Judge Advocates have examined the structure
of the military justice systems of our allies and met on numerous
occasions with their counterparts. There is no single model for
military justice among our allies. Each force has developed a system
that compensated for or corrected actual or perceived short comings in
the due process afforded accused servicemembers, balanced with the need
for the efficient administration of discipline given the size, missions
and capabilities of the individual forces. The United Kingdom, Canada,
Australia, Israel, and Germany have modified the authority and
responsibilities of the commander, to varying degrees, but have
retained military court jurisdiction over servicemembers.
The Canadian Military Prosecution Service (CMPS) is led by the
Director of Military Prosecutions (DMP), a military officer who is
statutorily appointed by the Minister of National Defense. A
prosecutor's advice is required before a charge can be `laid', and the
DMP ultimately determines whether or not charges will be ``preferred''
to court-martial (similar to U.S. ``referral''). It is noteworthy that
the commander actually `lays' charges and, if there is a disagreement
on laying charges, it is the commander who makes the final decision,
not the DMP. Thus, while Canada has created a separate body to
prosecute cases, they have retained command discretion in the charging
process. The Canadian approach is similar to our process of providing
legal advice at the preferral of charges, and requiring legal advice at
the referral of charges to court-martial. The DMP was established in
1997.
In the United Kingdom, when a commander believes that an accused
has committed a serious offense, the commanding officer must refer the
case to the service police for investigation. Since 1997, the service
police report the results to the Director of Service Prosecutors (DSP),
who is appointed by the Queen. The DSP may direct the accused's
commanding officer to bring the charges to court-martial; specify the
form of the charges; dismiss the charges; or leave the charging
decision up to the accused's commanding officer. The DSP is not
required to be a member of the Armed Forces, but must have been a
barrister or solicitor for at least 10 years. The current director is a
civilian. The United Kingdom has retained jurisdiction over all
offenses.
In Israel, evidence is gathered by the Military Police and
transferred to the Prosecutorial Division of the Military Judge
Advocate General's Corps (MAG), led by a military attorney. The
Prosecution Division decides whether to (1) submit an indictment to the
military court, or (2) transfer the case to the commander for exercise
of disciplinary jurisdiction, or (3) order the closure of the case.
In Australia, whether or not a charge goes to court-martial is
determined by the Director of Military Prosecutions (DMP), a military
attorney. Once a charge is referred to the DMP, the DMP may direct the
charge be not proceeded with; refer the charge to a superior summary
authority or commanding officer for trial; request the Registrar,
another statutorily appointed military attorney, to refer the charge to
a Defence Force magistrate for trial; or request the Registrar to
convene a general court-martial or a restricted court martial to try a
charge. Prior to 2005, the Australian military justice system relied on
convening authorities to convene courts-martial.
Admiral DeRenzi. Admiral Greenert, the Deputy Judge Advocate
General of the Navy, and I have had meetings with our counterparts from
the United Kingdom, Canada, and Australia to discuss the management of
military justice cases, including sexual assault. The role of the
military commander in these nations differs from the role of the
commander in the U.S. military justice system.
In the United Kingdom, a civilian Director of Service Prosecutions
makes the decision to prosecute at court-martial and determines the
charges. Military commanders may try minor offenses at a Summary
Hearing (similar to NJP under Article 15 of the UCMJ); however, serious
offenses are referred to General Court-Martial and, in contrast to the
U.S. military justice system, commanders may not grant clemency
following a conviction at court-martial. Homicide and rape cases
occurring in the United Kingdom are traditionally tried by civilian
authorities in the United Kingdom.
In Canada, commanders may try minor offenses at a Summary Trial
(similar to NJP). For more serious offenses, a commander, a commander's
delegate, or a military police officer may charge the offenses, which
are then referred to the CMPS. The CMPS was created to separate the
court-martial system from military commanders; the Director is
appointed by the Defense Minister and CMPS ranks are staffed with
active-duty attorneys. CMPS decides which cases should proceed to
trial, designates the trial forum, drafts appropriate charges, and
provides prosecutors for court. CMPS may also decide to not proceed
with charges. Military commanders have no authority to grant post-trial
clemency following conviction at court-martial. Offenses committed by
servicemembers in Canada may also be prosecuted in civilian courts.
In Australia, a military commander may try minor offenses before a
Summary Authority (similar to NJP). More serious offenses are
investigated by the Provost Marshal, who has the discretion to submit
the investigation to the commander or to the independent Director of
Military Prosecutions (DMP). The DMP, appointed by the Defense
Minister, consults with the Superior Authority (typically a two-star
commander) to ensure chain-of-command input is considered in the
disposition decision. For offenses with concurrent military/civilian
jurisdiction, the DMP is required to consult with civilian authorities
to determine whether the offense is sufficiently connected to service
discipline to allow trial by court-martial. If the DMP determines that
court-martial is warranted, the DMP determines the charges and provides
the prosecuting attorney. Through the Registrar of Military Justice, a
panel of jurors is chosen at random from all available officers of the
defense force. This system was instituted in Australia 8 years ago.
Although generally thought to have provided more transparency and
fairness in the eyes of the Australian populace, the changes have not
markedly changed the rate of criminal offenses, serious crimes, or
conviction rates. The Australian force has expressed an interest in the
U.S. system's restricted reporting options to encourage sexual assault
victims to come forward.
In Germany, servicemembers are tried exclusively under civilian law
in civilian courts. As a result of alleged offenses committed by German
servicemembers during military operations in Iraq and Afghanistan,
Germany is considering creating a specialized court for military
offenses.
Israeli Defense Force (IDF) commanders may try minor offenses under
the ``Disciplinary Law'' (similar to NJP). More serious offenses are
addressed through the military court system. Military police conduct
criminal investigations and transfer evidence to the Prosecutorial
Division of the Military Advocate General's (MAG) Corps-a specialist
corps of legal officers who oversee case disposition, including
evaluation of the evidence, and decide whether to pursue an indictment
in military court, transfer the case to disciplinary jurisdiction, or
close the case. Non-military offenses committed by servicemembers may
be tried by court-martial or in civilian court; the MAG selects the
forum for trial, which is determined by the degree of correlation
between the offense and military service.
General Harding. We examined the military justice systems of some
of these allies, specifically the United Kingdom, Canada, and
Australia. I spoke with a number of our allies about the role and
authority of military commanders in their systems, and we have begun
evaluating the merits of their approaches. Specifically, I had meetings
with my Australian and Canadian counterparts on the topic in the last 6
months and I intend to engage with my British counterparts later this
year.
The systems vary primarily in their increased centralization and
reduced role of commanders for certain criminal offenses within their
military justice systems. For example, in Australia, commanders still
dispose of 92 percent of cases occurring in their units, although the
most serious cases have been removed from the commander and referred to
the Director of Military Prosecutions since 2005. Despite the removal
of the commander from the disposition decision in the most serious
sexual assault cases, there has been no decline in sexual assault
allegations.
My staff recently finished a review of the United Kingdom's 2010
Service Prosecuting Authority inspection report for any lessons learned
that may have application to our system. It is a thorough inspection
report for the first year of the Service Prosecuting Authority's
operation, and it is largely focused on efficiency and effectiveness of
the standup of the new organization. It does not evaluate its impact on
good order and discipline or the satisfaction of commanders with the
system. The Authority's report is available on-line at: http://
www.hmcpsi.gov.uk/documents/reports/OTHER/SPA/SPA--Dec10--rpt.pdf.
While we have been examining these military justice systems, we are
not aware of any studies that evaluate the impact on good order and
discipline after the changes to the systems of our allies that would
indicate that we should adopt their approach.
General Ary. Major General Ary had meetings with counterparts from
Canada and Australia to discuss their justice systems. Vice Admiral
DeRenzi also had meetings with our counterparts from the United
Kingdom, Canada, and Australia. The role of the military commander in
these nations' military justice systems differs from the role of the
commander in the U.S. military justice system.
In the United Kingdom, a civilian Director of Service Prosecutions
may direct an accused's commander to bring charges at court-martial,
specify the form of charges, dismiss charges, or leave the charging
decision to the commander. Military commanders may try minor offenses
at a Summary Hearing [similar to NJP under Article 15 of the UCMJ];
however, serious offenses are referred to Court-Martial and, in
contrast to the U.S. military justice system, commanders may not grant
clemency following a conviction at court-martial. Homicide and rape
cases are traditionally tried by civilian authorities.
In Canada, commanders may try minor offenses at a Summary Trial
(similar to NJP). For more serious offenses, a commander, a commander's
delegate, or a military police officer may charge the offenses, which
are then referred to the CMPS. The CMPS was created to separate the
court-martial system from military commanders; the Director is
appointed by the Defense Minister and it is staffed with active-duty
attorneys. The CMPS decides which cases should proceed to trial,
designates the trial forum, drafts appropriate charges, and provides
prosecutors for court. The CMPS may also decide to not proceed with
charges. Military commanders have no authority to grant post-trial
clemency following conviction at court-martial. Offenses committed by
servicemembers in Canada may also be prosecuted in civilian courts.
In Australia, a military commander may try minor offenses before a
Summary Authority (similar to NJP). More serious offenses are
investigated by the Provost Marshal, who has the discretion to submit
the investigation to the commander or to the independent Director of
Military Prosecutions (DMP). The DMP, appointed by the Defense
Minister, consults with the Superior Authority (typically a two-star
commander) to ensure chain-of-command input is considered in the
disposition decision. For offenses with concurrent military/civilian
jurisdiction, the DMP is required to consult with civilian authorities
to determine whether the offense is sufficiently connected to service
discipline to allow trial by court-martial. If the DMP determines that
court-martial is warranted, the DMP determines the charges and provides
the prosecuting attorney. This system was instituted in Australia 8
years ago. Although generally thought to have provided more
transparency and fairness in the eyes of the Australian populace, the
changes have not markedly changed the rate of criminal offenses,
serious crimes, or conviction rates.
In Germany, servicemembers are tried exclusively under civilian law
in civilian courts. As a result of alleged offenses committed by German
servicemembers during military operations in Iraq and Afghanistan,
Germany is considering creating a specialized court for military
offenses.
Israeli Defense Force (IDF) commanders may try minor offenses under
the ``Disciplinary Law'' (similar to NJP). More serious offenses are
addressed through the military court system. Military police conduct
criminal investigations and transfer evidence to the Prosecutorial
Division of the Military Advocate General's (MAG) Corps-a specialist
corps of legal officers who oversee case disposition, including
evaluation of the evidence, and decide whether to pursue an indictment
in military court, transfer the case to disciplinary jurisdiction, or
close the case. Non-military offenses committed by servicemembers may
be tried by court-martial or in civilian court; the MAG selects the
forum for trial, which is determined by the degree of correlation
between the offense and military service.
General Altenburg. All are different from U.S. Military Justice--
and all are different from each other in multiple ways. United Kingdom,
Canada, Australia, and Israel are Common Law countries; Germany is a
civil law country. Common law and civil law traditions influence
national military justice systems. The greatest difference between the
named countries' military justice systems and the U.S. system is that
the U.S. system retains the Commander's role as Convening Authority.
The other countries have placed prosecutorial decision making with
attorneys--military attorneys in most instances, civilian attorneys in
others. When comparing other nations' military justice systems with a
view toward possible change, it is prudent to analyze and compare force
end strength, prosecution, conviction, and sentencing statistics and
compare them to U.S. military justice statistics. Although statistics
from U.S. allies are limited, it is clear that the U.S. military
justice system prosecutes more sex offenses per capita and produces
more convictions than the allies. Please see also my response to
Question 5. Reliance on the Australian system is especially dubious.
Revisions to the Australian Military Justice system in October 2007
were subsequently declared unconstitutional by Australia's highest
court. The court decision caused considerable disarray and confusion
for the Australian military. This reinforces the importance of
thoughtful, fully researched studies and committee hearings before
effecting significant change to the UCMJ.
41. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and General Altenburg, what is your understanding
of the historic basis for these differences?
General Chipman. The United Kingdom, Australia and the Canada
changed their military justice systems to ensure the accused had the
right to an independent and impartial tribunal.
In 1997, the United Kingdom changed its system in response to the
ruling of the European Court of Human Rights (ECHR) in Findlay v. The
United Kingdom. In Findlay, the ECHR held that the central role of the
convening officer violated Article 6 of the European Convention on
Human Rights, which guarantees an accused the right to ``an independent
and impartial tribunal.''
Canada modified its system in 1997 after a Report of the Special
Advisory Group on Military Justice and Military Police Investigative
Services recommended that the court-martial prosecution process be
separated from the chain of command.
Australia changed its system in 2005 in response to a Senate
Foreign Affairs, Defence and Trade Reference Committee Report, ``The
Effectiveness of Australia's Military Justice System.'' That report
directed changes to the military justice system to promote transparency
and independence.
None of the countries noted changed their system out of a concern
for victim rights.
Admiral DeRenzi. The reduction of the commander's role in military
justice in the United Kingdom was influenced by litigation brought by a
servicemember convicted before the ECHR, Findlay v. United Kingdom
(1997). In Findlay, the ECHR held that ``the central role played by the
convening officer'' in the United Kingdom court-martial system violated
Article 6 of the ECHR, which guarantees an accused the right to ``an
independent and impartial tribunal.''
Changes in the Canadian system were prompted by the Supreme Court
of Canada's decision in R. v. Genereux (1992). In Genereux, the Court
held that a parallel system of military tribunals was not inconsistent
with the Canadian Charter of Rights and Freedoms, provided the accused
was afforded the constitutional guarantee of an independent and
impartial tribunal. In the context of the case, the court found that
the requirement for judicial independence was not met, and therefore
the accused's right to an independent and fair tribunal was violated.
Following World War II, Germany eliminated trial by court-martial
and provided for the prosecution of servicemembers in the civilian
court system.
The Israeli Supreme Court has narrowly interpreted the military
justice powers vested in commanders and held that a military commander
may not make a prosecution decision which contradicts that of the
Military Advocate General.
General Harding. Our understanding of the historical basis for the
differences is that each country has adapted to a unique legal and
political climate different from ours.
As an example from Australia, the most recent legislation creating
a new Australian military justice court was found unconstitutional by
their High Court, and they now have new legislation that is pending.
For the United Kingdom, from 1996 to 2006, the driving factor in
changes to the military justice systems was compliance with the
European Convention on Human Rights, of which the United Kingdom is a
party, and the decisions of the ECHR. Our understanding is the Court
rendered this decision to protect rights of the accused rather than to
correct perceived injustice to victims. Therefore, treaty obligations
or court decisions were the impetus behind the changes, not any
particular crime.
General Ary. The reduction of the commander's role in military
justice in the United Kingdom and Canada was influenced by litigation
brought by a convicted servicemember before the ECHR, Findlay v. United
Kingdom. In Findlay, the ECHR held that ``the central role played by
the convening officer'' in the United Kingdom court-martial system
violated Article 6 of the European Convention on Human Rights, which
guarantees an accused the right to ``an independent and impartial
tribunal.''
In Australia, they used a system of military justice similar to
ours until 2005, when it was revised following changes in Canada and
the United Kingdom that dealt with transparency and independence in the
prosecution of cases.
Following World War II, Germany eliminated trial by court-martial
and provided for the prosecution of servicemembers in the civilian
court system.
The Israeli Supreme Court has narrowly interpreted the military
justice powers vested in commanders and held that a military commander
may not make a prosecution decision which contradicts that of the
Military Advocate General.
General Altenburg. I understand that the United Kingdom, Australia,
and Canada modified their Military Justice systems in response to
complaints that the then-existing systems failed to protect adequately
the rights of defendants. The basis for the complaints varied among the
Nations, but all included lack of transparency generally and lack of
independence from the command. These are the same complaints about the
U.S. Military Justice System in the 1940s that led to the development
and passage by Congress of the UCMJ in 1950 to replace both the
Articles of War and Articles for the Government of the Navy. Other
complaints in the 1960s regarding lack of fairness led, after
considerable study and analysis, to the 1968 UCMJ amendments. In the
case of the United Kingdom, two decisions by the ECHR, Findlay v United
Kingdom, [1997] ECHR 8; (1997) 24 EHRR 221, and Grieves v United
Kingdom, [2003] ECHR 688; (2004) 39 EHRR 2, dictated that their
Military Justice system be modified to afford greater protection to
military personnel accused of crimes. The Canadian system was reformed
after the Supreme Court of Canada's decision in R. v. Genereux, [1992]
S.C.R. 259, which held that the Canadian court-martial system violated
accused servicemembers' rights under the Canadian Charter of Rights and
Freedoms. The Australian system was modified by the Parliament in 2006
after extensive research and analysis by special government entities.
Unlike the courts requiring change in countries such as the United
Kingdom and Canada, the U.S. Supreme Court has specifically upheld the
U.S. military justice system in decisions like Parker v. Levy, 417 U.S.
733, 743 (1974) (upholding the constitutionality of Articles 133 and
134, UCMJ and finding that the military is ``a specialized society
separate from civilian society'' with ``laws and traditions of its own
[developed] during its long history.''); Middendorf v. Henry, 425 U.S.
25 (1976) (upholding summary courts-martial proceedings); Solorio v.
United States, 483 U.S. 435 (1987) (upholding courts-martial
jurisdiction over military members for other than service-related
offenses and requiring only military status for jurisdiction); Weiss v.
United States, Weiss v. United States, 510 U.S. 163 (1994) (rejecting
constitutional challenges to the appointment of military judges by the
Service Judge Advocates General and Due Process Clause challenge to
military judges' lack of fixed terms of office); and Loving v. United
States, 517 U.S. 748 (1996) (rejecting constitutional challenge to the
military death penalty procedures).
The research and study groups in allied nations may well have been
modeled on similar groups in the United States created to research and
study Military Justice before congressional action in 1950, 1968, and
1983. There was extensive research and analysis by military and
civilian experts in the United States especially in connection with the
Vanderbilt Commission, the Doolittle Commission, and the Forrestal
(Morgan) Commission. Review of the findings and recommendations of
commissions, other studies, and extensive congressional hearings led to
passage of the UCMJ in 1950. The current proposal to remove commanders
from Military Justice decisionmaking is more far reaching and
significant than all the changes of the other three major pieces of
legislation (1950, 1968, 1983) taken together. I respectfully submit
that the permutations and unintended consequences of such an historic
change should be evaluated carefully by special committees of experts,
military and civilian. The recently appointed Response Systems Panel,
established by section 576 of the NDAA, 2013, is but one example of a
group whose final report should be reviewed and analyzed before
legislation is considered to change in so profound and fundamental ways
the U.S. Military Justice system. Finally, it is noted that victims'
rights, sexual assault offenses, or considerations other than
protecting defendants had nothing to do with changing the Military
Justice systems in any of the named countries.
42. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and General Altenburg, have you discussed the
administration of military justice with your counterparts in these
countries? If so, what did you learn from these discussions?
General Chipman. Army Judge Advocates have studied the military
justice systems of our allies and met on numerous occasions with their
counterparts. Canada, Australia, and the United Kingdom were forced to
change their military justice systems to protect the rights of the
accused and ensure a fair and impartial tribunal. None of our allies
indicated that concerns about the reporting, investigation or
prosecution of sexual assault contributed to military justice reform in
their respective countries. Further, the role of the commander has
been, and continues to be, essential to the success of their systems.
In Canada, the United Kingdom, and Australia, most disciplinary
actions are handled by the commander-controlled summary system, a
disciplinary process similar to our NJP. In Australia, the crime rates
have remained the same from before the system was modified in 2005
until now, and there is no indication that victims are more likely to
come forward and make complaints.
Admiral DeRenzi. Admiral Greenert, the Deputy Judge Advocate
General of the Navy, and I have had meetings with our counterparts from
the United Kingdom, Canada, and Australia to discuss the management of
military justice cases, including sexual assault. Our discussions
served to compare and contrast our respective systems of military
justice and exchange views on the challenges we face.
Significant changes were made to the military justice systems in
the United Kingdom, Canada, and Australia; many changes resulted from
perceived system unfairness, lack of transparency, or court rulings
pertaining to the rights of accused servicemembers. Each system retains
the authority of the commander to adjudicate minor offenses and
maintains differing roles for the military commander in the disposition
of more serious offenses.
General Harding. Yes, we examined the military justice systems of
some of these allies, specifically the United Kingdom, Canada, and
Australia. I spoke with a number of our allies about the role and
authority of military commanders in their systems, and we have begun
evaluating the merits of their approaches. Specifically, I had meetings
with my Australian and Canadian counterparts on the topic in the last
six months and I intend to engage with my British counterparts later
this year.
The systems vary primarily in their increased centralization and
reduced role of commanders for certain criminal offenses within their
military justice systems. For example, in Australia, commanders still
dispose of 92 percent of cases occurring in their units, although the
most serious cases have been removed from the commander and referred to
the Director of Military Prosecutions since 2005. Despite the removal
of the commander from the disposition decision in the most serious
sexual assault cases, there has been no decline in sexual assault
allegations.
My staff recently finished a review of the United Kingdom's 2010
Service Prosecuting Authority inspection report for any lessons learned
that may have application to our system. It is a thorough inspection
report for the first year of the Service Prosecuting Authority's
operation, and it is largely focused on efficiency and effectiveness of
the standup of the new organization. It does not evaluate its impact on
good order and discipline or the satisfaction of commanders with the
system. The Authority's report is available on-line at: http://
www.hmcpsi.gov.uk/documents/reports/OTHER/SPA/SPA--Dec10--rpt.pdf.
While we have been examining these military justice systems, we are
not aware of any studies that evaluate the impact on good order and
discipline after the changes to the systems of our allies that would
indicate that we should adopt their approach.
General Ary. Major General Ary had meetings with counterparts from
Canada and Australia to discuss their justice systems. Vice Admiral
DeRenzi also had meetings with our counterparts from the United
Kingdom, Canada, and Australia. Our discussions served to compare and
contrast our respective systems of military justice and exchange views
on the challenges we face.
The Marine Corps' initial research into the changes made by our
allies indicates that in many cases, those changes were undertaken
because of court decisions that found the military justice system did
not adequately protect the rights of the accused. This is a
fundamentally different situation than the one currently being
evaluated by Congress as recent hearings have been focused on ensuring
that the military protects the interests of victims in the military
justice system. U.S. Federal courts, including the Supreme Court, have
consistently upheld the Constitutionality of our military justice
system.
Perceived system unfairness, lack of transparency, and court
rulings pertaining to the rights of accused servicemembers led to the
significant changes in the military justice systems in the United
Kingdom, Canada, and Australia. Each system retains the authority of
the commander to adjudicate minor offenses and maintains differing
roles for the military commander in the disposition of more serious
offenses. At least in the case of Australia, the changes have not
markedly impacted the rate of criminal offenses, serious crimes, or
conviction rates.
The Marine Corps will continue to research lessons learned from our
allies, both individually and collectively as part of the Joint Service
Committee on Military Justice, the Code Committee, the Response Systems
Panel, and the Judicial Proceedings Panel. These lessons learned will
continue to advance the cause of justice in the military.
General Altenburg. I have discussed these matters with several
United Kingdom military attorneys. I have not discussed these matters
with military attorneys from the other countries. Some of my United
Kingdom colleagues approve of the changes mandated by the ECHR. They
perceive no detriment to the United Kingdom military as a result of the
changes. Others confided that they believe the changes are negatively
affecting the capabilities of their military. Objections included the
time away from units and installations to attend civilian courts as
witnesses and the perceived lack of unit control by commanders. No one
would address objections for record. All noted that neither sexual
assault cases nor victims' rights had any role in the development of
changes to their Military Justice system.
43. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and General Altenburg, have you discussed the
impact of their systems on sexual assaults and reporting of sexual
assaults?
General Chipman. Army Judge Advocates have discussed with our
allies the impact of their systems on sexual assaults and reporting of
sexual assaults. Most are unable to determine the impact of their
systems on sexual assaults and reporting. Whether or not there is a
link between reporting, investigation, and prosecution is unknown.
While our allies agree that sexual assault is under reported, they are
only now beginning to study the problem.
Canada conducted the Canadian Forces Workplace Harassment Survey in
August 2012; the results are scheduled to be released later this fall.
Canadian soldiers were asked to voluntarily complete a survey that
asked 100 questions ranging from harassment to sexual assault.
In 2009, the United Kingdom Army commissioned the Watts-Andrews
Inquiry to report on the Army's progress on Equality and Diversity
(E&D). The inquiry found that female servicemembers were seven times
more likely to experience harassment and twice as likely to experience
bullying as their male counterparts. The inquiry expressed concerns
about willingness of female servicemembers to report misconduct.
In 2012-2013, the Australian military conducted its first gender
relations survey that concluded that only 20 percent of sexual assaults
are reported. Prior to this, in 2011, the Australian Human Rights
Commission conducted a Review into the Treatment of Women in the
Australian Defence Force Academy and the Australian Defence Force. The
Commission concluded that under-reporting of ``sexually related
misconduct is a significant issue for the ADF.'' The Commission also
recommended the establishment of a ``Sexual Misconduct Prevention and
Response Office (`SEMPRO')'' that is scheduled to be operational in
July 2013.
In Israel, a 2008 survey indicated that one in seven female
soldiers reported being assaulted or harassed. As a result, Israel
established a two-week self-defense course for all women recruits and
increased education efforts. Ynetnews reported that in 2007 there were
318 complaints of sexual assault and in 2011 there were 583 complaints
of sexual assault. This would represent an 80 percent increase in
reports. However, this increase is not related to a change in the role
of the commander, which has not changed since 1955. According to the
IDP Manpower Directorate, ``No one can say whether the rise in the
number of complaints indicates a rise in the number of cases of sexual
harassment, or rather a rise in the awareness to the issue and the duty
to report.'' Ynetnews.com, August 5, 2012.
Admiral DeRenzi. Admiral Greenert, the Deputy Judge Advocate
General of the Navy, and I have had meetings with our counterparts from
the United Kingdom, Canada, and Australia to discuss the management of
military justice cases, including sexual assault. Our counterparts
believe changes to their systems of military justice have addressed
human rights and fairness concerns pertaining to the rights of an
accused and provide fairness and transparency to the civilian populace.
It is less clear whether these changes impacted reports of crime or
conviction rates when compared to their prior systems of military
justice. In fact, the Australian force reports no change in these rates
and believes there still is underreporting of sexual assaults. They
also expressed an interest in the U.S. system's restricted reporting
options to encourage victims to come forward.
General Harding. Yes. I have spoken about this with my Australian
counterpart and they have found no impact on reporting of sexual
assault due to their new system, which changed in 2005 to centralize
prosecutions for serious offenses warranting court-martial under an
independent prosecutor. In fact, based on their survey data, they
believe approximately 80 percent of sexual assaults go unreported,
despite having an independent prosecutor.
Further, I am not aware of any change in a system of military
justice that was prompted or designed to specifically impact sexual
assault or the reporting of sexual assaults. I will be discussing this
matter later in the year with my United Kingdom counterpart. The United
Kingdom approved the Armed Forces Act of 2006 at the end of 2006,
although its provisions were not implemented until 2009. The Act did
not create any specific or unique system for dealing with sexual
offenses; serious offenses are dealt with in the same manner, by
referral to the Director of Service Prosecutions for a decision on
prosecution.
General Ary. Major General Ary had meetings with counterparts from
Canada and Australia to discuss their justice systems. Vice Admiral
DeRenzi also had meetings with counterparts from the United Kingdom,
Canada, and Australia.
Our counterparts believe changes to their systems of military
justice have addressed human rights and fairness concerns pertaining to
the rights of an accused and provide fairness and transparency to the
civilian populace. What is not clear is whether the changes in these
countries' systems resulted in any changes in reports of crime or
conviction rates when compared to their prior systems of military
justice.
General Altenburg. I have not, but recent assessments in Australia
available to the public have emphasized that the lack of military
involvement in investigations and prosecutions of military personnel
are a primary cause of sex offense victims' failure to report hundreds
of sexual crimes within Australian units. Please see also my response
to Question 5.
44. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and General Altenburg, are you aware of any
studies of the systems of justice of these allies to assess their
effectiveness and impact on sexual assaults and reporting of sexual
assaults as compared to the more traditional model like that of the
United States?
General Chipman. No, we are not aware of any studies of the systems
of justice of these allies to assess their effectiveness and impact on
sexual assaults and reporting of sexual assaults as compared to the
more traditional model like that of the United States. As discussed
above, our allies did not adapt their systems of justice in response to
issues related to sexual assault or victims' rights. Studies conducted
by our allies have focused on the impact of changes to the military
justice system on the rights of the accused servicemembers.
All of our allies have acknowledged that sexual assault and sexual
harassment is a pervasive and persistent issue, generating not only
sensational publicity for specific cases but eroding discipline and
morale. Until very recently, most of our allies have not engaged in the
in-depth studies, surveys and research into sexual assault rates of
incident, rates of reporting and reasons for underreporting that the
U.S. military has conducted over the past decades. Several of our
allies, including Canada and Australia, have recently conducted surveys
that may allow us to study and compare the systemic responses of the
various systems. Some of these allies have recently established
prevention and education campaigns, based on U.S. models.
Admiral DeRenzi. I am not aware of studies of the systems of
justice of our allies to assess their effectiveness and impact on
sexual assaults and reporting of sexual assaults as compared to the
United States.
General Harding. No, I am not aware of any such study.
General Ary. The Marine Corps is not aware of studies of the
systems of justice of our allies to assess their effectiveness and
impact on sexual assaults and reporting of sexual assaults as compared
to the United States.
General Altenburg. I am generally aware that other countries are
assessing the effects of changes in the administration of Military
Justice since the mid-1990s. Years ago I discussed with several
colleagues the effect of the ECHR decisions, but I have not discussed
with anyone the effect on sexual assault specifically because the
changes to Military Justice were completely unrelated to specific
crimes, but rather were related to protections and individual rights of
accused persons. I believe that there is greater awareness in all
nations of the insidious effect of sexual assault on societies
generally and militaries specifically, but I also believe that when it
becomes a political issue the likelihood of careful, studied analysis
generating thoughtful change that considers permutations and unintended
consequences is lessened substantially. Change to Military Justice in
this country and by the U.S. Congress has always been preceded by
extensive study and analysis. An exception was the 2006 amendment to
Title 10, Section 920 [NDAA for Fiscal Year 2006, Pub.L. No. 109-163,
div. A, tit. V, Sec. 552(a)(1), 119 Stat. 3136, 3257 (2006)], the UCMJ
sexual assault statute, which Congress then had to modify yet again in
2011 [NDAA for Fiscal Year 2012, Pub. L. No. 112-81, Sec. 541, 125
Stat. 1298 (2011)] because permutations and unanticipated consequences
were not considered thoroughly before its 2006 passage.
Much of the critical discussion about military disposition of sex
offenses has relied on statistics to argue that the UCMJ should be
amended. The total number of military sex crimes has been widely
debated. The data in the following paragraphs responding to question
five were provided to me by Professorial Lecturer in Law Lisa M.
Schenck, Associate Dean for Academic Affairs, The George Washington
University Law School in Washington, DC. This information is extracted
from Professor Schenck's draft Fact Sheets, July 19, 2013. In fiscal
year 2012, DOD investigators referred 1,714 sex offense investigations
to DOD commanders for consideration of disciplinary action against
military subjects. 302 DOD military personnel were tried by courts-
martial for sexual assault offenses, resulting in a prosecution rate of
18 percent (302 cases tried divided by 1,714 cases referred by
investigators) and 79 percent (238 convicted divided by 302 tried) were
convicted. The rate per thousand of DOD personnel tried by courts-
martial for sexual assault offenses was .22 (302 tried by court-
martial/1,388,000) and the conviction rate per thousand was .17 (238
convicted/1,388,000).
United Kingdom
In fiscal year 2012, the active duty strength of the U.S. DOD was
eight times as large as the United Kingdom Active-Duty Forces total of
175,940. An average of 101 United Kingdom military sexual assaults and
rapes were investigated by the police each year from 2005-2010; an
average of 53 serious sex offenses cases (52 percent of investigated
cases) were referred to the United Kingdom Special Prosecuting
Authority (SPA) from 2007 to 2010. From 2005 to 2010, the United
Kingdom tried an average of 2.3 sex offenses per year; the United
Kingdom annual prosecution rate per thousand is .013. The rate per
thousand of prosecution of DOD sex offenses is 17 times higher than the
United Kingdom.
Another perspective on the prosecution rate is based on the number
of investigations referred by police for a disposition decision. The
United Kingdom court-martial prosecution rate by this metric is 4.3
percent (2.3 cases prosecuted divided by 53 cases referred by
investigators to the United Kingdom SPA). The U.S. DOD prosecution rate
for sex offenses is 18 percent, or four times higher.
The United Kingdom changed to a system of centralized prosecutions
handled by military lawyers after decisions by the ECHR. The modified
system was designed to protect the rights of the accused from and avoid
any perception of an overbearing chain of command intent on achieving
unjust convictions. The United Kingdom change in charging and referral
authorities had nothing to do with increasing prosecution rates for
crime in general or sex offenses in particular. With an average of less
than three sex offense prosecutions per year by courts-martial and more
than 100 sex offenses investigated annually, the United Kingdom model
does not appear to be a framework that the U.S. Armed Forces should
adopt.
Canada
From April 1, 2009 to March 31, 2010, nine Canadian military
personnel were referred to court-martial with sexual assault charges:
five were found not guilty; two were withdrawn; two were found guilty;
and both of those who were convicted received sentences that included
confinement. One received 20 months confinement for sexual assault, and
one received 3 months for sexual interference and other offenses.
From April 1, 2009 to March 31, 2010, Canada tried 56 courts-
martial (most of their disciplinary proceedings are summary trials,
which are for minor disciplinary problems, similar to nonjudicial
dispositions under Article 15, UCMJ). The Canadian court-martial rate
per thousand for all offenses was .8 (56/70,000). The Canadian sex
offense prosecution rate per thousand was .10 (7/70,000), and the
conviction rate was .03 (2/70,000). The Canadian conviction rate was 29
percent (2/7). The DOD rate per thousand for sex offense convictions
was six times higher than Canada's.
Some DOD general courts-martial jurisdictions have tried more
courts-martial, obtained more convictions, tried more sexual assault
cases, obtained more sexual assault convictions, and sent more sexual
assault perpetrators to confinement than the entire Canadian armed
forces, even though those jurisdictions have substantially fewer
assigned personnel than Canada. For example, Fort Hood, Texas has
45,000 active duty military personnel, compared to Canada's 70,000. In
fiscal year 2011, Fort Hood prosecuted 115 courts-martial (including 18
sex offenses), resulting in 112 convictions (including 13 sex offense
convictions--the number of convictions is higher if cases are included
where the accused was acquitted of a sex offense but convicted of other
offenses). In fiscal year 2012, Fort Hood prosecuted 121 courts-martial
(including 26 sex offenses), resulting in 114 convictions (including 21
sex offense convictions). More important, in fiscal year 2011, 10
military personnel were sentenced to more than 1 year of confinement;
in fiscal year 2012, 17 military personnel were sentenced to more than
1 year of confinement. In sum, Fort Hood by itself in fiscal year 2012,
tried 3.7 times (26/7) as many sex offenses by courts-martial as the
entire Canadian military and obtained 10 times (21/2) as many sex
offense convictions, and sentenced 17 times (17/1) as many sex
offenders to confinement.
Australia
Australia's military justice system has been in turmoil for several
years. The Australian Parliament modified their military justice system
in 2006 to make it more like the systems in the United Kingdom and
Canada. The goal was to increase the ``appearance of fairness'' for the
accused (not to enhance justice for victims or to increase
prosecutions). The Australian Government implemented the changes on
October 1, 2007 by replacing general and restricted courts-martial and
trial by a Defense Force Magistrate (DFM) with trial by a military
tribunal (the Australian Military Court (AMC)) for the specific purpose
of increasing protections for the accused. DFM and restricted courts-
martial have identical jurisdiction and authority. Their sentencing
authority is limited to a maximum of six months confinement, or half
the punishment authority of a U.S. special court-martial. An Australian
general court-martial, like a U.S. general court-martial, may impose up
to the maximum authorized punishment for the specific offense.
The Australian Parliament created the Office of the Director of
Military Prosecutions (DMP) effective June 12, 2006. The Director is a
Brigadier; DMP has 14 prosecutor positions. The DMP prosecutes in-
service offenses at proceedings before courts-martial or a DFM, and
seeks the consent of the Directors of Public Prosecutions to prosecute
cases where there is overlapping jurisdiction.
On August 26, 2009, the High Court of Australia invalidated the
provisions establishing the AMC, Lane v. Morrison, [2009] H.C.A. 29.
The Parliament responded by enacting the Military Justice (Interim
Measures) Act (No. 1) 2009 and Military Justice (Interim Measures) Act
(No. 2) 2009, re-establishing the pre-2007 regime of DFM, restricted
courts-martial, and general courts-martial. The invalidation of the
original system and uncertainty regarding its replacement created
greater challenges to the Australian military's efforts to achieve good
order and discipline.
An Australian military sexual abuse scandal led the Australian
Minister for Defence Stephen Smith, in April 2011, to announce two
important reviews of sexual abuse in the Australian military-one review
by the Australian Human Rights Commission, and another by a private
sector law firm retained by the government. The law firm review found
that once the military passed the investigation and prosecution of
serious sex offenses to the civilian sector, the military virtually
washed their hands of the matter and withdrew from the process. The law
firm review collected 775 complaints; a 2012 follow-up review generated
2,410 complaints of sexual abuse or harassment. Australia is embroiled
in a massive review of their handling of sexual assault allegations.
The active duty strength of the U.S. DOD in fiscal year 2012 was
1,388,028 (24 times larger than the Australian Active-Duty Force of
56,856). In 2009, 2011, and 2012, Australia averaged 47 military
trials; however, most were DFM hearings or restricted courts-martial.
In 2011 there were but 5 Australian general courts-martial, and in
2012, only 1. In comparison, DOD completed 2,510 general and special
courts-martial in fiscal year 2012, including 1,183 general courts-
martial and 1,327 special courts-martial, plus another 1,346 summary
courts-martial. A U.S. soldier who commits a serious sex crime is far
more likely to receive a general court-martial and substantial
confinement from that court-martial than an Australian soldier who
commits the same offense. The entire Australian military justice system
prosecuted an average of three felony-level prosecutions the last 2
years; it seems unwise to apply the Australian model to the U.S. system
that prosecutes approximately 400 times as many felony-level cases.
Israel
Unfortunately, the data from Israel is less complete. The following
table provides the report and indictment information from 2008 to 2012.
The reports include some minor sex conduct that in the United States
would be viewed as non-criminal sexual harassment.
Military Sex Offense Reports and Indictments in Israel
----------------------------------------------------------------------------------------------------------------
2008 2009 2010 2011 2012 Average
----------------------------------------------------------------------------------------------------------------
Reports................................. 318 363 Unknown 583 Unknown
Indictments............................. 28 26 20 14 27 23
----------------------------------------------------------------------------------------------------------------
The Israeli active duty population is 176,500 or 4 times as large
as the active duty population of Fort Hood. (Also noteworthy, women
comprise 33 percent of the Israeli Defense Forces; in contrast, women
make up approximately 15 percent of active duty DOD personnel.) Yet
Fort Hood has approximately the same number of sex offense prosecutions
as the entire Israeli forces (Fort Hood averaged 22 sex offense trials
in fiscal year 2011 and 2012; Israel averaged 23 indictments from 2008
to 2012). If the goal is to prosecute more sex offenses, the Israeli
system seems not to be the model for DOD to emulate.
45. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and General Altenburg, in your view, do the U.S.
military and military justice systems share the features of the foreign
systems that led them to reduce the role on authority of military
commanders in the military justice system?
General Chipman. No, the U.S. military and military justice systems
do not share the features of the foreign systems that led them to
reduce the role on authority of military commanders in the military
justice system. The U.S. military justice system has safeguards in
place to ensure the accused has the right to a fair and impartial
trial. In addition, the UCMJ prohibits unlawful command influence. The
U.S. Supreme Court has upheld the constitutionality of our military
justice system and its safeguards provided to the accused. Furthermore,
the safeguards and due process rights of soldiers are available to them
both in garrison and in theater. The military justice system is
deployable, when necessary, and has a proven record in theater. Both
the rights of an accused soldier and the needs of a victim can be
meaningfully protected both in garrison and in theater.
Admiral DeRenzi. Significant changes were made to the military
justice systems in the United Kingdom, Canada, and Australia; many
changes resulted from perceived system unfairness or bias toward the
prosecution and court rulings pertaining to the rights of accused
servicemembers. Each system retains the authority of the commander to
adjudicate minor offenses and maintains differing, albeit generally
more limited, roles for the military commander in the disposition of
more serious offenses.
The U.S. military justice system protects the rights of accused
servicemembers. For example, Article 37 of the UCMJ protects court-
martial proceedings and participants from unlawful command influence.
Article 32 of the UCMJ guarantees a robust pre-trial investigation,
which is more thorough than a civilian grand jury proceeding, prior to
referring charges to a general court-martial. Trained military defense
counsel are provided to the accused free of charge. Finally, court-
martial convictions are subject to robust review and appellate
processes. The fundamental structure of the U.S. military justice
system and UCMJ, centered on the role of the commander as the convening
authority, is sound. The responsibility, authority, and accountability
vested in the commander requires the provision of appropriate tools to
maintain readiness and safety. Military justice is one of those tools.
The UCMJ provides adequate protections to ensure the commander's role
does not negatively impact the fundamental fairness of the military
justice system.
General Harding. No, it appears the driving factors behind the
changes for our allies were primarily treaty obligations or court
decisions which do not impact the United States.
General Ary. The systematic issues that led to changes in the
United Kingdom, Canada, and Australia-perceived system unfairness, lack
of transparency, and court rulings pertaining to the rights of accused
servicemembers-are not present in military justice in the United
States. The U.S. military justice system already provides fairness and
transparency, and protects the rights of accused servicemembers.
For example, Article 37 of the UCMJ protects court-martial
proceedings and participants from unlawful influence. Article 32 of the
UCMJ guarantees a robust pre-trial investigation, which is more
thorough than a civilian grand jury proceeding, prior to referring
charges to general courts-martial. Trained military defense counsel are
provided to the accused free of charge. Finally, court-martial
convictions are subject to robust review and appellate processes. The
fundamental structure of the U.S. military justice system and UCMJ,
centered on the role of the commander as the convening authority, is
sound. The responsibility, authority, and accountability we place in
the commander require that we provide tools to maintain appropriate
readiness and safety, and good order and discipline, every day.
Military justice is one of those tools. The UCMJ provides adequate
protections to ensure the commander's role does not negatively impact
the fundamental fairness of the military justice system, and balances
institutional interests, the rights of the accused, and the interests
of victims.
General Altenburg. No. The U.S. Military Justice system has evolved
effectively since 1950. The rights of U.S. military personnel
paralleled, and exceeded in many respects, the rights of U.S. citizens
accused of crimes in civilian jurisdictions, local, State, or Federal.
Subsequent changes (1968, 1983) to the U.S. Military Justice system
threaded the challenge of incremental ``civilianization'' while
retaining the flexibility and vigor that reinforces discipline and
combat readiness with an array of disciplinary options, procedures, and
protections that satisfied the military, Congress, most critics, and
the rank and file. The other nations did not protect their military
personnel in similar fashion and ultimately were forced, in at least
two cases (the United Kingdom and Canada) by judicial decision, to
modify their Military Justice systems. The U.S. Supreme Court, in
contrast, has on numerous occasions upheld the constitutionality of the
U.S. Military Justice system and its efficacy. The cases prosecuted in
Iraq and Afghanistan since 2001 reflect the importance of the
commander's role in Military Justice-especially expeditionary courts-
martial. During Operation Desert Storm in 1991, courts-martial were
conducted at the most forward maneuver brigade base camp assault
positions less than 3 miles south of the Iraqi-Saudi Arabian border.
Trials conducted 2 days before the February ground assault reinforced
discipline, enhanced morale, and were a signal event in demonstrating
the system's combination of flexibility, responsiveness, and commitment
to fairness and due process. Transporting defense lawyers and judges to
forward assault locations was considered important to overall combat
readiness. Trials were also conducted in Iraq immediately after the
February 28 ceasefire. In one of the cases, the military trial judge
had conducted motions hearings with counsel and the defendant in the
Kingdom of Saudi Arabia in February and then the Emirate of Kuwait in
early March before the trial itself later that month in the Republic of
Iraq near Basra while U.S. forces conducted operations there. The
contested case with officer and enlisted court members in a combat zone
less than 20 days after combat operations demonstrated that the UCMJ
must--and can--meet the national security demands of the Nation without
compromising the essentials of justice.
46. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary, and General Altenburg, would their models work
for the U.S. military? Why or why not?
General Chipman. The U.S. military should not adopt the military
justice systems of our allies. First, there is no evidence that changes
made to our allies' systems would have any effect on the reporting or
prosecution of sexual assaults or other crimes, especially given that
the changes were not as a result of problems prosecuting sexual
assaults offense, but rather as a result of a perceived deprivation of
due process to accused servicemembers. Second, the U.S. military
justice system does not suffer from the same perceptions of a failure
to provide sufficient protections to accused soldiers that spurred the
changes in our allies' systems. Third, the more centralized disposition
systems adapted by our allies would generate inefficiencies in the U.S.
system due to significant differences in the size of our forces and the
scope and depth of our overall mission.
The U.S. military has nearly 10 times the number of total
servicemembers as our largest ally. The U.S. military has more deployed
servicemembers than some of our allies have total in their force. The
U.S. military justice system tries more courts-martial than any of our
allies. For example, our largest ally, the United Kingdom, tried 633
courts-martial in 2010. The U.S. military tried more than 2,800 in the
same year. The U.S. also tries courts-martial in combat theaters,
unlike our allies. Since 2003, the U.S. Army has tried more than 950
courts-martial in the CENTCOM theater alone. The portability of our
system that provides efficient, local, and visible justice worldwide is
essential to maintaining good order and discipline and preserving
commander authority in conflict and in garrison.
Admiral DeRenzi. By virtue of experience, skill and training, our
commanders are the best assessors of their people and are the key to
sustaining the readiness of their units. If we want to implement
effective, permanent change in our military-as we have successfully
done with other issues-we must do so through our commanders, and we
must do so in a way that responds to factors surrounding sexual
assaults in the U.S. military.
From our analysis of sexual assault reports and cases, we know many
of the factors surrounding the majority of sexual assaults. The
commander is responsible for addressing these factors by fostering a
command climate of dignity and respect for everyone and ensuring a safe
workplace and living areas. Overall, the commanders are responsible for
good order and discipline. As such, it is essential that commanders be
involved in each phase of the military justice process, from the report
of an offense through adjudication under the UCMJ.
A critical aspect of our focused efforts is ensuring a fair,
efficient, and effective military justice system. Consistent with
previous challenges such as drug abuse in the 1970s and early 1980s,
the UCMJ and Manual for Courts Martial must be able to evolve. We
recently endorsed a significant change to Article 60 of the UCMJ to
prohibit a convening authority from setting aside the findings of a
court-martial except for a narrow group of qualified offenses (those
ordinarily addressed through NJP or adverse administrative action) and
require a convening authority to explain any sentence reduction in
writing. The process the Secretary of Defense followed in proposing an
amendment to Article 60 of the UCMJ ensured a careful and full
evaluation of the proposal both in terms of accomplishing intended
objectives and avoiding unintended second- and third-order effects.
As with the Department's Article 60 proposal, we must ensure that
other proposed changes to the military justice system do not adversely
impact the interests of justice, the rights of crime victims, and the
rights afforded the accused. To maintain the proper balance of these
interests and ensure the system remains constitutionally sound and
responsive in peace and war we must continue to evaluate proposed
changes to the UCMJ by carefully assessing their overall impact. The
Response Systems Panel created by section 576 of the NDAA for Fiscal
Year 2013 should be given the opportunity to conduct an independent
assessment of the systems used by our allies to investigate, prosecute,
and adjudicate sexual assaults to determine their viability in the U.S.
military's context.
General Harding. No, it appears the driving factors behind the
changes for our allies were primarily treaty obligations or court
decisions which do not impact the United States.
General Ary. As each of our allies' systems is somewhat different
from each other and from the U.S. system, it is difficult to gauge
whether the allies' models would work for the U.S. military.
First, the problems that caused our allies to move to those models
do not exist in our military (fairness to the accused and
transparency).
Second, the U.S. military is vastly larger than any of our allies'
armed forces, with a significant amount of servicemembers deployed
outside of the United States or stationed overseas at any given time.
The U.S. military continues to need a system of deployable military
justice that provides swift and appropriate justice for the entire
spectrum of misconduct in any garrison or deployed environment.
Third, our commander-based system of military justice has proven
effective in the past, and capable of evolving to new challenges, such
as drug abuse in the 1970s and 1980s. We recently endorsed a
significant change to Article 60 of the UCMJ that would prohibit a
convening authority from setting aside the findings of a court-martial
except for a narrow group of qualified offenses and require a convening
authority to explain any sentence reduction in writing. The process the
Secretary of Defense followed in proposing an amendment to Article 60
of the UCMJ ensured a careful and full evaluation of the proposal both
in terms of accomplishing intended objectives and avoiding unintended
second- and third-order effects.
Fourth, we are still in the process of determining the effect of
the recent changes upon our allies' systems and militaries.
As with the Department's Article 60 proposal, we must ensure that
other proposed changes to the military justice system do not adversely
impact the interests of justice, the rights of crime victims, and the
rights afforded the accused. To maintain the proper balance of these
interests and ensure the system remains constitutionally sound and
responsive in peace and war we must continue to evaluate proposed
changes to the UCMJ by carefully assessing their overall impact. The
Response Systems Panel created by section 576 of the NDAA for Fiscal
Year 2013 will conduct an independent assessment of the systems used by
our allies to investigate, prosecute, and adjudicate sexual assaults to
determine their viability in the U.S. military's context.
General Altenburg. No, in my professional opinion. First, the other
nations' militaries are much smaller than the U.S. military. They're
much smaller than even the most dramatic and extreme forecasts for a
reduced U.S. military. The U.S. Active-Duty Force is 8 times larger
than Israel's or the United Kingdom's, 20 times larger than Canada's,
and 24 times larger than Australia's. Even taking into consideration
their active duty strength being a fraction of the size of the United
States, their military justice systems are not nearly as active in the
prosecution of serious crimes generally and sex offenses specifically.
One large U.S. installation like Fort Hood prosecutes more felony-level
cases annually than any of these four countries. Change to Military
Justice must account for the enormous resources required. In a larger
military, like ours, the resource implications are exponentially
greater. Second, the other nations' militaries have neither the unique
and diverse responsibilities that the United States imposes on its
military nor the variety of deployable forces (5 Services, 3
components, 1,388,028 Active Duty members). The responsibilities
include humanitarian relief, peacekeeping, combat operations on
multiple continents simultaneously, special operations 24/7 worldwide,
foreign military training missions worldwide, and training foreign
militaries in the United States. Third, none of the other nations'
militaries deploys as many forces, as often, to as many locations as
the U.S. military. All of these differences lead one to ask, ``Why
would the United States emulate another nation's Military Justice
system?'' We also do not emulate other nation's doctrine; we do not
emulate other nation's rules of engagement--even allies. Our military
is unique and requires the Military Justice system that suits it best,
not one that merely copies dissimilar militaries that happen to be
allies.
47. Senator Levin. General Chipman, Admiral DeRenzi, General
Harding, General Ary,and General Altenburg, how would a requirement to
prosecute serious cases, like sexual assault, in a civilian court
rather than in a court-martial affect a commander's ability to maintain
good order and discipline?
General Chipman. Soldier discipline is the foundation of a trained,
focused force capable of accomplishing any mission. Soldier discipline
is built, shaped, and reinforced over a soldier's career by commanders
with authority--the authority to address criminal behavior quickly,
visibly, and locally.
The role of the commander must be preserved in order for our forces
to remain effective on the battlefield. One of the key critical tools
the commander has at this disposal to accomplish the mission is the
ability to administer military justice. To maintain discipline and
order, one must have the authority to impose discipline and order.
Without that authority or the threat of it, there is no expectation of
consequence. In matters of life, death, and danger, the ultimate tool
of discipline must be in the hands of the commander on the ground.
Prosecution of serious cases which arise in theater would be
significantly delayed or hindered if responsibility for the
administration of justice was separated from command authority. The
military justice system is highly deployable and, therefore, more
responsive to the needs of the commander, the military community, the
public, and the victim of a serious offense.
Additionally, the commander is entrusted with the overall well-
being of all of the soldiers within the command. Removal of the
commander's authority to prosecute serious cases removes a key
mechanism to be responsive to the needs of the soldiers within the
command, especially the needs of the victims. No civilian prosecuting
authority will have a similar level of responsibility for the overall
well-being of a soldier, either victim or accused, as the commander.
Commanders genuinely care for their soldiers and must be seen as being
responsible for the needs of their soldiers. The commander is
accountable, not only to superior commanders, but also to the civilian
leadership, American people, and the parents and family members of each
soldier.
Admiral DeRenzi. The fundamental structure of the U.S. military
justice system and UCMJ, centered on the role of the commander as the
convening authority, is sound. The responsibility, authority, and
accountability vested in the commander requires the provision of
appropriate tools to maintain appropriate readiness and safety.
Military justice is one of those tools.
A mandate to prosecute serious crimes, such as sexual assault, in
civilian courts would remove the commander from the military justice
process and significantly complicate the administration of justice in
the deployed environment, detracting from good order and discipline.
As a further complication, many serious crimes have no Federal
statute equivalent to the offenses under the UCMJ. Therefore, under
current law, prosecution in civilian courts would rely on state law or,
in the case of crimes committed overseas, foreign criminal law.
Servicemembers who commit similar crimes in different states or
countries would be subject to varying charges and criminal processes.
Many of the cases currently prosecuted by the military could not be
prosecuted under state or foreign law. For example, over 75 percent of
states require a higher degree of intoxication of the victim for the
perpetrator's conduct to constitute sexual assault. Such disparity in
process and accountability would negatively impact good order and
discipline.
Additionally, while civilian prosecutors weigh a number of factors
in the decision whether or not to try a case, including witness
availability, cost, and the likelihood of conviction, civilian
prosecutors may not factor in the impact on military good order and
discipline.
General Harding. A requirement to prosecute serious cases, like
sexual assault, in a civilian court risks a disconnect between members
and their commander. From the commander's perspective, the victim will
lose oversight and control over action taken against one of their own
and face the prospect of becoming disconnected from one of the most
significant events affecting members, including the victim and the
accused, within their organization. Further, unit members will lose
some measure of trust for the commander, because the message is that
the commander--who may be responsible and accountable for sending men
and women into combat--cannot be trusted to handle discipline. In
short, command involvement must be holistic; it cannot be as effective
if the most serious form of accountability is severed from command
authority.
Sexual assault damages unit cohesiveness and mission accomplishment
at the unit level. Our commanders need to be at the forefront of the
fight to reduce sexual assault in the military, using all of the tools
available to them. Cultural change does not happen overnight. If
commanders do not have responsibility for prosecution of sexual assault
offenses, we may promote an environment where commanders are less
accountable for what happens in their individual units, which in
practice could stifle the cultural change we seek. The U.S. military
takes pride in its ``can-do'' attitude and we embrace challenges. Now
is not the time to declare defeat; if we are serious about cultural
change we must ensure commanders know their success depends on sound
judgment in these matters--we are committed to working to get this
right.
General Ary. The fundamental structure of the U.S. military justice
system and UCMJ, centered on the role of the commander as the convening
authority, is sound. The responsibility, authority, and accountability
we place in the commander require that we provide him or her tools to
maintain appropriate readiness and safety, and good order and
discipline, every day. Military justice is one of those tools.
A requirement to prosecute serious crimes, such as sexual assault,
in civilian courts would remove the commander from the military justice
process and significantly complicate the administration of justice in
the deployed environment, detracting from good order and discipline.
As a further complication, many serious crimes have no Federal
statute equivalent to the offenses under the UCMJ. Therefore, under
current law, prosecution in civilian courts would rely on state law or,
in the case of crimes committed overseas, foreign criminal law.
Servicemembers who commit similar crimes in different states or
countries would be subject to varying charges and criminal processes.
Such disparity in process and accountability would negatively impact
good order and discipline.
Additionally, while civilian prosecutors weigh a number of factors
in the decision whether or not to try a case, including witness
availability, cost, and the likelihood of conviction, civilian
prosecutors may not factor in the impact on military good order and
discipline. Commanders, on the other hand, take into account additional
factors, such as the views of the victim as to disposition, the
interests of justice, military exigencies, and the effect of the
decision on the accused and the command.
General Altenburg. Requiring the U.S. military to prosecute serious
cases, like sexual assault or murder, in a civilian court rather than
in a court-martial, would greatly diminish commanders' ability to
ensure the combat readiness and combat effectiveness of their
formations. More important, it would greatly diminish the ability of
commanders to lead the change needed in the service culture regarding
sexual assault. Only leaders can forge the change that will stop
military personnel from pressuring victims. Commander
responsibilities--especially U.S. commanders--are unlike the
responsibilities of supervisors, bosses, chief executive officers, or
even other military leaders. I led and managed the two largest judge
advocate organizations in the U.S. Army that supported field units. I
was the leader of those organizations for 6 years total, including
combat and non-combat deployments with each. But I was not a commander;
I was a staff officer with leadership responsibilities. Commanders are
directly responsible and accountable to the country's elected leaders
for the combat readiness and combat effectiveness of their units. Unit
combat readiness includes weapons training, equipment maintenance,
esprit, morale, teamwork, physical health, emotional health, and the
trust in each other to die for each other that ensures combat
effectiveness in defense of the Nation. Command knows no counterpart in
the civilian sector. Commanders' role in the U.S. Military Justice
System is tied intrinsically to their ability to provide the discipline
necessary to guarantee the combat readiness to defend the Nation, no
matter where deployed.
[Whereupon, at 5:09 p.m., the committee adjourned.]
[all]