[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


  
                         [H.A.S.C. No. 116-24]

                       EXAMINING THE ROLE OF THE

                       COMMANDER IN SEXUAL ASSAULT 
                               PROSECUTIONS

                               __________

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON MILITARY PERSONNEL

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              HEARING HELD

                             APRIL 2, 2019

                                     
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT] 
                                     
                               __________                             
                               
                          

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
36-885                       WASHINGTON : 2020                     
          
--------------------------------------------------------------------------------------
                               
                               



                   SUBCOMMITTEE ON MILITARY PERSONNEL

                 JACKIE SPEIER, California, Chairwoman

SUSAN A. DAVIS, California           TRENT KELLY, Mississippi
RUBEN GALLEGO, Arizona               RALPH LEE ABRAHAM, Louisiana
GILBERT RAY CISNEROS, Jr.,           LIZ CHENEY, Wyoming
    California, Vice Chair           PAUL MITCHELL, Michigan
VERONICA ESCOBAR, Texas              JACK BERGMAN, Michigan
DEBRA A. HAALAND, New Mexico         MATT GAETZ, Florida
LORI TRAHAN, Massachusetts
ELAINE G. LURIA, Virginia
                         Jamie Jackson, Counsel
                          Dan Sennott, Counsel
                         Danielle Steitz, Clerk
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page

              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Kelly, Hon. Trent, a Representative from Mississippi, Ranking 
  Member, Subcommittee on Military Personnel.....................     3
Speier, Hon. Jackie, a Representative from California, 
  Chairwoman, Subcommittee on Military Personnel.................     1

                               WITNESSES

Bapp, Angela.....................................................    12
Christensen, Col Don, USAF (Ret.), President, Protect Our 
  Defenders......................................................     5
Darpino, LTG Flora, U.S. Army (Ret.).............................    14
Elliott, LCDR Erin, U.S. Navy....................................     9
Hannink, VADM John G., USN, Judge Advocate General, U.S. Navy....    36
Hanson, Nelli, Product Support Manager, U.S. Air Force...........    10
Haring, COL Ellen, USA (Ret.), Chief Executive Officer, Service 
  Women's Action Network.........................................     7
Lecce, MajGen Daniel J., USMC, Staff Judge Advocate to the 
  Commandant of the Marine Corps, U.S. Marine Corps..............    39
Pede, LTG Charles N., USA, Judge Advocate General, U.S. Army.....    34
Rockwell, Lt Gen Jeffrey A., USAF, Judge Advocate General, U.S. 
  Air Force......................................................    38

                                APPENDIX

Prepared Statements:

    Bapp, Angela.................................................    89
    Christensen, Col Don.........................................    50
    Darpino, LTG Flora...........................................    99
    Elliott, LCDR Erin...........................................    71
    Hannink, VADM John G.........................................   119
    Hanson, Nelli................................................    80
    Haring, COL Ellen............................................    59
    Lecce, MajGen Daniel J.......................................   145
    Pede, LTG Charles N..........................................   107
    Rockwell, Lt Gen Jeffrey A...................................   132
    Speier, Hon. Jackie..........................................    47

Documents Submitted for the Record:

    Senator McSally Letter to the Acting Secretary of Defense....   161

Witness Responses to Questions Asked During the Hearing:

    [There were no Questions submitted during the hearing.]

Questions Submitted by Members Post Hearing:

    Mrs. Luria...................................................   173
    Ms. Speier...................................................   165
   
   
   EXAMINING THE ROLE OF THE COMMANDER IN SEXUAL ASSAULT PROSECUTIONS

                              ----------                              

                  House of Representatives,
                       Committee on Armed Services,
                        Subcommittee on Military Personnel,
                            Washington, DC, Tuesday, April 2, 2019.
    The subcommittee met, pursuant to call, at 2:00 p.m., in 
room 2118, Rayburn House Office Building, Hon. Jackie Speier 
(chairwoman of the subcommittee) presiding.

OPENING STATEMENT OF HON. JACKIE SPEIER, A REPRESENTATIVE FROM 
   CALIFORNIA, CHAIRWOMAN, SUBCOMMITTEE ON MILITARY PERSONNEL

    Ms. Speier. Welcome to the Military Personnel Subcommittee 
of the Armed Services Committee. This is a very important issue 
that we are going to discuss today. I have been fighting this 
epidemic of sexual assault in the military since 2011. We have 
made meaningful, if fitful, progress addressing the scourge. 
Survivors have more resources, and there is more accountability 
for some commanders who would prefer to sweep assaults under 
the rug.
    We have also made important changes to the legal process so 
that it more closely resembles the civilian justice system. 
Commanders can no longer unilaterally throw out convictions. 
The ``good soldier'' defense is gone, though one of our 
witnesses suggests not all commanders are following the law. 
And survivors don't have to suffer through excruciating Article 
32 processes that require them to endure up to 48 to 72 hours 
of cruel cross-examination, absent normal legal checks.
    These reforms have undoubtedly made the system better for 
survivors and more credible overall. Yet, assault rates remain 
far too high, nearly 15,000 in fiscal year 2016; and reporting 
rates perilously low, only 32 percent that year. The experience 
of some survivors is better, but it is not good. More service 
members trust female and male survivors when they report 
assaults or harassment. But a culture of endemic retaliation 
and doubt persists. Forty-five percent of all students who 
reported assault at the military service academies suffered 
from ostracism. Too many of our service members live and work 
in toxic cultures, characterized by pervasive, unrelenting 
harassment and assault.
    Victims of sexual assault spend the rest of their lives 
coping with the mental and physical after-effects of their 
attack. Perpetrators often get off scot-free, get promoted, and 
collect accolades. Many survivors resign from service, 
humiliated and dejected.
    I believe the Department and services care about fixing 
this problem. I just think they have tied their own hands by 
refusing to admit current efforts aren't working. Incremental 
solutions are not good enough. Something here is fundamentally 
broken, and we need to act, and act urgently. Reforming the 
system requires balancing justice for survivors, the rights of 
the accused, and commanders' abilities to build effective units 
with diverse and inclusive cultures and minimal sexual assault.
    I am convinced finding this balance must involve keeping 
decision-making in the military but transferring the decision 
to try special victims cases from commanders to an independent 
prosecution authority. Our allies in the United Kingdom, 
Canada, Australia, and Israel already exclude commanders from 
sexual assault prosecutions, and it works. Giving a special 
prosecutor this responsibility would make it easier for 
survivors to receive just outcomes, reduce aimless 
prosecutions, and allow commanders to better focus on 
addressing and improving their units' cultures.
    A special prosecutor would be better for survivors. 
Survivors would know that an authority not influenced by 
conflicts of interest, readiness concerns, or outside 
perceptions, would decide whether to prosecute their cases.
    Too often those factors, not legal concerns, drive the 
military criminal justice process. There are countless cases of 
commanders abusing their power to issue favorite subordinates 
wrist slaps, ignore victims' preferences for trial 
jurisdiction, or who are culpable themselves.
    Senator McSally's commander raped her. No one in her chain 
of command should have decided whether her case was prosecuted. 
Limiting the commanders' legal role would encourage more 
survivors to report, to trust the system, and to believe that, 
no matter the outcome of their case, they had been given a fair 
shake.
    A special prosecutor would also be better for the accused. 
Over the last few years, I have heard the commanders never 
countermand their lawyers when the recommendation is to try a 
case, that the commander brings charges in every case in which 
a survivor wants to proceed. I have heard the commanders are 
trying cases that district attorneys would never touch. Those 
are not signs of a healthy system. They are signs of a system 
that has overcorrected, in which the pendulum has swung wildly 
to an opposite extreme.
    Most years, less than 5 percent of sexual assault cases are 
referred to court-martial, and of those cases, only 20 percent 
result in successful convictions. Clearly, many commanders are 
far better at trying cases to dodge political pressure than 
they are to doing the hard work of referring charges when it is 
most appropriate. That approach wastes time and money, and 
makes the system less credible.
    I don't want the military to try a case every time a 
survivor names a perpetrator. I want the military to believe 
the survivor, provide them the resources they need, and 
investigate the offense. If there is sufficient evidence to 
prefer charges, then charges should be preferred. I trust 
military lawyers to make that determination far more than I 
trust commanders.
    Commanders would also be freer to fight sexual assault if 
they didn't also serve as convening authorities. In a string of 
recent decisions, the Court of Appeals for the Armed Forces has 
raised the specter of unlawful command influence in a shocking 
number of sexual assault cases. They have thrown out 
convictions because the court believed the commander 
compromised proceedings by preferring charges or choosing jury 
members in response to political pressure.
    Having commanders make prosecution decisions jeopardizes 
convictions. And commanders' awareness of this legal risk 
limits their ability to vocally and actively stamp out sexual 
assault in their units. Loudly opposing assault today can get a 
conviction thrown out tomorrow. If a special prosecutor instead 
determines whether to try cases, it would remove those risks.
    Commanders could trade something they are not experts in, 
making legal decisions, for what they do very well, setting 
tone and expectations. Commanders could more freely build and 
enforce their unit cultures, while still being held accountable 
for fixing the problem. Senior commanders could mentor their 
subordinates on the front line to help them fight the problem 
without worrying about legal ramifications.
    This isn't a slippery slope. It is the way to strengthen 
the foundation of military criminal justice.
    Today, we will be joined by two panels, including three 
brave women who will tell us about their experiences reporting 
their sexual assaults, and the way their chain of command 
responded when they did. I encourage my colleagues to learn 
about their experiences and how the commander's role in the 
justice system complicated the legal response.
    These survivors will be joined by outside military legal 
experts. I am interested to hear what they view as the military 
justice system's strengths and weaknesses, responding to sexual 
assault, and changes they would propose.
    After a quick break, we will be joined by the top judge 
advocates from each service. I will be eager to hear how they 
think commanders can participate more effectively in the 
military justice process, especially given recent rulings about 
unlawful command influence.
    Before I introduce our first panel, let me offer Ranking 
Member Kelly an opportunity to make his opening remarks.
    [The prepared statement of Ms. Speier can be found in the 
Appendix on page 47.]

     STATEMENT OF HON. TRENT KELLY, A REPRESENTATIVE FROM 
MISSISSIPPI, RANKING MEMBER, SUBCOMMITTEE ON MILITARY PERSONNEL

    Mr. Kelly. Thank you, Chairwoman Speier.
    And I have been blessed beyond belief. I have commanded at 
the brigade and higher levels. I have also been a district 
attorney elected duly by the people. So I have prosecuted. I 
have sent sexual predators to jail for consecutive life 
sentences without parole.
    One sexual assault is too many. One that goes unaccounted 
for is too many. That being said, we don't need to throw out 
the baby with the bath water. People, commanders, can make an 
impact at the level. We need to ensure that we give that. There 
are bad commanders and there are good commanders; there are 
more good than bad, but when there is a bad commander, there 
are actions that can be taken against that commander for the 
things that happen.
    Each of our witnesses today, thank you so much for being 
here. I want you to know, you are brave, brave women. Thank you 
so much for your service to this great Nation, and for you 
coming here today to testify before this panel. I especially 
want to thank all the survivors of sexual assault for their 
bravery.
    The UCMJ [Uniform Code of Military Justice] has evolved 
significantly over a 75-year history, but the past 10 years 
have seen particularly significant changes. From dramatically 
improving victim rights to establishing new sexual assault 
offenses, the UCMJ has experienced substantial improvement. 
Notably, the 2007 NDAA [National Defense Authorization Act] 
contained the most comprehensive overhaul of the UCMJ in over 
50 years, the result of a multiyear study by the military 
justice working group.
    In fact, these extensive reforms were just implemented on 
January 1 of this year. Clearly, much work remains to ensure 
every sexual assault perpetrator is held accountable. However, 
I would caution against additional major changes to the 
commander-centric justice system, when we have not even seen 
the results of the reform instituted just 90 days ago.
    There can be no doubt that the problem of sexual assault 
remains one of the most challenging and persistent issues in 
society. As a former district attorney who has prosecuted 
sexual offenses, I can attest that these horrific crimes have a 
long-lasting impact on both the victims and the community.
    But I can also tell you from personal experience, that the 
answer to solving this problem in the military does not lie in 
attempting to replicate the civilian prosecution system, where 
less than 0.5 percent of sexual assaults will ever result in a 
conviction.
    I have been inside a grand jury. I have seen grand juries 
not indict on one person's word against another, when they 
should have. I have seen lawyers, district attorneys, who would 
not take a case to trial for fear that they might lose because 
they are worried about being re-elected, and they are worried 
about losing.
    Congress has established multiple independent commissions 
to study sexual assault in the military, and specifically, the 
role of the commander in prosecution. And I want to thank the 
chairwoman and others on this committee for their role in 
establishing them.
    Not one of these independent panels, however, has 
recommended removing the commander. In fact, one of those 
panels, the response systems panel, included former Democratic 
Congresswoman Elizabeth Holtzman and Ms. Mai Fernandez, a 
civilian prosecutor and executive director of National Center 
for Victims of Crimes. Both Representative Holtzman and Ms. 
Fernandez came to the panel believing that removing the 
commander sounded right. But after hearing from hundreds of 
expert witnesses and reviewing the data, both changed their 
mind. Representative Holtzman said that ``if removing the 
commander and putting the power in the hands of prosecutorial 
bureaucracy would make a difference, I would be saying junk 
it.''
    We can't have the present system, but we haven't seen any 
evidence of that. Three weeks ago, one of our former Military 
Personnel Subcommittee colleagues spoke on this subject. 
Senator Martha McSally bravely came forward to tell about her 
experience of sexual assault in the military. In a subsequent 
letter to the Acting Secretary of Defense, she stated, ``I 
strongly believe we cannot take responsibility away from the 
commanders due to the unique roles commanders play in culture, 
readiness, good order and discipline, and mission.''
    Senator McSally went on to call for the Defense Department 
to establish a task force to look for meaningful and immediate 
changes to improve sexual assault prevention and response.
    Madam Chair, I fully support this task force and ask that 
Senator McSally's letter to the Acting Secretary of Defense be 
made part of today's record.
    Ms. Speier. Without objection, so ordered.
    [The information referred to can be found in the Appendix 
on page 161.]
    Mr. Kelly. As a former commander and district attorney, I 
know that sexual assault is a scourge on both the military and 
society as a whole. But from both a military and legal 
perspective, I am convinced that removing the commander from 
the process will not help the root issue and will likely 
undermine the process. I am committed to working to find 
meaningful, effective solutions to this problem. I look forward 
to hearing from today's witnesses about how to do that.
    Thank you, and, Madam Chair, I yield back.
    Ms. Speier. Thank you, Mr. Kelly.
    Each witness will have the opportunity to present his or 
her testimony, and each member will have an opportunity to 
question the witnesses for 5 minutes. We respectfully ask the 
witness to summarize their testimony in 5 minutes. Your written 
comments and statements will be made part of the hearing 
record. We will begin by welcoming our first panel: Colonel Don 
Christensen, United States Air Force, retired, president of 
Protect Our Defenders; Colonel Ellen Haring, U.S. Army, 
retired, chief executive officer of Service Women's Action 
Network; Lieutenant Commander Erin Elliott, U.S. Navy; Ms. 
Nelli Hanson; Ms. Angela Bapp; Lieutenant General Flora 
Darpino, U.S. Army, retired.
    With that, Mr. Christensen, the floor is yours.

   STATEMENT OF COL DON CHRISTENSEN, USAF (RET.), PRESIDENT, 
                     PROTECT OUR DEFENDERS

    Colonel Christensen. Chairwoman Speier, Ranking Member 
Kelly, distinguished members of the subcommittee, thank you for 
the opportunity to appear before you to examine the role of the 
commander in sexual assault prosecutions.
    I am glad you are holding this hearing on this topic, as 
the role of the commander is greatly misunderstood. I believe 
the common misconception is that all commanders have 
prosecution authority, which is entirely not true. Prosecution 
authority vests in a tiny subset of commanders called convening 
authorities.
    Convening authorities are the only commanders who have the 
traditional prosecutorial authority to send a case to a court-
martial, to add or dismiss charges, or to approve a pretrial 
agreement or a plea bargain.
    Based on recent changes to law, convening authorities are 
the only ones who can dispose of a sex assault or rape case. To 
put this in perspective, the DOD [Department of Defense] has 
around 14,500 commanders. But only 393 commanders have general 
court-martial convening authority, and only 139 actually use 
this authority to convene a court, according to most recent DOD 
data.
    In other words, less than 1 percent of all commanders 
exercise prosecution authority for the most serious level of 
court. Approximately 600 special court-martial convening 
authorities referred a special court, or about 4 percent of all 
commanders. I bring these numbers to your attention because it 
is important to understand that despite what you may hear 
today, prosecution authority is not integral to being a 
commander.
    Ninety-five percent of the commanders do their job every 
day without the ability to send anyone to a court-martial. 
These commanders have a wide range of tools to allow them to 
set and enforce discipline. They can do this through 
nonjudicial punishment, administrative counseling, discharges, 
ordering pretrial restraint and confinement, and issuing 
protective orders. The commanders without convening authority 
have the greatest impact on a disciplined force, because they 
are the commanders the rank and file work directly for and 
know.
    Convening authorities are many layers removed from the rank 
and file and may be geographically separated by thousands of 
miles.
    Moreover, the reality is, courts-martial are almost never 
used for purely discipline issues, such as disobedience and 
AWOL [absent without leave]. Instead, over the last 230 years, 
courts-martial have transitioned to an almost exclusive process 
for prosecuting common crimes. By this, I mean conduct that 
would be both a crime in the military and a crime in civilian 
society.
    Additionally, the use of courts-martial has and is 
plummeting. According to the most recent data from the 
Department of Defense, in fiscal year 2015, the entire military 
convened less than 2,000 general and special courts. That is 
for all crimes, not just sex assault. This is a dramatic drop 
from fiscal year 2000, when the military prosecuted almost 
5,000 special and general courts. Despite the military only 
being 4.65 percent smaller, general courts fell 31 percent, and 
special courts plummeted 73 percent.
    If we look back to fiscal year 1990, the drops are even 
more dramatic. That year, the military prosecuted almost 10,000 
special and general courts. In the late 1950s, the Army alone 
did almost 50,000 courts a year despite being the same relative 
size as it is today.
    It is clear that the military has transitioned away from 
the court-martial as a discipline tool to a criminal justice 
process. Yet, the military has demanded that nonlawyer 
convening authorities retain control of a process they are 
simply not qualified to administer.
    The ABA [American Bar Association] has set out a clear 
standard that the prosecution decision should be made by 
lawyers admitted to a bar and subject to ethics standards. The 
reason for this standard is obvious: Only lawyers are qualified 
to act as prosecutors and make prosecution decisions.
    The military's insistence that convening authorities are 
more qualified is indefensible. There is nothing inherent to 
command that qualifies someone to make prosecution decisions. 
Someone does not become qualified to make prosecution decisions 
from PowerPoint briefing and talking to their staff judge 
advocate any more than they are qualified to perform surgery 
because they have taken a Red Cross course.
    It is time to accept that the practice of law is a 
profession [in] which commanders should not be engaged.
    And in my remaining time, I would just point out, Ranking 
Member Kelly, only one of the three panels has actually looked 
at the role of commander. The Judicial Proceedings Panel 
refused to look at that issue. And the current DAC-IPAD 
[Defense Advisory Committee on Investigation, Prosecution, and 
Defense of Sexual Assault in the Armed Forces] has not yet 
addressed the issue.
    And with that, I look forward to answering any questions 
you may have.
    [The prepared statement of Colonel Christensen can be found 
in the Appendix on page 50.]
    Ms. Speier. Thank you, Mr. Christensen.
    Ms. Haring.

  STATEMENT OF COL ELLEN HARING, USA (RET.), CHIEF EXECUTIVE 
            OFFICER, SERVICE WOMEN'S ACTION NETWORK

    Colonel Haring. Thank you for allowing me to make remarks 
today on this important topic. I am the CEO [chief executive 
officer] of the Service Women's Action Network. I retired from 
the Army in 2014 after 30 years of military service. I am a 
West Point graduate, and I have degrees--I have a master's 
degree in public policy and a Ph.D. in conflict analysis and 
resolution. I have taught at the Army's Command and General 
Staff College, the Army War College, and Georgetown University.
    My research and work focuses on women and gender in the 
military. I commanded two Army units, the last at the brigade 
level, during my military career. During my very first Army 
assignment, one of my soldiers was murdered, and I closely 
watched as the criminal investigation and subsequent conviction 
unfolded. But at the unit level, we had no involvement in the 
investigation.
    Later, one of my soldiers was charged with selling drugs in 
the barracks. He was immediately locked up in pretrial 
confinement, and the only thing that we did was make health and 
welfare visits to ensure that he was being properly treated.
    Years later in 1997, when I was a major stationed in 
Hawaii, I was assigned as the investigating officer in three 
rape cases. I am not an MP [military police officer], a CID 
[U.S. Army Criminal Investigation Command], or JAG [Judge 
Advocate General], and I have no training in how to investigate 
a sex crime. Although I found the three soldiers who had been 
raped to be credible victims, the perpetrator, an NCO 
[noncommissioned officer], was eventually reassigned to another 
unit.
    I juxtapose these experiences to illustrate the very 
different ways the military has approached how felony crimes 
have been handled over the years. Sex crimes against women have 
never been treated with the same level of outrage or 
professionalism as other serious crimes. Fortunately, and to 
the credit of Members of Congress, the Army no longer allows an 
untrained officer to investigate cases of rape. But other 
problems persist.
    First, while military officers and those selected to 
command receive a great deal of training, they have little 
legal training. Having taught at the two Army's premier service 
colleges, I can tell you that their legal training is 
superficial at best, and only senior-level commanders have JAG 
officers assigned to their staffs to advise them. And these JAG 
officers are generalists, they are not prosecutors, and they 
don't have expertise in sex crimes.
    Furthermore, the JAG officers assigned to senior leaders 
are always junior and subordinate to the commanders that they 
advise. This means that they are evaluated and rated by their 
bosses and are therefore subject to command influence. They are 
not independent, nor are they experts in sex crimes.
    Second, at SWAN [Service Women's Action Network], we hear 
from and work with survivors on a daily basis. Their stories 
are always similar. If they decide to come forward and report, 
they are generally not believed. They are seen as creating a 
problem where none existed before. And they almost always 
suffer retaliation. They consistently tell us that their 
commanders failed them in profound ways.
    As a former commander, I can tell you that I would not want 
to have to decide if or when to move forward with the 
investigation of a sex crime because I know that my knowledge 
and expertise is limited in this area. In fact, in any criminal 
area.
    Furthermore, there are simply too many possible conflicts 
of interest for commanders to be the best decision-makers in 
sex crimes--in sex crime cases, not to mention the fact that 
there are commanders themselves who have been perpetrators.
    Finally, the next panel is going to sit here and say that 
commanders must stay in the decision-making process in order to 
maintain good order and discipline, a nebulous concept that 
they won't first define. However, all of our European allies, 
as it has been pointed out, have removed their commanders from 
the decision-making process, but good order and discipline has 
not melted away in their military organizations.
    The panel will likely tell you that the U.S. military is 
exceptional and cannot be compared to our allies. If we are so 
exceptional, then why must our commanders have a degree of 
authority over their subordinates that our allies don't need, 
in order to maintain the same level of good order and 
discipline?
    At SWAN we support removing commanders from the decision-
making process, because doing so will send a signal that there 
are certain crimes for which they are not qualified to make 
decisions on.
    Culture is ultimately at the root of our sexual assault 
problem in the military. Sexual assault is simply not seen as a 
serious crime. Until it is viewed as a serious crime and 
treated as a felony, it will continue to pervade our culture. 
Removing commanders from the decision-making process sends the 
signal that there are some crimes that are so severe, that 
commanders have no place in deciding if, when, or how they are 
prosecuted. I believe that will fundamentally shift how we view 
sexual assault and ultimately impact our culture in a way that 
says this behavior is absolutely unacceptable.
    Thank you. I look forward to your questions.
    [The prepared statement of Colonel Haring can be found in 
the Appendix on page 59.]
    Ms. Speier. Thank you, Ms. Haring.
    Lieutenant Commander Elliott.

           STATEMENT OF LCDR ERIN ELLIOTT, U.S. NAVY

    Commander Elliott. Good afternoon, Congresswomen and 
Congressmen. Thank you for inviting me here today. I appreciate 
the opportunity to speak about my experiences and share my 
thoughts.
    I have been in the Navy for little more than 14 years now, 
and have served on six different ships and lived around the 
country and the world. In August of 2014, someone who I 
considered a close friend raped me. It was an extremely 
traumatic experience, one that nearly destroyed me.
    Initially, I made a restricted report. I did not want my 
commanding officer to know, nor did I want law enforcement 
involved. I spent months in shock, and the only way I made it 
through was with the support of my good friends in the SAPR 
[Sexual Assault Prevention and Response] team. As I progressed 
in my healing, working through the PTSD [post-traumatic stress 
disorder], anxiety, and depression I was diagnosed with because 
of the assault, I moved to a new command with a new commanding 
officer, and I began to consider changing my report from 
restricted to unrestricted.
    I was very lucky at my new command. I had a wonderful 
commanding officer and a great work environment. When I decided 
to change my report to unrestricted, I had the amazing support 
from my commanding officer, someone I consider the best leader 
I have ever known. He went above and beyond what was required 
of him in the situation.
    Unfortunately, I would learn through my experience and 
through listening to other victims' experiences, that this 
support is not the norm. While I did not expect everyone to be 
the great leader he was--or he is, I did expect to be treated 
with the same dignity and respect he showed me, and I was not.
    When I moved to a new duty station overseas, to become a 
commanding officer of a warship myself, it was made immediately 
apparent to me that the fact I was a sexual assault survivor 
was a burden and inconvenience to my bosses, and the upcoming 
court-martial for the person who raped me was a hindrance to 
them.
    Due to appeals regarding a decision the presiding judge in 
the case made, when I reported to my new command, it was 
unknown when the court-martial would happen. One of the first 
things my new boss said to me regarding the court-martial was, 
``Well, I hope it is not during an important part of the ship's 
life,'' which all I could think is, ``Well, next time I get 
raped, I will try to plan it better.'' This is the first of 
multiple comments that my boss has said to me, that not only 
revictimized me and were extremely insensitive, but made me 
seriously question continuing to move forward with the case.
    One of the most degrading and humiliating occurrences was 
when my boss was forwarded a copy of the NCIS [Naval Criminal 
Investigative Service] report that discussed intimate details 
of the assault. I was called into his office, where he told me 
he had received and just read the report. After he handed it to 
me and I read it, I very seriously considered dropping the 
case, as I did not want my boss reading about my vagina.
    And when I left my ship for a few weeks to be at the court-
martial, my boss told me how he had to temporarily relieve 
someone in command for several months because they had had 
cancer and needed to get treatment. He told me he would much 
rather go through what I am going through than have cancer. I 
can tell you, after being diagnosed and treated for breast 
cancer last year, I would much rather go through that than 
through an assault.
    Upon returning from the court-martial, nothing within the 
command environment got better. I was humiliated, ostracized, 
outcast, and ridiculed from people of every rank. There were 
multiple events for commanding officers that I was not invited 
to attend. My ship was given unfair scrutiny magnitudes greater 
than what any other ship was.
    What nearly broke me, what was almost as bad as the assault 
itself, my personal information regarding the assault was 
divulged to my peers, including counseling information I had 
only discussed with my bosses, who would then use it to 
humiliate and demoralize me. If I could have gotten out of the 
Navy at that point, I would have, but I was in a contract and 
could not.
    As commanding officers in the Navy, we are given a 3-day 
legal course in preparation for our tours. I was by no means a 
legal expert, but was equipped to deal with the minor 
infractions that affect good order and discipline. It is my 
belief, not just as a military sexual assault survivor, but as 
a former commanding officer myself, that some infractions are 
so grievous, so heinous, that they must be elevated to a higher 
level than just command level.
    Sending sexual assault cases to trained military judges 
shows just how seriously this crime is taken, that we will not 
allow perpetrators to get away with this crime, and it 
reinforces to countless victims that they will be taken 
seriously.
    Additionally, victims will feel more comfortable coming 
forward, knowing their bosses will not be reading the intimate 
details of the assault.
    Thank you for your time, Congresswomen and Congressmen, for 
allowing me to share a small piece of my story with you today.
    [The prepared statement of Commander Elliott can be found 
in the Appendix on page 71.]
    Ms. Speier. Thank you, Lieutenant Commander Elliott.
    Ms. Hanson.

 STATEMENT OF NELLI HANSON, PRODUCT SUPPORT MANAGER, U.S. AIR 
                             FORCE

    Ms. Hanson. Thank you, Chairwoman Speier, Ranking Member 
Kelly, and distinguished members of a subcommittee, for the 
opportunity to speak to you before today as a victim of 
military sexual assault and harassment. I am Nelli Hanson, 
product support manager for the Air Force.
    I have dedicated my career to serving our country, first as 
a United States Marine, and then as a civil service Air Force 
employee. I have always believed in my work and dedication to 
our United States military. And I still do. But when I followed 
the military procedures for reporting my sexual assault, the 
system failed to protect me and provide me with the justice 
that I and all Active Duty and DOD employees deserve.
    I have been stationed all over the world, to include Japan, 
the Pentagon, and Gunter Annex in Montgomery, Alabama. I 
arrived at Gunter in 2014 as the director of logistics. I 
developed a close working relationship with the colonel, who 
would eventually become my assailant.
    The working relationship started out as professional, but 
by the following spring, the colonel had started to 
relentlessly sexually harass me. I did my best to keep things 
professional by ignoring his lewd texts, inappropriate 
behavior, and ensuring I was never alone with him and telling 
him multiple times to stop. Eventually, he physically assaulted 
me, and I reported it to my civilian Senior Executive Service 
supervisor.
    My supervisor instructed me to file a report with the Air 
Force's Sexual Assault Response Coordinator. A day after I 
filed the sexual assault complaint against the colonel, I 
received a text message from him, admitting to his misconduct, 
and conceding that he abused his position of power over me.
    I followed the procedures, but it only made the workplace 
hostile. I noticed that I was treated differently by my 
colleagues and my supervisor. I was left off of important 
meetings and emails, further straining my career.
    Once the Air Force investigation was underway, I was told 
by my general that several media inquiries had been made. I was 
informed that he planned to give the media a watered-down 
version to make them lose interest. I protested. If anything 
should be released to the media, I said, it should be my 
assailant's official charge sheet. I wanted the assailant to be 
held accountable for his actions and not have his inappropriate 
behavior downplayed. But the general ignored my wishes. Even 
worse, the general gave his same watered-down statement to my 
fellow colleagues and Air Force staff at Gunter, further 
discrediting my report.
    I requested that the general transfer the colonel to a 
neighboring base so that I could continue to do my job, but he 
refused. Instead, the colonel was moved only two buildings 
away, to the logistics division, where I performed portions of 
my daily workload.
    Based on these series of events, I realized the general's 
interest was to protect his colonel, with complete disregard to 
me.
    The general offered to transfer me to a new location. This 
meant I would have to transfer my children out of a community 
they loved, a strong church family, a great school, and a 
community they loved.
    At the time of the report, I was on the cusp of being 
promoted to GS-15. But because keeping my current job had 
become unbearable for myself and my family, I was forced to 
relinquish the promotion and transfer to Eglin Air Force Base 
in Florida to start the healing and rebuilding process.
    As for the colonel, the investigation showed that he self-
admitted to sending over 400 text messages, sexually graphic 
voicemails and photos, and using his position of power as 
intimidation. Unlike, perhaps, many sexual assault cases, the 
evidence here was overwhelming.
    To my special victims' legal counsel, I made it clear that 
any action taken against the colonel should include a finding 
that he sexually assaulted me. The general ignored my wishes 
and allowed my assailant to retire honorably from the Air 
Force.
    At every turn, the Air Force went out of its way to shield 
him from the consequences of his misconduct and let me endure 
his punishment. After my assailant was allowed to walk away 
scot-free, I was informed that the Air Force considered the 
colonel's character and record of military service in making 
his disposition determination, which I understood is a 
violation of the law.
    I am rebuilding my career and making a home for my family 
in Florida, but I have lost faith in the system that I have 
devoted my life to. I followed protocol and expected to be 
treated fairly. Instead, I was humiliated and ostracized for 
being a victim of a predatory supervisor. And ultimately, my 
assailant was allowed to retire with honor, against my express 
wishes.
    I will hope that you will reconsider the inherent conflicts 
of interest in allowing my chain of command to make legal 
decisions, and I urge you to critically examine the role of the 
commander in sexual assault prosecutions.
    Thank you for the opportunity to speak to you today, and I 
look forward to answering any questions you have.
    [The prepared statement of Ms. Hanson can be found in the 
Appendix on page 80.]
    Ms. Speier. Thank you, Ms. Hanson.
    Now, Ms. Bapp.

                    STATEMENT OF ANGELA BAPP

    Ms. Bapp. Chairwoman Speier, Ranking Member Kelly, 
distinguished guests, thank you for the opportunity to speak 
before you today as a survivor of military sexual assault. I am 
here to share my story and to shine light on the systemic 
failures that made justice impossible in my case.
    I graduated from the top 3 percent of my class at West 
Point and soon after arrived at Ft. Rucker, Alabama, to begin 
my career as an aviation officer. Throughout my flight 
training, I became close friends with a mentor and fellow 
flight school classmate of mine who was going through a 
divorce. He arrived at flight school married to an officer who 
was given a leadership role in our battalion. After some time, 
his wife became my company commander.
    In a completely unrelated situation, a different flight 
school classmate of mine sexually assaulted me. When it 
occurred, my classmate was the only one who I trusted enough to 
tell what had happened to me, to discuss filing a report, and 
to care for my well-being.
    I knew that making an unrestricted report in order to hold 
my assailant accountable would mean that my commander would be 
notified and automatically involved in matters of my sexual 
assault. That was enough for me to delay reporting by several 
days.
    Despite the potential personal conflict, I trusted in her 
professionalism and in the system's ability to treat an issue 
such as sexual assault with pure objectivity. My trust was 
misplaced.
    The sexual assault occurred on a Sunday, and I reported it 
the following Tuesday. On Friday, I was informed that Ft. 
Rucker's criminal investigative division was investigating me 
for adultery, with my commander's husband, not even 3 days 
after I reported my sexual assault.
    My commander's position of authority gave her immediate 
access to the higher levels of my command, my prosecutor, the 
investigators, and my cadre members.
    Prior to my report, my commander contacted the prosecutor 
who would eventually be assigned to my case about her personal 
business, seeking advice for a private investigator to 
investigate her husband. When her husband came forth as a 
witness in my sexual assault case, the prosecutor linked my 
case to my commander's personal situation.
    My commander also had a preexisting relationship with the 
installation commanding general, the two-star convening 
authority responsible for deciding if my sexual assault case 
would go to trial. She requested his audience about matters of 
her divorce prior to my sexual assault investigation 
concluding. This, too, I believe, hurt my case's ability to 
move forward to trial.
    Unfortunately, I did not have a unit commander who was able 
to serve in the best interest of a sexual assault victim, due 
to these and several other personal conflicts. The inherent 
conflict of interest in my chain of command made it impossible 
for me to have a truly objective case.
    Ultimately, my case did not move forward because the system 
failed to provide me with a conflict-free process I deserve. As 
for me, I was given a general officer memorandum of record, 
which was filed in my permanent record and effectively ended my 
career.
    A subsequent Army internal investigation into Ft. Rucker 
found that the command subordinate relationship in my case 
showed an obvious conflict of interest, which led to a lack of 
lower-level command support for me, and confirmed my complaint 
of feeling isolated.
    While the finding confirmed what I already knew, it does 
nothing to give me my career or life back. I am sometimes asked 
what we can do together to address military sexual assault 
within our ranks.
    First, we need to believe victims. Believing a victim does 
not mean charging or convicting the innocent. But the systemic 
fallacy of victims making false reports and accusations needs 
to stop. As a survivor, I was plagued by this false belief, 
based on my personal circumstances with my commander's husband. 
It is absolutely disgusting and absurd that this belief is so 
common. Commanders absolutely have a role in addressing sexual 
assault within their unit. They are still responsible for the 
good order and discipline, along with decency and respect that 
comes from their soldiers. We need to encourage our commanders 
to act more when they can, and not expect them to be 
professional law authorities and experts on the psychological 
complexities of sexual abuse.
    We need to raise our commanders to speak up and to take 
action when insensitive or misogynistic comments are made, and 
reward them when they do.
    In my experience, those who utter sexually inappropriate 
remarks are more likely to commit acts of sexual violence. If 
my assailant had been reported on the spot for every 
misogynistic or sexual comment, he would have been out of the 
Army long before he had the opportunity and access to rape me.
    All I ever wanted to do is to serve my country, lead 
American soldiers, and fly the Apache helicopter. The loss of 
my military career and my inability to trust larger 
organizations, such as our military, has deeply impacted who I 
am today. I struggle with accomplishing even minor daily tasks, 
and my quality of mental and emotional health has greatly 
deteriorated. I deserve better, and the Army lost a warrior.
    I am hopeful that my testimony here today will aid this 
committee in continuing to fight the scourge of sexual assault 
within our ranks. Thank you again for your time, and I will be 
happy to answer any questions you may have for me. Thank you.
    [The prepared statement of Ms. Bapp can be found in the 
Appendix on page 89.]
    Ms. Speier. Thank you, Ms. Bapp.
    Ms. Darpino.

        STATEMENT OF LTG FLORA DARPINO, U.S. ARMY (RET.)

    General Darpino. Thank you, Chairwoman Speier, Ranking 
Member Kelly, other members of the committee. I am Flora 
Darpino, and I support----
    Ms. Speier. Have you turned on your microphone?
    General Darpino. I am on?
    Ms. Speier. You are on.
    General Darpino. I did the gratuitous ``thank you all'' for 
inviting me here today, and I just wanted to let you know that 
I am Lieutenant General, retired, Flora Darpino. I served over 
30 years in the Army. I had important military justice 
positions. I also was a staff judge advocate at the two-star, 
three-star, and four-star level, and twice in a combat zone.
    Prior to my retirement in 2017, I had the honor of serving 
as the 39th Judge Advocate General of the Army. The military 
often has problems translating our concepts into plain English, 
and so I want to just take a minute to explain what it means by 
good order and discipline, command authority, and 
accountability.
    A commander is often equated with a parent. A commander, 
like a parent, is responsible for everything regarding their 
soldiers. Commanders must ensure that their soldiers are fed, 
clothed, and housed, just like a parent. They are responsible 
for their soldiers 24 hours a day, 365 days a year, just like a 
parent. And like a parent, they are responsible to hold their 
soldiers accountable, when they do not follow the rules.
    So as a parent, when you set curfew at midnight, and your 
son comes home at 1:00, you meet him at the door and you inform 
him that he is grounded for the weekend. You ensure good order 
and discipline in your home, and you do that by having 
disciplined that individual and hold them accountable.
    Now, imagine if you as a parent had the authority to--did 
not have the authority to ground your child. You would meet him 
at the door and you would state, Son, you broke curfew, 
tomorrow morning I am going to go next door and ask the lawyer 
if I can ground you. That is what happens when you set the 
responsibility for good order and discipline from the ability 
to hold someone accountable.
    Now, that is not a perfect example, but it is just to give 
you an idea what we mean when we say good order and discipline, 
and the ability to hold someone accountable, and how they are 
inextricably intertwined.
    Pulling authority for court-martials away from commanders 
does not just affect a small number of commanders as previously 
stated.
    First, Congress has withheld the authority to convene 
general courts for very serious crimes, to a level where we 
have commanders that have extraordinary experience, and they 
are advised at every step of the way, by extraordinarily 
experienced staff judge advocates. That is a good thing.
    But, commanders at each level exercise court-martial 
authority. At the lowest level, that authority may be exercised 
through the preferral of charges that are forwarded up the 
chain of command to the appropriate level to convene a court.
    Even with nonjudicial punishment, a commander seeking to 
impose it does so with a commitment that they will try the 
offenses at a court-martial, should the soldier decline the 
Article 15 nonjudicial punishment. So pulling court-martial 
authority from commanders affects every level of command.
    Additionally, proposed legislation that I have looked at 
includes broad swaths of crimes, classic indiscipline offenses 
such as barracks larcenies, serious fights between soldiers, 
drug offenses. And, again, while some would argue a commander 
could still impose nonjudicial punishment in those cases, she 
only has the authority when she asks the lawyer's permission 
and the lawyer commits to try that case, should the soldier 
turn it down.
    Truthfully, when you walk into a unit, the first thing you 
see is a line of pictures, and the soldiers know that that 
represents the chain of command and the chain of authority. 
Orders run down that chain, and enforcement of discipline comes 
from that chain. No commander should have to go next door to 
ask a staff officer if they may discipline their soldier. I 
look forward to discussing this issue with you.
    [The prepared statement of General Darpino can be found in 
the Appendix on page 99.]
    Ms. Speier. Thank you.
    Let me start off by asking the three very courageous women 
here a very simple question. Was the response of the military 
in your reporting your sexual assaults, worse than the rapes 
itself? Just raise your hand. So all three of you basically 
saying that while as horrendous as the sexual assault was, the 
process that the military used to provide justice was worse?
    [Nonverbal response.]
    Ms. Speier. Lieutenant Commander Elliott, you had indicated 
to me that you had been recently providing training at various 
locations. Could you tell us a little bit about that and what 
has happened since?
    Commander Elliott. Yes, ma'am. For the past couple of 
years, I have been invited to speak by different groups, down 
in Norfolk, at U.S. Strategic Command, just to share my 
experiences, and what I went through as a military sexual 
assault survivor. And I have always worked through the unit COs 
[commanding officers] and their respective SARCs [Sexual 
Assault Response Coordinators] to give this training, and I 
have received lots of positive feedback, from the most junior 
enlisted up to vice admirals.
    Last week, I received an email telling me that I am no 
longer allowed to do this for any type of SAPR event or 
training and that my talking points were inconsistent with the 
current Navy SAPR program. And when I called to speak to this 
person who sent me this email, I was told basically that I was 
too raw, it was too real, and that--there was a lot of 
negative, because there is a lot of negative in my story, but 
that I could work on this, and if I wanted to talk about the 
positives, that would be okay.
    And I think that is sugar-coating the issue. I mean, the 
reason, you know, we don't address it seriously with training 
right now, and this is part of the problem, is we don't want to 
address what it really is.
    Ms. Speier. Ms. Bapp, do you think that your case would 
have been handled differently if it was given to a different 
commander who didn't have a conflict of interest?
    Ms. Bapp. Entirely, wholly, yes, I do. And you know, it 
doesn't go down to there are good commanders and there are bad 
commanders. It goes down to the fact that commanders are 
people. We are fallible. We are humans. And it is not that my 
commander was a bad commander. I am sure she wouldn't want that 
on her plate either, but it is just there is an inherent 
conflict of interest. And it is one thing for me to trust 
someone who eventually was my assailant, but for me to trust 
the command and the system that I signed to risk my life for, 
in order to serve my country; when that fails me, and my trust 
was misplaced, that has a huge impact on just the outcome of 
everything and our psychological well-being. And I--even if my 
assailant wasn't prosecuted, I just think believing and 
trusting in the system would have just been a wholly more 
adequate response, yes.
    Ms. Speier. Ms. Hanson, you indicated that you received 
over 400 text messages that were sexual in nature. Were there 
also videos or photographs that were sent to you?
    Ms. Hanson. Yes, ma'am. He sent explicit voicemails, and 
also on a government computer, sent inappropriate emails. He 
would also set up meetings, and so when I would inquire what 
the purpose of the meeting was, he would be like, oh, just to 
get you alone. And then I would make sure that I had another 
overlapping meeting so that way I couldn't attend his meetings. 
And any time I did have to attend a meeting with him, I would 
make sure other people were in the room, and I was never alone 
with him.
    But he self-admitted to every bit of it. He self-admitted 
to physically attacking me, to sending voicemails, to sending--
to sending text messages, every bit of it.
    Ms. Speier. Did you ask that the case be sent to court-
martial?
    Ms. Hanson. Yes, ma'am, I did.
    Ms. Speier. And what happened?
    Ms. Hanson. It was not sent to court-martial. He received 
an Article 15 and was allowed to retire from the Air Force.
    Ms. Speier. And he gets full benefits, I trust?
    Ms. Hanson. Yes, ma'am.
    Ms. Speier. Colonel Christensen, you had, in your 
testimony, indicated that when all is said and done, less than 
1 percent of the convening authorities actually used their 
prosecutorial authority for purposes of a court-martial. Is 
that correct?
    Colonel Christensen. One percent of commanders, yes. So----
    Ms. Speier. Of commanders?
    Colonel Christensen. Right. And so I disagree with the 
lieutenant general. I do not agree that the prosec--or, excuse 
me, a commander can punish without the permission of a JAG. It 
absolutely is not true. Every action that a commander takes to 
punish a JAG--or punish a member has to be reviewed by--for 
legal sufficiency by the JAG. A commander convening authority 
cannot send a case to trial without--to a general court-martial 
without their staff judge advocate giving them legal advice 
that meets the requirements of Article 34. So they have to get 
the advice, and I think it is dismissive to call them staff 
officers--to get the advice of JAGs when to do this, and they 
have to have permission of JAGs to do certain things.
    What they do not have to have permission of is to not do 
anything. So the commander wants to do nothing, there is 
nothing a JAG can do to force him to do it. So that is where 
the disconnect is. Commanders, because of the inherent abuse of 
authority that has existed over the last 230 years, many 
restraints have been placed on the commanders' ability to 
punish, but there is not the same kind of restraints on their 
ability to ignore, as in Ms. Hanson's case, where the evidence 
was overwhelming, the accused had confessed, and the victim is 
asking, demanding, sent a very personal email to the convening 
authority, please, begging him to send it to court, and 
instead, because he liked that colonel and thought he was a 
good person, allowed him to retire. That is what the issue is.
    And I think it is also offensive to consider this the 
equivalent of a parent and child relationship. A parent is not 
qualified, just like a commander isn't, to criminally prosecute 
their children, and no parent ever would criminally prosecute 
their children. That is the problem. The inherent bias of 
command is the problem.
    Ms. Speier. The recent DOD IG [Inspector General] report 
audited 82 sexual assault cases, and found that in 77 of them, 
victims were either not asked their preference on where their 
case would be tried, or that the preference wasn't recorded. 
Are you concerned by this failure to comply with the Federal 
law, and what does it mean to you that there is no system of 
recording victims' preference?
    Colonel Christensen. Yeah, I am very concerned. Protect Our 
Defenders FOIA'd [Freedom of Information Act] this information 
in July of 2017. Every branch responded and said they didn't 
track the numbers, they had no idea how many people had been 
informed, or whether they were even informing them. Our 
experience at Protect Our Defenders is, survivors were not 
told, or if they were told, they were talked out of going to 
the civilians.
    Congress made this very important change to law to give 
survivors greater choices. There are times when a victim would 
be much better off having their case adjudicated by the 
civilian authorities than the military. There are times when it 
would be better off having the military do it. That is a choice 
that a victim has been given by you. It is not up to the 
government, not up to the military, to ignore that choice. I am 
very concerned. We put them on notice a year--almost 2 years 
ago, that this was an issue. And it wasn't until this DOD IG 
report came out last week that they suddenly seemed to care.
    And this isn't the only time that Congress has imposed new 
laws and imposed new requirements on the DOD, and they have 
ignored them. For example, the DOD was told specifically by 
Congress, you will no longer send penetrative sex cases to 
specials or summary courts. They will only go to general 
courts.
    But the DAC-IPAD report that came out last week showed that 
there are a number of occasions where penetrative sex assault 
cases are going to special courts, and summary courts, what 
aren't even a real court, and that is done in direction 
violation of law that was passed by this Congress.
    Ms. Speier. Colonel Haring, do you have any comments?
    Colonel Haring. No, not at this time.
    Ms. Speier. All right. I guess my last question would be 
for each of you, what changes should we make in the UCMJ, or 
what provisions should we put in the NDAA to rectify some of 
these circumstances, short of taking these cases out of the 
chain of command?
    Colonel Christensen. Well, I can go first. Another issue 
that Congress has addressed is to increase the quality of the 
prosecutors; you have mandated that the services create 
litigation tracks for prosecutors. I, against--going, swimming 
upstream, was able to prosecute and defend cases in my entire 
career. I was an extreme rarity. The average Air Force JAG 
quits after its 2- or 3-year point, and we have a few that 
might go on to a second or third assignment. There are very, 
very, very few really experienced prosecutors. So that is one 
thing. Push these gentlemen behind me for answers why they have 
not created senior litigators. The Air Force has not had a 
colonel going to a court-martial since I left. Why is that the 
case?
    The second thing--and I think, Mr. Kelly, you would agree 
with me--that the investigative stage is the most critical part 
of the criminal-justice process. No matter how good a lawyer 
is, if there is a bad investigation, it is hard to overcome. 
Our investigators, like our lawyers, are often experienced, 
they are very eager, they try hard, but these are complex 
cases, and you need good investigators.
    I would say to the Congress, you need to ask the tough 
questions of the Chiefs of Staff, why have you not prioritized 
real experience with your investigators, and a 3-year-and-out 
tour is not enough. It needs to be something that is a career 
track for investigators as well.
    Ms. Speier. Are you suggesting that they should be 
civilian, then?
    Colonel Christensen. Well, there are civilian investigators 
in every one of the investigative services. I think what you 
need to do is to give those who are in the military great 
opportunity to continue in that track. I know it goes against 
their career model. But it is 2019. Using a career model from 
1940 is probably not the best thing to do. Let investigators be 
investigators for their entire career.
    Ms. Speier. Thank you.
    Colonel Haring.
    Colonel Haring. Thank you. This is a hard question, because 
I don't think that a solution here is in the justice system at 
all. Once it gets to the justice system, we have already had an 
assault. I think the problems lie within our culture, and we 
have not, one, acknowledged that we have got a cultural 
problem; or two, how do we address a cultural problem that 
allows for harassment and assault to exist in the first place?
    One of the things that our organization has long worked 
toward is systemic military culture change, and one of the 
places that we have called attention to is that when soldiers, 
sailors, airmen, and Marines first join the military services, 
they are indoctrinated early, when they are very young, at 
basic training. And we continue to see the highest rates of 
harassment assault exist in the one service that continues to 
segregate men and women during basic training, and that is the 
Marine Corps. I think that this needs to begin at the entry 
level and go all the way through in our training and education 
systems. I don't think that incremental changes to the justice 
system are the answer to, or a solution to this problem.
    Ms. Speier. Lieutenant Commander.
    Commander Elliott. Yes, ma'am. Two things I really 
recommend is, first one being training. You know, we talk about 
training, we all have training every year. And it is depending 
on the trainer who gives it, but we still don't take things 
seriously that we need to be. For example, whenever we do the 
training in the Navy, we have, you know, women are raped and 
men are groped. We never talk about men being raped by women or 
men. And I feel like we are not addressing, again, the nitty, 
the uncomfortable issues. We just gloss over them.
    Also, a discussion I had after one of the presentations I 
did with the--with the vice admiral is, I feel part of the 
problem, when we are doing this training, is, we do a lot of 
consequences-based training, like, don't do this because if you 
do this, your career is over, or you could get in trouble, or 
you could do this; whereas it is supposed to be, it should be, 
we don't do this because we are good people, and we are good 
sailors, and we take care of each other. And I think we need to 
focus on that more, saying, Hey, this is why we don't do it, 
because this is wrong.
    Additionally, I feel like, I know there has been some 
changes, you know, adding retaliation to the UCMJ and that sort 
of thing. I believe retaliation and reports of retaliation need 
to be looked at completely outside the chain of command. 
Because when you have people inside the chain of command 
looking at the retaliation within their command, I mean, that 
sort of defeats the purpose because they don't want a bad 
climate, they don't want a--you know, they might not 
necessarily see that. And I feel like--and I am not saying it 
needs to be a huge organization, but it needs to be someone who 
is not in there at all. You know, they don't know these people, 
and they are coming to truly look if there is some type of 
retaliation going on.
    Ms. Speier. Ms. Hanson.
    Ms. Hanson. I also agree with your comments. I believe that 
retaliation is prevalent, and it is relevant in all of our 
cases. But when I go to the chain of command to report it, I am 
reporting it to the same people that retaliated against me. 
That is really basically ineffective.
    Our training, we are required to sit through training every 
year, and it is basically ``here we go again.'' We have to go 
back through these slides, and it is just--they call it death 
by PowerPoint, and click through them where they go through the 
slides, and jokes are made about it. I believe that the 
training needs to be revamped. I am not saying that more 
training needs to have--happen, but it needs to be realistic 
and up to date. It is not just throw a couple of things up on 
the slides and we just talk to those and then we are done, and 
then we walk out the door and forget everything that everybody 
said.
    Ms. Speier. Thank you.
    Ms. Bapp.
    Ms. Bapp. Yes, ma'am. My biggest piece of advice would be 
zero tolerance. And I know that word has been thrown around. I 
am not talking about zero tolerance with sexual assault. That 
is clearly--I think everybody in this room can agree zero 
tolerance for sexual assault, but how can we actually breed in 
the culture and get everybody on the same page? It starts with 
zero tolerance of the smallest level.
    And as I mentioned how crude and lewd comments were made 
and just how they are so easily thrown around of a sexual 
nature, demeaning, misogynistic, that is what needs to stop. 
And I am not saying we need to negatively--we need to punish 
the soldiers, necessarily, who do that. We need our 
commanders--we need to positively reinforce the commanders to 
step up and stand up and say, hey, cut that out. That is not 
right.
    Because in a similar situation, you know, with gay 
comments, for me, personally, I don't hear that as much. There 
is a commercial on it, and kids were shopping, and they saw a 
sweater they didn't like, and he was, like, oh, that is so gay. 
But the commercial was stepping up and saying at the smallest 
instance, hey, by gay, do you mean lame? Like, no. Let's change 
that word. Let's change that culture.
    So we need to--that is how we can empower our commanders. I 
don't know what the system would be in place, but to truly 
believe in that, because I do believe that most people who join 
the military are good people at heart, and they mean well, and 
they want to have effective combat missions. And in order to do 
that, we need to have this positive culture, so we need to 
stamp out all of the comments. That doesn't make you a better 
soldier. That doesn't make you more of a man or a woman if you, 
you know, made those crude comments.
    We are professionals, and that needs to be constantly 
reminded. So maybe integrating that within our training and 
think of ways to incentivize our commanders to lead in that 
capacity, rather than just laying on the hammer.
    Ms. Speier. Lieutenant General.
    General Darpino. Thank you. And the culture discussions 
that we were talking about and how commanders are responsible 
in solving that culture are well taken, and thank you, ladies, 
for sharing that and also with the training that you have done 
when it comes to educating the force.
    You know, I think part of it is that the DAC-IPAD that just 
came out last week that had looked at multiple, multiple cases 
of sexual assault, and these are done by Federal judges and 
civilian prosecutors. And they reviewed them down to the nitty 
gritty, and they found that commanders are making both 
appropriate decisions when it came to preferral, sending them 
to trial, and in not sending them to trial.
    And with that in mind, you know, what--really to get after 
this, I think we often have to look at the other 
recommendations that the DAC-IPAD had which have to do with 
expedited transfers and how we can ensure that we are having 
expedited transfers. We are moving the accused in a case where 
you had a great commander, and you didn't want to leave, or a 
great job, and you didn't want to leave. So we have to look at 
ways to assist victims still. We are not done there.
    And then we also have to help ourselves find offenders. And 
when we have restricted cases, we often don't know who that 
offender is because it is in a database that we can't touch, 
that commanders can't see. And so if we are able to link the 
different offenders together and then go back to our victims 
and say, you know, it has happened to someone else, would you 
like us to prosecute that? And so I think there are places that 
we can improve our system. Something has to be done, other than 
the DAC-IPAD had some great recommendations, even though they 
did, in fact, support the commander in the system.
    Ms. Speier. Thank you.
    Mr. Kelly.
    Mr. Kelly. I thank each of you victims again for sharing 
your story. I don't know how difficult that is, but I 
appreciate how difficult that is. Maybe that is a better way to 
say that.
    Lieutenant Commander Elliott, offline, if you would provide 
me with information, the name of the person who told you it is 
too raw, I would love that to have follow up with, if you will 
provide that offline.
    Commander Elliott. Yes, sir, I will.
    Mr. Kelly. That is inappropriate, and I am sorry that that 
happened. Provide it, and we will see if I can get a different 
response.
    The realistic training, Ms. Hanson, trust me, I have gone 
through those briefings, and we have got to work on that. I 
mean, we have got to get it so that it is right, so that people 
aren't making jokes and doing that. So thank you all. That is a 
very, very valid point.
    Mr.--Colonel Christensen, thank you. I think a professional 
CID and law enforcement at the level who knows what they are 
doing at that early stage is--that is critical to every case 
that I have ever prosecuted anywhere. So thank you. Very valid 
comment.
    And the only comment I have is going back to you, 
Lieutenant Colonel--Lieutenant Commander. I am sorry. I am an 
Army guy--Lieutenant Commander Elliott, is retaliation. We just 
need to make sure folks understand there is an IG out there 
that gets you outside the chain of command. And I think that we 
already have an organization in place. We just have to make 
sure that folks know how to use it.
    General Darpino, I think there is a perception that 
commanders make UCMJ decisions in a vacuum. What roles do 
lawyers play in advising the commander on whether a case should 
go forward or not, and what happens if a lawyer and a commander 
disagree?
    General Darpino. Well, I think that an earlier speaker 
actually mentioned this, and I think it was Colonel 
Christensen. And Colonel Christensen stated that lawyers are 
involved in these processes at every level, and they are 
advising commanders at every level. Just like a lawyer presents 
to a grand jury, which is a group of civilians, and they 
present all the evidence of the case and they lay it out for 
them, that is what lawyers do for our commanders, and they lay 
out the case and give them advice on what is the appropriate 
disposition. The commander, however, who is the one who is 
responsible for discipline, can make that decision.
    Now, in a sexual assault case, should a commander decide 
against the advice of their staff judge advocate not to send 
that into trial? That goes to the next level commander to 
review, to an even higher level commander to review. Should in 
a sexual assault case a staff judge advocate say yes, this, in 
fact, should go to trial, and--or I am sorry, should not go to 
trial, and the commander agrees this should not go to trial, 
that case goes up also for further review. In fact, if they 
don't follow your advice of your attorney, it goes all the way 
up to the Secretary of the military department concerned.
    And if we are concerned that prosecutors are somehow being 
sidelined in these cases, if a prosecutor out there believes a 
case is being brushed under the rug and should, in fact, be 
tried, they can refer that to the chief prosecutor of their 
military service, and that can be acted on by the Secretary. 
And so these cases are now controlled and pulled up to the 
highest level, reviewed by the best lawyers, and commanders 
cannot brush them under the rug.
    Mr. Kelly. Some have said that removing the commander from 
sexual assault prosecutions would solve the problem of unlawful 
command influence. Could you explain what unlawful command 
influence is and whether it would be eliminated if we removed 
commanders from sexual assault cases, Lieutenant General 
Darpino?
    General Darpino. Okay. So unlawful command influence has 
the word ``command'' in it. And so a lot of people think that 
unlawful command influence can only be accomplished by a 
commander, and case law is very, very clear that that is not 
the case.
    And while Colonel Christensen mentioned that there are a 
number of recent cases where the court found unlawful command 
influence, 50 percent of those cases had to do with a lawyer 
being the one who unlawfully influenced that court. A commander 
was not involved.
    The third case actually had to do with a deliberation where 
it was a panel member who brought politics into a deliberation 
room. So it is really only one of those recent cases that had 
to do with a commander that had committed unlawful command 
influence. So forget the word ``command'' in our system. It 
means when somebody unlawfully influences a case that has a 
position of authority, and lawyers can do it too.
    Mr. Kelly. Thank you. And what is the lowest level of 
command that can make a decision regarding whether a sexual 
assault offense should go to trial and the rank or rank 
equivalent of that, Lieutenant General Darpino?
    General Darpino. So that is withheld by Congress and 
rightfully so. The services have already withheld it to this 
level because they thought it was the right answer, and that is 
at the O-6 level, which would be a brigade commander, someone 
who--in the other services, it would be a commander. Is that 
right?
    Mr. Kelly. A captain.
    General Darpino. A captain. I am sorry. Thank you. I looked 
at her. A captain. And so it is already withheld to the very, 
very highest level, and they have lawyers who advise them at 
that level. They are not doing it blind.
    Mr. Kelly. And just--I am kind of a glass half full kind of 
guy. And so lots went wrong in each one of yours--each one of 
you survivors. It went wrong. So--but let's learn from the 
things that went right too. So for you--you survivors. I don't 
like victims. You all aren't victims, you are survivors, and 
you are much better than that.
    But what part of the process worked good for you? What 
part--if none, that is fine, but what part worked well for you?
    Commander Elliott. I will say, you know, when I did first 
go unrestricted in my first command, I did have a very 
supportive commanding officer, and he went way above and beyond 
anything that he should have ever been required to do, and that 
made--that helped me a lot.
    And then we won't talk about the bad part that happened 
afterwards, but also, I will say we have the Victims' Legal 
Counsel program that was started several years ago, and I know 
Ms. Bapp had a different experience with that, but I had a very 
positive experience, and she was able to--she was my lawyer. 
She represented my interests as opposed to the prosecutor who 
represents the government's interest, and she was able--she 
walked me through every step. Everything we did, she was always 
there with me, and that was a very good part of the program 
which--a very positive change that I think--you know, I know 
they are very overworked, most VLCs [victims' legal counsel]. 
And if that is something we could expand upon, I think that 
would help a lot of people.
    Mr. Kelly. Ms. Hanson.
    Ms. Hanson. I was also assigned a special victims' counsel 
by the Air Force. She assisted me. She was there with me every 
step of the way. One part that they could kind of tweak a 
little bit on that one is that she was assigned to me as a 
captain, and she was going up against a full-bird colonel, a 
three-star general, an SES [Senior Executive Service]. She was 
great. She was absolutely phenomenal and amazing, but she also 
ran into rank issues and admitted it along the way as well.
    Mr. Kelly. Ms. Bapp.
    Ms. Bapp. I had a different experience with getting to my 
SVC [special victims' counsel] that I had outdated paperwork, 
and the SVC collateral misconduct was never mentioned on mine. 
However, once I found my way through the advice of a family 
member, I had a phenomenal experience with him. He was 
supportive. So basically, everything outside of my chain of 
command, the resources that were made available to me. My 
therapist, she was a saving grace, just an absolutely 
phenomenal woman. My SVC, up until the point where there 
appeared to be a conflict of interest because it is a very 
small installation, and he represented my commander in a 
completely unrelated instance, so he had to remove himself from 
being my SVC, so I lost an integral support structure. But then 
I got another one, and he was also fabulous, so those two were 
really positive. But I also had a chain of command. No one 
believed me. So, you know, but they believed me and they wanted 
to help, and that was the most important experience that I had 
in a positive manner.
    Mr. Kelly. Thank you each for your amazing service to this 
Nation and for your warrior spirit.
    And with that, Madam Chairwoman, I yield back.
    Ms. Speier. Lieutenant General Darpino, I can't get around 
the decision made in Ms. Hanson's case. There was cold 
evidence. She wanted a court-martial. It never went to court-
martial, and he got to retire with full benefits. How do you 
explain that, and how is that sound command control influence?
    General Darpino. Well, I don't know enough about Ms. 
Hanson's case except for what she said here today, and I don't 
know who made the decisions in those cases, so I really can't 
say. But I can go back to what I saw and what the DAC-IPAD 
found where they reviewed actual cases, not theoretical cases 
but actual cases, and they found that the decision of the 
commander to prefer or not prefer those cases was sound.
    Ms. Speier. Well, I----
    General Darpino. And so I think that there are a number of 
cases where we don't get it right and that people don't get it 
right because it is a human system, and lawyers make mistakes 
too. And so it isn't a cure-all to just replace one person with 
another. You are still going to have human error.
    Ms. Speier. So I have a lot of high regard for the DAC-
IPAD, but I think what you are referring to is a situation 
where the standard that they used was ``reasonable,'' and they 
didn't define reasonable. So in reviewing the cases, they had 
two people that would review each case, and the likelihood was 
that they would make the finding that it was reasonable, but it 
wasn't based on some standard. It was a very subjective review.
    All right. Mrs. Davis, you are next.
    Mrs. Davis. Thank you, Madam Chair, and thank you to all of 
you for being here.
    And it is really the testimony and the women, and some men, 
like you that came forward a number of years ago that some of 
the changes were created. It is a result of that, so I think we 
have to continue, you know, to go beyond that. And the special 
victims' counsel particularly was one that came out of those 
discussions. And the thing that I think I found so disgusting 
was that the few individuals who have been assigned to help out 
victims were treated so poorly, and part of what I think we 
discovered was that we need to have people who are given the 
benefit of good, solid training in order to play a significant 
role.
    And what I would like to know, because a lot of you have 
mentioned, whether there has been any erosion of that, to your 
knowledge. And maybe you don't know. Colonel Christensen, maybe 
you have a sense of this, whether they are playing that vital 
role or, in fact, in some cases, they are not seen as, I don't 
know the word, professional, whatever that might be in order to 
play it.
    Do you think that--and you have all--most of you have 
testified that actually you think that was helpful. And we want 
to be sure that it continues to be helpful and that the person 
has the tools to be able to advocate so strongly.
    Colonel Christensen. Congresswoman Davis, again, thank you 
so much because you and Congresswoman Speier, Chairwoman 
Speier, have been two of the most leading--I think the earliest 
voices on this, and your leadership has meant so much to the 
survivor community. So thank you.
    But, yes. The SVC and the Victims' Legal Counsel program I 
think have been one of the most significant, if not the most 
significant change that has been made to the military justice 
process. I want to make it perfectly clear. The military was 
not happy about it. I was there when it happened. Some of the 
people that are going to testify to you today about how great 
it was specifically called it stupid and unneeded, but now they 
have changed their tunes. It is an amazing program.
    The biggest, I think, weakness comes from a lack of 
experience, because too many of the SVCs, the first survivor 
they ever talked to in their life is their first client. That 
is not good. Again, there are people that think having 
inexperienced lawyers is great. I don't think so. I think you 
get better with experience, just like you get better practicing 
medicine with experience.
    And then I also think, as was pointed out, the huge rank 
disparity that Ms. Hanson pointed out. We have--and this is one 
of the problems also with the prosecutors. There are captains 
or majors going up against a lieutenant general. It is a huge 
rank disparity, and it tamps down dissent.
    Mrs. Davis. Yeah. Thank you very much. I am going to move 
on quickly because of time constraints. But certainly, I mean, 
that is--in terms of rank, I think that is important. But talk 
to me a little bit more about--you know, the retaliation is 
such an important concern here, and we have some, I think, 
training to try and help people, if they see a problem, you 
know, to intervene. You know, it is almost like, you know, 
don't let your friend drive drunk. I mean, don't watch somebody 
doing something stupid and just let them continue to do it. I 
mean, intervene.
    But this retaliation piece. I mean, where would it change 
if we were making a difference in terms of who--without going 
up the chain of command, and you are going to judges. Because I 
think one of the things that I kept hearing during the last 
number of years and certainly as we started these discussions, 
is that in many cases, it is the commander that wants to bring 
the case to trial, because the judges--well, if we had those 
judges, there are very few, as you mentioned, but the JAGs were 
looking at it more like they would if they were, you know, a 
prosecutor in the community. They wanted cases that they could 
actually deliver on.
    So where do you see that coming down that, actually--and in 
some cases, the commanders are actually more aggressive about 
wanting to make sure that this case goes to a court-martial. 
Lieutenant Commander.
    Commander Elliott. Well, in my personal opinion, I mean, 
that is another reason that they should go to trained military 
judges, because the system's broken on both sides, right. As 
survivors, we feel--we have, we have been mistreated a lot, but 
when you look on the other side of it, they are saying the same 
thing. They are like, you know, commanding officers are being 
too aggressive, you know. We need to go to someone who is 
actually trained.
    Mrs. Davis. How would that affect the retaliation?
    Commander Elliott. I feel like with retaliation--and 
retaliation is at every level. It can be from your peers. It 
can be from anybody. But with retaliation, when you remove it 
outside the chain of command, it is no longer, oh, well, we 
don't like this person because, you know, she put this boss in 
this bad situation where she--he had to choose between this 
sailor and that sailor or whatever. It is no longer--it is 
completely removed.
    Mrs. Davis. Yeah. I guess part of the concern, and I 
certainly yield, is that there are many of these cases that go 
on, probably most of the time. I mean, I think that what we 
have to be focused on is command climate and being very clear 
that people are accountable for what goes on in their unit. And 
any--you know, that kind of discussion, that kind of activity 
is just not acceptable and will be punished. Because I am not 
sure we have the judges to be able to deal with all of those 
individual accounts that occur, and we have to kind of deal 
with them on the ground. The extent to which we can do that, 
give us the tools. We are happy to respond to those questions. 
That is really important to all of us. Thank you.
    Ms. Speier. Mrs. Luria.
    Mrs. Luria. Well, thank you all for being here today. And 
especially, thank you to the three of you for sharing these 
stories, because I know that they are very difficult situations 
and this is very difficult to do in a very public context.
    And you know, having been a commanding officer myself, and 
I know that several other people who may not be present right 
at this moment on the committee as well have been in command in 
the military, you know, I value the tools that the UCMJ gave to 
me as a commanding officer and as an O-5, so any case relative 
to sexual assault, I would have had to refer to the O-6, the 
next in my chain of command. But, you know, as the lieutenant 
general stated, that was a recommendation that I made reviewing 
the full facts of the case to the next level in the chain of 
command.
    And, you know, I really appreciate the remarks that 
Lieutenant General Darpino made, and I know that she didn't 
read her statement in full, but, you know, as she says in her 
written statement, and, you know, as I was thinking about this 
leading up to the hearing, we trust our commanders to take our 
sons and daughters into war. We trust them to make decisions 
when people are risking their lives. But yet we are sitting 
here questioning whether we trust them to make decisions such 
as this about the well-being of the people who they command and 
to apply the UCMJ fairly.
    So I believe that there is a disconnect there, and as the 
lieutenant general mentioned in her comments, that those duties 
of responsibility and accountability are inextricably tied to 
command.
    So, Colonel Christensen, can you just elaborate on the 
statement that you said, that I trust military lawyers to make 
that decision, meaning the decision about these cases, more 
than I trust commanders?
    Colonel Christensen. Yeah. Sure. We trust commanders to 
make decisions, life and death, when it comes to combat because 
that is their profession. That is what they are trained in. You 
are a fighter pilot. You have trained your entire career as a 
fighter pilot to lead that fighter pilot squadron, and that is 
what you have done. You have gone to Red Flag. You have done 
all these other things. You have not----
    Mrs. Luria. Throughout that leadership and that time that 
you took to get to that position of command, and especially 
when we are talking about the level of a general court-martial 
convening authority, the 30-plus years that that commander has 
had to get to that position, do you not acknowledge that they 
have had to go through numerous decisions where they had to 
take into account the good order and discipline of their 
command and the UCMJ and the use of that?
    My biggest concern, and Lieutenant General Darpino, if you 
can comment on this in the last couple of minutes, is that 
there is many tools in the commander's toolkit outside of 
convening a court-martial. And, you know, reviewing the 
background material that we were given by the staff before this 
case, which included the subcommittee of the Judicial 
Proceedings Panel, a report on Barriers to the Fair 
Administration of Sexual Military Justice in Sexual Assault 
Cases, sorry, long title, the 2017 study that was done by the 
DOD is basically that when these--I am sorry. I lost my train 
of thought.
    But that there is numerous things within these cases that 
we have changed in our policies and procedures, such as the 
nature of an Article 32 hearing, such as, you know, when it is 
not referred to a court-martial, the commander--because there 
is not enough evidence, because there is not enough evidence 
like others referred to for it actually to reach a conviction, 
that there are other tools that a commander has. And other than 
on a ship, you know, a sailor or a soldier or an airman can 
refuse NJP [non-judicial punishment] or Article 15, and 
therefore, you find yourself in a position where people sort of 
sea lawyer the situation as an accused to find themselves where 
it is on the track to a court-martial.
    But a commander has a lot of other tools that they can use, 
especially in the case where there is not enough evidence, but 
the case is still on track for a court-martial and someone can 
plea bargain. And therefore, the commander can use tools such 
as, you know, non-judicial punishment, administrative action, 
separation from service, reduction in rank, all of these things 
that are way more punishment than can ever happen in the 
civilian system because in the civilian system or outside of 
the chain of the command, those tools don't exist.
    So in time remaining, could you please comment on that?
    General Darpino. And thank you for those comments, because 
it is--these are extraordinarily difficult cases to try, and I 
am not speaking about the three victims' cases here today. But 
when you look at what these cases and the majority are, they 
are--the victims are junior enlisted women. The offenders are 
either junior enlisted soldiers or junior NCOs. They occur in 
barracks on Fridays and Saturday nights, alcohol is involved, 
and there is no one else present. And those are extraordinarily 
difficult cases to try, and that is why the prosecution rates 
are lower in the civilian sector.
    And because, as we heard from a DA [district attorney] 
previously, a grand jury is typically not going to. A 
commander, however, because it affects good order and 
discipline, with the advice of counsel, the Army is currently 
trying 50 percent of their cases. Fifty percent of their trials 
are sexual assault cases. Conviction rates aren't relevant to 
this discussion because it is lawyers who try cases, not 
commanders, so conviction rates aren't relevant, but 50 percent 
go to trial. And those that they are not able to, we track 
every single case, and we send a spreadsheet to the Hill every 
year of every single case, and we tell you exactly what we did 
with them. And we use those other tools, non-judicial 
punishment, kicking someone out of the military. It isn't a 
perfect system. It isn't a perfect system, but you don't throw 
away an entire system, the baby out with the bath water, when 
you already have made so many changes and rewrote the whole 
thing that just went in effect 3 months ago.
    Ms. Speier. Thank you.
    Mrs. Trahan.
    Mrs. Trahan. Thank you. Thank you, Chairwoman, for holding 
this hearing. And thank you for coming in and sharing your 
stories. It is our obligation now to make it better, so I 
appreciate you coming in.
    So how do we actually monitor variation in how commanders 
deal with these offenses? And I will just elaborate. I believe 
when Lieutenant Commander Elliott says that when she started 
her case, her--I believe it was your first commander, you had a 
lot of confidence that you were going to be taken care of, but 
then that changed, right? And provided we are giving tools, I 
am sure we are, I am sure there is different acceptance rates 
of those tools, there is ways to fix that variability.
    So I am just wondering, what are we doing today to take the 
variation out of the problem?
    General Darpino. And so, you know, that is why we have all 
these surveys that we have, that we conduct in the military, 
and that is why, you know, we are kind of often like the canary 
in the coal mine, you know. You see a lot of the issues and 
problems raised and seen with the mirror that the military is 
of society because we have all these surveys.
    One of the surveys that goes directly to that issue is that 
we have command climate surveys within all the services, and we 
ask a series of questions. And we ask them, you know, do they 
trust their command? Do they promote a climate of sexual--
against sexual assault? Do they walk the talk, you know, and 
act appropriately? And we poll soldiers on that and service 
members, and, you know, I can give you a number that sounds 
great out of four for all ages, but if we just focus on the 
victims and the offenders, which is our junior enlisted and our 
NCOs both, that number out of 4 is 3.4 or 3.3.
    And so we use these surveys, and then guess what? The next 
level commander who actually does the rating of that individual 
officer gets to see that survey, and if they see problems, that 
is how they know.
    Mrs. Trahan. So it is an anonymous survey.
    General Darpino. Anonymous surveys.
    Mrs. Trahan. And so do we take time to figure out, like, to 
really go into a deep dive on the 3.3, right? I mean----
    General Darpino. Yes. A series of questions, Congresswoman.
    Mrs. Trahan. Okay. You know, the systemic military culture 
change, does anyone on this panel know, is this an internally 
run culture change that we are--or is this--are we bringing 
outside experts in to help with the culture change? Can someone 
speak to that?
    Colonel Haring. So in recent years, the military, DOD, has 
hired a number of external experts and brought them inside the 
military. At the last panel at the SASC [Senate Armed Services 
Committee], Dr. Van Winkle spoke. I don't know what degree of 
latitude they are able to exercise once they have been brought 
in. I don't know of any external monitoring organization. Now, 
RAND does do some of the research, but they are quasi-
independent.
    So what I would love to see is for DOD to hire a truly 
expert, say a red team type of external organization to 
evaluate and analyze the work that they are doing.
    Mrs. Trahan. It would be great if we could have visibility 
into the culture change process just only because it is--I have 
never seen a stronger culture, and, you know, there is movies 
about how strong the culture is. I mean, the levers are so--are 
so clear to me in terms of changing the culture that I don't 
feel as though it is a 3-year process. It is likely more closer 
to an instant.
    My last question is on the Special Victims Counsel program. 
My predecessor played a key role, along with the chairwoman and 
Congresswoman Davis, in its creation. Like any program, I am 
sure it requires improvement, and I am sure we have learned a 
lot as it has been, you know--since its inception. Besides the 
rank disparity, or maybe you have suggestions on how we fix the 
rank disparity, but are there suggestions in terms of us making 
that process better?
    Colonel Christensen. Well, I think one thing is it has to 
be made clear to the special victims' counsels and the VLCs 
that their duty is entirely to their client. They are not there 
to make services look better or to avoid embarrassment. That is 
something we have heard from a number of VLCs and SVCs that 
that is what they are getting from the top down is that they 
are just to get the victim through the process.
    So, for example, it may be very beneficial for a victim to 
come to Congress or to go to the media, but I think most VLCs 
and SVCs feel like they cannot do that.
    Mrs. Trahan. Okay. Thank you. I am out of time.
    Ms. Speier. All right. Colonel Christensen, Colonel Haring, 
Lieutenant General Darpino, thank you for your participation.
    And to Lieutenant Commander Elliott and Ms. Hanson, Ms. 
Bapp, I hope everyone who is here, particularly the TJAGs [The 
Judge Advocates General] that are going to come afterwards, are 
going to have burnished in their minds your comments that the 
process that you endured after your rapes was worse than the 
rapes itself. So I want to thank you for the courage that you 
have shown. I apologize on behalf of the United States 
Government and our military that you have endured what you have 
endured, and I want to make sure that you have every level of 
support that you need as you move forward. And I hope you will 
always feel comfortable coming to me, in particular, if you 
have any problems in that regard.
    Before closing this down, Mr. Cisneros has returned, so he 
is going to have his 5 minutes of questioning.
    Mr. Cisneros. Thank you, Madam Chair. Sorry I had to stop 
and go to another--make an appearance at another committee 
hearing and ask my questions there. But I want to thank you all 
for being here today, and I want to thank the three of you 
especially for sharing your story here. I know it is very brave 
of you to do that.
    Lieutenant General Darpino, I was troubled by your analogy, 
the parents and the commanding officer of good order and 
discipline. I totally agree it is the job of the commanding 
officer to maintain good order and discipline, and he is given 
things like NJP in order to help him do that, just like a 
parent is able to discipline their child when they come home 
late and they miss curfew. And the commanding officer, through 
NJP, can do those certain things too if, you know, somebody 
misses a curfew. I was in the Navy, so on a ship or for 
whatever reason, they are allowed to do that.
    But, you know, if that child goes and commits a serious 
crime, the parent is not to say--allowed to say, well, you know 
what, I am just going to discipline him, and I will take care 
of it. So why would we do it any way different with a 
commanding officer? If there is a serious crime, why do we 
still allow the commanding officer to go and to make that 
determination as to how he is going to discipline and make the 
decision?
    General Darpino. Yes. Thank you. And as I said, it wasn't a 
perfect analogy, and it was really one to demonstrate how 
command authority is linked to the ability to hold someone 
accountable. And I do understand exactly what your point is, 
and I did not intend for it to be used as the perfect example.
    But I think an example that might help to illustrate it 
that has to do with what we do, a core element of what we do as 
warfighters, is that in the case of a law of war violation in 
combat, it is the commander that you would expect to be able to 
send that message to everyone else that to go out into the 
village and murder citizens is not acceptable. You would expect 
that a commander would be the one who would stand before the 
troops and send that message by sending that case to a court-
martial.
    And so that analogy--that example is an example where the 
two are linked based upon exactly what it is that we do as an 
Army in our service to our Nation.
    Mr. Cisneros. You know, I hear your analogy, right, but a 
lot of these aren't situations that are--they are not happening 
in a wartime situation. And I can recall a situation where 
there was an officer who committed, we will call it a crime, 
was removed from the ship next day, and the CO had nothing to 
do with it.
    Lieutenant Commander Elliott, you were a commanding 
officer, so I have this question for you. In your view, are 
commanding officers adequately trained to handle sexual assault 
allegations in their units, in their commands?
    Commander Elliott. Absolutely not. We are trained as 
commanding officers to provide the response and provide the 
training of--you know, to prevent sexual assault, and we are 
trained how to take care of our victims if they are assaulted, 
but we are not judges. I mean, I had a 3-day legal course 
before I became a commanding officer, and that was the extent 
of my legal training.
    So I feel like we are given good tools to address the 
program. We could for sure improve, and like anything else, it 
depends on who is providing us the training and what our bosses 
find important. But I do not feel that we are trained as 
commanding officers to be able to make these decisions about, 
you know, felons by any means.
    Mr. Cisneros. Okay. And I just have one last question for 
all of you. And, Colonel Haring, you kind of mentioned this in 
your opening remarks, but I am just going to read it back. 
Where is it?
    Sex crimes against women have never been treated with the 
same level of outrage or professionalism as other serious 
crimes.
    Do you all agree with that? Colonel Christensen.
    Colonel Christensen. I think it generally true, yes, but 
there are some that are--some units are better, some legal 
offices are better, others aren't. So I think there is a 
general belief--a view of disbelief.
    Mr. Cisneros. Colonel, you made the statement, so I am 
going to assume you agree with it.
    Colonel Haring. Not only do I agree, but I think that 
history is replete with examples, not just within the military, 
but across our institutions where sex crimes against women are 
just not treated--perpetrators are not held to levels of--the 
same levels of accountability as other types of crimes.
    Mr. Cisneros. Lieutenant Commander Elliott.
    Commander Elliott. Yes, sir, I would agree with that. And 
as an example, it just happened less than 2 years ago. I 
witnessed a young lady I mentored, someone very hard-grabbed 
her rear end, which would be abusive sexual contact, and the 
person that did that got a slap on the wrist. He was an E-6 and 
who later that--2 months later found out he made chief, and 
they allowed him to go ahead and become a chief petty officer; 
where there were two E-5s that broke curfew, weren't doing 
anything wrong, they were just out past curfew, and they are 
now E-4s. So the joke in command is like it is okay to sexually 
assault somebody and still have a career, but it is not okay to 
break curfew. So, yes, I do not feel we treat these crimes 
seriously.
    Mr. Cisneros. I am out of my time, but if we could just 
real quick, a yes or no, Ms. Hanson and Ms. Bapp.
    Ms. Hanson. I agree as well. In my case, mine was my boss 
and my full-bird colonel. And then when a congressional was 
made about my case, Secretary Heather Wilson made the statement 
in an official written statement that his character in service 
and his record was taken into consideration in the disposition 
of his case. I believe that we have lost the bubble and control 
of where we need to be at.
    Mr. Cisneros. Ms. Bapp.
    Ms. Bapp. Real quick, I just think it is less about the 
prosecution and the understanding of the actual criminal act, 
but the psychological complexities around sexual abuse and the 
cycles of abuse of power. I think that is what is misunderstood 
and is at the core root. So I would say that is the bigger 
issue than sex crimes.
    Mr. Cisneros. Lieutenant General Darpino.
    General Darpino. I definitely think there is more work to 
be done, and violence against women is a problem in society, 
and, you know, high school, Hollywood, and the halls of 
Congress, and that we need to continue to focus on this issue 
and not take our eye off the ball.
    Mr. Cisneros. Thank you very much, Madam Chair.
    Ms. Speier. Lieutenant Commander, you indicated that you 
had 3 days of legal training. How much of that was set aside 
for sexual assault?
    Commander Elliott. I believe it was about a 2-hour block.
    Ms. Speier. Two hours out of 72 or----
    Commander Elliott. Two hours out of about 28, 29, so about 
maybe 10 percent--or less than 10 percent.
    Ms. Speier. Less than 10 percent.
    Commander Elliott. Yes, ma'am.
    Mr. Kelly. May I ask a question?
    At what level did you command, what level?
    Commander Elliott. I was a lieutenant commander when I was 
in command.
    Mr. Kelly. That is an O-4, correct?
    Commander Elliott. Yes, sir.
    Mr. Kelly. And the lowest level in which decisions on 
sexual assault are made is the O-6 level. Is that correct?
    Commander Elliott. Yes, sir.
    Mr. Kelly. And I don't mean--but there are different levels 
of command and different levels of training. I got a pre-
command course before going to battalion command, so there are 
different levels, and you commanded at the O-4 level.
    Commander Elliott. That is correct, sir. And I am not 
exactly sure how the other services, but I know with the Navy, 
we had O-6s that were going to command in the same legal class. 
I don't know if they got anything additional.
    Mr. Kelly. Thank you.
    Commander Elliott. Yes, sir.
    Ms. Speier. Mr. Bacon.
    Mr. Bacon. Thank you, Madam Chairwoman.
    I appreciate all of you being here today. And I got to hear 
most of the testimony up front, but I am also on the Ag 
Committee, so I had to run out real fast. But it was 
heartbreaking stories and testimonies of what happened to you, 
and so I just--I feel the pain and the hurt from that, and I 
just thank you for sharing. I think it is important for our 
society and the folks watching to know this.
    I think Ms. Bapp made a very important statement, though, 
that speaks to me is that we have infallible people. Infallible 
commanders. I would also just say, though, we have infallible 
judges--or I should say fallible judges. I am sorry. We have 
fallible commanders, we have fallible judges, fallible district 
attorneys, and we see imperfection everywhere we go in this 
area, though it is never acceptable.
    I was a five-time commander with the Air Force, and I 
inherited one unit that had the highest sexual assault rates I 
think we had in the Air Force at Ramstein. And so I--my first 
week in command, it is, like, what are we going to do about 
this? We can't just sit idly by. I have to build a plan. So I 
studied it, and I just knew that education was vital, but also 
make it clear I would hold people accountable.
    And what we ended up doing is if we didn't have a verdict 
that was certain, we went to court-martial. The victim had her 
chance--typically her--to speak in front of a jury but also the 
accused, and our conviction rates went up, and we ended up 
having one of the lowest sexual assault rates in the Air Force 
after about a year.
    Another thing I did is every time I got a conviction, I put 
a picture of the guilty and how many years in jail they got, 
and I wanted every squadron to see it. I wanted deterrence out 
there as well.
    So I guess my whole point is I think there are examples of 
failures, but I think there is also thousands of examples of 
conscientious commanders who pour their hearts out to get this 
right every time.
    And so I just--I would like to ask one question of General 
Darpino. Do we have--would we have any more confidence that a 
judge in a local locality or a district attorney would have any 
more infallibility than what we see with our commanders who, 
for the most part, 99 percent of the time, love their service, 
love their units? Just your thoughts.
    General Darpino. I think you have hit on a key point, which 
is what I was saying earlier, is that this is--the violence 
against women is a societal problem, and society as a whole has 
to grapple with this. We are the canary in the coal mine, 
whatever it is that you want to say, and there are a lot of 
organizations out there that do a lot of work to track this 
kind of stuff.
    And what we find is, and I am just looking for my card 
where I write down numbers because I am--even though I am a 
lawyer, I am, in fact, a number person, you know, like the 
Rape, Abuse, Incest National Network, the RAINN, which 
considers themselves the largest anti-sexual violence 
organization, their numbers are horrifying. And when 50 percent 
of our cases--our court-martials are sexual assault cases, 995 
of 1,000 women--accused walked free in the civilian sector. You 
know, one out of six women are attempted rapes outside.
    And so, if having lawyers in charge of this system would 
fix the system, we wouldn't see numbers like this in civilian 
society. And so, no, I don't believe that lawyers are any 
better. And when we send our folks for training that do these 
sexual assault cases to DA's office and sexual crimes units, 
that too is what they see, because prosecution rates matter to 
attorneys. Conviction rates matter to attorneys.
    Commanders care about good order and discipline, and it is 
not perfect. And there is a lot of discussion about commanders, 
and we are talking about company command and below. We are not 
talking about the O-6 and above who handles the sexual assault 
cases. And I don't mean to minimize in any way the other panel 
members' testimony.
    Mr. Bacon. Madam Chair, thank you for your time. I belong 
to two other subcommittees, but this is an important issue, and 
I appreciate you giving me a chance to join you.
    Ms. Speier. Okay. Thank you.
    Again, our gratitude to all of you for participating in the 
panel, and you are now free to go.
    And we will reorganize for the next panel. Thank you.
    Ms. Speier. All right. We are going to have votes shortly, 
so we are going to get started.
    Okay. Our second panel consists of Lieutenant General 
Charles Pede, if I am pronouncing that right. No? Pede. He is 
the Judge Advocate General for the U.S. Army; Vice Admiral John 
Hannink, the Judge Advocate General for the U.S. Navy; and 
Lieutenant General Jeffrey Rockwell, the Judge Advocate General 
for the Air Force; and then Major General Daniel Lecce?
    General Lecce. Lecce, ma'am.
    Ms. Speier. Lecce--Staff Judge Advocate to the Commandant 
of the Marine Corps.
    All right. General Pede, would you like to begin?

STATEMENT OF LTG CHARLES N. PEDE, USA, JUDGE ADVOCATE GENERAL, 
                           U.S. ARMY

    General Pede. Chairwoman, Ranking Member Kelly, and members 
of the committee, thank you.
    We have the best Army in the world because of commanders, 
not in spite of them. Our Army is the most effective force on 
the battlefield because our commanders and our soldiers are the 
products of a justice system that for 243 years has rested in 
the hands of those who fight and win our wars, commanders.
    I have worked for over 15 years of my professional life, 
often directly with this committee, confronting sexual assault, 
especially with the tectonic changes to Article 120 in 2007. I 
was personally involved in Secretary Garin's efforts to 
resource this fight and had a direct hand in the establishment 
of our Special Victim Prosecution program, as well as the 
Special Victim Counsel program. I, therefore, thank this 
committee for its continued commitment and leadership on this 
issue.
    I appear before you recognizing there is still much work to 
do. While I disagree with the characterization of individual 
lapses as systemic failures, one omission or failure is too 
many. I recognize there is much the Army and the services can 
still do. As the Army Judge Advocate General, I tell you that 
we are relentless, relentless in getting after this problem, 
protecting victims, our communities, and of course, the rights 
of those accused.
    In short, the commander has always been and will always be 
the fulcrum to any solution in the Army at every level of 
command, and so it is and must be with sexual assault. All of 
us in this room recognize there is no easy solution. I have 
been fighting this crime hand in hand with commanders for 31 
years, but certainly no solution excludes military commanders. 
And singling out the supposed 1 percent who convene general 
court suggesting these are the only ones affected by the 
proposed legislation fundamentally misses the point about 
command authority and the sublime relationship between the 
leader and the led.
    Look at our current housing crisis. We outsource 
responsibility for housing our soldiers. Who do our families 
look to for solutions? Who do you look to to drive change? 
Soldiers look to their commanders. Every townhall is hosted by 
a commander. This is because there is no set of leaders on this 
Earth better trained, better educated, resourced, and more 
consistently successful than the American commander.
    The notion that stripping commanders of authority over 
serious crimes will reduce crime, result in more or better 
prosecutions or higher conviction rates is simply not supported 
by any empirical evidence. Indeed, the proposition, in my view, 
is actually disapproved by the empirical evidence.
    We know this. In the multitude of congressionally mandated 
studies where diverse panels of experts have exhaustively 
examined the military justice system, hearing from hundreds of 
witnesses who gave thousands of hours of testimony, they 
reported back to you one critical, consistent conclusion: The 
commanders should not be removed from the justice system.
    In fact, the DAC-IPAD's third annual report issued just 
last week that has been referenced determined that in 95 
percent of the cases reviewed, commanders acted correctly in 
charging decisions. They found, and I quote, no systemic 
problem with command decision-making regarding preferral of 
charges for penetrative sexual assaults.
    I am often told in response, General Pede, you haven't 
moved the needle, and it is getting worse. Ten years ago, 
sexual assault trials comprised 18 percent of trials in Army 
courtrooms. The needle--and my apologies. In 2018, that 
percentage is now 50 percent, 5-0. The needle has indeed moved, 
and this is because commanders at all levels have set 
priorities, established expectations, and have driven culture 
change. This is not a coincidence.
    The scope of sexual assault crisis in our society--in our 
Army is as big as the society from which we draw our soldiers. 
As you know, our Army is refreshed every year with 70,000 new 
soldiers from every city in America, and we draw from that 
society, and we face the common problems. A highly esteemed 
university recently released a study that showed 48 percent of 
their females experience sexual assault during their time at 
the university. Within that 12-month period, 18 to 22 percent 
had reported an assault.
    I share these statistics not to place blame elsewhere or to 
distract from the 4 percent--4.4 percent prevalence rate in the 
Army, but simply to reflect that it is a societal problem, and 
it is a demographic issue, in many respects, that we all own 
and have to address, because we do. The Army owns this problem. 
Discipline is the soul of the Army, as George Washington said, 
and it still is. It is in our DNA.
    In my professional view, taking away a commander's decision 
over discipline, including the decision to prosecute and court-
martial, will fundamentally compromise--fundamentally 
compromise--the readiness and lethality of our Army today and 
on the next battlefield. And let's remember, you are trying to 
give this authority to those sitting before you. One hundred 
twenty years of legal experience on this panel is saying our 
Nation will regret it in the next battlefield.
    The Justice Act of 2016 you passed fundamentally altered 
our justice system starting just 12 weeks ago. We spent the 
last 18 months training those changes. The changes only began 
12 weeks ago. I would appreciate--while I appreciate the desire 
to see change, with a criminal justice system, we must exercise 
some measure of strategic patience to ensure our changes have 
healthy consequences.
    Further, we cannot forget our obligations to those accused 
of crime. We each in this room have----
    Ms. Speier. You have already exceeded your time by a 
minute, so could you wrap up, please?
    General Pede. Yes, ma'am.
    We have a sacred obligation to protect those accused of 
crime as well, ma'am. And I fully acknowledge we are not 
perfect, but we are truly an accountable system.
    I thank your committee for the time, ma'am.
    [The prepared statement of General Pede can be found in the 
Appendix on page 107.]
    Ms. Speier. Thank you.
    Vice Admiral Hannink.

STATEMENT OF VADM JOHN G. HANNINK, USN, JUDGE ADVOCATE GENERAL, 
                           U.S. NAVY

    Admiral Hannink. Madam Chair, Ranking Member Kelly, and 
members of the subcommittee, thanks for the chance to appear 
before you today.
    The testimony of the first panel reminds everyone of the 
importance of our efforts to reduce sexual assault with the 
goal of eliminating this crime from our ranks. April is Sexual 
Assault Awareness Month, and it is worthwhile to keep in mind 
that we all share this goal, even when there are multiple views 
on the precise steps that will help us get there.
    In my written statement, I outline the role of the 
commander in the adjudication of sexual assault charges in the 
Navy. First, there is an independent investigation by the Naval 
Criminal Investigative Service and then an independent 
prosecution merits review by Navy prosecutors. This 
information, the investigation, the prosecution merits review, 
along with input from the victim or victim's legal counsel, 
then goes to an O-6 commander for disposition decision. And if 
the case proceeds in the military justice system, there are 
further reviews involving both lawyers and commanders.
    These commanders are known as the Sexual Assault Initial 
Disposition Authority and the General Court-Martial Convening 
Authority, and I support the role these commanders have in 
making the initial disposition decision on charges and in 
referring cases to court-martial.
    My written statement also noted what I think are some 
threshold questions in considering whether to remove the role 
of the commander.
    Question one, would removing commanders' convening 
authority decrease the prevalence of sexual assault?
    Question two, would it increase the reporting of sexual 
assault incidents?
    And, question three, would it improve case disposition 
decisions?
    Now, on the first two questions, whether a change would 
decrease the prevalence or increase the reporting of sexual 
assault, we have the benefit of the 2014 report of the 
congressionally directed Response Systems Panel. And after 
studying changes to the military justice system of our allies 
and hearing from many witnesses on both sides of the argument, 
this was the conclusion shared by seven of the nine panel 
members: that the evidence does not support the conclusion that 
removing convening authority from senior commanders will reduce 
the incidents of sexual assault or increase reporting of sexual 
assault.
    And today, when I speak with leadership of our Victims 
Legal Counsel program, their sense is similar. Based on their 
work, they don't think that the convening authority issue is a 
significant barrier to reporting.
    Now, on the third question, whether removal of convening 
authority would improve case disposition decisions, as 
mentioned before, we have the benefit of the recent report of 
the DAC-IPAD. In its review of 164 sample cases, DAC-IPAD 
concluded that the disposition decision of commanders were 
reasonable in 95 percent of them.
    As noted before, the committee concluded that its review 
revealed no signs of systemic problems with the reasonableness 
of commanders' decisions on whether to prefer charges in cases 
involving a penetrative sexual assault.
    And I look forward to the report that the DAC-IPAD will 
submit next year in March 2020, that will expand its work to 
include the 2,000 investigative cases it is reviewing.
    I am grateful for these studies that have been conducted. 
The military justice system might be the most studied criminal 
justice system over the past decade, and we welcome the 
scrutiny. That scrutiny benefits everyone who serves in the 
Armed Forces, those who are victims, those who are accused of 
crimes, and those who work within the system to achieve its 
objectives, to be a system of justice and a system that enables 
commanders to maintain good order and discipline.
    I am also grateful for the support of this subcommittee and 
the organizations represented by the first panel to ensure we 
continue to make improvements to our response systems and 
prevention efforts. Thank you, again, Madam Chair and Ranking 
Member Kelly.
    [The prepared statement of Admiral Hannink can be found in 
the Appendix on page 119.]
    Ms. Speier. Next--thank you--Lieutenant General Rockwell.

 STATEMENT OF LT GEN JEFFREY A. ROCKWELL, USAF, JUDGE ADVOCATE 
                    GENERAL, U.S. AIR FORCE

    General Rockwell. Chair Speier, Ranking Member Kelly, 
distinguished members of the panel, military commands, led by 
commanders, are responsible for executing our National Defense 
Strategy to defend the Nation and win America's wars. 
Throughout our history, we have accomplished this because of 
four simple yet key components: the best training, the best 
equipment, the best--excuse me--people, and, fourth, the most 
important element that binds together the other three, 
discipline.
    Discipline lies at the heart of command and control. 
Commanders command and control airmen, armed with the best 
training and equipment, to execute our national defense 
missions. Discipline is commanders' business, since they have 
the ultimate responsibility to build, maintain, and lead the 
disciplined force necessary to succeed in combat across 
multiple domains. Discipline makes us ready. Discipline makes 
us lethal.
    To build this disciplined force to execute these missions, 
the military justice system works to strike a careful 
constitutional balance between the competing equities and the 
justice process. That balance is best struck when, at every 
critical junction of the process, a commander is armed with the 
relevant facts, including victim input, and advised by a staff 
judge advocate before making a decision on the next critical 
step in the process.
    We also know that good order and discipline is best when 
command operates and executes discipline across the entire 
continuum of discipline. From prevention efforts and setting 
standards, duties, and command climate on the left side of that 
continuum, to the response of courts-martial, on the right 
side, when standards aren't met, and operating everywhere in 
between those two points.
    This disciplinary continuum embodies the concepts of unity 
of command, unity of effort, and command and control needed to 
build a ready, lethal, and disciplined force to execute the 
missions the Nation asks of us.
    This committee and Congress have been instrumental in our 
efforts to improve military justice with regard to sexual 
assault. You have focused a system to be more fair and timely, 
to appropriately address allegations of misconduct that fosters 
progressive discipline designed to deter and rehabilitate 
wrongdoing, to respect the dignities--the dignity of victims of 
crime, to protect the rights of the accused, and to maintain 
the trust of airmen and the American people.
    We have increased our commander training to ensure they are 
better prepared to exercise all of their authorities. Before 
taking command, all commanders receive extensive legal training 
so they fully understand their responsibilities under the code 
and the manual. Officers receive similar training at all levels 
of their professional military education, as do all enlisted 
members.
    Most importantly, as a matter of process, safeguards have 
been incorporated and gaps closed to maximize legal advice 
during every key phase or decision point of a case, through 
investigation, adjudication, and final disposition. The 
existing authority of the Judge Advocates General mandate that 
this critical legal advice be independent.
    Command decisions are informed and evidentiary standards 
are applied at each stage of the process with the advice of a 
staff judge advocate, along with input from a prosecutor, a 
victim, and the accused.
    A critical component to our fight against sexual assault in 
the military has been our obligation to build trust and 
confidence in victims. We know that victims must be empowered 
at every stage of the process. Survivors must believe that 
their privacy can be protected and that they can regain a sense 
of control in their lives.
    Sexual assault is a personal violation and victims must be 
heard without having the process itself further making them 
feel victimized. Victims must know that they have a say before 
any decision is made.
    Our special victims' counsel have become a vital teammate 
in our sexual assault prevention and response arsenal.
    Our work must continue to prevent and respond to criminal 
behavior within our ranks. Our next steps, I believe, should 
focus on addressing evolving issues of retaliation, collateral 
misconduct, timeliness, and education on the general deterrent 
effect generated by the cases tried.
    While there has been much progress, we as judge advocates 
remain committed to survivors of sexual assault. We remain 
committed to airmen, and we remain committed to providing 
sound, independent, legal advice to our commanders in a 
military justice system that has made us the most ready, 
lethal, and disciplined force in the world.
    Thank you for hearing us today.
    [The prepared statement of General Rockwell can be found in 
the Appendix on page 132.]
    Ms. Speier. Thank you.
    General Lecce.

STATEMENT OF MAJGEN DANIEL J. LECCE, USMC, STAFF JUDGE ADVOCATE 
    TO THE COMMANDANT OF THE MARINE CORPS, U.S. MARINE CORPS

    General Lecce. Madam Chair, Ranking Member Kelly, and 
distinguished members of the subcommittee, thank you for the 
opportunity to testify today. As fit given the title of this 
hearing, I would like to focus on commanders.
    The ethos of the Marine Corps is every Marine a rifleman, 
and this ethos demands that every Marine officer be capable of 
leading Marines in combat, including judge advocates. I have 
been very privileged to have been selected for command, both as 
a lieutenant colonel, as the commanding officer of Marine 
Security Guard Company in the Middle East, and as a colonel, as 
a commanding officer of Marine Corps Base Camp Lejeune, North 
Carolina.
    For Marines, and I believe the other service, the pinnacle 
of a career is serving as a commander. But with the mantle of 
command comes great responsibilities. Commanders are both 
responsible and accountable for the morale, welfare, and 
discipline of the unit. These are not just words, but the 
foundational tenet of life in the military.
    At the end of the day, a commander is responsible for 
preparing and leading his or her Marines into combat, where the 
cohesion and discipline of the unit may literally be the 
difference between life and death.
    When mothers and fathers of this Nation send their sons and 
daughters to become Marines, we make a sacred promise: that we 
will train their sons and daughters to the utmost of our 
ability, that we will protect their welfare, and if we must go 
into harm's way, these young men and women will be ready 
mentally, physically, emotionally to fight and win this 
Nation's wars.
    As a commander, it is your obligation to be fully invested 
in the welfare of your Marines, to know each one of them, to 
employ them as a team, to treat them as the family that they 
are. You must be confident that if you are ordered into combat, 
your Marines go as a team, as a family.
    In the Marine Corps, you commit your adult life to 
preparing to becoming a commander, preparing so that you are 
ready to meet the highest of obligations and to ensure that you 
uphold the promise you made to the mothers and fathers of your 
Marines.
    As a commanding officer of Marine Corps Base Camp Lejeune, 
I was a general court-martial convening authority responsible 
for bringing charges in the most serious criminal cases, 
including sexual assault cases. Upon taking command, I trusted 
my staff judge advocate and my legal support teams to provide 
the advice I required to execute my duties, including my role 
as convening authority.
    But perhaps just as important to me was my equal 
opportunity advisor, because he helped me keep my finger on the 
pulse of the command. My equal opportunity advisor provided me 
invaluable counsel, keeping me connected to all echelons of the 
command, from assisting me in developing, administering, and 
interpreting, and debriefing required command climate surveys, 
to highlighting areas of concern, to identifying Marines who 
required individualized attention. My equal opportunity advisor 
helped me fulfill my obligation to know my Marines and look out 
for their welfare.
    My point is, highlighting these facts, is that although our 
judge advocates are highly trained and capable professionals, 
they are not commanders. They do not carry the responsibility 
and obligation to stay connected to the command, to build a 
team, to build a family. Commanders, and commanders alone, 
carry this responsibility. Judge advocates provide legal 
advice. To remove the commander from the military justice 
system robs the commander of a critical tool for ensuring 
discipline is enforced, welfare is ensured, and justice is 
served.
    As the most senior commander in our Marine Corps, the 
Commandant has been intensely focused on improving our culture. 
Unequivocally, he has stated on countless occasions that one 
sexual assault is too many, retaliation is unacceptable, and 
that ostracism is antithetical to our warrior culture.
    To combat these destructive behaviors, the Commandant 
issued a Marine Corps Order on prohibited activities and 
conduct. This order, published in June of 2018, criminalizes a 
wide spectrum of destructive behaviors, including sexual 
harassment, hazing, discrimination, retaliation, bullying, 
ostracism, as well as misconduct committed online or via social 
media.
    While the Commandant's efforts over the last years have 
positively reinforced a culture where sexual assault and 
retaliation are not tolerated, more remains to be done, and the 
Marine Corps is prepared to do it.
    In the Marine Corps, we never lose sight of the fact that 
our Marines are our greatest assets. We are obligated to ensure 
each Marine's welfare and to return our Marines to their loved 
ones and back to this great Nation better for having served.
    Thank you once again for allowing me to testify. I look 
forward to working with you and answering your questions.
    [The prepared statement of General Lecce can be found in 
the Appendix on page 145.]
    Ms. Speier. Thank you all.
    Let me first say how grateful we are for the service--for 
your long service in the military. You have each, on one level 
or another, expressed how you feel that one sexual assault is 
too many, but we have 15,000 of them a year. And as you know, 
only 5,000 of them report, and of those, maybe 500 go to a 
court-martial, and of those, only about 250 are convicted.
    You heard the testimony of these three victims. They were 
telling the truth, and yet they were treated so poorly that the 
process was worse than the rape.
    I would like to have each of you comment on what you heard 
from each of them. Lieutenant General Pede.
    General Pede. Yes, ma'am. Thank you. It is--it is a 
difficult thing to listen, and I respect the members of the 
first panel. I--it is an unfortunate, worse than that, 
experience, that they endured. And I think that is, frankly, 
ma'am, what motivates all of us. It has always motivated me as 
a professional, as an officer, as someone in law enforcement 
and the profession of law, to right the wrongs that we----
    Ms. Speier. So what would you do differently, having heard 
their stories?
    General Pede. Ma'am, exactly. One, I would--and it is what 
we try and do every day, which is to, once reported, provide a 
level of care to them that provides a restorative process, that 
gets them back where they need to be, and then holds the right 
person accountable. So it is a robust, well-resourced, well-
trained investigative process.
    And then from a prosecution and a defense standpoint, 
ma'am, as a very well-educated, resource-trained bar, that 
includes an extraordinary bar of special victim counsel now as 
well.
    So what we are trying to do is bring all of those resources 
to bear on the very cases that they bring to our attention.
    Ms. Speier. Vice Admiral, is there anything that you would 
recommend based on what you heard from those victims?
    Admiral Hannink. Madam Chair, from Lieutenant Commander 
Elliott, my takeaway was that, as is reflected in the last 
military survey on investigations and the justice process, 
discretion really matters. And I think we have to be sure that 
we have people fully trained. The one commander that she 
mentioned that didn't keep discretion, I could see how hurtful 
that was in this circumstance.
    What we owe Lieutenant Commander Elliott, and everybody 
like her, is her story about the previous commanding officer, 
though, the one that supported her, as she called it, beyond 
the call of duty. And as General Pede indicated, the Victims' 
Legal Counsel program that she also indicated was a great 
support.
    Ms. Speier. Lieutenant General Rockwell.
    General Rockwell. Madam Chair, as attorneys, we are process 
people, and when--because you are a process person, sometimes 
you lose empathy. And as you sit and listen to the victims, as 
they go through this process--and this process of reporting 
through investigation, through adjudication, that gets you 
ultimately to accountability--it is easy to focus on the 
process and lose the fact that the empathy that you need to 
have for somebody walking through that process.
    You ask what we can do better. I think it is an 
integration. It is an integration with regard to, as you walk 
through that process, we have a lot of people trying to help 
along the way. And as we look at how we integrate throughout 
that process, from what SARCs do, to what victim advocates do, 
to what investigators do, to what prosecutors, defenders, and 
special victims' counsel do, there is methodologies to look at 
to better integrate that. That better integration gives you 
more speed, and I think it gives you empathy for the victim in 
a case or, for that matter, a witness in any case, who is 
actually the one walking through it.
    Ms. Speier. All right. Major General Lecce, we are going to 
have to go and vote and then we will return. Do you have a 
quick comment you would like to make?
    General Lecce. Ma'am, I can't speak as to why this happened 
to the survivors that testified----
    Ms. Speier. No, but I mean, based on what you heard, I want 
to know if you have gleaned anything from it that you would 
take back and want to do differently.
    General Lecce. Well, first of all, as I stated in my 
opening statement, commanders need to be held accountable. They 
are accountable for what happened here.
    Ms. Speier. What happened to that commander who was 
conflicted, who continued to handle the case, and now we have a 
West Point grad, who we invested a lot of money in, who is no 
longer serving?
    General Lecce. Ma'am, I can't speak to that specific case. 
But what I can say is, there are systems in place to deal with 
these things. As the ranking member said, the IG, the Inspector 
General, we have a very robust practice--I am not the IG, but I 
work very closely with him--for these retaliation and ostracism 
cases. By regulation, only the IG can handle a reprisal or 
retaliation case. And that is one step.
    Echoing what General Rockwell said, we have 
professionalized our victim advocates, our victims' legal 
counsel, our Victim Witness Assistance program to be more 
robust and more supportive of victims along the way in the 
process.
    Ms. Speier. All right. Thank you. We are going to return.
    [Whereupon, at 4:18 p.m., the subcommittee was adjourned.]
     
=======================================================================

                            A P P E N D I X

                             April 2, 2019

      
=======================================================================


              PREPARED STATEMENTS SUBMITTED FOR THE RECORD

                             April 2, 2019

=======================================================================

      
      
 [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    
      
=======================================================================


                   DOCUMENTS SUBMITTED FOR THE RECORD

                             April 2, 2019

=======================================================================
 [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
      
=======================================================================


              QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                             April 2, 2019

=======================================================================

      

                   QUESTIONS SUBMITTED BY MS. SPEIER

    Ms. Speier. How feasible is it for your service to develop an 
independent prosecution chain, along the lines of the Marines' reform?
    General Pede. An independent prosecution chain--as I understand the 
question--is not feasible--and I do not view the Marine Corps as having 
such a system. If the intent is to have an independent rating scheme, 
Army prosecutors are already rated by legal supervisors. While some of 
those supervisors are rated by commanders or a chief of staff, the 
prosecutors themselves are supervised by lawyers. In accordance with 
both Army regulations and The Judge Advocate General's Corps policy, 
all trial counsel have at least two, more senior, judge advocates in 
their rating chain; exceedingly few trial counsel rating chains also 
include a commander. Moreover, the Army's special victim prosecutors 
are always rated only by other judge advocates and not by the 
commanders they advise. In short, Army trial counsel are already almost 
wholly supervised by judge advocates, and not commanders. The Army 
organizes to best meet its unique combat responsibilities in support of 
the joint force. The Army is also unique among the services--it tries 
as many courts-martial as the other Services combined, and it tried 
more than 800 cases in a deployed setting from 2003 to 2011. Ensuring 
these requirements are met requires the flexible assignment of Army 
prosecutors. Finally, it is a requirement of law--both arising from 
statute and the code of professional responsibility--as well my own 
expectation, that every judge advocate, trial counsel or not, will 
offer the best legal advice possible in support of their client, 
whether that client be the U.S. government, a Soldier, or a Family 
member, independent of the interests of any specific commander or unit.
    Ms. Speier. What happens when a prosecutor's ethical and legal 
expertise contradict commanders' opinions? What happens when justice 
demands that case be brought forward, and the prosecutor is unable to 
because the commander refuses to act?
    General Pede. In 31 years of active duty service, I have yet to 
encounter this situation--and therefore counsel against any policy 
change that uses this basis as a cause for change. As judge advocates 
and commanders have repeatedly testified before congressional oversight 
committees, they cannot think of a case in which a Staff Judge Advocate 
recommended referral of charges to courts-martial and the commander 
refused, triggering statutorily required review by the service 
secretary required by Section 1744 of the Fiscal Year 2014 National 
Defense Authorization Act. A commander's decision whether to prosecute 
a case is informed by an ongoing dialogue with his or her judge 
advocate. When necessary, that dialogue can be extended up the chain of 
command and along the judge advocate technical chain. There is almost 
never a disagreement that cannot be resolved in this process. If there 
is, there is a process for that--Section 541 of the Fiscal Year 2015 
National Defense Authorization Act permits a local prosecutor to send a 
case to the Army's chief prosecutor for review and, if necessary, 
referral to the Secretary of the Army for action.
    Ms. Speier. Two weeks ago, the Department of Defense Inspector 
General released a report revealing that in 77 of 82 cases reviewed, 
DOD officials either did not ask or did not document that they asked 
victims of sexual assault whether they want cases prosecuted in 
military or civilian courts. Why did this failure occur? Can you each 
commit to me that your services will rapidly put in place a system to 
ensure victims are asked whether they prefer their cases to be tried in 
civilian or military courts?
    General Pede. I disagreed with the findings in the Department of 
Defense Inspector General (DOD IG) report. The DOD IG equated a failure 
to document the victim's preference with the failure to ask about that 
preference. The law does not require documentation and therefore the 
report's conclusions are misleading. In all but a few cases reviewed, 
we demonstrated that we had, indeed, asked the victim their preferences 
and those cases were resolved in the forum the victim supported. 
Additionally, Special Victim Counsel represented all but a few of the 
victims. That said, the Army moved beyond the requirements of Section 
534 of the Fiscal Year 2015 National Defense Authorization Act statute 
and beginning in 2018, required memorialization of the victim's 
preference. It is also worth noting, as the DOD IG report did, that the 
statute as drafted raises multiple practical concerns with its 
implementation. For instance, when a civilian prosecutor's office with 
jurisdiction declines to prosecute a case early in the investigation, 
it effectively means there is no option for a civilian prosecution. 
Yet, in that circumstance, the statute requires the victim to be asked 
to express a preference when there is no real choice. This is not 
practical and it is not helpful to a victim. Finally, when a victim 
exercises their right to decline to participate in any prosecution, 
there will likely be no documentation of the victim's expressed 
preference for venue (such was the case for three of the Army cases 
without documentation). Anecdotally, the Criminal Law Division of the 
Office of The Judge Advocate General conducted a data call in August of 
2018 to get a sense of preferences expressed by victims. In that data 
call, 79% of victims expressed a preference for military prosecution, 
3% of victims expressed a preference for civilian prosecution, and 18% 
of victims expressed no preference. This overwhelming support of our 
system is consistent with anonymous DOD-wide survey data in which 
servicemembers who have reported a sexual assault rated ``civilian law 
enforcement'' with the lowest satisfaction rates of all personnel 
involved, including commanders, military law enforcement, Victim 
Advocates, healthcare personnel, and Special Victim Counsel.
    Ms. Speier. Are you aware of penetrative offenses under your 
jurisdictions being sent to special and summary courts martial while 
statute requires them to be tried at general courts martial? What is 
the cause of these failures to comply with the law? Can you commit to 
more closely tracking these cases to ensure compliance and eliminating 
these instances?
    General Pede. I believe the Army is fully compliant with the law 
and I have no information to suggest we are not. I understand that the 
recent Defense Advisory Committee on Investigation, Prosecution, and 
Defense of Sexual Assault in the Armed Forces (DAC-IPAD) report may 
have implied that multiple penetrative offenses were referred to 
summary or special courts-martial in violation of the NDAA. It is my 
understanding, however, that the DAC-IPAD will be sending a letter to 
your committee to clarify that report on this specific issue. The Army 
will continue to monitor all referrals to ensure compliance with 
Section 534 of the Fiscal Year 2015 National Defense Authorization Act.
    Ms. Speier. Do you believe recent expansions of the concept of 
apparent unlawful command influence hampers commanders and compromises 
their ability to set the necessary cultures within their units? How 
would your recommend changing the definition of UCI?
    General Pede. The concern underlying the judicially created 
doctrine of apparent unlawful command influence--namely, that a well-
informed member of the public would believe that the court-martial 
process is fair, to the accused, to the victim, and to the community--
is of vital consequence to our system. It is a bedrock principle of 
justice that justice must not only be fair, it must also appear to be 
fair. As the Supreme Court has recognized, all are entitled to a fair 
trial, not necessarily a perfect one. The harmless-error doctrine 
reflects this balance. On March 27, 2019, however, the Department of 
Defense submitted Legislative Proposal Number 337. Consistent with 
Judge Ryan's dissent in United States v. Barry, this proposal, if 
enacted, would re-institute the harmless-error analysis into the 
apparent unlawful command influence doctrine. It would also provide 
clearer guidelines for Commanders in how they can build a culture of 
dignity and respect without violating the necessary restrictions on 
unlawful command influence. I believe that the proposal merits serious 
consideration by the Congress.
    Ms. Speier. Are the recent decisions from CAAF jeopardizing 
convictions?
    General Pede. A conviction that is not consistent with the 
requirements of the law is not a conviction that should stand. The 
justice systems in the United States, both civilian and military, rest 
on the ability of our independent courts to make determinations of 
guilt, free from any consideration other than the parties' arguments, 
the evidence, and the law. Military justice is also a process, a case-
by-case, appeal-by-appeal adjudication. Over time, that process may 
reveal that it is appropriate to amend the underlying law. Any 
evaluation to amend the underlying law must be holistic and thorough, 
as reform efforts' second- and third-order effects can be 
counterproductive or even harmful and those negative effects are not 
always identifiable in advance. Any reform must be consistent with the 
requirements of fundamental fairness; it must reflect our concern for 
the dignity and respect of all persons.
    Ms. Speier. One area I am concerned with regarding the SVC program 
is the ability of the special victims lawyer to operate independent of 
any command, similar to defense counsel. Do you agree that special 
victim's counsel should not serve in billets that challenge their duty 
to their client? From what I understand, many of the Army's SVC are 
also legal assistance attorneys. Does this present a conflict?
    General Pede. I agree, special victim's counsel (SVC) should not 
serve in billets that challenge their duty to their client. I also do 
not believe there is a conflict created by SVCs serving part of their 
time as legal assistance attorneys. Every judge advocate who is 
authorized to and does enter into an attorney-client relationship with 
an individual--whether that judge advocate be a defense counsel, SVC, 
or legal assistance attorney--owes that client a duty to zealously 
advocate for that client's interests--even when those interests 
conflict with the chain of command or the Government. This is a bedrock 
principle of the legal profession. While SVCs do provide legal-
assistance services, when a judge advocate provides legal assistance 
services, they are working on behalf of their client and not the 
government. Legal assistance attorneys are evaluated on how well they 
advocate for their clients, not based on their support to the 
government, which is not part of their job in legal assistance billets. 
More importantly, the priority for a SVC serving in an authorized SVC 
position is representation of their special victim clients. In 
addition, the SVC program continues to refine its procedures to ensure 
that these standards are met. In June 2018, I directed the assignment 
of field grade officers to serve as dedicated SVC regional managers. 
These regional managers provide technical supervision and guidance to 
the SVCs in their region. The SVC program office, which oversees and 
sets policy for the SVC program, discusses the importance of SVC 
independence at all certification and staff judge advocate courses. I 
have also directed the SVC program office to conduct site visits to 
continually iterate the importance of SVC independence to all staff 
judge advocate offices in the Army. We will continue to assess these 
efforts to ensure the independence of our SVCs
    Ms. Speier. Would you agree that following the Air Force's model 
and providing the SVC program with additional resources like dedicated 
paralegals will help strengthen the program's role in the military 
justice process? Will you commit to expanding the use of paralegals?
    General Pede. I am committed to maximizing the use of paralegals 
for SVCs, though there are resource limitations affecting their 
availability. Since the SVC program's inception five years ago, we have 
trained 113 military and civilian paralegals in the same certification 
course we send all SVCs. In addition, in January 2017, we added a 
dedicated SVC paralegal-specific break-out training at each SVC 
certification course. SVC paralegals also participate fully in annual 
regional SVC training to familiarize themselves with key players in the 
local support systems, investigative offices, and military justice 
arenas. Army paralegals are a highly trained and motivated resource, 
and they are, consequently, a much-sought after asset. The Army will 
continue to assess the distribution of its paralegal assets to ensure 
that every attorney is effectively supported in his or her mission.
    Ms. Speier. How feasible is it for your service to develop an 
independent prosecution chain, along the lines of the Marines' reform?
    Admiral Hannink. The Navy's prosecution chain of command is set up 
similarly to the Marine Corps' prosecution chain of command. The Navy 
uses nine Region Legal Service Offices (RLSOs), with each managing the 
trial counsel for the particular region. Each RLSO has a Trial 
Department that is supervised by the Senior Trial Counsel (STC). All 
trial counsel receive Fitness Reports from the RLSO Commanding Officer, 
who is an O-6 judge advocate reporting to Commander, Naval Legal 
Service Command/Deputy Judge Advocate General of the Navy.
    Ms. Speier. What happens when a prosecutor's ethical and legal 
expertise contradict commanders' opinions? What happens when justice 
demands that case be brought forward, and the prosecutor is unable to 
because the commander refuses to act?
    Admiral Hannink. As described in my written testimony, prosecutors 
in the Navy provide Prosecution Merits Review to inform the decision of 
disposition authorities. Likewise, Preliminary Hearing Officers and 
Staff Judge Advocates inform and make recommendations to convening 
authorities. It is uncommon for a commander to deviate from a 
prosecutor's recommendation but that authority ultimately lies with the 
commander subject to a few constraints imposed by statute. For example, 
Article 34, UCMJ states that a convening authority may not refer a 
specification under a charge to a general court-martial unless the 
staff judge advocate (SJA) advises in writing that there is probable 
cause to believe that the accused committed an offense. And under the 
provisions of the FY14 National Defense Authorization Act, if the SJA 
recommends referral and the general court-martial convening authority 
declines to refer such a charge, the Secretary of the military 
department must review the case. Finally, all Judge Advocates are bound 
by the rules of professional responsibility within the Navy as well as 
the state where they are licensed to practice law. The Navy JAG Corps' 
professional responsibility rules require any judge advocate who knows 
that an official intends to act in a manner that is adverse to the 
Department of the Navy's legal obligations must take reasonably 
necessary measures to address the situation. These measures may include 
asking the official to reconsider, seeking an additional legal opinion, 
or raising the matter to higher authority in the chain of command. If 
there are further questions about this process and the prosecutor's 
role in it, the Chief Prosecutor of the Navy and the Head of the Navy 
Trial Counsel Assistance Program are available to provide further 
explanation.
    Ms. Speier. Two weeks ago, the Department of Defense Inspector 
General released a report revealing that in 77 of 82 cases reviewed, 
DOD officials either did not ask or did not document that they asked 
victims of sexual assault whether they want cases prosecuted in 
military or civilian courts. Why did this failure occur? Can you each 
commit to me that your services will rapidly put in place a system to 
ensure victims are asked whether they prefer their cases to be tried in 
civilian or military courts?
    Admiral Hannink. In most of the Navy cases reviewed by the DOD IG, 
the victim's preference was sought but not effectively documented. In 
some cases, preference was not sought because civilian authorities 
already turned down the cases. In those circumstances, the statute does 
still require the victim to be asked to express a preference, though 
there is no real choice involved. There were also instances where we 
could not establish whether we asked victims their preference at all, 
but it is worth noting that in all but one of the cases reviewed by the 
DOD IG, a Victim's Legal Counsel was assigned to assist victims in 
understanding and advocating for their rights in the process. The Navy 
is committed to ensuring victims are asked about their preference for 
civilian or military prosecution. Since the report was released, our 
Region Legal Service Offices have adjusted their practice to document 
victim preferences in each case, regardless of whether prosecution by 
civilian authorities is an option.
    Ms. Speier. Are you aware of penetrative offenses under your 
jurisdictions being sent to special and summary courts martial while 
statute requires them to be tried at general courts martial? What is 
the cause of these failures to comply with the law? Can you commit to 
more closely tracking these cases to ensure compliance and eliminating 
these instances?
    Admiral Hannink. There are no known penetrative offenses in the 
Navy that have been referred to a summary court-martial or a special 
court-martial. The DAC-IPAD identified a few cases in which an Article 
120 penetrative offense was charged at the beginning of the process and 
the case was later referred to a special court-martial or a summary 
court-martial. We have confirmed that in each of the cases identified 
by the DAC-IPAD, the penetrative offense(s) was in fact dismissed prior 
to referral to a special court-martial or summary court-martial. 
Additionally, we conducted a review of all cases in which a penetrative 
offense was charged and confirmed there are no instances where a 
penetrative offense was referred to a special court-martial or a 
summary court-martial.
    Ms. Speier. Do you believe recent expansions of the concept of 
apparent unlawful command influence hampers commanders and compromises 
their ability to set the necessary cultures within their units? How 
would your recommend changing the definition of UCI?
    Admiral Hannink. Commanders are responsible for good order and 
discipline, and must be able to speak candidly about destructive 
behaviors while not interfering in individual cases. At a minimum, 
court rulings have forced commanders to examine how their actions, 
including candid discussions on culture, might adversely impact the due 
process of a service member. The issue of unlawful command influence 
was researched and discussed by the Joint Service Committee (JSC) on 
Military Justice and based upon that research, the DOD and the 
Administration submitted a legislative proposal to modify Article 37, 
UCMJ. The legislative proposal clarifies the ability of a commander to 
address cultural issues within their unit. I support this proposal.
    Ms. Speier. Are the recent decisions from CAAF jeopardizing 
convictions?
    Admiral Hannink. CAAF is an independent court responsible for 
performing an independent review of cases arising under the military 
justice system. CAAF must ensure that lower court decisions are legally 
correct and consistent with due process. It is within their authority 
to set aside convictions.
    Ms. Speier. One area I am concerned with regarding the SVC program 
is the ability of the special victims lawyer to operate independent of 
any command, similar to defense counsel. Do you agree that special 
victim's counsel should not serve in billets that challenge their duty 
to their client?
    Admiral Hannink. Navy Victims' Legal Counsel (VLC) are only 
assigned duties within the Victims' Legal Counsel Program (VLCP) and 
therefore are completely independent. The VLCP has operated as an 
entirely separate chain of command since its inception in 2013. The 
VLCP has a Chief of Staff who is independent of all Commanding Officers 
for the fleet, Region Legal Service Offices and the Defense Service 
Offices. The VLCP Chief of Staff reports directly to Commander, Naval 
Legal Service Command/Deputy Judge Advocate General of the Navy, and is 
directly responsible for and signs all Officer Fitness Reports and 
Enlisted Evaluations for the program. Based on the completely separate 
chain of command, the VLCP avoids any conflicts of interests with other 
interested parties.
    Ms. Speier. Would you agree that following the Air Force's model 
and providing the SVC program with additional resources like dedicated 
paralegals will help strengthen the program's role in the military 
justice process? Will you commit to expanding the use of paralegals?
    Admiral Hannink. The Navy is committed to properly resourcing the 
Victims' Legal Counsel Program (VLCP), including providing the right 
number and type of support personnel. The Navy provided administrative 
(Yeoman) support personnel to VLCP attorneys from the early phases of 
the VLC Program. The Navy JAG Corps commits to periodically 
reevaluating the support requirements of VLCP attorneys, including 
whether paralegals (Legalman) should replace or add to the Yeomen 
currently assigned.
    Ms. Speier. How feasible is it for your service to develop an 
independent prosecution chain, along the lines of the Marines' reform?
    General Rockwell. The Air Force has two separate reporting chains 
of lawyers involved in military justice--the functional chain attached 
as legal advisors to the command chain and the litigation support chain 
that reports to the commander of the Air Force Legal Operations Agency. 
Developing another ``prosecution chain'' would be an inadvisable 
triplication of effort. Furthermore, the Air Force organizes, trains, 
and equips to execute its mission sets. Legal support follows mission, 
which results in having individual legal offices at Air Force 
installations across the United States and around the world. 
Experienced Staff Judge Advocates with military justice experience 
provide candid legal advice on the ground to installation commanders, 
with reach back to expert trial counsel at our regional Circuit 
litigation offices, which fall under an independent chain of command.
    Ms. Speier. What happens when a prosecutor's ethical and legal 
expertise contradict commanders' opinions? What happens when justice 
demands that case be brought forward, and the prosecutor is unable to 
because the commander refuses to act?
    General Rockwell. In our experience, commanders value the sage 
advice of their Staff Judge Advocates (SJAs) and work in concert with 
them and the attorneys prosecuting their cases. Legal limitations and 
oversight measures built into the military justice system guard against 
potential abuses of commander authority. As a matter of law, a 
convening authority may not refer any case to a general court-martial 
(GCM) if the SJA determines that probable cause does not exist. Art. 
18(a), UCMJ. Thus, if an SJA finds a lack of probable cause, the 
convening authority is prohibited from referring a case to a GCM. 
Conversely, if an SJA believes a penetrative sexual assault case should 
be referred to a court-martial, but the general court-martial convening 
authority (GCMCA) refuses to refer it, the case must be forwarded to 
the Secretary of the Air Force for review. The Secretary will conduct 
an independent review of the case file and make a decision on referral. 
FY14 NDAA, 1744(d). To date, no GCMCA has gone counter to their SJA and 
refused to refer a case. Additionally, the Chief of the Air Force's 
Government Trial and Appellate Counsel Division (AFLOA/JAJG) may 
request that the Secretary of the Air Force review any decision not to 
refer a penetrative sexual assault case to court-martial, regardless of 
whether the SJA and convening authority agree or disagree on referral. 
FY15 NDAA, 541. See also Air Force Instruction (AFI) 51-201, 
Administration of Military Justice, para 9.11. Moreover, per SECDEF 
policy, only special court-martial convening authorities in the grade 
of O-6 or above have initial disposition authority over penetrative 
sexual assault cases. Complementary Air Force policy further requires 
that a general officer serving as a general court-martial convening 
authority review all initial disposition decisions in penetrative 
sexual assault cases. These two policies in tandem ensure that sexual 
assault cases get the attention of at least two high-level commanders 
with significant command and military justice experience, and prevents 
a single commander from disposing of a case without review. It is 
critical to recognize that, although an SJA works for their commander, 
their obligation to provide independent legal advice is derived from 
The Judge Advocate General's statutory authority under 10 U.S.C. 
Sec. Sec. 806 and 9037 to provide independent legal advice to the 
Secretary of the Air Force and Chief of Staff of the Air Force and is 
consistent with their ethical obligations as licensed attorneys. A 
subordinate judge advocate who believes his or her commander is acting 
unethically has the right and the responsibility to raise that issue 
through legal channels to superior judge advocates who can work with 
senior commanders to promptly intervene. A subordinate judge advocate 
always has the right and responsibility to push critical issues up 
through the JA chain, if warranted.
    Ms. Speier. Two weeks ago, the Department of Defense Inspector 
General released a report revealing that in 77 of 82 cases reviewed, 
DOD officials either did not ask or did not document that they asked 
victims of sexual assault whether they want cases prosecuted in 
military or civilian courts. Why did this failure occur? Can you each 
commit to me that your services will rapidly put in place a system to 
ensure victims are asked whether they prefer their cases to be tried in 
civilian or military courts?
    General Rockwell. The FY15 NDAA established the requirement to 
solicit a victim's preference on jurisdiction for specific enumerated 
offenses alleged to have occurred within the United States. FY15 NDAA, 
Sec. 534. Air Force policy implemented this requirement on 30 July 2015 
through Air Force Guidance Memorandum 2015-01 to Air Force Instruction 
(AFI 51-201), Administration of Military Justice. This guidance 
required Air Force authorities to solicit the input of a victim of 
sexual assault (or attempt thereof) as to preference on civilian or 
military prosecution; however the guidance did not require the 
solicitation or the victim's response be in writing or otherwise 
documented. Consultation with a victim is required in all cases alleged 
to have occurred in the United States. However, the Air Force legal 
offices audited by the DOD IG for purposes of the report erroneously 
believed that consultation was not required for cases which were under 
exclusive federal jurisdiction and victims were not consulted about 
their preference for prosecution in those cases. The Air Force has 
implemented additional safeguards to ensure that victim preference is 
requested. The 18 January 2019 update to AFI 51-201 amended this 
requirement to document a victim's preference as to prosecution by a 
court-martial or a civilian court in writing and to seek a victim's 
preference prior to requesting jurisdiction from a civilian entity. AFI 
51-201, para 4.18.2.3 and 4.18.2.4. Additionally, as of June 2019, all 
wing legal offices will be inspected under Article 6, UCMJ, to ensure 
they are seeking, documenting, and maintaining victim preferences. 
Moreover, legal offices must follow case preparation checklists, all of 
which require soliciting a qualifying victim's preference. Finally, 
standards promulgated pursuant to Article 140a, UCMJ, will require the 
Services to collect data showing whether victim preference was 
solicited in qualifying cases.
    Ms. Speier. Are you aware of penetrative offenses under your 
jurisdictions being sent to special and summary courts martial while 
statute requires them to be tried at general courts martial? What is 
the cause of these failures to comply with the law? Can you commit to 
more closely tracking these cases to ensure compliance and eliminating 
these instances?
    General Rockwell. The Air Force is not aware of any penetrative 
offenses being sent to special or summary courts-martial in violation 
of the statutory requirement to refer qualifying offenses to a general 
court-martial. FY14 NDAA, Sec. 1705, limited jurisdiction over 
penetrative sexual assault and forcible sodomy offenses to general 
courts-martial. The provision went into effect on 24 June 2014 and 
applied to qualifying offenses committed on or after that date. Since 1 
January 2013, the Air Force has referred 946 adult and child 
penetrative sexual assault offenses to courts-martial. None of those 
cases resulted in a penetrative offense being referred to a special or 
summary court-martial after Sec. 1705 went into effect. We note the 
Third Annual Report of the Defense Advisory Committee on Investigation, 
Prosecution, and Defense of Sexual Assault in the Armed Forces 
(DACIPAD) found two instances where penetrative offenses were referred 
to a special court-martial (one in FY15 and one in FY16). Closer review 
of these cases shows that neither instance violated Sec. 1705. One case 
was originally referred to a general court-martial, but was reduced to 
a special court-martial pursuant to a pretrial agreement (for other 
non-sexual offenses) after the victim withdrew her participation. The 
other case went to an Article 32 hearing with an eye towards referral 
to a general court-martial, but the victim withdrew her participation 
prior to referral. The remaining drug charges were subsequently 
referred to a special court-martial. This is consistent with the 
clarification letter provided by the DACIPAD to the House Armed 
Services Committee, dated 23 April 2019, which stated that in almost 
all instances across the Services, penetrative sex assault cases are 
only referred to a forum other than a general court-martial if the 
sexual assault allegation is dismissed or downgraded to a non-
penetrative offense. Moreover, in both cases the sexual assault 
offenses occurred prior to 24 Jun 14, so they were not subject to Sec. 
1705 despite the fact the convening authorities in both instances 
followed the spirit of the law. The military justice system contains 
multiple safeguards against referring penetrative cases to summary or 
special court-martial. For example, Article 34, UCMJ, requires the 
commander to consult with a judge advocate prior to referring charges 
to a special or general court-martial. Additionally, Air Force policy 
requires a general court-martial convening authority to review initial 
disposition decisions on all penetrative offenses. Referral is 
considered initial disposition. Thus, if a special court-martial 
convening authority referred a penetrative sex offense to a special 
court-martial, the special court-martial convening authority would be 
required to notify the general court-martial convening authority within 
thirty days of referral. At that point, the general court-martial 
convening authority and his/her staff judge advocate would have an 
opportunity to intervene.
    Ms. Speier. Do you believe recent expansions of the concept of 
apparent unlawful command influence hampers commanders and compromises 
their ability to set the necessary cultures within their units? How 
would your recommend changing the definition of UCI?
    General Rockwell. Recent cases finding apparent unlawful command 
influence (UCI) have not compromised a commander's ability to instill 
good order and discipline or ``set the necessary culture'' within their 
command by expressing their general philosophy on all levels of 
misconduct and establishing overall behavioral expectations nor have 
the rulings hampered a commander's ability to take appropriate action 
in response to an Airman's misconduct. Judge advocates ensure 
commanders are educated on UCI and recent rulings to ensure commanders 
understand what is and is not acceptable messaging. UCI is a complex 
military legal concept. The outcome of an appellate case, or a motion 
at the trial level, is determined by the factual findings unique to 
that case, application of a consistent test for UCI, and a weighing of 
the totality of circumstances. The underpinnings of the prohibition 
against apparent UCI are rooted in the constitutional rights of an 
accused to receive due process and a fundamentally fair trial without 
the political pressure for a predetermined outcome. Historically, these 
appellate decisions have clarified the lines between what is and is not 
acceptable messaging by a commander to the unit. It is important to 
point out that changing who convenes a Court, prefers charges or refers 
a case would not change the dynamics of unlawful command influence. 
Judge Advocates can commit unlawful command influence. The case law is 
to ensure that political pressure and Command influence does not 
interfere with an accused's right to receive due process and a 
fundamentally fair trial. We also note a Department of Defense 
legislative proposal on unlawful command influence, making amendments 
to Article 37, UCMJ, has been transmitted to House and Senate Armed 
Services Committees for FY20 NDAA consideration. This proposal would 
amend the statutory unlawful command influence provision of the UCMJ to 
expressly permit convening authorities and commanding officers to 
engage in communications with subordinates that do not endanger the 
fairness of any military justice proceeding, thereby facilitating 
senior leaders' messaging to their subordinates concerning activities 
that harm good order and discipline, enhancing senior leaders' ability 
to deter misconduct by personnel subject to their authority. This will 
eliminate confusion regarding a senior military leader's ability to 
properly communicate with subordinate commanders on military justice 
matters.
    Ms. Speier. Are the recent decisions from CAAF jeopardizing 
convictions?
    General Rockwell. CAAF has recently overturned convictions in 
several sexual assault cases. Some of the overturned cases were due to 
their interpretation of new legislation regarding sexual assault. As 
with previous legislation, it takes time for the courts to determine 
whether the litigants and trial judges are properly interpreting the 
changes to the Uniform Code of Military Justice. Similarly, appellate 
courts also must review new legislation to determine whether it 
withstands constitutional scrutiny. Oftentimes, appellate courts render 
their decisions one, two, or sometimes three years after the trial 
occurs or takes place. Appellate courts are tasked with the 
responsibility of applying the law to the facts and circumstances of 
each individual case, and determining whether a verdict was improperly 
obtained due to error in the proceedings. With this responsibility 
comes the inherent potential to overturn convictions based on abuses of 
discretion by the trial court, changes in the interpretation of the 
law, or plain error committed during the court-martial. By ensuring the 
law is correct through transparent judicial review we ensure trust, 
confidence and reliability in the system.
    Ms. Speier. One area I am concerned with regarding the SVC program 
is the ability of the special victims lawyer to operate independent of 
any command, similar to defense counsel. Do you agree that special 
victim's counsel should not serve in billets that challenge their duty 
to their client?
    General Rockwell. Maintaining an attorney-client relationship that 
is free from any conflict of interest is a fundamental mandate of the 
Air Force Rules of Professional Conduct. To avoid potential conflicts, 
the Air Force has always had independent chain of command for special 
victims' counsel (SVCs) which runs through the Air Force Legal 
Operations Agency. SVCs do not report to any installation-level 
commander. Victims' feedback has been, consistently, that having their 
own independent attorney is something they value very much.
    Ms. Speier. Why did the Marine Corps reorganize their prosecution 
community in 2012? What objectives did it fulfill? What are the 
benefits of having prosecutors supervised by other prosecutors and not 
commanders?
    General Lecce. The Marine Corps reorganized its entire legal 
community--not just its prosecutors--to optimize the delivery of legal 
services. The reorganization consolidated resources and legal 
experience into mutually supporting legal centers within a geographic 
area. These changes improved the ability of our senior judge advocates 
to train and mentor junior counsel, which in turn brought improvements 
not just in military justice practice but also in civil and 
administrative law and legal assistance matters. Allowing all legal 
counsel to be supervised by a more experienced attorney permits focused 
professional mentorship and accountability in order to ensure a fair 
military justice system. Even prior to the 2012 reorganization, senior 
prosecutors supervised Marine Corps trial counsel. However, it is 
important to note that every judge advocate is a member of a chain of 
command, though not necessarily the chain of command of the convening 
authority in a particular case.
    Ms. Speier. What happens when a prosecutor's ethical and legal 
expertise contradict commanders' opinions? What happens when justice 
demands that case be brought forward, and the prosecutor is unable to 
because the commander refuses to act?
    General Lecce. The Marine Corps has recorded no case in which a 
Commander acted against the advice of a Staff Judge Advocate (SJA) to 
refer a charge to court-martial. The law places significant limits on a 
Commander's discretion in order to protect victims and those accused of 
offenses. For example, a Commander's discretion is limited by Article 
34, which prohibits sending a charge to general court-martial unless 
the SJA advises a Commander there is probable cause to believe the 
accused committed the offense. Where a Commander decides not to send 
certain sexual offenses to a court-martial against the advice of the 
SJA, the law requires this decision to be reviewed by the Secretary of 
the Navy. Similarly, if a prosecutor believes strongly that certain 
sexual offenses should be sent to a court-martial, that officer may 
request the Chief Prosecutor of the Marine Corps review the Commander's 
decision not to send the case to trial. Finally, a senior Commander in 
the chain of command, with the advice of legal counsel, may assume 
jurisdiction of a case if it becomes clear that a junior Commander is 
not acting in the interests of justice.
    Ms. Speier. Two weeks ago, the Department of Defense Inspector 
General released a report revealing that in 77 of 82 cases reviewed, 
DOD officials either did not ask or did not document that they asked 
victims of sexual assault whether they want cases prosecuted in 
military or civilian courts. Why did this failure occur? Can you each 
commit to me that your services will rapidly put in place a system to 
ensure victims are asked whether they prefer their cases to be tried in 
civilian or military courts?
    General Lecce. The Marine Corps consults victims on their 
jurisdictional preference for case disposition in every case required 
by law. In 18 of the 21 cases reviewed by Department of Defense 
Inspector General (DOD IG), the Marine Corps consulted with the victim 
to determine their preferences concerning prosecution of the case. 
These preferences were recorded in the Case Analysis Memo (CAM), a 
detailed analysis of the prosecutorial merit of a case. In three of the 
21 cases, victims were not specifically asked about their 
jurisdictional preference because the civilian authorities had already 
declined to prosecute their cases. The Marine Corps requires 
prosecutors to solicit and document victim preference. Prosecutors 
document that preference in a CAM to inform SJA advice to the Commander 
on whether to proceed with a case, accord proper weight to that 
preference, and to enable its analysis in the proper context. My staff 
is currently in the process of publishing a major modification to our 
regulation on legal services. That modification provides updated 
guidance to judge advocates on all aspects of military justice, 
including specific independent documentation of victim preference for 
military or civilian jurisdiction which may be released to auditors.
    Ms. Speier. Are you aware of penetrative offenses under your 
jurisdictions being sent to special and summary courts martial while 
statute requires them to be tried at general courts martial? What is 
the cause of these failures to comply with the law? Can you commit to 
more closely tracking these cases to ensure compliance and eliminating 
these instances?
    General Lecce. The Marine Corps has sent no cases involving a 
penetrative sexual assault charge to either a special or summary court-
martial since the implementation of Section 1705 of the National 
Defense Authorization Act of Fiscal Year 2014 (NDAA FY 14). The Defense 
Advisory Committee on Investigation, Prosecution, and Defense of Sexual 
Assault in the Armed Forces (DAC-IPAD) identified several Marine Corps 
cases where penetrative offenses were initially charged but later went 
to trial at special or summary court-martial. In all but one of these 
cases, the penetrative offenses were dismissed prior to the court-
martial as part of a pretrial agreement. The remaining case was tried 
at a special court-martial, but involved misconduct which occurred 
prior to the change in the law. That case also involved a pretrial 
agreement where the accused agreed to plead guilty to non-penetrative 
offenses. The Marine Corps is committed to closely tracking sexual 
assault cases to ensure our continued compliance with the law. To that 
end, the Marine Corps is currently evaluating several options to 
implement the standards recently approved by the Secretary of Defense 
pursuant to Article 140a.
    Ms. Speier. Do you believe recent expansions of the concept of 
apparent unlawful command influence hampers commanders and compromises 
their ability to set the necessary cultures within their units? How 
would your recommend changing the definition of UCI?
    General Lecce. A Commander's responsibility to maintain good order, 
discipline, and welfare includes the authority to set a healthy culture 
and address destructive behaviors in a meaningful way. While judicial 
decisions may cause Commanders to consider the impact of their actions 
on the fair adjudication of individual cases, that consideration is a 
valuable means of protecting the rights of accused service members. At 
the direction of the Secretary of Defense, the Joint Service Committee 
(JSC) recently drafted a legislative proposal to modify the definition 
of UCI contained in Article 37. The legislative proposal clarifies 
command authority to address destructive cultural issues and behaviors 
within their unit. I support that proposal.
    Ms. Speier. Are the recent decisions from CAAF jeopardizing 
convictions?
    General Lecce. The authority of CAAF to set aside convictions is an 
important legal safeguard. As with appellate courts in civilian 
jurisdictions, CAAF independently reviews the decisions of lower courts 
to ensure those decisions are legally correct.
    Ms. Speier. One area I am concerned with regarding the SVC program 
is the ability of the special victims lawyer to operate independent of 
any command, similar to defense counsel. Do you agree that special 
victim's counsel should not serve in billets that challenge their duty 
to their client?
    General Lecce. The Marine Corps Victims' Legal Counsel Organization 
(VLCO) has operated independently since its inception in 2013. Marine 
Corps Victims' Legal Counsel (VLC) report to a Regional VLC, who 
reports to the Officer in Charge of the VLCO. The Marine Colonel in 
charge of the VLCO reports directly to me. The supervisory VLC 
attorneys handle all matters related to performance evaluations and 
professional responsibility for Marine VLCs.
    Ms. Speier. Would you agree that following the Air Force's model 
and providing the SVC program with additional resources like dedicated 
paralegals will help strengthen the program's role in the military 
justice process? Will you commit to expanding the use of paralegals?
    General Lecce. The Marine Corps VLCO has long employed civilian 
paralegals. The nine civilian paralegals currently serving in the VLCO 
are instrumental to representation of VLCO clients. These paralegals 
work hand in hand with judge advocates to form a strong office team, 
and help provide continuity of operations. The VLCO recently added one 
civilian paralegal at Marine Corps Base Hawaii, and has plans to add 
another this year at Marine Corps Air Station Cherry Point. The Marine 
Corps fully supports the mission of the VLCO and will ensure it has 
adequate resources to support the program.
                                 ______
                                 
                   QUESTIONS SUBMITTED BY MRS. LURIA
    Mrs. Luria. 1. Can you elaborate on the statement, ``I trust 
military lawyers to make that decision, meaning that decision about the 
cases, more than I trust commanders''?
    2. Do you acknowledge that a 30-plus-year commander has had to go 
through numerous decisions where they had to take into account the 
order and discipline of their command and the UCMJ, and the use of 
that?
    Colonel Christensen. [No answer was available at the time of 
printing.]
    Mrs. Luria. Do you agree that there are many remedies available for 
these cases within the military chain of command? Can you elaborate on 
them?
    General Darpino. [No answer was available at the time of printing.]

                                  [all]