[Senate Hearing 116-262]
[From the U.S. Government Publishing Office]
S. Hrg. 116-262
THE MILITARY SERVICES' PREVENTION OF AND RESPONSE TO SEXUAL ASSAULT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON PERSONNEL
of the
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
MARCH 6, 2019
__________
Printed for the use of the Committee on Armed Services
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
41-303 PDF WASHINGTON : 2020
COMMITTEE ON ARMED SERVICES
JAMES M. INHOFE, Oklahoma,
Chairman
ROGER F. WICKER, Mississippi JACK REED, Rhode Island
DEB FISCHER, Nebraska JEANNE SHAHEEN, New Hampshire
TOM COTTON, Arkansas KIRSTEN E. GILLIBRAND, New York
MIKE ROUNDS, South Dakota RICHARD BLUMENTHAL, Connecticut
JONI ERNST, Iowa MAZIE K. HIRONO, Hawaii
THOM TILLIS, North Carolina TIM KAINE, Virginia
DAN SULLIVAN, Alaska ANGUS S. KING, Jr., Maine
DAVID PERDUE, Georgia MARTIN HEINRICH, New Mexico
KEVIN CRAMER, North Dakota ELIZABETH WARREN, Massachusetts
MARTHA McSALLY, Arizona GARY C. PETERS, Michigan
RICK SCOTT, Florida JOE MANCHIN, West Virginia
MARSHA BLACKBURN, Tennessee TAMMY DUCKWORTH, Illinois
JOSH HAWLEY, Missouri DOUG JONES, Alabama
John Bonsell, Staff Director
Elizabeth L. King, Minority Staff
Director
Subcommittee on Personnel
THOM TILLIS, North Carolina,
Chairman
MIKE ROUNDS, South Dakota KIRSTEN E. GILLIBRAND, New York
MARTHA MCSALLY, Arizona ELIZABETH WARREN, Massachusetts
RICK SCOTT, Florida TAMMY DUCKWORTH, Illinois
(ii)
C O N T E N T S
March 6, 2019
Page
The Military Services' Prevention of and Response to Sexual 1
Assault.
Christensen, Colonel Don M., USAF, Retired, President, Protect 6
Our
Defenders.
Haring, Colonel Ellen, USA, Retired, Chief Executive Officer, 9
Service
Women's Action Network.
Elliott, Lieutenant Commander Erin Leigh, USN.................... 10
Bapp, Ms. Angela................................................. 12
James, Colonel Doug, USAF, Retired, President, Save Our Heroes... 15
Van Winkle, Elizabeth P., Executive Director, Office of Force 31
Resiliency.
Lecce, Major General Daniel J., USMC, Staff Judge Advocate to the 35
Commandant of the Marine Corps.
Rockwell, Lieutenant General Jeffrey A., USAF, The Judge Advocate 41
General of the Air Force.
Hannink, Vice Admiral John G., USN, Judge Advocate General of the 48
Navy.
Pede, Lieutenant General Charles N. USA, The Judge Advocate 53
General of the Army.
Questions for the Record......................................... 69
(iii)
THE MILITARY SERVICES' PREVENTION OF AND RESPONSE TO SEXUAL ASSAULT
----------
WEDNESDAY, MARCH 6, 2019
U.S. Senate,
Subcommittee on Personnel,
Committee on Armed Services,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:32 p.m. in
Room SR-222, Russell Senate Office Building, Senator Thom
Tillis, (presiding) chairman of the subcommittee.
Subcommittee Members present: Senators Tillis, Rounds,
McSally, Scott, Gillibrand, and Duckworth.
OPENING STATEMENT OF SENATOR THOM TILLIS
Senator Tillis. The committee will come to order.
I understand Senator Gillibrand will be here briefly. She
is in the building. I think that will give me time to make a
few brief opening comments.
I want to thank everyone for being here today.
We meet this afternoon to receive testimony on sexual
assault prevention and response programs and policies in
Military Services.
On panel one, we will hear from five witnesses: Colonel Don
Christensen, United States Air Force, retired, and now director
of Protect Our Defenders. Welcome. Dr. Ellen Haring, U.S. Army,
retired, and now CEO [Chief Executive Officer] of the Service
Women's Action Network. Welcome. Lieutenant Commander Erin
Leigh Elliott, U.S. Navy. Ms. Angela Bapp, formerly an officer
in the U.S. Army, and Colonel Doug James, U.S. Air Force,
retired, and now president of Save Our Heroes. Thank you all
for coming here.
I will introduce the second panel when we transition into
their testimony.
The Personnel Subcommittee exercises rigorous oversight of
DOD [Department of Defense] sexual assault prevention and
response policies and programs, and over the past 10 years, the
committee has spearheaded the enactment of hundreds of
legislative changes that have affected every aspect of the
Military Sexual Assault Prevention and Response Program. These
provisions of law include protecting and empowering victims,
reforming the military justice process, holding offenders
accountable while protecting their due process rights, and
ensuring command accountability for the investigation,
prosecution, and disposition of allegations of sexual
misconduct and retaliation.
I feel confident when I say sexual assault prevention and
response policies and programs in the Armed Forces are the most
comprehensive and the most aggressive in the United States and
perhaps the world.
I credit Ranking Member Gillibrand with shining a spotlight
on these important issues, and I applaud her persistence for
focusing on the subcommittee's actions. I have been in the
Senate for 4 years, and she has been a consistent standard
bearer for the issue, and I compliment the ranking member. I am
glad you are here for me to compliment you directly, Ranking
Member.
[Laughter.]
Senator Tillis. But the subcommittee knows that sexual
assault, unwanted sexual contact, sexual harassment, and
retaliation are issues that affect not only the Armed Forces
but our society as a whole. We expect our Armed Forces,
however, to be better. We expect the military to lead the way
in fixing these issues. We expect our military to set the
example for the rest of society to follow.
The purpose of this hearing today is to help our military
do just that. Much has been accomplished, but there remains
much more to be done.
I will turn to Ranking Member Gillibrand at this time,
followed by recognition of Senator McSally. Senator Gillibrand?
STATEMENT OF SENATOR KIRSTEN GILLIBRAND
Senator Gillibrand. Thank you, Chairman Tillis, for holding
this hearing. I am very grateful, and I am really grateful to
our witnesses today. Thank you so much for being here.
I am pleased that our subcommittee is committed to solving
our military sexual assault problem, but I have to say that I
am incredibly disappointed that after years of fighting this
problem, after so many incremental changes in the law, that we
are still in the exact same place. Sexual assault in the
military is still pervasive. It is still hurting our military
readiness. It is still causing thousands of our servicemembers
to suffer. The trends and numbers are going in the wrong
direction. So we must fix this. We need a fundamentally
different approach to how these crimes are being prosecuted
because the Services have not done nearly enough to solve the
problem themselves.
My office routinely receives information from a variety of
sources about the military's failure to appropriately address
sexual assaults and other sexual misconduct.
I am counting on our witnesses on the first panel to
describe the problems encountered day to day by survivors of
sexual misconduct, and I want to note my appreciation of the
survivors willing to testify. They have served our country and
now are leading additional service by having the resolve to
share their painful experiences with us and with the world.
Witnesses on the second panel should listen carefully to
the testimony of the witnesses on the first panel, as I expect
the second panel witnesses to address the issues described by
the first panel.
It should be clear to any unbiased observer that the
military is not attacking the problem with any of the focus or
intensity that it would attack just about any other problem.
The Department of Defense consistently tells us that addressing
sexual assault in the military is a chain of command
responsibility and that the chain of command will fix it. But
the chain of command has failed in this regard.
The most recent survey of prevalence of unwanted sexual
conduct found that sexual assaults have increased at the
Military Service academies, and other surveys by the Department
itself show increased reporting while cases are decreasing and
a very alarming rate of retaliation by those in command against
victims of sexual assault. The Pentagon's next annual report on
sexual assault in the military will include the results of
their most recent survey of military personnel across the
Department. It will not be surprising--but I will be
disappointed, though--to see a similar increase in unwanted
sexual conduct throughout the Services.
One of the main causes of this problem is that despite many
good leaders, far too many commanders do not make it a priority
to address the problem of sexual assault in the military in a
meaningful way. I recently reviewed a military investigation
about how the chain of command addressed sexual assault at a
major command. The commanding general did not even attend case
management group meetings where sexual assault cases were
discussed in detail, as required by the DOD in-service
regulations. A brigade sexual assault coordinator position was
left vacant for 9 months. Professional training of officials
involved in sexual assault was conducted on an ad hoc basis and
not documented in training records. Sexual assault
professionals used obsolete forms to inform sexual assault
survivors of their rights and options. Survivors were not
informed of one of their most important rights, the right to
representation by a special victims counsel. This command had
undergone an earlier inspection that identified these and many
other shortfalls in the command sexual assault prevention and
response program. Yet, as far as we know, no one was held
accountable for these continuing failures.
If this is how the chain of command operates to address
sexual assaults in the military, it is clear why we are not
succeeding. All too often we hear from survivors that they are
the ones who are punished when they report sexual assaults. We
hear from survivors that they are retaliated against, sometimes
by the chain of command, sometimes by their peers. In either
case, the chain of command must put a stop to it.
In too many cases, survivors are punished for collateral
misconduct, such as underage drinking or fraternization, while
the assailant who committed sexual assault goes free. This
happens even when the only reason that commanders know about
this collateral misconduct is because the survivor reported
that he or she was assaulted. It is no wonder that survivors
are reluctant to report.
I continue to believe that a fundamental reform is
warranted in our military justice system. That is how we
finally protect our servicemembers from these crimes, and it is
how we will strengthen our military.
Mr. Chairman, I am committed to working with you on this
issue, and I hope that we can use what we learn today to help
solve this problem once and for all.
Senator Tillis. Thank you, Senator Gillibrand.
Senator McSally?
STATEMENT OF SENATOR MARTHA McSALLY
Senator McSally. Well, thank you, Chairman Tillis, and I
also want to thank Senator Gillibrand for her advocacy for
women in uniform and her passion for stopping the crime of
sexual assault in the military.
This is also a passion of mine for many reasons, and I
think I bring a unique and important perspective. My drive to
fight against sexual assault in the ranks is not from the
outside looking in, and it is deeply personal.
First, for 2 years, I was honored to be a fighter squadron
commander in the United States Air Force. Command is the most
impactful duty one can have directly on the lives of servicemen
and women and their families. I was greatly privileged to
prepare and then lead my amazing airmen in combat, which is the
apex responsibility of any warrior leader.
Military commanders are placed in a position of authority
and responsibility like none in civilian life. They are not
like CEOs or managers or any other supervisor. Commanders have
a moral responsibility to ensure readiness of their units
which, yes, includes warfighting skills, but demands that the
commander cultivates and protects and enriches a culture of
teamwork, respect, and honor. Conduct, any conduct, that
degrades this readiness does not just harm individuals in the
ranks. It harms the mission and places at risk the security of
our country.
Commanders also have a covenant with the men and women
under their command. The 1 percent who volunteer to serve in
uniform, they are asked to follow lawful orders that could risk
their lives for the mission. In return, it is the commander's
responsibility to surround their people with a climate of
integrity, discipline, and excellence.
During my 26 years in uniform, I witnessed so many
weaknesses in the processes involving sexual assault
prevention, investigation, and adjudication. It motivated me to
make recommendations to Air Force leaders. It shaped my
approach to command as a commander, and it informed my advocacy
for change while I remained in the military and since I have
been in Congress.
We have come a long way to stop military sexual assault,
but we still have a long way to go. When I first entered the
Air Force Academy in the ninth class with women, sexual
harassment and assault were prevalent. Victims mostly suffered
in silence. It took too many years and too many lives ruined.
But thanks to the bravery of some survivors like those on our
first panel today, significant change has happened. I am so
inspired by the many survivors who found the strength to share
their stories, report their assaults, and demand
accountability, justice, and change. It is because of you that
a light has been shined on this silent epidemic, and so many
improvements have been made, including more than 100
legislative actions over the last decade on all aspects of
military sexual assault.
So like you, I am also a military sexual assault survivor.
But unlike so many brave survivors, I did not report being
sexually assaulted. Like so many women and men, I did not trust
the system at the time. I blamed myself. I was ashamed and
confused, and I thought I was strong but felt powerless.
The perpetrators abused their position of power in profound
ways, and in one case I was preyed upon and then raped by a
superior officer. I stayed silent for many years, but later in
my career, as the military grappled with scandals and their
wholly inadequate responses, I felt the need to let some people
know I too was a survivor. I was horrified at how my attempt to
share generally my experiences were handled. I almost separated
from the Air Force at 18 years over my despair. Like many
victims, I felt the system was raping me all over again.
But I did not quit. I decided to stay and continue to serve
and fight and lead to be a voice from within the ranks for
women and then in the House and now in the Senate.
So this is personal for me too, but it is personal from two
perspectives: as a commander who led my airmen into combat and
as a survivor of rape and betrayal. I share the disgust of the
failures of the military system and many commanders who failed
in their responsibilities.
But it is for this very reason that we must allow, we must
demand that commanders stay at the center of the solution and
live up to the moral and legal responsibilities that come with
being a commander. We must fix those distortions in the culture
of our military that permit sexual harm towards women and, yes,
some men as well. We must educate, select, and then further
educate commanders who want to do the right thing but who are
naive to the realities of sexual assault. We must ensure that
all commanders are trained and empowered to take legal action,
prosecute fairly, and rid perpetrators from our ranks. And if
the commander is the problem or fails in his or her duties,
they must be removed and held harshly accountable.
I do not take this position lightly. It has been framed
often that some people are advocating for the victims while
others are advocating for the command chain or the military
establishment. This is clearly a false choice. There are many
commanders who would welcome taking this responsibility off
their plate. Those are the very commanders we do not want
leading our troops. We cannot command change from the outside
alone. It must be deployed from within. It must be built and
constantly maintained and expertly managed by commanders who
are themselves educated, conditioned, and given the tools to
ensure what you survived and what I survived happens to no
warrior under their command. To that end, I very strongly
believe that the commander must not be removed from the
decision-making responsibility of preventing, detecting, and
prosecuting military sexual assault.
We are survivors together and I am honored to be here and
use my voice and unique experience to work on this mission and
stop military sexual assault for good.
Thank you, Mr. Chairman.
Senator Tillis. Thank you, Senator McSally.
Any other members wishing to make comments before we hear
from the witnesses?
[No response.]
Senator Tillis. If not, Colonel Christensen, welcome.
STATEMENT OF COLONEL DON M. CHRISTENSEN, USAF, RETIRED,
PRESIDENT, PROTECT OUR DEFENDERS
Colonel Christensen. Chairman Tillis, Ranking Member
Gillibrand, and members of the subcommittee, thank you for the
opportunity to appear before you and for your interest in the
military justice system.
And, Senator McSally, thank you for those amazing words. We
do not see eye to eye on the solution, but sharing that was
very, very powerful.
As a brief introduction, I retired after 23 years of
service as an Air Force JAG [Judge Advocate General], and
during this time, I focused my career on practicing military
justice. I have served twice as a defense counsel, multiple
times as a prosecutor, including as the chief prosecutor of
Europe and Southwest Asia and as the chief prosecutor for the
Air Force, and I also served as a military judge. For the last
4 years, I have served as president of Protect Our Defenders, a
human rights organization dedicated to ending sexual assault in
the military.
The scourge of sexual assault in the military has
rightfully brought great scrutiny on the military justice
system and the role of the chain of command. The prevalence
estimates over the last decade have vacillated from a high of
26,000 to a low of 15,000.
But one thing must be recognized. When it comes to the
prevalence rate of sexual assault against women, it is
unchanged for the last decade. In 2010, 4.4 percent of women
were sexually assaulted in a year. In 2016, the most recent
numbers we have, it was 4.3 percent. In other words, for women
servicemembers, there has been no real improvement despite
decades of promises from leadership and claims that commanders
are the solution.
To compound this failure to drive down the prevalence rate,
the commander-controlled system has failed to deliver
accountability. Despite fiscal year 2017 having seen
unrestricted reports of sexual assaults skyrocket to an all-
time high of 5,111, actual prosecution rates plummeted to 7.9
percent. Moreover, the military failed to achieve a conviction
for a sex offense in 60 percent of the cases they took to
trial, and that is a very few number of cases, about 400. As a
result, only 166 offenders, or about 3 percent of the 5,111
reports, resulted in a conviction for a nonconsensual sex
offense. Put another way, 99 percent of the estimated 15,000
victims never saw justice in their case.
To make matters worse, 60 percent of survivors who report
openly suffer retaliation that is often career ending. In 2016,
the DOD IG [Inspector General] found that one-third of women
who report are out of the military within 1 year of reporting,
typically within 7 months. And their discharge characterization
is much lower than the general military population, denying
them benefits such as the GI Bill. One way to look at this is
that a woman is 12 times more likely to suffer retaliation than
she is to see her perpetrator held to account.
No one can look at these numbers and call this success. We
have heard for decades from military leadership how they are
going to fix things and how they have zero tolerance. But these
statements have proven empty. At the same time, military
leadership has pushed back on any effort to modernize the
military justice system by giving military prosecutors the
authority to make prosecution decisions rather than the very
small number of commanders who now have that authority.
It is time to accept that making prosecution decisions for
serious crimes such as rape, murder, sexual assault, child sex
abuse, child pornography possession, among many other serious
crimes, are best done by attorneys with significant experience
in the courtroom trying such cases.
I often hear opponents of reform say we trust commanders to
lead our sons and daughters in combat, so why should we not
trust them to make prosecution authority. The answer is simple.
We trust them to lead in combat because they are members of the
profession of arms. By training and experience, they are
qualified to make those decisions. However, there is nothing
inherent to being a commander that qualifies someone to make
prosecution decisions, as the current practice is in the
military. We must accept that the profession of law is best
suited to make legal decisions just like the medical profession
is best suited to make medical decisions. We would never accept
a commander telling a doctor how and when to make lifesaving
medical decisions. Similarly, we should stop assuming
commanders are qualified to make legal decisions.
Removing prosecution decisions for serious crimes from the
around 400 commanders who currently have general court martial
convening authority would in no way diminish the authority of
the remaining 14,000 commanders in the DOD. These commanders
would still have all the same authority that they currently
have authority to order suspects into pretrial restraint, to
issue no contact orders, to ensure both the victim and the
accused have access to services and legal representation, to
approve expedited transfers, to administratively discharge
people. All those authorities remain. It is a false narrative
that commanders would no longer have a vested interest in
taking care of victims. Instead, removing prosecution authority
would empower commanders to be more vocal on the issue by
reducing the risk that their comments would be viewed as
unlawful command influence.
The ABA [American Bar Association] has long recognized that
prosecution decisions should be made by licensed attorneys
subject to ethical standards. That is not a radical concept,
and it is past time for this standard to be in the military. We
should hold as our ideal, whether in the military or in
civilian society, that we prosecute those who commit crimes
when the evidence is legally sufficient. We should never
prosecute someone when the evidence fails to meet that legal
standard, and we should absolutely never prosecute to send a
message when the evidence to prove guilt is lacking. The
persons best suited to make that call are independent
prosecutors.
I thank you and look forward to your questions.
[The prepared statement of Colonel Don M. Christensen
follows:]
Prepared Statement by Colonel Don M. Christensen
Chairman Tillis, Ranking Member Gillibrand and members of the
subcommittee, thank you for the opportunity to appear before you and
for your interest in the military justice system. As a brief
introduction, I retired after 23 years service as an Air Force JAG and
spent my career focused on practicing in the military justice arena. I
served twice as a defense counsel, multiple times as a prosecutor
including as the chief prosecutor for Europe and Southwest Asia, and as
the chief prosecutor for the Air Force. I have also served as a trial
judge. For the last four years I have served as the president of
Protect Our Defenders, a human rights organization that fights for
survivors of military sexual trauma. We provide attorneys free of
charge, and I myself represent clients going through the often-hostile
process. During this time I have talked with hundreds of survivors of
military sexual trauma.
The scourge of sexual assault in the military has rightfully
brought great scrutiny on the military justice system and the role of
the chain of command. The prevalence estimates over the last decade
have vacillated from a high of 26,000 in 2012 to a low of 15,000 in
2016. However, the rate of sexual assault against servicewomen is
virtually unchanged from 2010, barely dropping from 4.4 percent to 4.3
percent per year. In other words, for women servicemembers there has
been no real improvement despite decades of promises from leadership
and claims that ``commanders are the solution.''
To compound this failure to drive down the prevalence rate, the
commander-controlled justice system has failed to deliver
accountability. Despite fiscal year 2017 having seen unrestricted
reports skyrocket to an all-time high of 5,111, actual prosecution
rates plummeted to 7.9 percent of all allegations. Moreover, the
military failed to achieve a conviction for a sex offense in 60 percent
of the very few cases that went to courts-martial. As a result, only
166 offenders or about 3 percent of the 5,111 reports resulted in
convictions of a nonconsensual sex offense last year. Put another way,
99 percent of the estimated 15,0000 victims never saw justice in their
case.
To make matters worse, 60 percent of survivors who report openly
suffer retaliation that is often career ending. In 2016, the DOD IG
found that one-third of women who report are out of the military within
a year of reporting and are much more likely to receive a lower
discharge characterization depriving them of benefits such as the GI
Bill. A survivor is about 12 times more likely to suffer retaliation
than they are to see their perpetrator convicted.
No one can look at these numbers and call this success. We have
heard for decades from military leadership how they are going to fix
this and how they have zero tolerance. But these statements have proven
empty. At the same time, the military leadership has pushed back on any
effort to modernize the military justice system by giving military
prosecutors the authority to make prosecution decisions rather than the
small number of commanders who have that authority now.
It is time to accept that making prosecution decisions for serious
crimes such as rape, murder, sexual assault child abuse, and child
pornography possession, among others, is complex and best done by
attorneys with significant experience in the courtroom trying such
cases.
I often hear opponents of reform say we trust commanders to lead
our sons and daughters in combat, so why shouldn't we trust them with
prosecution authority. The answer is simple. We trust them to lead in
combat because they are members of the profession of arms. By training
and experience they are qualified to make those decisions. However,
there is nothing inherent to being a commander that qualifies someone
to make prosecution decisions, as is the current practice in the
military. We must accept that the profession of law is best suited to
make legal decisions just like the medical profession is best suited to
make medical decisions. We would never accept a commander telling a
doctor how and when to make life saving medical procedures. Similarly,
we should stop assuming commanders are qualified to make legal
decisions.
Removing prosecution decisions for serious crimes from the around
400 commanders who have general court-martial convening authority would
in no way diminish the authority of the remaining 14,000 commanders.
These commanders would still have the authority to order suspects into
pretrial restraint, to issue no contact orders, to ensure both the
victim and the accused have access to services and legal
representation, to approve expedited transfers, and host of additional
authorities. It is a false narrative that commanders would no longer
have a vested interest in taking care of victims. Instead, removing
prosecution authority would empower commanders to be more vocal on the
issue by reducing the risk their comments would create unlawful command
influence.
The ABA has long recognized that prosecution decisions should be
made by licensed attorneys subject to ethical standards. This is not a
radical concept and it is past time for this to be the standard in the
military. We should hold as our ideal, whether in the military or in
civilian society, that we prosecute those who commit crimes when the
evidence is legally sufficient. We should never prosecute someone when
the evidence fails to meet the legal standard and we should absolutely
never prosecute to send a message when the evidence to prove guilt is
lacking. I am convinced the persons best suited to make that call are
independent prosecutors.
I look forward to any questions you may have.
Senator Tillis. Thank you, Colonel.
Dr. Haring?
I should mention that we do have a time limit. You did very
well staying within it. We want to make sure we can get to the
questions. If you will be mindful of the time on the monitor.
Thank you.
STATEMENT OF COLONEL ELLEN HARING, USA, RETIRED, CHIEF
EXECUTIVE OFFICER, SERVICE WOMEN'S ACTION NETWORK
Dr. Haring. Thank you. Mine will be even shorter. So we
will save a little time there.
I am Ellen Haring, the CEO of the Service Women's Action
Network (SWAN). I retired from the Army in 2014 after 30 years
of Military Service. I am a West Point graduate and I have a
master's degree in public policy and a Ph.D. in conflict
analysis and resolution from George Mason University. I have
taught at the Army's Command and General Staff College, the
Army War College, and at Georgetown University. And my academic
research and work focus on women and gender in the military.
I commanded Army units like yourself at multiple levels.
During my very first Army assignment overseas, one of my
soldiers was murdered and I closely watched as the criminal
investigation and subsequent conviction unfolded. Years later,
in 1998, when I was a major stationed in Hawaii, I was assigned
as the investigating officer in three rape cases. The
perpetrator, an NCO [non-commissioned officer], was eventually
reassigned to another unit. I juxtapose these two experiences
to illustrate the very different ways the military has
approached how felony crimes are handled. Fortunately and to
the credit of Senator Gillibrand and others, the Army is no
longer allowed to assign an untrained officer to investigate
cases of rape. Now criminal investigators are responsible for
such investigation, but commanders remain in the decision-
making process.
The Service Women's Action Network is a non-partisan, non-
profit organization dedicated to supporting, connecting, and
advocating for servicewomen past, present, and future. SWAN was
established in 2007 by a group of women veterans who were
having trouble getting their VA [Department of Veterans
Affairs] claims approved. The VA did not recognize sexual
assault as a potential source of post-traumatic stress the way
it recognized combat stress. SWAN decided that they needed to
spotlight the problem of military sexual assault in order to
get the post-traumatic stress that results from it recognized
by the VA. SWAN spent the next decade making military sexual
assault visible in and outside of the military. We have worked
with law and policymakers, Senator Gillibrand in particular, to
change the UCMJ [Uniform Code of Military Justice] to better
support victims of military sexual assault, to hold
perpetrators accountable, and to have the post-traumatic stress
that results from a sexual assault recognized by the VA.
SWAN continues to work with victims, connecting them to
resources and advocating on their behalf. SWAN supports the
Military Justice Improvement Act (MJIA) because it removes
untrained commanders from deciding if, when, and how to move
forward in felony cases. Additionally, it eliminates
commanders' ability to overturn convictions or to reduce
punishments. The UCMJ is a living document and it has
repeatedly changed over the years, often in response to or in
acknowledgement of its shortcomings. This is one of its
shortcomings. And SWAN fully backs a change in the UCMJ at this
time.
I look forward to your questions.
[The prepared statement of Dr. Haring follows:]
Prepared Statement by Dr. Ellen Haring
I'm Ellen Haring, the CEO of the Service Women's Action Network. I
retired from the Army in 2014 after 30 years of service. I'm a West
Point Graduate and I have a master's degree in public policy and a
Ph.D. in conflict analysis and resolution from George Mason University.
I have taught at the Army's Command and General Staff College, the Army
War College, and Georgetown University. My academic research and work
is on women and gender in the military.
I commanded Army units at company and brigade levels. During my
very first Army assignment, one of my soldiers was murdered and I
closely watched as the criminal investigation and subsequent conviction
unfolded. Years later, in 1997, when I was a major stationed in Hawaii,
I was assigned as the investigating officer in three rape cases. The
perpetrator, an NCO, was eventually reassigned to another unit. I
juxtapose these two experiences to illustrate the very different ways
the military approached how felony crimes were handled. Fortunately,
and to the credit of Senator Gillibrand and others, the Army is no
longer allowed to assign an untrained officer to investigate cases of
rape. Now criminal investigators are responsible for such
investigations, but commanders remain in the decision-making process.
The Service Women's Action Network (SWAN) is a non-partisan, non-
profit organization dedicated to supporting, connecting and advocating
for service women, past, present and future. SWAN was established in
2007 by a group of women veterans who were having trouble getting their
VA claims approved. The VA did not recognize sexual assault as a
potential source of post-traumatic stress the way it recognized combat
stress. SWAN decided that they needed to spotlight the problem of
military sexual assault in order to get the post-traumatic stress that
resulted from it recognized by the VA. SWAN spent the next several
years making military sexual assault visible in and outside of the
military. We have worked with law and policy makers, Senator Gillibrand
in particular, to change the UCMJ to better support victims of military
sexual assault, to hold perpetrators accountable and to have the post-
traumatic stress that results from sexual assault recognized by the VA.
SWAN continues to work with victims, connecting them to resources
and advocating on their behalf. SWAN supports the MJIA because it
removes untrained commanders from deciding if, when, and how to move
forward in felony cases. Additionally, it eliminates their ability to
overturn convictions or to reduce punishments. The UCMJ is a living
document and it has repeatedly changed over the years, often in
response to or in acknowledgement of its shortcomings. This is one of
its shortcomings.
Senator Tillis. Thank you.
Commander Elliott?
STATEMENT OF LIEUTENANT COMMANDER ERIN LEIGH ELLIOTT, USN
Lieutenant Commander Elliott. Good afternoon, Senators, and
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 a little more than 14 years,
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 this was with the support of my good friends in the
SAPR [Sexual Assault Prevention and Response] team.
As I progressed in my healing, starting to work through the
PTSD [post-traumatic stress disorder] anxiety and depression I
was diagnosed with due the assault, I moved to a new command
with a new commanding officer. I began considering changing my
report at this point 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 amazing support from this
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 other victims' experiences that this support team is
not the norm. While I did not expect everyone to be the great
leader he was, I did expect to be treated with the same dignity
and respect he showed me, and I was not.
When I moved to my new duty station overseas to be 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 just a hindrance
to them. Due to the appeals regarding a decision the presiding
judge in the case had made, when I reported to the 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,'' to which all I could think was, ``Well, next
time I get raped, I will try to plan it better.''
This was the first of multiple comments that my bosses said
to me that not only re-victimized me and were extremely
insensitive, but made me seriously question continuing to move
forward with the case.
One of the most degrading and humiliating experiences 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 read the report. After he handed me the
report, I read it. I very seriously considered dropping the
case as I did not want my boss reading about my vagina.
When I left my ship for a few weeks to be at the court
martial, my boss told me how we had to temporarily relieve
someone in command for several months because they had cancer
and needed to get treatment. He told me that he would much
rather go through what I went through than have cancer. I can
tell you that after being diagnosed and treated for breast
cancer last year, I would much rather go through that than the
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 saw. What nearly broke me and
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 then used 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.
As commanding officers in the Navy, we are given a 3-day
legal course in preparation for our tours. I, by no means a
legal expert, 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, that some infractions are so grievous, so
heinous that they must be elevated to a higher level than just
the command level. Sending sexual assault cases to trained
military judges shows how seriously this crime is taken, that
we will not allow perpetrators to get away with this crime, and
reinforces to countless victims that they will be taken
seriously.
Thank you for your time, Senators, for allowing me to share
a small piece of my story with you.
Senator Tillis. Thank you, Commander Elliott.
Ms. Bapp?
STATEMENT OF MS. ANGELA BAPP
Ms. Bapp. Chairman Tillis, Ranking Member Gillibrand, and
Members of the subcommittee, thank you for this opportunity to
speak to you 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 in the top 3 percent of my class at West Point
and soon after arrived at Fort Rucker, Alabama (AL) to begin my
career as an aviation officer. Throughout flight training, I
grew to become close friends with a mentor and 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, but the relationship between he
and I had already progressed. During their divorce, both he and
my company commander sought comforts outside of their marriage.
Then a different flight school classmate of mine sexually
assaulted me. When it occurred, my classmate, married to my
commander, was the only who I trusted enough to tell what had
just happened to me, to discuss filing a report, and to care
for my wellbeing.
The sexual assault occurred on a Sunday, and I reported it
the following Tuesday. On Friday, I was informed that Fort
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. It became immediately clear that
the Army and its Criminal Investigative Division showed more
interest in the affair rather than the sexual assault.
The following conflicts of interest occured thereafter.
My commander's position of authority gave her immediate
access to my higher levels of 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 personal
business, seeking advice for a personal investigator to
investigate her husband's suspected adultery. When her husband
came forth as a witness in my case, the prosecutor linked my
case to my commander's personal situation. I believe that hurt
my case's ability to move forward to trial.
My commander also had a preexisting relationship with the
installation commanding general, the two-star convening
authority responsible for deciding if my sexual assault would
go forward to trial. Previously, the general was her brigade
commander while she was a lieutenant at Fort Campbell. She
requested his audience about the 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 commander who was able to
serve in the best interests of a sexual assault victim due to
these and several other personal conflicts. The incestuous
nature of the relationships found in my chain of command made
it impossible for me to have a truly objective case.
There were many injustices throughout the investigation and
thereafter. Most haunting is how the evidence that I
volunteered from my body to process my rape kit was later used
to substantiate adultery claims instead of to provide justice
for the sexual assault. Despite the overwhelming quantitative
evidence that my assailant violated my body, the results only
seemed to confirm my mischaracterization as an adulterer. My
brigade commander initiated a commander's investigation for
inappropriate relationships and adultery with both my witness
and assailant prior to the conclusion of my sexual assault
case.
I was given a General Officer Memorandum of Record from the
previously mentioned commanding general, which was filed in my
permanent record and effectively ended my career.
The following are excerpts from the Army's internal
investigation into Fort Rucker's sexual assault failures which
resulted in response to me reporting these injustices to
Congress.
``That victim advocates and the Criminal Investigative
Division at Fort Rucker provided outdated forms to sexual
assault victims that did not fully inform them of their rights,
particularly if the victims are suspected of misconduct, which
includes representation by a special victim's counsel.''
``The brigade did not properly maintain hard-copy records
of these forms, as required by law.''
The commanding general's extensive travel and improper
delegation of SHARP [Sexual Harassment Assault Response
Prevention] Program duties to levels of command lower than that
required of the minimum TRADOC [Training & Doctrine Command]
standard led to a deteriorated monthly Sexual Assault Response
Board.
During that same time, the brigade did not have a sexual
assault response coordinator for a 9-month period.
``Command-subordinate relationships'' and ``Show obvious
conflict of interest. This led to lack of lower level command
support for victim and confirms her complaint of feeling
isolated.''
All I ever wanted to do was 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 the
quality of my mental and emotional health has greatly
deteriorated.
I hope this testimony highlights that preexisting opinions
about an individual can greatly influence the execution of
justice in our military. This can negatively impact either the
victim or the alleged offender. If my case were handled outside
of my chain of command by a truly objective and trained legal
professional, I do believe the outcome of my case and life
would be different.
Thank you again for your time.
[The prepared statement of Ms. Bapp follows:]
Prepared Statement by Ms. Angela Bapp
Chairman Tillis and Ranking Member Gillibrand, 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 in the top 3 percent of my class at West Point and soon
after arrived at Fort Rucker, AL to begin my career as an aviation
officer. Throughout flight training, I grew to become close friends
with a mentor and 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, but the relationship between he and I had
already progressed. During their divorce, both he and my company
commander sought comforts outside of their marriage.
Then, a different flight school classmate of mine sexually
assaulted me. When it occurred, my classmate--married to my commander--
was the only person who I trusted enough to tell what just happened to
me, to discuss filing a report, and to care for my well-being.
The sexual assault occurred on a Sunday, and I reported it on the
following Tuesday. On Friday, I was informed that Fort 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. It became immediately clear that the Army and its Criminal
Investigative Division showed more interest in the affair rather than
the sexual assault.
The following conflicts of interest occurred thereafter:
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's suspected adultery. When her husband came forth as a witness
in my case, the prosecutor linked my case to my commander's personal
situation, which I believe hurt my case's ability to move forward to
trial.
My commander also had a pre-existing relationship with
the installation commanding general, the two-star convening authority
responsible for deciding if my sexual assault case would go to trial.
Previously, the general was her brigade commander while she was a
lieutenant at Fort Campbell. She requested his audience about the
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 interests of a sexual assault victim due to these and
several other personal conflicts. The incestuous nature of the
relationships found in my chain of command made it impossible for me to
have a truly objective case.
There were many injustices throughout the investigation and
thereafter. The most haunting is how the evidence that I volunteered
from my body to process my rape kit was later used to substantiate
adultery claims instead of to provide justice for the sexual assault.
Despite the overwhelming, quantitave evidence of my assailant violating
my body, the results only seemed to confirm my mischaracterization as
an adulterer. My brigade commander initiated a commander's
investigation for inappropriate relationships and adultery with both my
witness and assailant prior to the conclusion of my sexual assault
case.
I was given a General Officer Memorandum of Record from the
previously mentioned commanding general, which was filed in my
permanent record and effectively ended my career.
The following are excerpts from the Army's internal investigation
into Fort Rucker's sexual assault failures which resulted in response
to me reporting these injustices to Congress.
That Victim Advocates and the Criminal Investigative
Division at Fort Rucker provided outdated forms to sexual assault
victims that did not fully inform them of their rights, particularly if
the victims are suspected of misconduct, which includes representation
by a special victim's counsel.
The brigade did not properly maintain hard-copy records
of these forms, as required by law.
The commanding general's extensive travel and improper
delegation of SHARP Program duties to levels of command lower than the
required TRADOC standard led to a deteriorated monthly Sexual Assault
Response Board.
During the same time, the brigade did not have a Sexual
Assault Response Coordinator for a 9-month period.
Command-subordinate relationships show obvious conflict
of interest. This led to lack of lower level command support for victim
and confirms her complaint of feeling isolated.
All I ever wanted 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 the quality of my mental and emotional health has greatly
deteriorated.
I hope this testimony highlights that pre-existing opinions about
an individual can greatly influence the execution of justice in our
military. This can negatively impact either the victim or the alleged
offender. If my case were handled outside of my chain of command, by a
truly objective and trained legal professional, I do believe the
outcome of my case and life would be different.
Thank you again for you time.
Senator Tillis. Thank you, Ms. Bapp.
Colonel James?
STATEMENT OF COLONEL DOUG JAMES, USAF, RETIRED, PRESIDENT, SAVE
OUR HEROES
Mr. James. Senators, thank you. I really appreciate the
opportunity to be here, and these comments by all here are very
riveting and I appreciate it.
My name is Doug James. I am an Air Force retired colonel,
fighter pilot by trade. I flew the A-10 and the F-15. Now I am
honored to be here as president of a non-profit supporting what
we believe are innocent servicemembers.
Since our inception in 2015, Save Our Heroes has received
approximately 300 cases. A large number involve an allegation
of sexual misconduct. Most of those have been vetted and
unfortunately reveal a staggering level of false allegations.
The false allegation cases all have similar motives:
contentious divorce proceedings, breakup of a relationship, or
something as simple as a PCS, or a permanent change of station
move.
I am here to offer testimony as president of Save Our
Heroes, specifically our non-profit's view of the military
judicial system. Let me state unequivocally that our
organization, Save Our Heroes, deplores any form of sexual
harassment and assault, and when facts and evidence are
present, those found to be responsible should and must be held
accountable in accordance with the rule of law.
With that said, our organization strongly believes the
Uniform Code of Military Justice has become a threat to
national security. Our experience reveals there exists an
epidemic of military law enforcement misconduct, procedural
misconduct, and unlawful command influence. The common thread
of career killing, family destruction, and the lack of holding
false accusers accountable has turned the military judicial
system into a silent killer and, we believe, a threat to
national security. I do not say that statement lightly, and I
understand the sensationalism.
The way the military currently addresses allegations of
sexual misconduct, everything from the initial investigation
through the procedural and administrative stages, is not
working. Unfortunately, there is not one silver bullet that can
fix the problem, but interestingly there is some agreement
amongst this panel on how to start. All of us sitting here
understand the system is not working and we all seek justice.
We share the understanding the military system is not built
nor designed for justice. It is designed to maintain good order
and discipline. Justice is different. Justice expects those
falsely accused to receive a vigorous investigation in which
the truth comes to light where the innocent are not forced into
a court martial out of fear to protect a career. Justice also
expects the same vigorous investigation when an assault has
occurred.
The Uniform Code of Military Justice is really just a code.
Leave justice out of it. It is a system built on a commander's
discretion. If a commander believes a case should move forward
regardless of the innocence of the accused, it happens. If a
commander believes a case should not move forward because it
will not serve him or her in the pursuit of good order and
discipline, well, that arbitrary decision is allowed too. The
military system is designed to handle military issues. Non-
military issues such as sexual assault are best left up to the
civilian authorities.
That is why Save Our Heroes believes congressional pressure
has been ineffective. Congressional pressure, whether direct or
indirect, has pushed innocent servicemembers to court martials
with no legal basis and has not served the needs of real
victims. I am sure it was not your intent, but we have found
congressional pressure has exacerbated the weakness of the
system. Commanders are not interested in the truth but more
interested in appeasing Congress. We see commanders doing
everything possible to convict someone for something they did
not do just to protect their career.
At Save Our Heroes, in reference to the UCMJ, we say guilty
until proven guilty. Some investigators use underhanded tactics
with the goal of disregarding the truth, and, at a minimum,
convict the accused for some sort of derivative collateral
charge. Why? A conviction for a collateral charge allows the
Government to statistically show a sexual assault conviction.
Most importantly, we see the Services shifting to non-
judicial punishment (NJP) because they know a baseless
allegation would not be validated in a court martial. The
military's illogical solution to use non-judicial punishment is
almost impossible to defend. Most shockingly, we have seen
commanders willing to falsify facts to justify their decisions
with NJP. Again, the Services can show Congress they are
handling the problem in an attempt to maintain their convening
authority.
Your statistics and this hearing show congressional
pressure is not doing what was intended. This cannot be a band-
aid fix. A shock to the system is required to change a culture
of legal corruption which has permeated the military chain of
command.
I know there is some discussion about removing the
convening authority, but I caution you. In 5 years, Congress
may feel the military has a problem with some other crime,
maybe spousal abuse as an example. Are we going to make similar
changes then? The changes must be able to pass the test of
time.
In conclusion, I understand the politics associated with
this issue. I stand by my strong statement. This is a threat to
national security and something needs to be done as soon as
possible. When I took an oath, I pledged to defend the
Constitution against all enemies foreign and domestic. I
believe the UCMJ in its current state is a domestic threat to
national security.
Thank you again. It is an honor to be here, and I am
prepared to answer your questions.
[The prepared statement of Mr. James follows:]
Prepared Statement of Mr. Doug James
Pursuant to the Rules of the Senate, I, Doug James, president and
chairman of the Board of Directors of the Texas based non-profit
organization, Save Our Heroes (SOH) respectfully requests this opening
statement to be considered for the Subcommittee on Personnel meeting
scheduled for 6 March 2019.
Good afternoon Senators, it is an honor to be with you today at
this very important Senate Armed Service Committee hearing discussing
the military judicial system. My name is Doug James. I am a retired Air
Force colonel, a fighter pilot by trade--I flew the A-10 and F-15C. I
now fly for a major airline, I run my own consulting business, but most
importantly I'm honored to be the president of a non-profit dedicated
to supporting innocent servicemembers.
Since our inception in 2015, Save Our Heroes has received
approximately 300 cases, most of which involve an allegation of sexual
misconduct. Most of those have been vetted and unfortunately reveal a
staggering level of false allegations. The false allegation cases all
have similar motives: contentious divorce proceedings, break-up of a
relationship, or something as simple as a desire to obtain a Permanent
Change of Station (PCS) objective.
I am here today to offer testimony as president of Save Our Heroes,
specifically our non-profit's views of the military justice system. Let
me state unequivocally that our organization, Save Our Heroes deplores
any form of sexual harassment and assault, and when facts and evidence
are present, those found to be responsible should and must be held to
account in accordance with the rule of law.
With that said, our organization strongly believes the Uniform Code
of Military Justice (UCMJ) has become a threat to national security.
Our experience reveals that there exists an epidemic of military law
enforcement misconduct, prosecutorial misconduct, and unlawful command
influence. The common thread of career killing, family destruction, and
the lack of holding false accusers accountable, has turned the military
judicial system into a silent killer and threat to national security.
Please know, I do not say that statement lightly and I understand the
danger of sensationalism.
The way the military currently addresses allegations of sexual
misconduct--everything from the initial investigative stage, through
the prosecutorial and administrative stages--is not working.
Unfortunately, there is not one silver bullet that can fix the problem,
but interestingly there is some agreement amongst this panel on how to
start. All of us sitting here understand the system is not working and
all are seeking justice.
We share the understanding the military system is not built, nor
designed for justice. It is designed to maintain good order and
discipline. Justice is different. Justice expects those falsely accused
to receive a vigorous investigation in which the truth comes to light;
where the innocent are not forced into a court martial proceeding out
of fear and to protect a career. Justice also expects the same vigorous
investigation when an assault has occurred.
The Uniform Code of Military Justice is really just a code. Leave
justice out of it. It is a system built on a commander's discretion. If
the commander believes a case should move forward regardless of the
innocence of the accused it happens. If the commander believes a case
should not move forward because it will not serve him or her in pursuit
of good order and discipline, well, that arbitrary decision is allowed
too. The military system is designed to handle military issues. Non-
military issues, such as sexual assault, are best left up to civilian
authorities.
That is why Save Our Heroes believes congressional pressure has
been ineffective. Congressional pressure, whether direct or indirect,
has pushed innocent servicemembers to court martials with no legal
basis and has not served the needs of real victims. I'm sure it isn't
your intent, but we have found congressional pressure has exacerbated
the weaknesses of the system. Commanders are not interested in the
truth, but more interested in appeasing Congress. We see commanders
doing everything possible to convict someone for something they didn't
do just to protect their career.
At SOH, in reference to the UCMJ we say, ``Guilty, until proven
guilty.'' Some investigators use tactics, which I won't disclose, with
the goal of disregarding the truth, and at a minimum convict the
accused for some sort of derivative collateral charge. Why? A
conviction for a collateral charge allows the Government to
statistically show a sexual assault conviction.
Most recently, we see the Services shifting to non-judicial
punishment (NJP) because they know a baseless allegation would not be
validated in a court martial. The military's illogical solution is to
use non-judicial punishment, which is almost impossible to defend. Most
shockingly, we have seen commanders willing to falsify facts to justify
their decisions with NJP. Again, the Services can show Congress they
are ``handling the problem'' in an attempt to maintain convening
authority control.
Through FOIA [Freedom of Information Act] requests, we've seen
general and flag officers say, ``Let's just send it to a court martial
and see what happens,'' or a one star who said, ``It was just bad
timing,'' when discussing pushing a case forward when he believed in
the innocence of the accused. How about an e-mail to a service
secretary, knowing the innocence of the accused, which said, ``A case
was dropped two weeks before a court martial because a TV show wasn't
on?'' These should be shocking to any American who believes in our
Constitution, let alone the complete waste of American taxpayer funds.
None of this helps a real victim get justice! Something needs to be
done!
Your statistics, and this hearing, show congressional pressure is
not doing what was intended. This can't be a band-aid fix. A shock to
the system is required to change a culture of legal corruption which
has permeated the military chain of command.
I know there is some discussion about removing the convening
authority, but I caution you. In five years, Congress may feel the
military has a problem with some other crime, `Spousal Abuse' as an
example. Are we going to make similar changes then? The changes must be
able to stand the test of time.
Most importantly remember justice is supposed to be blind! The UCMJ
system was designed to be battlefield efficient, with a speedy result.
Sexual assault cases deserve thorough investigations to ensure justice
for both the alleged victim and the accused. SOH has been on the Hill
for two years offering solutions, and we will continue to do so for
everyone involved.
In conclusion, I understand the politics associated with this
issue, but I stand by my strong statement. This is a threat to national
security, and something needs to be done as soon as possible. When I
took the oath, I pledged to defend the Constitution against all enemies
foreign and domestic. The UCMJ in its current state is a domestic
threat to national security. Thank you again. It was an honor to be
here, and I am prepared to answer your questions.
Senator Tillis. Thank you, Colonel James.
If we could have the staff clear those three chairs between
Senator Scott and Colonel James so they can actually see him.
I am going to put my time on the end and yield to Senator
McSally for the first questions, then Ranking Member
Gillibrand.
Senator McSally. Thank you, Chairman Tillis.
Again, I want to say thanks to Lieutenant Commander
Elliott, and Ms. Bapp for having the courage to share your
stories. I am sorry for what you went through, both with the
assaults and then also how you were treated afterwards. So
thank you for being an example of courage for all of us as we
all have a common goal to try and stop this from happening to
anybody else. I am really grateful for you.
Colonel Haring, it is good to see you again. We have worked
together for many efforts to try and open all positions for
women in the military back at the time where they were closed.
So I am grateful for your longstanding commitment and study and
leadership on these issues.
Part of what your testimony shares and what I have heard
you talk about before and what we have talked about before is
the underlying root cause of much of what we are talking about
here, which is the culture. How do we address the culture of
our military that is, again, responsible for fighting and
winning America's wars, that is responsible for the men and
women under its care in a very power-based relationship that is
very difficult for many people to understand? How do we ensure
that that culture is one of respect and honor and dignity, to
include everyone, men and women, not being assaulted, not being
retaliated against, not being harassed, and everything on the
continuum of harm? What are your views on that?
Dr. Haring. Thank you. It looks like you lined up my very
first response here perfectly because it is a cultural problem.
I think that changing the UCMJ will ultimately--not an
immediate, but an ultimate impact--will ideally improve the
culture. Culture is at the root of the 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 it will fundamentally shift how we view sexual
assault and ultimately impact our culture in a way that says
this behavior is absolutely unacceptable. That is why I think
that it is important to remove commanders--I do not have the
same confidence in their skills or abilities as you have.
Senator McSally. Thanks. Again, I appreciate the
perspectives of everybody on this panel. I respectfully
disagree for some of the reasons that I shared. I do not want
to take up my time talking more about my strongly held views on
that.
But there are other cultural underpinnings of what we are
talking about here that again create an environment. I cannot
figure it out. In all my years, I talk about how you have high
school kids go off to basic training, and they are okay with
having a female valedictorian or class president, but somehow
they get inculcated where there is this resentment that could
breed harassment and abuse of power and assault.
So that is what I am trying to get at. You are the one with
a Ph.D. What are the other issues in the culture that we can be
working on together and what we can agree upon so that the
military is known and the commanders are equipped to be leading
with honor and integrity and ensuring that there is dignity and
respect for everyone under their command?
Dr. Haring. Yes, that is a great question. A lot of Ph.D.s
have studied this problem and we have not come up--if we had
come up with the answer or a solution to this, everybody would
know it by now. It is culturally based. I do not have the
answer for you. I just think it is going to take a long time.
It is going to take multiple pressure points. I think the UCMJ
is simply one pressure point or one change, but there are many
more that need to occur.
Senator McSally. I do not want commanders to be off the
hook. I need them to be more responsible for solving this issue
and every other issue that degrades good order and discipline
in our ranks. That is what America's mothers and fathers, sons
and daughters, husbands and wives have asked them to do, and
they need to step up to that responsibility.
Lieutenant Commander Elliott, thanks again for sharing your
horrific experiences. It sounds like you have experienced the
best and the worst of command and how they dealt with you. Did
you have a special victim's advocate for this process at all?
Could you just share, if you did, what that experience was and
how they interacted with you?
Lieutenant Commander Elliott. Yes. Excuse me. Are you
talking, Senator, about the lawyer or my victim advocate?
Senator McSally. Yes. Sorry. The lawyer.
Lieutenant Commander Elliott. Yes, ma'am. I did have a
special victim's counsel, yes, ma'am. She was with me every
step of the way. I retained her probably about 3 months after I
made the restricted report when I started thinking about going
unrestricted. So I had some concerns as a lot of people in the
military do. So she was with me, and she was a great service
from when I retained her all the way through the court martial
and even after that.
Senator McSally. Other than changing commanders, which
sounds like it needed to happen, other than not having people
like your commander in command, what else would you change in
the process and the experience that you went through?
Lieutenant Commander Elliott. When I became in command
myself and when I was treated like that, I felt like I had no
option. I felt like if I tried to say, ``Hey, you are saying
this or doing this,'' or whatever, that I would lose my
command. I feel like that we need to have--and maybe at the
time I was not in the right mindset for that. But we need to
have a better process for reporting retaliation and who we can
talk to about it, because if you report and then it is
investigated by the same command, it is likely what is going to
really happen. I feel we need an outside process for that.
Senator McSally. Well, I agree. Some of the experiences I
observed in the military, clearly there was retaliation and
ostracizing and isolating the individual, especially when they
are in the same unit. I know that was not the case with you.
Again, people take a very complex issue and they come down on
either he is a rapist or she is a liar, and everybody has to
still go to work together. Then there is this isolation by
peers, not just by superiors, but by peers that sometimes is
the cruelest. Did you experience that?
Lieutenant Commander Elliott. Absolutely. When I went to go
be in command overseas, I was. It was someone that was known as
the guy for our boss. He could do no wrong according to our
boss, and he was the one that my boss told my personal
counseling information to. He came up and yelled at me, told me
I was making it up, and I was a horrible officer, all sorts of
things like that. He left me in tears. Since he did not like
me, other people stopped inviting me to stuff. Then, in fact,
he was sent later on to do inspections on my ship, be the lead
inspector, and was extremely critical even though my ship had
outside inspectors who had done very well.
Senator Tillis. Senator McSally----
Senator McSally. I know I am over time.
Senator Tillis. I would be happy to yield to another round
if you choose to.
Senator Gillibrand?
Senator Gillibrand. Thank you all for testifying. I am
exceedingly grateful.
I was very grateful for Senator McSally's personal
testimony, and I am deeply affected by that testimony.
I want to talk a little about the questions that she had
because I think these are the questions. What the Senator said
is that she wants to make sure that commanders stay in charge
because she believes they need to be preventing, protecting,
and prosecuting these cases. I agree on the preventing and
protecting. I just disagree on the prosecuting. When we say you
cannot take commanders off the hook, the intention is never to
take them off the hook. In fact, the biggest problem is because
the military insists on keeping them in charge when they have a
poor record of enforcing cases against sexual assault and
investigating these cases, we do not actually hold them
accountable. There is no leverage to hold them accountable at
all.
So, Colonel Christensen, if we take this decision out of
the chain of command, are we taking commanders off the hook?
What is your view on what the impact actually will be in their
ability to continue to maintain good order and discipline and
do their jobs as commanders?
Mr. Christensen. Well, thank you, Senator Gillibrand. That
is a good question.
No, it does not take them off the hook. I think one thing
that is lost when people talk about the commander's role, the
vast, vast, vast majority of commanders do not have prosecution
authority. Senator McSally as a squadron commander did not have
prosecution authority. That was at the special court martial
level or the general court martial level. Only about 140
general court martial convening authorities in the most recent
data we have actually sent a case to trial. We are talking
about those 140 people making that decision.
Everybody below that has the same exact authority. So you
have a commander who did what the commander did to Lieutenant
Commander Elliott. That person is still on the hook for that
bad conduct. A commander has an absolute obligation to be
taking care of victims and the accused just as they would if
that faraway general court martial convening authority has the
authority or not. It does not change anything at all.
But one thing does change when we talk about
accountability. Right now, if you try to hold a commander
accountable for making bad decisions when it comes to sexual
assault, it violates the concept of unlawful command influence
(UCI). The Court of Appeals for the Armed Forces is very
serious about that right now and is overturning case after case
where there is absolutely no question about the accused's guilt
of rape. They are being overturned because of unlawful command
influence because of this idea that somebody was going to be
held accountable.
General Franklin in the Wilkerson case is the perfect
example. He was held accountable. He was relieved of command,
forced to retire, and as a result, we have had other cases
overturned for unlawful command influence.
Senator Gillibrand. Thank you, Colonel.
Continuing on with Senator McSally's questions, one of the
things that she asked that I thought was a very good question
is how do you change the culture. When we have asked
servicemembers what would make you actually report,
overwhelmingly they have answered if you took it out of the
chain of command because they are not reporting because they do
not have the faith as you did, Ms. Bapp, that your actual
commander had your back. I know from the many examples of
sexual assault we have heard, the assault often comes from the
chain of command. So if there is an inviolate chain of command,
if you do not believe your commander is going to have your back
because they are the assailant, then you do not necessarily
believe his boss or his boss is going to have your back because
of that chain.
So from a survivor perspective we have heard over and over
again that the reason you take it out of the chain of command
is because you want someone who is actually trained to make the
decision, a technical decision. Is there enough evidence to
you, Colonel James? You were very clear that you are very upset
because the scales of justice seemed tipped, that if a
commander just has to be aggressive about making sure there is
no sexual assault under his command, they are going to
prosecute all cases whether there is evidence or not. We do not
want one. It is as egregious for a guilty man to go free as an
innocent man to be convicted. Equally as egregious. Justice is
blind.
So to the question I want to ask about this issue of
culture. In your professional opinion, Colonel Christensen, as
a former JAG, do you think the MJIA, if we passed it, which
would establish an independent chain of command of prosecutors
to make the decisions for the most egregious felony crimes
across the board as all felonies, as stated by the other panel
members--do you think that would allow more perpetrators to be
brought to trial and would we be able to protect more innocent
defendants if we had a more clinical and professional way of
handling these cases with no bias? Do you think it would then
affect the culture because we would actually be convicting
people who are guilty and not convicting people who are not
guilty?
Mr. Christensen. I absolutely do. Right now, we have a
system where we have people who have no faith in the process.
If you have faith in the process that independent prosecutors--
and there are ample surveys that have shown such as IAVA, Iraq,
Afghanistan Veterans America, where they show that people have
more faith if independent prosecutors have this. They also
would not diminish their view of the commander. We will get to
the point where we can start moving that cultural ball.
The Air Force Academy, the other academies have been
fighting this culture issue. They have not been able to get at
it. And yet, they prosecute almost nobody despite having an
horrific amount of sexual assaults at those institutions.
Senator Gillibrand. Just last, Commander Elliott, do you
believe that if we did change the system, if we allowed trained
military prosecutors to make theses decisions, not commanders,
that would change the retaliation rates and the perception of
retaliation by survivors?
Lieutenant Commander Elliott. Absolutely. I believe that
both the perceived and real retaliation rates would be far
less. People would feel a lot less retaliated against. And that
is on both sides, both the accused and--excuse me. It would
remove bias from all the sides too.
I have talked to other victims who have been retaliated
against, ``Oh, well, you made the CO [commanding officer] do
this.'' You made the commanding officer--excuse me--do that
because by reporting this to retaliate against because these
sailors had to leave because of something you did. If it was
not that bias, that retaliation would not be there if the COs,
or commanding officers, are not making those decisions.
Senator Gillibrand. Even if you take this decision outside
the chain of command, is it still not the commander's
responsibility to ensure good order and discipline and make
sure you are not being retaliated against? That still is in
their hands, and that is what they are not doing. They are not
even doing the things that still rest with them.
Lieutenant Commander Elliott. I agree with you, yes. No
matter what, you always have good order and discipline that you
are in charge of as a commanding officer. Like I said earlier,
I believe some crimes are so bad that we are taking this
seriously and we are moving this outside the chain of command.
That is how serious this is.
Senator Tillis. Senator Rounds?
Senator Rounds. Thank you, Mr. Chairman.
First, let me just say thank you to all of you for sharing
these episodes in your life.
Colonel Christensen, in your view and given your
significant military experience and your engagement with
victims of sexual assault, what policies and programs have you
observed to be effective in the prevention of sexual assault?
Are there some programs out there that have been successful?
Mr. Christensen. Senator Rounds, I think there have been. I
think the training--although it is often maligned, I think it
has raised awareness among the men and women of the Services.
When I talk to younger servicemembers, I talk to cadets at the
academies or cadets in ROTC [Reserve Officers' Training Corps],
I have hope there because I think they are in a better position
than the people of my age who are in the service. So I think
those are working.
I think one of the most significant reforms that has been
made is the creation of the special victims counsels, the
victim's legal counsel, that advocate in the corner of the
victim when they were not there before has been a game changer
for victim confidence.
I think also where we have talked about the de-
glamorization of alcohol. Senator McSally, you know that
decades ago, alcohol was a huge problem in the military. We
have pushed that back.
I also think when we look at the sexual assault numbers,
cracking down on hazing and initiation is one of the reasons
the male sexual assault rate dropped so much between 2014 and
2016.
Senator Rounds. I would also like to touch a little bit on
retaliation. In past testimony, you have suggested that most
retaliation suffered by the victims of sexual assault comes
from their peers from social ostracism, from social media
bullying and blaming and shaming.
In your view, how can the military system best tackle the
online retaliation? I mean, look, young people today--they are
all online. How does the military deal with this? If there is
an employer situation, in many cases employers have taken
different approaches. What is the appropriate way for the
military to approach this?
Mr. Christensen. Number one would be be aware. There are
only so many military publications out there, the Air Force
Times, Military Times, Stars and Stripes, where you have
comments. All you have to do is look at the comments on any
kind of article dealing with sexual assault, and they are
horrific. Oftentimes those people writing those comments are
putting their Facebook name right there, or any other major
newspaper that is covering that issue. Just look at it and
start holding the people who are making these horrific comments
accountable. There is freedom of speech, but that does not
allow you to bully your fellow members. So be aware of it.
Number two, set the standard. Make sure that you are
addressing sexual harassment. The sexual harassment rates are
so high both in the Active force and at the academies, and yet
we see no one ever held accountable for it. I believe there
were two article 15s given out the last year we have numbers
for retaliation. Start taking some people to court. It is okay.
It is a discipline tool. Use it as a discipline tool.
Senator Rounds. Colonel Haring, the same approach with
retaliation. I see you nodding your head. Your thoughts on this
in terms of your professional judgment. What is the appropriate
way to address the issue of retaliation?
Dr. Haring. I have to go back to our earlier discussion on
culture. I wish I had a better formulated response because I
think it is a multi-pronged attack that we need to take here.
It is not just one thing. Changing the UCMJ is not going to
solve this problem alone. I think there are multiple things
that we need to be doing.
I, Senator McSally, we have long struggled to even the
playing field, allowing women these jobs that they were not
viewed as capable of doing. I think that kind of changes the
mindset of the way we view women rather than a lesser
subcategory of the military. But these changes are happening
now and it takes time. I think it is many things
simultaneously, and I just think this is one of those things.
The other one is letting women serve in all positions and
seeing women who are capable and qualified, and that will
change the way we view women and then the way that we treat
them.
And then the retaliation thing. That is a commander issue
right there, but that is not something that the UCMJ--you made
a good point. When have we held commanders accountable for the
way that they treat it? We never have. We never do as far as I
can tell. Very few cases of retaliation are ever brought to
trial and are found.
Senator Rounds. Thank you.
I am out of time, but thank you, Mr. Chairman.
Senator Tillis. Senator Duckworth?
Senator Duckworth. Thank you, Mr. Chairman.
Let me just remark on how in awe I am of the bravery of
Lieutenant Commander Elliott, and Ms. Bapp for your testimony
today and awe also of my colleague, Senator McSally.
Let me just start off by saying that I do agree that the
military has shown that it has utterly failed at handling
sexual assault through the UCMJ process. I certainly do support
removing sexual crimes out of the UCMJ process.
But here is where I struggle. As a former commander of an
assault helicopter company myself, there are crimes that I want
to remain in control of for good order and discipline and the
functioning of my unit. For example, violent assaults that are
not sexual in nature that have to do with racism, hate crimes,
that sort of thing. That is where my struggle is.
Certainly our ranking member has been so kind in working
with me, and we have been working on this for years and,
Martha, you have as well from our time in the House. And this
is something we struggle with. I have to say I still do not see
the improvement in the UCMJ process in the military. I remain
supportive of taking sexual crimes out, but I am not sure that
I am there on all felonies or even violent crimes.
What I would like to touch on here, though, is beyond the
criminal convictions, which we are going to work on--you have
our pledge that we will keep working on this. The criminal
convictions do provide some sense of justice, but I still do
not think it makes you whole, not that you could ever be made
whole again the way you were before.
But what is there that we can make the lives of survivors
better? What more can we do for survivors to make sure that
they have what they need to process and heal? And that includes
stopping the retaliation. That includes letting you resume your
careers and be successful in the careers that you dreamt about
from the time that you entered the military.
Colonel Haring, Colonel Christensen, could you talk about
that? Maybe the four of you could talk a little bit and touch
on what would make it--I hesitate to say better, but what else
can be done.
Mr. Christensen. Well, it is very controversial for some
reason, but I would say start by believing. From the survivors
we talked to and protected offenders--survivors I talked to
when I was Active Duty, it is very hurtful when they feel like
their chain of command is not believing them and not supporting
them. So start by believing does not mean you are going to
prosecute. To start by believing means I accept that you have
been through this traumatic event and I want to be there to
help you.
I think Congress has done a great deal to help survivors on
the back end with the VA. Still a ways to go on that, but the
survivor community appreciates that.
The other thing is just being able to flourish after this
happens and understand that any survivor who has gone through
trauma is going to have stumbles. Do not hold those stumbles
against them to the degree that they are driven out as the DOD
IG has shown. Give them that chance to thrive in the
environment even after they have been assaulted.
Senator Duckworth. Colonel Haring?
Dr. Haring. Thank you.
There have been a bunch of changes to try assist victims,
and I think the victims can speak more directly. We do see a
lot of victims at SWAN. We hear from a lot of victims. One of
the things they have asked for is an actual legitimate,
anonymous reporting mechanism, not the restricted versus the
unrestricted reporting, but something similar to what has been
developed and has been fielding on a number of university
campuses and now is actually getting some widespread coverage.
It is CALISTO. It is an anonymous reporting system or database
where a victim can report their assault and their assailant,
just put it into a database. Then what happens is they connect
victims that have the same assailant and they allow those
victims to connect with each other. Then you are more likely,
if you are not alone, if you have been assaulted by somebody
that assaulted another person and now you have connected, you
are more likely to come forward. You are more likely to be
mutually supportive of each other.
That is one idea that we have recommended to the DOD, and I
understand this summer they may be fielding something similar
for the very first time. It is a way for victims to tell their
story, to unburden themselves in a certain way, and then
potentially be connected to somebody else who was similarly
assaulted by the exact same person.
Lieutenant Commander Elliott. Senator, I think there are a
couple ways to go about it. First of all, commanders need to be
better trained to understand that every victim is different.
Every victim is different. I wanted to go to work and I focused
on work. We had, I know, a victim on our ship, and she got
transferred off and she needed a lot of time to process.
The other thing is discussing our training. We have
improved our training a lot, but I still do not think we
address it appropriately. Like me, when I was going through
this, I thought, ``I am officer. I am the third highest ranking
person on the ship. This does not happen to me. This happens to
these junior people.'' The women are raped in our training. The
men are grabbed or body parts put on them. They are not raped.
Why do we not address these problems? We are still not doing
effective training.
Ms. Bapp. Yes. I believe just have more of a preventative
before you even get to be a victim, and I think that that comes
from a true understanding. Going back to Senator McSally's
comment about how do we change that culture, so I think that
right now sexual assault is seen as a fear-based knowledge and
it is not taken seriously. I personally, after graduating from
the Academy, did not believe in the sexual assault response
program for many reasons, and it took a truly inspiring leader
who I reported to--we had a candid discussion one day prior to
my sexual assault even occurring. The way that he was able to
passionately stand up for women who he has experienced while he
was in command--if we could put those leaders, identify them,
truly incentivize them to become these advocates and not just
randomly assign the role, those people who actually want to be
there and want to be able to protect past, future, and every
type of victim, I believe that that would help change the
culture.
Having people stand up. We have signs that say stand up,
speak up, see something, say something. Honestly, as a victim
being in the Army after a year while I was waiting for the
trial, it was insulting to see these signs in the hallways, to
see my victim advocate still posted, even though it was not a
good experience for me, and to see people draw mustaches on
them. SHARP is a joke. We need true leaders to stand up and
truly train what we need our soldiers to be expected of. Hold
them to the higher standard.
Knowledge. Teach them how psychologically to recognize
these signs of predation. That was really big for healing for
me, understanding what had happened to me, understanding the
cycle of abuse. If commanders could be able to recognize this
abuse cycle instead of blaming the victim and instead of maybe
even blaming the alleged, they are more knowledgable and they
have the power still.
Senator Duckworth. Thank you.
You have been very generous, Mr. Chairman. Thank you.
Senator Tillis. Senator Scott?
Senator Scott. First, I want to thank everybody for being
here. Senator McSally, Lieutenant Commander Elliott, and Ms.
Bapp. I have got two daughters. It is disgusting that these
things happen. When you are raising daughters, you are always
scared to death this is going to happen to them. It is very
disappointing that anybody would do this to another human
being.
For Lieutenant Commander Elliott and Ms. Bapp, when you
reported, were you assigned counsel? How does it work?
Lieutenant Commander Elliott. Are you talking about the
victim's legal counsel?
Senator Scott. Do you have counsel that is going to
represent you?
Lieutenant Commander Elliott. Yes.
From my experience through the court martial, I realized I
am merely a witness for the Government. But, yes, so the
victim's legal counsel--they are a lawyer who is there to
represent my interest through the entire process and they are
with me every step of the way. You are not assigned that. You
retain them. So if I met a lawyer and I did not like that
victim's legal counsel, I could go to another one.
Senator Scott. But you do not have to pay for it.
Lieutenant Commander Elliott. No, sir.
Senator Scott. And you had the same thing?
Ms. Bapp. No, sir, I did not. I was given an outdated form
that did not have the special victim counsel. I had never even
heard of a special victim counsel. It took me contacting my
colonel aunt. She is a retired brigadier general after serving
30 years in the Army. I contacted her and had to share my
personal experiences. She was floored that I had never heard of
one or was not given one.
Once I had one, things felt a lot better. He was able to
provide services for me.
However, at a certain point in my investigation, since my
commander--it was a small installation. She had gone to him
seeking some advice prior. He technically represented her.
There was a conflict of interest, and I lost one of the only
people who truly had my back. It was a great loss for me, and
something that I was not even afforded the opportunity to have
in the beginning.
Senator Scott. What did they tell you in the beginning? Did
they give you advice that this is not going to go well? How did
they handle it?
Lieutenant Commander Elliott. The victim's legal counsel,
Senator? No. They are actually there to support our wishes.
Mine--I started restricted and then went unrestricted. I talked
through all the legal processes of that and the things that I
was scared of, the things that worried me. She was just
supportive of whatever decision I wanted to make. I remember
she told me at one point, even if you change your mind right
before you want to testify at a general court martial, she
said, if that is what you tell me, then that is what we will
do. They are very supportive.
Unfortunately, the Navy only has victim legal counsels for
sexual assault survivors, but other services have them for
domestic violence and that sort of stuff too. It started
expanding.
Senator Scott. So you had a different experience then.
Ms. Bapp. Yes, sir, I did.
When I first reported, I reported to a victim advocate who
was not a legal counsel. I expressed my concerns with adultery,
and I would like to take the time to say that I do not believe
in that. I was very naive, 22 years old, graduating from the
Academy. I had no idea that that was where these friendships
were headed to. But I did express to her my concern when it
said collateral misconduct and she brushed it off, said, ``Oh,
no, that is if you are underage drinking or something. You
cannot get in trouble for that. So, no, you are good. Keep
filling out the form. So that was my experience with my
collateral misconduct on the day that I reported.
Senator Scott. Then once there was a conflict, you got
nothing.
Ms. Bapp. I sought out the special victim counsel at that
point. He was very helpful, as I mentioned prior. He was a
little hesitant just knowing the three lawyers inside the case,
knowing that the prosecutor had known that my commander had
reached out to him with personal business. That just inevitably
taints the investigation and makes it subjective at that point.
You just cannot deny that knowledge.
Senator Scott. Colonel Christensen, you said a high
percentage of cases that go to trial are still--there is not a
conviction. Is there a common theme of why it does not end in
conviction?
Mr. Christensen. Well, that is an hour-long answer.
Senator Scott. I am sure every case is a little bit
different.
Mr. Christensen. Every case is a little bit different, but
there are systemic issues the way the UCMJ is written that I
think skews heavily in favor of conviction. The voting
process--unlike the voting process in the civilian world where
you reach a unanimous verdict either guilty or not guilty, so
you have a consensus verdict--in the military, there is one
vote. If you receive now three-quarters guilty, you are guilty.
If you receive less than three-quarters guilty, it is not
guilty. I think that skews very heavily in favor of not guilty
verdicts because there is no compulsion to reach a verdict that
everybody agrees with. I think that is one of the problems.
Another problem too is that the military has resisted--I am
assuming that the two JAGs will testify this is not true, but
they have resisted efforts to allow people to become real
experts at this throughout their career. I left 4 years ago. I
was the only colonel prosecuting in the Air Force, and I do not
think anybody has prosecuted since.
Why is that important? Well, sexual assault is complex, and
it takes a long time. On the flip side, the accused can go out
and hire the most experienced defense counsels in the world in
the military justice system and they are going up against 2 to
3-year captains. There is an imbalance too in that arena.
Senator Scott. Thank you.
Senator Tillis. Thank you.
Colonel James, I am kind of curious. I noticed some of our
allies have moved to the framework that I believe most of this
panel would support. I am curious about what learnings they
have. Are they in the same place they were when they first made
the transition? I think many of them were motivated to make
sure that they were--or making sure that the rights of the
accused were being addressed. So I was curious. What has been
their real world experience in terms of convictions, incidents
of sexual assault? I do not know how long they have been in
place. But give me some idea of how this movement has had a
material positive or negative effect among our allied----
Mr. James. Sir, I am not prepared to talk about our allies,
but we will certainly get back to you and report back because I
think that is a fantastic question.
But I will say, following up with what Don said there,
about the reason we see a lot of these cases going all the way
to court martial is there is not really a clear-cut definition
in the DOD of what a sexual assault is in the first place. We
have cases--one recently--where somebody just brushed up
against somebody on a bus, and she claimed he looked at her
like he wanted to have sex with her. That is a conviction. That
is what non-judicial punishment is going to be used against.
That is one issue.
The other is training. There is not clear training amongst
what sexual assault is. This is not just me talking. We have
got multiple lawyers that we have talked to, military defense
attorneys, that have worked through the system and think tanks
that have worked through, and we are trying to figure out
answers. That is why even though I disagree with Colonel
Christensen, Don, on this one subject, we do agree that
something needs to be done. When I said it is a national
security issue, I meant it. It really is.
I also will disagree with him on UCI. I think there is a
lot of UCI in the system. I could name off a bunch of cases
right now. The Wright case. We have got the Chief Barry case,
and we have got the Vargas case. Those are just a couple that
came to mind when I was sitting here.
So I will get back to you, sir, and your staff.
Senator Tillis. I think it would be helpful. It would be
interesting just to know the timeline, what their experiences
have been, and what policy changes they may have made, if they
got out ahead of their blockers. I think that would be very
helpful as we continue this discussion.
Colonel Christensen, I know in some of either your past
statements or past testimony, you have talked about the nature
of retaliation. I think many people here, who have not studied
the subject, would think that this is a commanding officer's
retaliation or a superior officer's retaliation. Could you talk
a little bit more about what we generally see as retaliation
that victims are experiencing?
Mr. Christensen. Sure. The SAPR report looks at basically
three areas of retaliation. You have retaliation from peers,
and that is about a third of it. You have retaliation from
supervisors. That is about a third. Then you have punitive
retaliation, and that is about a third.
Senator Tillis. Tell me a little bit about the punitive
retaliation.
Mr. Christensen. Sure. These are self-reports from the
survivors, and what they say is that after they report, kind of
like what Lieutenant Commander Elliott is talking about. You
have a career-ender. Or what Ms. Bapp is talking about. You
have a career-ending event. That can happen in a number of
ways. So, for example, you can be very overt and we are going
to give you an article 15 and we are going to court martial you
and we are going to kick you out. Or it can be less obvious and
it is a downgrade in your performance report. For those of us
who have been in the military, just changing a couple words in
a performance report will end somebody's career. So that is
part of it. It can also be you do not get selected for the next
level of school, to go in residence, which will also hurt your
career. Or you may not get the assignment that you were hoping
for. Those are very difficult to prove, but when you look at it
systemically over there and you see so many survivors having
that same story, you come to a conclusion that it is happening.
Senator Tillis. Thank you all.
I want to move to the next panel. I know that we are going
to be having a vote probably coming up in the middle of the
panel.
So I want to thank you all for your time here and then
follow up. I know that you have collaborated with Members, and
we hope you will continue to do that. And Colonel James and any
others, information that you would like to submit for the
record, we would welcome it. Thank you, Lieutenant Commander
Elliott, Ms. Bapp, and Senator McSally, for your courage and
your leadership.
We will now transition to the next panel. If we can get the
witnesses to be seated, hopefully we can get in your opening
comments, and then I will figure out a way to transition in the
hearing in the middle of votes. As the witnesses are being
seated, I will go ahead and introduce and then have you make
your opening statements. Again, we may have some Members go in
and out once the vote is called, but we have got at least 15 or
20 minutes before that. Hopefully, we can get most of your
opening comments in.
Our witnesses on the second panel include Dr. Elizabeth Van
Winkle, Executive Director, Office of Force Resiliency in the
Office of the Secretary of Defense. Welcome. Lieutenant General
Charles Pede, the Judge Advocate General of the Army; Vice
Admiral John Hannink, Navy Judge Advocate General; Lieutenant
General Jeffrey Rockwell, the Judge Advocate General of the Air
Force; and Major General Daniel Lecce--I knew him as a
colonel--Staff Judge Advocate for the Commandant of the Marine
Corps.
We will start with Dr. Van Winkle and move straight down
the line.
STATEMENT OF ELIZABETH P. VAN WINKLE, EXECUTIVE DIRECTOR,
OFFICE OF FORCE RESILIENCY
Dr. Van Winkle. Thank you. Chairman Tillis, Ranking Member
Gillibrand, and other distinguished Members of the
subcommittee, thank you for having me here today to discuss
sexual assault prevention and response in the military.
I am extremely concerned by the results of the most recent
survey of the service academies (MSA) showing another increase
in sexual assault and about the trends and data that we are
seeing. However, I sit before you committed and dedicated to
making this right.
To be clear, these are not merely data points in yet
another DOD report. These are dedicated servicemembers who
volunteered and stepped forward out of commitment and loyalty
to our nation. We have a profound, sacred obligation to our
servicemembers and their safety. The Department remains
committed to our goals of ending sexual assault in the
military, providing the highest quality response to
servicemembers, and holding offenders appropriately
accountable.
My office oversees the Department's programs and policies
that address our critical challenges, including sexual assault,
harassment, suicide, and drug use, all of the behaviors or
issues we as a society have not yet solved. As the Department
of Defense, we are the ones who have been entrusted by this
country to lead the way. We must lead, and we are working to do
just that.
We assess our efforts in a number of ways, using a robust
data surveillance system. We conduct scientific surveys every
other year to understand the scope of sexual assault and
harassment in the force. We conduct focus groups in the survey
off-years to detect emerging issues, and we study sexual
assault reporting data each year so we can understand more
about those who made the courageous decision to report. While
we want annual prevalence, that is, the number of people who
experience sexual assault each year, to go down, we want the
rates of reporting to go up.
We have been measuring ourselves in this fashion for more
than 10 years, and the last survey with the Active force in
2016 found that overall past year prevalence of sexual assault
had decreased over the past decade. Our rates of sexual assault
reporting more than quadrupled during the same time frame. But
we are not seeing the same trends in the Military Service
academies, and that is gravely concerning.
In addition, our surveys indicate that retaliation is
perceived by an appreciable portion of students and
servicemembers who make a report, and these types of behaviors
gravely undermine all of our efforts in this space. And while
we have seen some periods of progress, our history also shows
that sexual assault rates can and do rebound, as they have in
the academies. We know we must adjust our approaches as we
analyze trends and patterns in the data and as the science
evolves.
Our early prevention and response efforts were necessary
but not sufficient to reduce and eliminate sexual assault
across the Department. Measurable and sustained reductions
require a strategic approach beyond training, and my written
statement offers some of the strategies we will be employing
moving forward.
The path we are on together is not an easy one. No one
action in isolation will take us where we need to be, and there
is no single solution to the problem of sexual assault. But we
are committed to this battle for the long run.
This is not just another job assignment for me. My
experience, both outside Federal Government and within the
Department, have made me an eyewitness to the human toll that
sexual assault can take. I have held countless hands in
hospitals during sexual assault forensic exams and in courts
during testimonies and verdicts. I have spent time holding a
survivor as they sobbed on the floor of a convenience store
because they saw somebody that looked a lot like the person
that raped them. I have driven to a hospital at 2 o'clock in
the morning because my client tried to take her life rather
than live with the memories of her sexual trauma. And I have
held on tightly to a 12-year-old girl as she looked through a
photo lineup in a police department to identify her rapist when
she was walking home from school. I have spoken personally to
and I have received emails from brave and amazing military
members who want nothing more than to serve this country
honorably, but have instead been subjected to this crime.
This is personal. I take it personally. I am not alone. I
have spoken directly with the Acting Secretary of Defense, the
service secretaries, and the military chiefs. I have heard
their shared concern. I have seen their frustration and their
commitment to eliminating this misconduct from the ranks. At
every corner of our military, we must do better. We can do
better and we are capable of being better. We are committed to
being transparent as we tackle this significant problem.
Your interest, your insights, and your support are always
welcome, and I want to thank you for everything you do to
partner with both my office and the Department on this
important issue. I look forward to your questions.
[The prepared statement of Dr. Van Winkle follows:]
Prepared Statement by Dr. Elizabeth P. Van Winkle
Chairman Tillis, Ranking Member Gillibrand, and other distinguished
Members of the Subcommittee--Thank you for having me here today to
discuss sexual assault prevention and response in the military.
I am extremely concerned by the results of the most recent survey
of the service academies indicating another increase in rates of sexual
assault--and about many of the trends and data we are seeing in regards
to sexual misconduct within the military at large. However, I sit
before you committed and dedicated to making this right. We are leaders
in changing culture--you all have provided us the resources and
authorities to tackle this--yet our rates show we have not yet solved
this complex and difficult challenge.
To be clear, these are not merely data points in yet another DOD
report. They are dedicated servicemembers who volunteered and stepped
forward out of commitment and loyalty to our Nation. That's why our
commitment to solving this problem is absolute. We have a profound,
sacred obligation to our servicemembers and their safety. Our
commitment to their well-being must be no less than the commitment they
made when they stepped forward and volunteered to our country. The
Department remains committed to our goals of ending sexual assault in
the military, providing the highest-quality response to servicemembers,
and holding offenders appropriately accountable.
As you are aware, my office oversees the Department's programs and
policies that address our critical challenges including sexual assault,
harassment, suicide, and drug use. The Sexual Assault Prevention and
Response Office is the Department's authority on this issue and unifies
the prevention and response efforts of the Army, Marine Corps, Navy,
Air Force, and National Guard. All of the behaviors within my portfolio
are challenging issues we, as a society, have not yet solved. As the
Department of Defense, we are the ones who have been entrusted by this
country to lead the way. We must lead, and we are working to do just
that.
The offices under me develop policies and programs aimed at
reducing harmful behaviors and preventing violence. We inform our
efforts by relying on quantitative and qualitative data from the force
and from our partnerships with other experts in this field who have
dedicated their lives to addressing these harmful behaviors.
The Department has a tremendously robust data surveillance system
we employ to report on the scope of sexual assault within the force. It
is this transparency that allows us to have open conversations about
our progress and the considerable work we have left to do.
We assess our efforts in a number of ways. We conduct scientific
surveys every other year to understand the scope of sexual assault and
harassment in the force. We conduct focus groups in the survey off-
years to detect emerging issues. And, we study sexual assault reporting
data each year so we can understand more about those who made the
courageous decision and come forward to report. While we want annual
prevalence--that is, the number of people experiencing sexual assault
each year--to go down, we want the rates of reporting to go up.
We have been measuring ourselves in this fashion, using scientific
methods, for more than 10 years. Scientific surveys provide us the top
line estimates for how many servicemembers, including cadets and
midshipmen, have experienced these prohibited behaviors in the past
year. While we recognize we will see some variations in rates over
time, we want this number to progressively decline over time until we
eliminate the crime from the ranks. Our last survey with the Active
force in 2016 found that past-year prevalence of sexual assault had
decreased by a third for women and two thirds for men over the past
decade. But we are not seeing this same progress in the military
service academies. This is gravely concerning.
In addition to our prevalence estimates, we closely track the
number of reports we receive. It may seem counterintuitive, but we want
reporting numbers to increase. We want more members to come forward to
report so we can hold offenders appropriately accountable and provide
restorative care. We have seen progress in this area as well; our rates
of sexual assault reporting more than quadrupled over the last decade,
going from 7 percent in 2006 to 32 percent in 2016. But again it is
extremely concerning that we are not seeing this same progress in the
service academies.
We also know it is a very personal decision as to whether someone
will come forward and report the experiences they may have had. In both
civilian and military sectors of our society, the vast majority of
survivors never report the crime. Unfortunately we cannot, as an
institution, hold offenders appropriately accountable without
individuals feeling comfortable coming forward and reporting. While we
will not always be able to address the very personal reasons some
individuals choose not to report, we must remove any systematic
barriers. To that end, we offer choices in reporting, helping
resources, and restorative care, designed to empower victims on their
personal pathway to recovery. This includes offering restricted
reporting where a member can confidentially access healthcare, advocacy
services, and legal services without an investigation or disclosure to
command. And we know a share of servicemembers later convert their
restricted report to unrestricted and participate in the military
justice process. We are now working to expand this process to more
specifically address repeat offenders.
All servicemembers who make the decision to report and participate
in the military justice system are offered the assistance of their own
attorney to represent and support them throughout the process. These
special victims' counsels are resources not found in civilian
jurisdictions.
As many of you know, fear of retaliation complicates and degrades
our efforts to bring more victims forward. Our scientific surveys
indicate that retaliation is perceived by an appreciable portion of
servicemembers who make a report. While not all behaviors perceived as
retaliatory meet the legal threshold for prosecution, the behaviors
that our members indicate experiencing are often incongruent with our
expectations for dignity and respect and gravely undermine all of our
efforts in this space.
In addition to these quantitative metrics, the Department conducts
focus groups, in the off-year from the scientific survey, to hear
directly from academy students and Active Duty members. This process
allows us to often get a sense of trends or culture shifts that may be
occurring. In 2017, we went out to the Active force and received some
feedback that was troubling. Specifically, Active Duty members across
the Services indicated a burgeoning gender divide. Male and female
servicemembers alike noted a discomfort between the sexes. Some
servicemembers told us they felt uncomfortable interacting
professionally with members of the opposite sex. Servicemembers who had
been in the Department for some time highlighted some positive
environmental shifts, including the belief that outward behaviors that
were once dismissed as a part of the culture are no longer tolerated.
However, other participants indicated that troubling behaviors still
transpire but are now more covert, less obvious, and take place on
line.
Over the last decade we have seen some periods of progress, but our
history also shows that sexual assault rates can rebound--as they have
in the academies. And the sentiments from our most recent Active Duty
focus groups echoed some culture concerns similar to what we heard in
the academies prior to the rebound in rates we saw in 2016. We know we
must adjust our approaches as we analyze trends and patterns in the
data and as the science evolves.
Our prior prevention efforts--that coincided with the reduction in
prevalence within the Active Duty force--mark the early stages of
prevention across the Department. Specifically, we focused on building
awareness of the problem and an understanding that sexual assault is
preventable. We infused training with preventative practices, such as
bystander intervention, and identified and addressed unique prevention
needs within the Department, such as the magnitude and impact of male
servicemembers' experiences of sexual assault. In this stage we found
several best practices, including our systematic assessment of
prevalence of sexual assault across the total force, adaptation and
implementation of evidence-based prevention training for entry-level
servicemembers, and the creation of forums for sharing best practices
and lessons learned across the Military Departments.
These early efforts were necessary, but not sufficient, to reduce
and eliminate sexual assault across the Department. Activities focused
on raising awareness about the crime likely contributed to increases in
victim reporting and access of support services, but recent civilian-
sector research suggests awareness programming does not always
translate into the desired long-term behavior change necessary to
sustain progress. Measurable and sustained reductions in sexual assault
require a strategic approach.
To push sexual assault rates down further and sustain progress, we
are aligning sexual assault prevention activities at all levels of the
Department with the current state of sexual assault prevention science.
In addition, the Department will align sexual assault prevention policy
and oversight with scientific standards for sustaining organization-
level impact.
This means that we are building on our current prevention efforts
by ensuring that the Department is poised to identify, implement, and
evaluate sexual assault prevention activities that effectively meet
each organization's unique needs.
We recognize the limitations of a top-down, one-size-fits-all
approach to prevention and understand that measureable change across
the Department is achievable only if measureable change is occurring in
each service. Therefore, we are empowering leaders and a prevention
workforce by equipping them with effective prevention planning,
assessment, and evaluation tools. By implementing a prevention planning
process that is the cornerstone of a public health approach to
prevention, we are bringing rigorous methods to sexual assault
prevention that military leaders use in other aspects of warfighting.
The path that we are on together is not an easy one. We all
recognize that true progress against this horrible problem is more akin
to a marathon than a sprint. We have made the commitment to being in
this battle for the long run. To be frank, progress in our response
efforts has come from leadership emphasis, your continued engagement on
this issue, and relatively quick programmatic and procedural changes.
Progress with prevention is not quite as intuitive or expedient. Some
argue that greater deterrence through heavier criminal penalties is
key. Others suggest that better training and awareness of the problem
is the solution. Yet others press for greater employment of
inspirational speakers to win hearts and minds. All of these may be
beneficial, but none of them in isolation will take us to where we need
to be. In sum, there is no single solution to the problem of sexual
assault. We must all be resolved to learning how to coordinate and
execute many different evidence-based activities, each targeting
specific factors that will erode the cultural and environmental
foundations of this problem, stone by stone. It is through these
combined efforts that we have the best chances for progress.
Combatting these challenges is not just another job assignment I
have to address, it is my life's work. My experiences both outside
Federal Government and within the Department have made me an eyewitness
to the human toll that sexual assault can take. I have held countless
hands in hospitals during sexual assault forensic exams and in courts
during testimonies and verdicts. I have spent time holding a survivor
as they sobbed on the floor of a convenience store because they saw
someone who looked a lot like the person that raped them. I have driven
to a hospital at 2 o'clock in the morning because my client tried to
take her life rather than live with the memories of her sexual trauma.
I have held on tightly to a 12-year-old girl in a Boston Police
Department as she tearfully looked through a photo line-up to try to
identify the man that raped her in an abandoned parking lot as she
walked home from school. I have spoken personally to, and received
emails from, brave and amazing military members who want nothing more
than to serve this country honorably, but have instead been subjected
to this abhorrent crime.
This is personal. And I take it personally. I am not alone. I have
spoken directly with the Acting Secretary of Defense, the service
secretaries, and the military chiefs. I have heard their shared
concern, their frustration, and their commitment to eliminating this
misconduct from the ranks. They do understand the devastation of this
crime. And while we all recognize the impact on the mission, we also
recognize there are names and faces and souls behind each of these
reports. At every corner of our military, we must do better. We can do
better. We are capable of bring better. And we are committed to being
transparent as we tackle this significant problem. We will return each
year to tell you about our progress and our challenges with our annual
results through our fiscal year reports for Active Duty forces and
academic program year reports for the MSAs. Your interest, your
insights, and your support are always welcomed. Thank you for
everything you do to partner with the Department on this important
issue.
Senator Tillis. General Lecce?
STATEMENT OF MAJOR GENERAL DANIEL J. LECCE, USMC, STAFF JUDGE
ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS
Major General Lecce. Chairman Tillis, Ranking Member
Gillibrand, and distinguished Members of the subcommittee, on
behalf of the Secretary of the Navy and the Commandant of the
Marine Corps, thank you for the opportunity to testify today.
Chairman, I enjoyed your visit to Camp Lejeune a while
back. It is good to see you, sir.
In addition to my formal written remarks, which I
respectfully request be made part of the record, I would like
to address the Marine Corps' efforts focused on sexual assault
prevention and response.
One sexual assault is too many. The Marine Corps strives to
eradicate sexual assault from our ranks by capitalizing on the
detailed work of congressional advisory committees and
diligently implementing the many statutory changes made in
recent years.
Like sexual assault, retaliation is unacceptable.
Eliminating retaliation is central to the Marine Corps' efforts
to combat all destructive behaviors such as harassment, hazing,
and bullying. The Marine Corps has developed a comprehensive
and holistic approach to eliminate these destructive behaviors.
In pursuit of these goals, the Commandant established the
Marine Corps Personnel Studies and Oversight Office. Reporting
directly to the Assistant Commandant of the Marine Corps, the
Director of the Personnel Studies and Oversight Office assesses
and provides feedback on initiatives focused on strengthening
the Marine Corps' culture and mission readiness. In addition,
the Personnel Studies and Oversight Office manages the
execution of pending initiatives, collaborates with Training
and Education Command on new curriculum content, and
establishes advisory committees to ensure the Marine Corps and
key stakeholders have an opportunity to participate in the
process and meet current and future challenges.
Further, nearly 1 year ago, the Commandant published a
Marine Corps order on prohibited activities and conduct.
Violations of this directive are punishable under the Uniform
Code of Military Justice. This order, first, addresses a wide
spectrum of conduct, including sexual harassment, hazing,
social media misconduct, including the distribution of intimate
images, retaliation against victims or those who report
criminal offenses and discrimination. Second, it requires all
commanders to investigate all complaints and to protect
complainants from retaliation. Third, it requires all
complaints to be documented in a central database known as the
Discrimination and Sexual Harassment Repository. And fourth, it
requires all commanders to conduct follow-up assessments and to
measure effectiveness through regular command climate surveys
both at the assumption of command and at the relief of command.
As has been true throughout the history of Marine Corps,
commanders are central to the process. They are responsible and
accountable for good order and discipline and the welfare of
all their marines. The individual marine is our greatest asset.
Commanders are responsible and accountable for ensuring all
marines are treated with dignity and respect.
Finally, all Services are in the midst of implementing the
Military Justice Act of 2016. This is the broadest reform to
the military justice system since its inception. Many of these
reforms are aimed at making the military justice system more
fair and transparent both to the public victims and the
accused.
I believe our collective efforts briefly described above
will serve to strengthen the justice system and reinforce
public trust and confidence in the military justice system.
I look forward to working with you and answering your
questions. Thank you.
[The prepared statement of Major General Lecce follows:]
Prepared Statement by Major General Daniel J. Lecce
introduction
Chairman Tillis, Ranking Member Gillibrand, and distinguished
Members of the Subcommittee, on behalf of the Secretary of the Navy and
the Commandant of the Marine Corps, thank you for the opportunity to
testify today.
One sexual assault is too many. The Marine Corps' efforts to
eliminate sexual assaults incorporate the detailed work of the Response
Systems Panel, the Defense Advisory Committee on Investigations,
Prosecution, and Defense of Sexual Assault in the Armed Forces, and the
Congress. Like all the Services, the Marine Corps is in the midst of
implementing the most sweeping changes to the military justice system
since the inception of the Uniform Code of Military Justice (UCMJ). The
last 15 years have been a time of significant changes in military
justice. The Marine Corps legal community remains focused on providing
timely, effective, and appropriate legal advice and legal services.
My remarks today will begin with a summary of Marine Corps
prevention and response measures, followed by a discussion of initial
and specialized training for Marine judge advocates. In addition, I
will describe the structure of the Marine Corps legal community and how
that structure facilitates response mechanisms within the Marine Corps.
Finally, I intend to address the Marine Corps' coordinated efforts over
the past 2 years in addressing all forms of retaliation, including
ostracism and bullying, which are of particular concern as these forms
of misconduct often occur via social media. All of these efforts are
individually and collectively focused on preventing sexual assault
through increased awareness, intervention, victim support, reporting,
thorough investigation, and the imposition of just accountability.
sexual assault prevention
The Marine Corps conducts specialized training across all ranks to
ensure that all leaders have a clear understanding of sexual assault
prevention mechanisms throughout the Marine Corps. This training
promotes leadership action within the scope of each leader's
responsibility. For example, the Marine Corps ``Take A Stand'' training
for non-commissioned officers (NCOs) focuses on leadership action
specific to NCO roles and responsibilities. Take A Stand training
builds skills and characteristics primarily focused on the prevention
of sexual assaults, such as effective communication techniques,
empathy, and the fostering of healthy relationships. In addition,
marines of all ranks receive annual training on the laws and policies
governing sexual assault, reporting options, and sexual assault and
retaliation prevention. This training was recently augmented to include
small-group discussions and practical application exercises.
Judge advocates are involved throughout these training processes.
At the headquarters level, judge advocates assist in developing and
reviewing proposed training plans and content to ensure its legal
accuracy. Judge advocates also often assist in delivering this training
at the unit level.
sexual assault response
Judge Advocate Training. Training focused on the enhanced victim
protections in the Military Justice Act (MJA) of 2016 represents
another vital part of our prevention and response efforts. The MJA of
2016 represented a sea change to the military justice system, resulting
in significant changes to the court martial process. Many of these
changes involved the enhancement of existing protections for victims
throughout the military justice process. The new article 132
specifically prohibits retaliation, which has been prohibited by
various orders and regulations in the past. A provision in Rule for
Court-Martial 405 imposes greater restrictions on how evidence
regarding a victim's sexual behavior or predisposition can be used at
preliminary hearings prior to referring charges to a general court-
martial. Further, rules and procedures have been added which focus on
protecting a victim's privacy and ensuring victims have the right to be
heard.
Throughout 2018, the Marine Corps legal community completed a
phased training plan which included 24 hours of in-person instruction
on the MJA of 2016 changes. The training included significant
instruction on protecting victims' rights, as well as preventing and
punishing retaliation. Additionally, all staff judge advocates were
required to train commanders with general court-martial (GCM) or
special court-martial (SPCM) convening authority on changes to the law.
Ensuring Expert Litigation Training. The Marine Corps ensures
expert litigation of sexual assault cases through both structure and
training. The provision of legal services, including litigation
support, is provided through four Legal Services Support Sections
(LSSS), each responsible for a geographic region. Until 2012, legal
centers in the Marine Corps were decentralized and operated
independently of each other. In 2012, the Commandant directed a
regionalized model that could better leverage training and experience
to provide the proper level of expertise on the most complex courts-
martial. Now, each region is able to capitalize on additional
resources, such as regional trial counsel, complex trial teams,
regional trial investigators, and civilian litigation attorney
advisors, in the litigation of sexual assault cases.
The Marine Corps strives to develop and maintain skilled
litigators. Central to this effort is our Master of Laws (LL.M.) degree
program for criminal law. There are currently 62 marine judge advocates
with an LL.M. in criminal law. These marines hold key leadership
billets across the trial services, defense services, and victims' legal
counsel organizations. Board-selected judge advocates receive their
criminal law LL.M. from the Army's Judge Advocate General's Legal
Center and School (TJAGLCS) or a civilian law school accredited by the
American Bar Association. Judge advocates who obtain an LL.M. in
criminal law receive the additional military occupational specialty
(AMOS) of 4409, identifying them as uniquely qualified to serve in
supervisory military justice billets and complex litigation billets
wherein they handle special victim cases. Marines are eligible to
pursue an LL.M. in criminal law as either a captain or a major, but
only marines serving in the grade of major and above are awarded the
AMOS. This ensures that these judge advocates have a high level of
maturity and experience--approximately 10 years of service for a
major--in addition to specialized education.
The Marine Corps also assigns an AMOS to military judges. The
military judge AMOS 4411 is awarded to marines who have the required
experience, maturity, and temperament, are screened and certified by
the Judge Advocate General of the Navy, and are graduates of the
Military Judge's Course at TJAGLCS. The AMOS ensures those performing
the duties of military judge possess the requisite education,
experience, and temperament, and also allows for more effective
tracking, assignment, and career development.
Prosecution of Sexual Assault Cases. Sexual assault cases are among
the most complex types of cases to prosecute. From fiscal year 2012 to
2014, the number of contested sexual assault prosecutions in the Marine
Corps more than tripled. By fiscal year 2017, 38 percent of all general
courts-martial were contested. In fiscal year 2018, the Marine Corps
tried 158 cases at general courts-martial, a 25 percent increase over
the previous year. All of these trends confirm that the types of cases
prosecuted in the Marine Corps are becoming increasingly complex, and
are more likely to be contested cases prosecuted at general courts-
martial. Equipping and training prosecutors to litigate these complex
cases remains a top priority.
All trial counsel (TC) must meet the minimum requirement for
Special Victim Investigation and Prosecution (SVIP) before being
detailed to prosecute a sexual assault case. The minimum requirements a
TC must have are:
At least 6 months of services as a TC;
Have prosecuted a SPCM as lead counsel, or a GCM as
Assistant TC;
Completed the Naval Justice School Article 32 Officer
course;
Served as Assistant TC during a special victim case;
Attended an intermediate level trial advocacy training
course; and
Received a recommendation from their leadership.
Each regional trial counsel (RTC), who is the senior prosecutor
within a given geographic region, also maintains a complex trial team
(CTT) built to prosecute the most complex sexual assault cases. The
CTTs are comprised of SVIP qualified attorneys, a senior legal services
chief, a legal administrative officer, and a regional trial
investigator (RTI). The RTIs are law enforcement experts embedded into
the prosecution offices for the purposes of facilitating the
prosecutors' continuing investigations and communication with military
criminal investigation organizations (MCIOs). The CTT mentors first
tour TC who are assigned to their cases for the purpose of gaining the
experience necessary to obtain their SVIP qualification.
Each region also benefits from the advice and guidance provided by
civilian litigation attorney advisors (LAA). LAAs are civilian
attorneys who possess extensive experience and expertise in the field
of prosecuting special victim cases. LAAs are stationed across the
Marine Corps, with each assigned to an RTC. The LAAs collaborate with
TCs on preparation of case analysis memos, charging documents, witness
interviews, and affirmative and responsive government motions. They
also help identify expert witnesses and help organize evidence to
improve case presentation. Additionally, the LAAs work closely with the
RTC and Marine Corps Trial Counsel Assistance Program (TCAP) to develop
training and education programs for marines seeking SVIP qualification.
TCAP is led by a major holding an LL.M. in criminal law. The
mission of TCAP is to assist and train TCs on the full range of
prosecution tasks, including pre-trial investigation, general trial
advocacy, post-trial actions, and professional responsibility. TCs have
24/7 access to TCAP personnel and the TCAP web portal. TCAP also
conducts an annual week-long SVIP training event focused on the best
practices for prosecuting sexual assault at court-martial.
Victims' Legal Counsel. The Marine Corps established its Victims'
Legal Counsel Organization (VLCO) in 2014 to provide legal
representation to qualifying victims. The VLCO is comprised of 18
Active Duty full-time judge advocates, and includes an officer-in-
charge (OIC), a deputy OIC, four supervisory regional victims' legal
counsel (RVLC), and 12 victims' legal counsel (VLC). These counsel are
distributed across the same four LSSS regions as their TC and DC
[defense counsel] counterparts.
Marine Corps VLCs attend special victims' counsel certification
training at either The Army Judge Advocate General's Legal Center and
School (TJAGLCS) or the Air Force Judge Advocate General's School
(TJAGS). Marine VLCs also receive specialized training on representing
child victims, attend the annual VLCO training symposium, and
participate in local quarterly training. In addition, VLCs have the
opportunity to attend other military and civilian training courses
throughout the year, including courses at the National Advocacy Center,
the National Computer Forensics Institute, and the Naval Justice
School. The VLCO also provided victim-specific legal training during
Judge Advocate Division directed MJA of 2016 training, including
instruction on the changes in victims' rights and training on Article
6b of the UCMJ, the Privacy Act, and Military Rules of Evidence 412 and
513.
Selection of Marine Corps VLCs includes a thorough nomination,
screening, interview, and vetting process. This process satisfies the
Department of Defense requirement that individuals considered for VLC
positions undergo an ``enhanced screening'' process before selection,
including a review of the nominee's military records and background to
ensure that the nominee does not have a disqualifying investigative or
criminal record.
VLCs provided legal services to approximately 713 victims during
fiscal year 2018, including initial counseling and guidance. Of these
victims, approximately 85 percent were victims of sexual assault, while
approximately 15 percent were victims of other crimes, including
domestic violence. The VLCO assisted approximately 655 and 661 victims
in fiscal years 2017 and 2016, respectively.
Defense Services. The American criminal justice system is based
upon fundamental fairness to all involved in the process. Like its
prosecutorial counterpart, the Marine Corps Defense Services
organization (DSO) provides legal services through the employment of
teams of defense counsel located at each installation.
The Defense Counsel Assistance Program (DCAP) is the primary source
for training Marine Corps DCs. A major possessing an L.L.M. in criminal
law leads DCAP, and DCAP also employs two civilian GS-15 [General
Service] LAAs. The DCAP directly supports DCs in the field and advises
on complex motions and best practices. DCAP maintains a secure website
available to all personnel assigned to the DSO. The website includes a
discussion forum where counsel can post questions and provide feedback
in real-time, a motions database, copies of court rulings, standard
forms and advice, and a variety of trial advocacy tools and templates.
DCAP also maintains a training program requiring counsel to attend
formal week-long training events, such as defense counsel orientation,
basic trial advocacy, and defending sexual assault cases courses. These
Marine Corps specific training efforts are supplemented through
civilian trial advocacy courses offered by the National Criminal
Defense College, the Trial Lawyers College, and the National
Association of Criminal Defense Lawyers. This training program ensures
DSO judge advocates possess the knowledge and experience needed to
provide high quality representation in complex sexual assault cases.
Integrating Legal Resources in Responding to Sexual Assault. All
members of the Marine Corps legal community are integrated in
appropriate stages of the sexual assault response process in the Marine
Corps, from initial report through victim counseling and adjudication.
Whether the initial report is restricted or unrestricted, the Marine
Corps assigns VLCs to ensure victims are advised on and able to assert
their legal rights. In the case of unrestricted reports, the Staff
Judge Advocate (SJA) advises the convening authority on command legal
obligations related to providing support for victims and ensuring a
fair military justice process for alleged offenders.
When advising a commander, the SJA relies on the TC to provide
factual detail and analysis for all sexual assault cases through
consultation and completion of a case analysis memorandum (CAM). The
purpose of a CAM is to enable and enhance the advice of the SJA to a
convening authority on the disposition decision through careful
evaluation of the evidence in a case and potential charges. A CAM
analyzes the type and strength of evidence in a particular case. In
March 2018, the Marine Corps made significant improvements to the CAM
process, which closely mirrors the practices and standards employed by
federal civilian and state prosecutors. A CAM is required in all cases
involving death, infliction of grievous bodily harm, or any sex
offense. The CAM must also record the victim's preference regarding
jurisdiction and disposition.
Protecting all victims is an integral part of a commander's
responsibility. All sexual assault response coordinators and victim
advocates are required to inform victims of resources available to
report retaliation, to request a transfer, and to request a military
protective order. Additionally, the Case Management Group (CMG), led by
each installation commander and comprised of the victim's commander,
the unit's Sexual Assault Response Coordinator, the victim advocate, an
NCIS representative, the SJA, the VLC, and a senior TC, meets monthly
to address any concerns about retaliation or other victim concerns.
Finally, VLCs have been instrumental in proactively working with
commanders on behalf of victims to help eliminate retaliation by
advocating for clients.
addressing retaliation
The Marine Corps has extended its holistic approach to sexual
assault prevention into assessing and addressing retaliation for
reports of sexual assaults and other crimes. Following widely-
publicized social media incidents, the Commandant established both Task
Force Purple Harbor and the Talent Management Executive Council (TMEC).
Task Force Purple Harbor focused on initial responses to social media
misconduct, including discrimination, harassment, and retaliation. The
Task Force coordinated policy, focus, and resources across the Marine
Corps. The work of the Task Force included a detailed assessment of
over 150 initiatives impacting nearly every Marine Corps practice and
program, from investigations of sexual harassment at the unit level to
further integration of females in boot camp. The TMEC complements Task
Force efforts by harnessing senior leadership perspectives and
experience in determining on how best to implement Task Force efforts.
New punitive order addressing prohibited activities and conduct.
Eliminating retaliation was a core concept integral to both the Task
Force and TMEC. After careful review and staffing, the Commandant
published Marine Corps Order 5354.1E on Prohibited Activities and
Conduct (PAC). This order addresses a wide spectrum of conduct
including hazing, discrimination, sexual harassment, social media
misconduct, and retaliation against victims or those who report
criminal offenses. This order requires commanders to investigate all
complaints, protect complainants from retaliation, conduct follow-up
assessments for substantiated and unsubstantiated dispositions, and to
measure effectiveness of command implementation through regular
surveys.
The PAC order was a major step forward in the Marine Corps' efforts
to identify abusive conduct and hold offenders accountable through
administrative, disciplinary, and criminal charges, where appropriate.
Training all marines on this new order was a vital part of the Marine
Corps' efforts in 2018 to further develop a culture where sexual
assault and retaliation are not tolerated.
the commanding officer's responsibility
Commanders are responsible and accountable for the morale, welfare,
good order, and discipline of their units. This responsibility and
accountability extends to every aspect of the command, including
warfighting readiness and effectiveness and the discipline of the unit.
Commanders are entrusted with the Marine Corps' greatest asset, the
individual marine. Commanders must instill trust and confidence that
offenders will be held accountable, victims will receive full support,
and the military justice process is fair and just.
Judge advocate advice and support to commanders is integral to this
process. For all unrestricted reports of sexual assault, a Marine Corps
TC works closely with criminal investigators to ensure unity between
the investigative and prosecutorial functions of the military justice
system. The commander is advised by his or her SJA, an experienced
judge advocate well versed in the military justice system and able to
advise the commander on the full spectrum of legal actions required
during and after the investigation.
conclusion
The Marine Corps legal community is focused and ready to address
the crime of sexual assault. The commander's role in the military
justice process is fundamental to ensuring the preservation of good
order, discipline, and welfare in the Marine Corps. As a result,
commanders must remain central to the process. Marine Corps judge
advocates support the commander in every step of the military justice
process with advice and legal services support. I am committed to
ensuring the Marine Corps legal community continues to be best manned,
trained, and equipped to address sexual assault and eliminate it from
our ranks. I look forward to working with Congress to meet our goals.
Senator Tillis. General Rockwell?
STATEMENT OF LIEUTENANT GENERAL JEFFREY A. ROCKWELL, USAF, THE
JUDGE ADVOCATE GENERAL OF THE AIR FORCE
Lieutenant General Rockwell. Chairman Tillis, Ranking
Member Gillibrand, distinguished Members of the subcommittee,
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 key components: the
best people, the best training, the best equipment, 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 all competing equities in the
process. That balance is best struck when, at every critical
juncture in the process, a commander is armed with the relevant
facts, including victim input, and advised by a judge advocate
before making a decision on the next critical step in the
process.
We also know that good order and discipline are best when
command operates and executes discipline across the entire
continuum of discipline, from prevention efforts in 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 are not met, and everywhere in between. 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, particularly with regard
to sexual assault. You have focused the 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 dignity of victims of
crimes, to protect the rights of 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 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 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. Our
existing statutory authorities mandate that this critical legal
advice be independent. Like with all decisions, commanders
never make them in a vacuum. 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 the prosecutor, victim, and accused.
A critical component to our fight against sexual assault in
the military has been our quest 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. Sex assault is a personal violation, and victims
must be heard without having the process itself further make
them feel victimized. Victims must know that they have a say
before any decision is made. Our special victims' counsel have
become vital teammates in our sexual assault prevention and
response arsenal.
Removing command authority from our process and efforts to
date would have a negative effect on military discipline and
readiness, jeopardizing ongoing efforts to combat sex assault
through a holistic, command-based approach across the continuum
of discipline, prevention, and response.
Responsibility to uphold the broad system of laws set out
in the Manual for Courts-Martial is not an additional duty for
commanders. It is interwoven into the concepts of command and
unity of effort. It is fundamental for our airmen to have no
doubts about who will hold them accountable for mission
performance and adherence to standards 24/7, both on and off
duty.
Our work must continue to prevent and respond to criminal
behavior within our ranks. With our holistic focus, we have
seen increases in victims reporting and seeking services, with
a commensurate increase in investigations, prosecutions, trial,
and appellate litigation. 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 Lieutenant General Rockwell
follows:]
Prepared Statement by Lieutenant General Jeffrey A. Rockwell
Chairman Tillis, Ranking Member Gillibrand, distinguished Members
of the subcommittee; thank you for the opportunity to talk about
military justice and how we are combatting sexual assault in the Air
Force.
I. The National Security Strategy, the National Defense Strategy,
and Discipline. Military commands, led by commanders, are responsible
for executing our National Defense Strategy to defend the Nation and,
when called upon, win America's wars. Throughout our history, we have
defended the Nation, fought and won our wars because of four simple yet
key components: first, the best people; second, the best training;
third, the best equipment; and fourth, the most important element that
binds together the other three--discipline. Discipline lies at the
heart of command and control, with commanders commanding and
controlling airmen, armed with the best training and equipment, to
execute our national defense missions. Discipline is commanders',
business, since commanders have the ultimate responsibility to build,
maintain, and lead the disciplined force necessary to succeed in combat
across multiple domains. Discipline makes the force ready. Discipline
makes the force lethal.
To build this disciplined force to execute these missions, the
military justice system works to strike a careful constitutional
balance between all competing equities in the process, including the
respect for and protection of the rights of victims of crime, and the
rights of an accused. Based on years of experience, we know that a
fully empowered commander, advised and guided by judge advocates
trained in the professions of law and arms, is the right approach to
strike this balance. That balance is best struck when, at every
critical juncture of the process, a commander is armed with the
relevant facts, including victim input, and advised by a judge advocate
before making a decision on the next critical step in the process.
We also know that good order and discipline is best met when
command operates and executes discipline across the entire continuum of
discipline, from prevention efforts in setting standards, duties, and
command climate on the left side of the continuum, to the response of
courts-martial on the right side when standards aren't met, and to
operating and executing discipline everywhere in-between. 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.
Judge Advocates, as members of both the profession of law and of
arms, are duty bound and committed to the principles that have enabled
our country's system of laws and our military to thrive. We are duty-
bound to a constitutionally sound and fair military justice system,
committed to uphold the purpose of the military justice system and
military law as spelled out in the preamble to the Manual for Courts-
Martial, ``to promote justice, to assist in maintaining good order and
discipline in the Armed Forces, to promote efficiency and effectiveness
in the military establishment, and thereby to strengthen the national
security of the United States.'' These first three--``promoting
justice, maintaining good order and discipline, and promoting
efficiency and effectiveness''--although sometimes competing are
inexorably linked. The three come together to provide what the Nation
asks of us, to ``thereby strengthen the national security of the United
States.'' With these principles as our guide, we attack the scourge of
sexual assault in our ranks.
II. Progress to Date. Over the last several years, this committee
and Congress have been instrumental in our efforts to improve military
justice, particularly with regard to rape, sexual assault, and related
offenses. You have focused the system to be more fair and timely, to
appropriately address allegations of misconduct that foster progressive
discipline designed to deter and rehabilitate wrongdoing, to respect
the dignity of victims of crime, to protect the rights of accused, and
to maintain the trust of airmen and the American people.
The Services fully implemented the Military Justice Act of 2016,
effective 1 January 2019, in the Manual for Courts-Martial and their
respective service policies. The Act is the most significant overhaul
of the military justice system since 1983. The Act preserves the
foundational principle of the commander as convening authority. It also
affects the entire spectrum of court martial proceedings and related
disciplinary proceedings. While we know that these sweeping changes to
our military justice system will have significant impacts, we are still
determining the long term effects, both positive and negative, on the
overall effort to strengthen discipline and maintain the integrity of
processes. We will continue to ensure the system and changes are
properly challenged at trial and appellate levels to ensure that these
changes are correct as a matter of law. We have yet to fully realize
the effect of these changes because the system has not been provided
the opportunity to evaluate the implementation of these reforms. New
legislation coming at such a rapid pace limits our ability to see the
results of changes made 1, 2, or sometimes 3 years earlier. For
example, Article 120 of the Uniform Code of Military Justice itself has
undergone multiple substantive changes over the last several years
which has in turn led to increased trial and appellate litigation at
the trial court level, the Services' Courts of Appeal, and the Court of
Appeals for the Armed Forces. By ensuring the law is correct through
transparent judicial review, we ensure trust, confidence, and
reliability in the system.
Given commanders' critical and central role in this process, we
have increased our training to ensure they are better prepared to
exercise their authorities. Before taking command, all squadron, group,
vice, and wing commanders receive extensive legal training so they
fully understand their responsibilities under the Uniform Code of
Military Justice and Manual for Courts-Martial. All officers receive
similar training at all levels of their professional military
education, as do all senior enlisted and 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. 10 U.S.C. 806 and 8037, the statutory
authorities of The Judge Advocates General, ensure that that this
critical legal advice is independent. In practice, like with all
decisions, commanders never make them in a vacuum. Their 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, victim, and accused. The attachment, Military
Justice Decision-Making Process, walks through in detail how we
accomplish this in the Air Force.
A critical component of our fight against sexual assault in the
military has been our quest to build trust and confidence in victims.
We know that victims must be empowered in this very difficult 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
prosecutorial process itself further make them feel victimized. Victims
must know that they have a say in the process before a decision is
made. In 2013, the Department created and staffed the Nation's first
large scale effort to provide trained attorneys to victims of sexual
assault. The program was designed to give victims the help, support,
advice, and tools they need to enable them to pursue what is in their
best interests, endure, and thrive. We believe the Special Victims'
Counsel (SVC) Program has been a great success. SVCs deliver privilege-
protected, victim-centered advice and advocacy through comprehensive,
independent representation to sexual assault victims worldwide, assist
them in obtaining support and recovery resources, and promote greater
confidence in the military justice process and the United States Air
Force. SVCs help champion victims' rights with representation at law
enforcement interviews, trial, and defense counsel interviews, pre-
trial hearing, in trial and on appeal. They help enforce victims'
rights to safety, privacy, and the right to be treated fairly and
respectfully. As a testament to SVC capability and quality of service,
in fiscal year 2018, 100 percent of responding victims were satisfied
with their SVC representation and virtually 100 percent would recommend
SVC representation to others. SVCs have become a vital teammate in our
sexual assault prevention and response arsenal.
III. Command-Based Military Justice. Removing command authority
from this process would have a negative effect on military discipline
and readiness while jeopardizing ongoing efforts to combat sexual
assault through a holistic, command-based approach across the continuum
of discipline, prevention, and response.
Every day, across the spectrum of prevention and response, we are
committed to finding new solutions and approaches, being accountable,
and being transparent. Every airman, from the commander down to the
most junior member, is responsible for fostering and reinforcing a
culture of respect and dignity in which criminal acts will not be
tolerated. Commanders set the tone for their unit, and given their
unique position and responsibilities are best postured to significantly
reduce sexual assault from our ranks. Unlike any other institution in
the United States, military commanders have not only the legal
authority but also have a moral authority to set standards and enforce
them. Commanders are the biggest part of the solution, not the biggest
part of the problem.
Commanders are selected based in part on their education, training,
experience, length of service, temperament, judgment, and most
importantly, their decision-making ability. Because of these qualities,
commanders are entrusted with the authority and the responsibility to
ensure a disciplined fighting force consistent with military standards,
American values, and established expectations. Moreover, commanders are
trained in the military justice system, and checked and balanced with
independent legal advice as they execute their decision-making
responsibilities to ensure they are upholding standards and the
military justice system. If commanders do not meet standards, they are
held accountable for their actions or inaction by superior commanders.
Removing commanders as a central disposition authority for offenses
under the Uniform Code of Military Justice could send a conflicting
message to our airmen and dilute the holistic approach required to
achieve good order and discipline in a military organization. If
commanders are trusted with the decision to send airmen into harm's
way, where command judgment may cost lives, they should also be trusted
to discipline and hold accountable those who commit offenses.
Responsibility to uphold the broad system of laws set out in the Manual
for Courts-Martial is not an additional duty; it is interwoven into the
concepts of command and unity of effort. Unity of command and unity of
effort are indispensable elements of authority in a military unit and
critical to achieve the mission. It is fundamental for our airmen to
have no doubts about who will hold them accountable for mission
performance and adherence to standards, 24/7, both on and off duty.
Furthermore, commanders are naturally incentivized to eliminate
misconduct within the unit long before it metastasizes into criminal
conduct as they operate across the continuum of discipline.
Furthermore, bifurcation of jurisdiction would not only diminish the
unity of the command efforts, it could also delay processing of cases,
with the attendant negative effects all of concerned parties.
There is evidence that the current system of command
accountability, supported by highly-professional judge advocates, is
essential to the military justice system. A congressionally-formed and
independent panel, the Response Systems to Adult Sexual Assault Crimes
Panel (RSP), studied the question and after a year-long, deep, and
substantial review, concluded that commanders, advised by judge
advocates, are best positioned to handle disposition decisions.
Discussion of this issue should account for the vital and integral role
of the staff judge advocate, who advises the commander throughout the
life of a case, from report and investigation to adjudication and
disposition. Each disposition decision by a convening authority
concerning a sexual assault case is subject to multiple levels of
review by superior staff judge advocates and convening authorities.
A commander-based disciplinary system, with direct, candid, and
independent legal advice, is indispensable to building a ready,
disciplined force to execute mission. Ultimately, experience indicates
that commanders are well-positioned for the oversight, review,
disposition, and adjudication of cases because they also have
responsibility and sensibilities for the larger national security
efforts that military justice exists to support.
IV. In Conclusion. When it comes to preventing and responding to
criminal behavior within our ranks, our work must continue. Our
holistic focus on preventing and responding to sexual assault has seen
great results with increases in victims' reporting and seeking
services, as further evidenced by an increase in investigations,
prosecutions, trial and appellate litigation. Our next steps, I
believe, should focus on addressing evolving issues of retaliation,
collateral misconduct, timeliness in investigations and adjudications,
and education on the specific and general deterrent effect generated by
the cases tried.
While there has been much progress, we, as judge advocates, remain
committed to survivors of criminal acts like 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.
attachment 1: military justice decision-making process
In the Air Force, squadrons, groups, and wings located at
installations around the world are our organizational building blocks.
Wings and installations are generally under the command of a numbered
air force, and in turn a major command. Convening authorities are
commanders authorized to convene courts-martial for serious violations
of the Uniform Code of Military Justice. In the Air Force generally,
wing commanders are special court-martial convening authorities and
numbered air force and center commanders are general court-martial
convening authorities. Thus, the authority to make court-martial
disposition decisions is limited to senior commanders who must receive
advice from judge advocates before determining appropriate resolution.
With this in mind, we provide the following overview of how cases are
generally administered by commanders, advised by judge advocates at
every step of the process. It is a process founded on due process with
checks and balances at every step.
The installation or wing legal office is led by the staff judge
advocate who is the principal legal advisor to the convening authority.
Both the staff judge advocate and the deputy staff judge advocate are
selectively assigned leaders with litigation experience in military
justice, to include previous experience as trial counsel, area defense
counsel, and often as circuit defense counsel or circuit trial counsel.
Each military justice program at the installation level is further
managed by a chief of military justice who works for the SJA and whose
primary responsibility is to oversee and manage the investigation and
prosecution of courts-martial.
When an installation judge advocate, normally the chief of military
justice, becomes aware of a criminal allegation through law enforcement
or a representative from the subject's command, the judge advocate or
chief of justice assists with the investigation. Once the staff judge
advocate determines an allegation may result in a court-martial, the
staff judge advocate details a trial counsel who works the case in a
prosecutorial capacity from investigation to conclusion. This approach
leverages the ``vertical prosecution model'' and promotes consistency,
reduces the risk of lost information, and enhances relationships with
victims of crime. The vertical prosecution model was promoted under the
Child Abuse, Domestic Violence, Adoption and Family Service Act of
1992.
During the investigative process, an installation judge advocate
provides constant advice and feedback to the investigative agency
conducting the investigation. Judge advocates also assist investigators
by developing lines of investigation, discussing elements of relevant
criminal offenses, providing assistance on evidentiary issues, and
securing evidence through means such as subpoenas and search
authorizations. In investigations involving complex criminal
allegations like sexual assault, a circuit trial counsel from the Air
Force's cadre of prosecutors with the most experience in complex
litigation, assist by providing advice in investigation development and
potential charging considerations for any future criminal disciplinary
action. For cases involving an allegation of sexual assault, this model
of constant engagement is required as part of the Special Victims
Investigation and Prosecution capability mandated in the National
Defense Authorization Act for Fiscal Year 2013.
A victim may choose to communicate with investigators, judge
advocates, and command through the special victims' counsel. Airmen
accused of a crime are provided an experienced area defense counsel,
and in cases involving serious misconduct a circuit defense counsel,
free of charge to assist them. The defense counsel will frequently
communicate on behalf of the accused to judge advocates, investigators,
and members of command throughout the process.
Throughout the investigation, the installation staff judge advocate
remains responsible for updates and receives feedback from his or her
functional chain of command, which includes the numbered air force and
major command staff judge advocates. These updates are also provided to
the relevant entities and experts within the Air Force Legal Operations
Agency, who serve as reach-back for the field, oversee the justice
process, and advise The Judge Advocate General of the Air Force on the
status of military justice cases. The installation judge advocates
continue to coordinate with the circuit trial counsel on the
investigation and case development. The installation staff judge
advocate will also provide regular updates on the status of the
investigation to the convening authority, commanders, and other
interested members of command throughout the investigative process.
Once an investigation is complete, the investigation is reviewed
with the subject's command. The commander, with the advice of a judge
advocate, makes the final decision on disposition unless disposition
authority has been withheld by a superior commander. The commander,
advised by the staff judge advocate, has the full benefit of any views
communicated by any circuit trial counsel or other judge advocate who
has previously advised on the case during the investigatory stage. The
input of any victim on disposition is communicated to command either
through the judge advocate or, if involved, a special victims' counsel.
The command also considers any information provided by the defense
counsel prior to disposition. If trial by court-martial is determined
to be the appropriate disposition, an installation judge advocate,
advised by a circuit trial counsel in complex cases, drafts the charges
and forwards them to the member's commander for preferral of charges.
For sexual assault cases, charges must be reviewed by a circuit trial
counsel prior to preferral. The draft charges are also typically vetted
through the general court-martial convening authority's staff judge
advocate, generally located at a numbered air force, prior to
preferral.
The staff judge advocate advises the special court-martial
convening authority on whether subsequent referral of the preferred
charges to a court-martial is appropriate. If a general court-martial
is recommended, the special court-martial convening authority, with the
advice of his or her staff judge advocate, will direct a preliminary
hearing in accordance with article 32 of the Uniform Code of Military
Justice. The preliminary hearing is conducted by an independent
experienced judge advocate, and in cases of sexual assault, a military
judge is usually detailed. The installation staff judge advocate
ensures any views of the victim regarding disposition are communicated
to the convening authority. Ordinarily, a circuit trial counsel is
assigned, if they had not been assigned sooner, to ensure he or she is
available for all significant developments in the case. In the case of
an anticipated general court-martial, upon conclusion of the
preliminary hearing, the charges are forwarded to the general court-
martial convening authority. Before making a recommendation on
referral, the staff judge advocate will provide the convening authority
pretrial advice. This advice often includes input from the circuit
trial counsel or other judge advocates involved in this case. The
standard of review for cases under Rule for Courts-Martial 601(d) is
that there is probable cause to believe that an offense triable by a
court-martial has been committed and that the accused committed it.
Upon referral to a court-martial, the staff judge advocate formally
details trial counsel to the court-martial. This counsel is generally a
judge advocate located at the installation and, as noted above, who has
been involved in the development of the investigation and case prior to
appointment ensuring continuity in the prosecution. At the conclusion
of any trial, the installation legal office personnel involved in the
case review each with the circuit trial counsel and investigators, as
applicable, to identify best practices and areas for improvement in
future cases.
This process of advice and action continues in the post-trial,
convening authority action, and appellate phases, with the staff judge
advocate continuing to advise the convening authority at every decision
point and stage of the process. See the Attachment 2 graphic below,
Oversight, Involvement and Review of Military Justice Actions in the
U.S. Air Force.
ATTACHMENT 2:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Tillis. Thank you.
The vote has been called. It is a hard 15-minute vote, but
this is the U.S. Senate, which means we have got about 25
minutes, and then they will be back to back.
So, Senator Scott, if you intend to ask questions, I will
yield my time to you if you would like to ask questions before
you go to vote.
Admiral Hannink?
STATEMENT OF VICE ADMIRAL JOHN G. HANNINK, USN, JUDGE ADVOCATE
GENERAL OF THE NAVY
Vice Admiral Hannink. Chairman Tillis, Ranking Member
Gillibrand, and Members of the subcommittee, thanks for the
opportunity to appear today.
Our Navy guidance clearly states sexual assault is a
criminal act, incompatible with Navy core values, high
standards of professionalism, and personal discipline.
As I listened to the testimony of the first panel, I am
reminded again of the importance of constant assessment and
reevaluation of our efforts to improve our institutional
capacity to prevent and respond to sexual assault.
Everybody's role is important, from the sexual assault
response coordinators and victim advocates that lead the
response efforts to the agents who investigate, and yes, to the
colleagues who have to treat each other with dignity and
respect.
Our Navy regulations emphasize the great responsibility of
the commanding officer for his or her command, and it states
that the authority of the commanding officer is commensurate
with his or her responsibility. In my view, it must remain so,
and this authority should not be eroded.
The contributions of judge advocates and our legal offices
are also an important part of our capability. I would like to
highlight two areas.
First, in court martial litigation. The Navy JAG Corps
established the litigation track in 2007 to improve the overall
quality of court martial litigation. This recognized that
criminal litigation skills are perishable and that repeated
tours in military justice billets are needed to develop the
expertise and competence to litigate complex cases, serve as
judges, and then to train and supervise more junior attorneys.
We now have 81 officers in the litigation track, including 13
captains and 25 commanders. These officers, most of whom are,
at any given time, in activities related to courts martial,
benefit everyone. They are the special victim investigation and
prosecution-trained prosecutors who work with the Naval
Criminal Investigative Service and that lead the independent
prosecutorial review of cases and prosecute those efforts and
proceed to court martial. They also serve as defense counsel,
providing critical expertise in doing their demanding work,
zealously defending those who are accused of crimes, and doing
their utmost to ensure that any conviction only follows a fair
trial that adheres to American constitutional standards of due
process in a system that seeks justice. They serve as military
judges, impartial arbiters of courtroom proceedings, who must
have as their only interest that everyone's rights are
protected, the accused and the victim. Their efforts provide
counsel to commanding officers who consult with judge advocates
regularly regarding the disposition of allegations.
The judge advocate, however, cannot replace the commanding
officer's role in the process. The commanding officer must
assess the effect of the offense on the morale, health, safety,
welfare, and good order and discipline of the command.
Second, I would say related to the litigation aspect is the
work of our victims legal counsel. These 33 attorneys, 5 of
whom are currently drawn from the litigation track, are
dedicated to serving individual victims. They explain the
investigation process in the military justice process. They
safeguard victim rights and represent their interests and serve
as an advocate if there are concerns of retaliation. Of all
military justice related initiatives over the past 6 years,
this program may have had the biggest positive impact on victim
awareness, understanding, and trust in the system.
I know there is more work ahead. As the recent report
related to the Military Service academies showed, nothing can
be taken for granted. And as the Judge Advocate General of the
Navy, it is my responsibility to help look ahead and ask what
else needs to be done.
I am grateful for the work of congressionally chartered
panels that have produced numerous reports over the past 6
years, from the Response Systems Panel to the Judicial
Proceedings Panel and the ongoing advisory committee reviewing
the investigation, prosecution, and defense of sexual assault
cases. The work of these panels has and will continue to inform
my thinking and I am sure many others.
I am also grateful for the support of this subcommittee and
the organizations represented by the first panel to ensure that
we continue to make improvements to our response systems and
prevention efforts.
Thank you again, Chairman Tillis and Ranking Member
Gillibrand.
[The prepared statement of Vice Admiral Hannink follows:]
Prepared Statement by Vice Admiral John G. Hannink, U.S. Navy
introduction
Chairman Tillis, Ranking Member Gillibrand, distinguished Members
of the subcommittee; thank you for the opportunity to testify today
about our continued efforts to combat sexual assault in the Armed
Forces.
Six years ago one of my predecessors--Vice Admiral Nan DeRenzi--
testified before this subcommittee about the Navy's multi-faceted
approach to address awareness and training, prevention, victim
response, and investigation and accountability.
In this statement, I will provide an update focused on the roles
judge advocates have within the Navy's framework for sexual assault
prevention and response (SAPR). This statement will:
Note the Navy's continued efforts related to training and
prevention;
Outline aspects of the Navy JAG Corps organization that
enhance our capabilities related to court-martial litigation;
Provide an update on the Victims' Legal Counsel Program;
Describe the current process by which disposition
decisions are made on sexual assault reports; and,
Emphasize our desire to learn and adapt, to improve our
ability to serve the Navy, its commanders, and its sailors.
training and prevention efforts
The Navy continues to require annual SAPR training for all
personnel. This training is provided in a face-to-face format, and uses
video-based scenarios and vignettes to facilitate understanding and to
prompt discussion among sailors. Training is often enhanced by the
presence of sexual assault response coordinators, deployed resiliency
counselors, and victim advocates. This and other SAPR training is
reviewed in the Office of the Judge Advocate General to ensure
consistency with the Uniform Code of Military Justice, and with
Department of Defense and Navy definitions and policies. From a
military justice perspective, such review ensures potential court-
martial members receive accurate training and minimizes the chance that
errors in training material can adversely impact a court-martial
prosecution. In fiscal year 2018, the Office of the Judge Advocate
General reviewed 28 packets of material ranging from advertising
posters to interactive plays and outside speaker presentations.
Beyond annual training, the Chief of Naval Operations has
established a Culture of Excellence campaign to combat a range of
destructive behaviors, including harassment and sexual assault. This
effort seeks to use data from a number of sources to understand trends,
conduct root cause assessments, and identify key protective and risk
indicators. It also aims to develop a behavioral learning continuum to
identify prevention touch points across a sailor's career.
organizational construct
Military Justice Litigation Career Track (litigation track). The
Navy JAG Corps established the litigation track in 2007 to improve the
overall quality of court-martial litigation. Creation of the litigation
track recognized that criminal litigation skills are perishable, and
that repeated tours in military justice-related billets are required to
develop the experience and competence needed to litigate complex cases,
to serve as military judges and preside over courts-martial, and to
train and supervise more junior attorneys in developing litigation
skills.
Selection into the litigation track occurs by a competitive board
process. To be considered, judge advocates must have served a minimum
of 4 years on Active Duty and demonstrated exceptional aptitude for
litigation. The selection process includes review of in-court
experience and assessments by supervisors, military judges, and other
litigation track officers. Once in the litigation track, judge
advocates begin as ``Specialist I,'' and based upon continued
development can apply to subsequent selection boards for designation as
``Specialist II'' or ``Expert.''
At the close of fiscal year 2018, there were 81 litigation track
officers--just under 10 percent of the Navy JAG Corps' officers. At any
given time, the vast majority of these litigation track attorneys serve
in billets for prosecutors, defense counsel, victims' legal counsel,
and trial or appellate military judges. During their careers, many will
serve as both prosecutor and defense counsel, giving them a balanced
basis for understanding the strengths and weaknesses of cases. Each
year, some litigation track officers are detailed to assignments
outside the career track, such as sea duty onboard aircraft carriers,
staff judge advocate billets, and assignment to post-graduate studies.
These assignments develop judge advocates as naval officers and legal
professionals by broadening their fleet perspective or providing
advanced training in litigation skills and processes.
Prior to the implementation of the litigation track, the Navy
typically assigned relatively junior judge advocates (i.e., senior O-
3s/junior O-4s) to fill senior trial counsel (STC) and senior defense
counsel (SDC) billets. The positions of STC and SDC were filled from a
pool of officers who rotated through a variety of different substantive
legal experiences unassociated with litigation. With typically one
prior litigation tour, these attorneys assumed responsibility for an
entire prosecution or defense office, to include all aspects of
investigation, charging recommendations or defense strategies, motions
practice, and courtroom arguments.
The Navy JAG Corps found itself detailing relatively inexperienced
counsel to senior litigation positions for a confluence of reasons:
officers were traditionally counseled that they needed a diverse career
path to promote; officers viewed other career paths (e.g., national
security law or environmental law) as being more promising; and ``born
litigators'' saw no clear future for themselves in the Navy, instead
choosing to leave for civilian positions with U.S. Attorney's offices,
Federal Public Defender offices, the Department of Justice, District
Attorney of Public Defender offices, or private practice. As a
consequence, our STC and SDC were ``generalists'' rather than
specialists, junior in paygrade, and relatively inexperienced given the
gravity of their duties.
In 2019, the Navy is reaping the benefits of our litigation track
initiative. A key aspect of the track is cultivating senior litigators
who can assume leadership positions and then supervise and mentor
junior officers. Officers who were selected for the litigation track in
2007 and 2008 have matured into senior officers, providing a nucleus of
litigation expertise--we now have 13 O-6s and 25 O-5s in the track. At
all nine prosecution commands, the STC is a track officer; and at
commands serving the largest fleet concentration areas, the STC is an
O-5, supported by two O-4 litigation track officers. The litigation
track also benefits sailors who are accused of crimes or who are
victims. At all four defense commands, the SDC is a litigation track
officer, and each command has at least one other track officer as well.
The Victims' Legal Counsel Program has two billets designated for
litigation track officers, and currently five such officers serve as
Victims' Legal Counsel.
Created in 2010, the Trial Counsel Assistance Program (TCAP) and
the Defense Counsel Assistance Program (DCAP) provide training to trial
and defense counsel worldwide, both in established courses and in
mobile targeted training, which responds to emergent issues in a
particular geographic area or judicial circuit. Equally important, TCAP
and DCAP provide real-time assistance in individual trials and vital
reach-back resources for litigators throughout the enterprise. A
critical aspect of the litigation track, both TCAP and DCAP are staffed
by track officers recognized as being experienced and proficient
litigators.
Finally, the litigation track also benefits our judiciary.
Currently, 12 of the 13 Navy military trial judges are litigation track
officers; all 12 have extensive experience in the courtroom, both as
litigators themselves and as supervisory counsel.
First Tour Judge Advocate Program. The Navy JAG Corps established
the First Tour Judge Advocate Program in 2012 to provide first-tour
officers exposure to the primary legal practice areas of judge
advocates in a more structured manner. Under the program, new judge
advocates spend 6 months providing legal assistance to sailors and
family members and an additional 6 months learning to advise Navy
commanders--most often as part of a command services department or as
an assistant staff judge advocate. Judge advocates also spend 1 year as
either an assistant prosecutor or defense counsel, working on court-
martial cases under close supervision of more senior attorneys. Under
this system, more senior attorneys are responsible for taking the lead
role in cases, and more junior attorneys can hone litigation skills and
learn about the military justice and administrative processes before
becoming ``core'' prosecutors, defense counsel, or victims' legal
counsel in subsequent assignments.
Region Legal Service Offices (RLSOs) and Defense Service Offices
(DSOs). The Navy's prosecution offices are aligned under nine RLSOs,
and the defense counsel offices are aligned under four DSOs. Both RLSOs
and DSOs report to Commander, Naval Legal Service Command (a flag
officer). This construct places both on an equal footing for personnel
and resources needed to ensure quality representation. This construct
also means that RLSO prosecutors who review Naval Criminal
Investigative Service (NCIS) investigations and provide prosecution
recommendations to Navy convening authorities do so from an independent
prosecutor's perspective. I will discuss later the process by which
Navy prosecutors tie in with NCIS, staff judge advocates, and
commanders who make disposition decisions.
victims' legal counsel program
Perhaps the most important change to the military justice system
over the past 6 years has been the victims' legal counsel (VLC) program
(in the Army and Air Force, this is known as special victims counsel
(SVC)). Originally an Air Force initiative, the SVC/VLC concept quickly
gained support and was enacted by the National Defense Authorization
Act for Fiscal Year 2014 and implemented by the Secretary of Defense on
August 14, 2013. It provides eligible victims of a sexual offense with
a dedicated attorney to help them understand the investigation and
military justice process, safeguard their legal rights and interests,
and obtain additional support in accessing resources that may assist in
recovery. Victims' legal counsel complement the care and support
victims receive from sexual assault response coordinators, victim
advocates, and in the case of domestic sexual violence, Family Advocacy
Program personnel.
The Navy's VLC Program currently includes 33 judge advocates
stationed at 23 locations around the world, all led by an O-6 chief of
staff and a senior civilian deputy chief of staff. The VLC Program's
chief of staff reports directly to commander, Naval Legal Service
Command, ensuring equal organizational standing with the chiefs of
staffs for RLSOs and DSOs. This arrangement keeps the VLC Program
visible to Navy JAG Corps leadership, and ensures prompt consideration
of policy matters and resource needs. We seek to maximize the
opportunity for meaningful connections between VLC and their clients.
Our actions include establishing a new VLC office in Sigonella, Italy,
based on feedback from commanders in that region; adding billets to
places where high demand for VLC services was noted, including Japan
and Norfolk; and issuing smart phones to enable counsel-client
communication by live video and text.
All VLC candidates are vetted for professional experience,
maturity, and judgment, and all candidates are personally interviewed
by Commander, Naval Legal Service Command and by me. Approved officers
serve as VLC for at least one 2-year assignment, and many continue to
serve a third year.
All VLC must complete the Special Victims' Counsel Certification
Course offered by the Army or the Air Force. VLC also attend
specialized courses such as Prosecuting Special Victims Cases,
Representing Child Victims, and the National Crime Victim Law
Institute. In addition to outside training and monthly internal
training, the VLC Program holds an annual training symposium, bringing
together attorneys and administrative support staff for instruction and
discussion covering areas such as vicarious trauma, child victims,
developments in the military justice system, veterans' benefits for
victims of sexual violence, and litigation strategies.
During fiscal year 2018, Navy VLC provided legal support to 1,890
sexual offense survivors (930 of whom were new clients during fiscal
year 2018), and had an average of 1,070 open cases. VLC participated in
approximately 490 military justice and administrative proceedings, and
conducted 676 outreach briefs to approximately 28,000 Active Duty and
civilian personnel.
The Role of Judge Advocates in the Investigation and Disposition
Process
Each commanding officer, executive officer, and senior enlisted
leader in the Navy is trained in person by a judge advocate on the
Military Rule of Evidence 514 privilege, retaliation, sexual assault
initial disposition authority, and case disposition reporting
requirements should a sexual assault allegation involve a member of
their command, whether as perpetrator or victim. These commander-
focused responsibilities include the formal reporting of sexual assault
reports, providing victim advocate support, processing requests for
expedited transfer, and issuing military protective orders when
appropriate. All commanders who have an open, unrestricted report of
sexual assault from a victim assigned to their unit attend a monthly
multidisciplinary sexual assault case management meeting to obtain
updates on case information and then personally relay this information
to the victim. This monthly meeting also assesses and refers for
appropriate action all reports of retaliation, ostracism, maltreatment,
or reprisal from a victim, witness, or first responder in conjunction
with a report of sexual assault.
The JAG Corps' nine RLSOs each have a trial department that
provides independent prosecution support to NCIS and to convening
authorities in their respective areas of responsibility. A Special
Victim Investigation and Prosecution (SVIP)-trained prosecutor is
assigned in every special victim crimes (SVC) case, either as lead
counsel, assistant counsel, or supervisory counsel. Assignment occurs
within the first 24 to 48 hours of report of the SVC case to the RLSO.
NCIS is required to notify the local RLSO within 24 hours of the report
of a SVC case, and within 48 hours, the NCIS case agent is required to
collaborate with a SVIP-trained prosecutor. The assigned prosecutor
maintains a close relationship with the investigating agents, and
tracks all active cases through an internal case management system
database.
After receiving an investigation from NCIS, the prosecutor reviews
the case and prepares a recommendation for the disposition authority.
For cases involving penetrative sexual assault, the disposition
authority--known as Sexual Assault Initial Disposition Authority
(SAIDA)--must be an officer in the grade of O-6 who has Special Court-
Martial Convening Authority.
The RLSO practice is to provide a written Prosecutorial Merit
Review (PMR) to SAIDAs for each sexual assault case. In cases where the
prosecutor recommends preferral of charges, the RLSO PMR provides an
outline of the case and offers a verbal briefing on the case. If the
prosecutor recommends not preferring charges, the PMR additionally
describes the basis for that recommendation. PMRs that contain a
recommendation not to prefer charges in cases involving penetrative
sexual assault must be signed by the RLSO commanding officer (a
command-screened O-6); in other cases, the PMR may be signed by the
senior trial counsel. Victim input on disposition is solicited and
included for consideration by the RLSO and the disposition authority.
RLSO recommendations are not binding on the disposition authority. The
objective is always to ensure the disposition authority decision is
informed by a thorough and independent prosecutor's assessment.
After preferral of charges that may be tried at a general court-
martial, a preliminary hearing officer conducts an Article 32
preliminary hearing and submits a written report to the SAIDA for
consideration, accompanied by comments and recommendations from the
prosecutor. If the SAIDA determines that referral to a general court-
martial is appropriate, the case is forwarded to the general court-
martial convening authority with a recommendation for referral to a
general court-martial. The general court-martial convening authority
considers the report of the preliminary hearing officer along with any
endorsements and recommendations, as well as independent advice from
his or her staff judge advocate prior to taking any action.
If the SAIDA declines to forward penetrative sexual assault charges
to the general court-martial convening authority, offenses other than
penetrative sexual assault may be referred to a special court-martial,
or disposed of through other administrative measures, such as
nonjudicial punishment, and/or an enlisted administrative separation
board, or a Board of Inquiry for officers. The SAIDA may also decline
to take any punitive or administrative action in a case. Following
conclusion of any sexual assault case, whether through the military
justice process, administrative measures, or no action, the case
disposition is recorded in a Sexual Assault Disposition Report, and the
victim is notified.
readiness to learn and adapt
As outlined above, the past 6 years have included organization and
process developments that enhance the Navy JAG Corps' ability to
further the Navy's sexual assault prevention and response efforts. But
we are not perfect. So we must be, and are, open to looking at where we
can do better.
One example is an ongoing assessment of the military justice
litigation career track. This assessment is intended to see if any
changes can better ensure the litigation track meets the needs of the
Navy for military justice expertise in a variety of roles.
Another example is our desire to learn from the material published
by congressionally-directed reviews. These reviews began with the
Response Systems to Adult Sexual Assault Crimes Panel, continued with
the Judicial Proceedings Panel (JPP), and are now ongoing with the
Defense Advisory Committee on Investigation, Prosecution, and Defense
of Sexual Assault in the Armed Forces (DAC-IPAD).
DAC-IPAD's Case Review Working Group plans to identify trends in
investigations, identify factors that may affect commanders'
disposition decisions, and assess whether those decisions were
reasonable. This independent analysis of 2,069 investigations in which
a servicemember was accused of committing a penetrative sexual assault
offense against an adult victim is the kind of detailed review--based
on real cases--that can help answer the important questions, ``How are
we doing?'' and ``What changes should be considered?'' Going further,
results from DAC-IPAD and other information can be taken into account
in future comprehensive reviews of the Uniform Code of Military Justice
required by article 140, UCMJ. The first such review is in fiscal year
2021, with subsequent reviews taking place during fiscal year 2024 and
every 8 years thereafter.
conclusion
The Navy remains firmly committed to combating sexual assault. I am
committed to equipping all members of the Navy JAG community, including
enlisted personnel, our civilian staff, and judge advocates, with the
tools needed to carry out our roles in this effort. I look forward to
working with Members of Congress to review our processes and ensure
that we are doing this in a fair, effective, and efficient manner.
Senator Tillis. Thank you.
General Pede?
STATEMENT OF LIEUTENANT GENERAL CHARLES N. PEDE, USA, THE JUDGE
ADVOCATE GENERAL OF THE ARMY
Lieutenant General Pede. Chairman Tillis, Ranking Member
Gillibrand, and Members of the committee, thank you very much
for the opportunity to appear before you.
We have the best Army in the world, and our Army is the
most effective force on the battlefield because our commanders
and our soldiers are the product of a system of accountability
that, at its core, has consequences.
A justice system that for 243 years has rested in the hands
of those who are responsible for the Army's mission to fight
and win wars. That is our commanders.
Like many on this committee, for over 15 years, I have
worked directly on confronting the issue of sexual assault. In
those years, I have worked on numerous legislative changes,
most especially article 120 beginning with the tectonic changes
of 2007. I was personally involved with Secretary Gerren's
efforts to resource the fight and had a direct hand in the
establishment of our special victim prosecutor program and
later our special victim counsel program. I appear before you,
however, today recognizing there is still much work to do. Our
first panel is a reminder of this sacred charge.
As the Army Judge Advocate General, I tell you that we
shall remain relentless in the Army and focused in getting
after this problem and in the protection of our victims, our
communities, and of course, always the rights of the accused of
these crimes.
In short, the commander has always been and must always be
the fulcrum to any solution in the Army. Look at our current
housing crisis. We outsourced responsibility for housing our
soldiers to privatized partners. Who do our families look to
for solutions? Who do you look to to drive change? Soldiers
look to their commanders. Every town hall is hosted by a
commander. Will every commander deal with mold or leaky
basements perfectly? Of course not. But there is no set of
leaders on this earth better trained, better resourced, and
more consistently successful than an American commander.
In my view, so it 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 in the military excludes commanders.
The notion that stripping commanders of authority over serious
crimes will reduce crime, result in more or better
prosecutions, or higher conviction rates in my view and
experience simply is not supported by any empirical evidence.
Indeed, the proposition is actually disproved by the empirical
evidence.
We know this. In the multitude of congressionally mandated
studies where diverse panels of experts have exhaustedly
examined the military justice system, hearing hundreds of
witnesses and thousands of hours of testimony, they reported
back to you one critical consistent conclusion: the commanders
should not be removed from the military justice system.
The scope of the sexual assault problem and crisis is as
big as the society from which we draw our soldiers. As you
know, the Army is refreshed every year with 75,000 new soldiers
from every city in America. We are drawn from our society and
we face the same problems. In a timely illustration of the
breadth of the sexual assault problem, a highly esteemed
university recently released the results of a prevalence study
wherein nearly half of their female undergraduates said they
were sexually assaulted since enrolling at the university. A
staggering 48 percent. These females reported an annual rate
between 18 and 22 percent.
I share these statistics not to place blame elsewhere or to
distract from the Army's 4.4 percent prevalence data or the 18
percent recently reported at our military academy or to suggest
somehow that the Army is like a university because it is
certainly not. But the numbers at the university speak to the
pervasiveness of the problem in our society at large,
especially within certain demographics.
Despite the challenge, the Army owns this problem.
Discipline is, as George Washington said so many years ago, the
soul of an army. It is foundational. It is our DNA.
In my professional view, taking away a commander's decision
over discipline, acts of misconduct, including the decision to
prosecute crime at court martial will fundamentally compromise
the readiness and lethality of our Army today and on the next
battlefield.
Congress and the Services have made unprecedented strides
to attack this crime. Our statute is aggressive, expansive,
forward-thinking. In Army courtrooms 10 years ago, sexual
assault offenses comprised 18 percent of Army trials. This past
year, 50 percent of Army trials were sexual assault trials. Our
statute gave voice to victims. Our SVC program gave voice to
victims.
We know there is much that remains to be done. We promise
you we will continue to get after it, and I thank you for your
time.
[The prepared statement of Lieutenant General Pede
follows:]
Prepared Statement by Lieutenant General Charles N. Pede
commanders' central role in enforcing discipline--the key to readiness
and lethality
Chairman Tillis, Ranking Member Gillibrand, and Members of the
Senate Armed Services Committee, thank you for the opportunity to
appear before you and speak with you on this important issue.
The American Army is the best Army in the world. But, as the
National Security Strategy wisely recognizes, ``America's military has
no preordained right to victory.'' Countless attributes make us the
best, but first among these, are our leaders--courageous, responsible,
and committed to the care of soldiers who are willing to give their
lives for this Nation and for their fellow soldiers.
For over 243 years, commanders in our Army have led this
exceptional force through the careful exercise of discipline.
Discipline is, as George Washington stated, ``the soul of an Army.''
Discipline is foundational; it is in our DNA. In my professional view,
taking away a commander's decision over all discipline--including when
appropriate, the decision to prosecute crimes at court-martial--will
fundamentally compromise the readiness of our Army today and on the
next battlefield.
This is especially true for serious offenses, like sexual assault.
Ten years ago, sexual assault offenses comprised 18 percent of Army
trials. In 2018, 50 percent of trials in Army courtrooms were sexual
assault trials. This is not a coincidence. A new statute in 2007
strengthened the voice of victims. Additional reforms within the Army,
such as the special victim prosecutor, special victim teams, and the
special victim counsel program have changed the landscape of
accountability and improved the administration of justice. Within this
framework, leaders developed a comprehensive prevention program and a
fully resourced accountability process that put emphasis and resourcing
in the hands of commanders to address the problem. This is what
commanders do: commanders see a problem, and in response, they set
priorities and standards, enforce them, and devote resources to solving
the problem. Indeed, Congress and the Services have worked closely
together over the intervening years to reform and improve our
prevention and response measures. With congressional assistance, the
military justice system has undergone truly unprecedented reforms--many
of which took effect only 9 weeks ago.
commander authority and accountability
An expeditionary Army requires a justice system that is portable,
swift, just, and transparent. Soldier behavior is governed, built,
shaped, and reinforced over a soldier's career by commanders and
leaders who set and model standards, and who punish bad behavior.
The commander is vested with that authority because he or she is
accountable for all that goes on in the unit--in conflict or in peace,
at home or abroad. The commander--trained, experienced, and in
partnership with his or her judge advocate legal advisor--must be able
to dispose of indiscipline quickly, visibly, and locally. A commander
who is denied the tools necessary to combat a crime will not be as
accountable for preventing that crime as one who is appropriately
equipped with that necessary authority--accountability for something
must depend on the authority to do something about it. This is as true
for sexual assault and other serious offenses as it is for any other
crime.
Although American soldiers are the world's best, it is, ultimately,
a commander's authority to enforce discipline--including, when
appropriate, by the highest sanction our society recognizes, a criminal
conviction imposed after a fair trial--that ensures American soldiers
uphold the high standards of behavior expected of them, in war and in
peace. The chain of command is, and must remain, the center of gravity
for solutions. This includes sexual assault.
Commanders have the moral and legal authority to drive the United
States Army toward preventing significant crimes in a way that lawyers
do not. Courts-martial of soldiers accused of murder in violation of
the Law of Armed Conflict, for example, have drawn criticism from some
commentators as examples of lawyers applying unreasonable laws to
prosecute American heroes. Over the past 18 years, the Army has tried
over 790 courts-martial in a deployed environment. That is almost 800
instances where a commander decided to emphasize good order and
discipline in order to achieve greater ends on the battlefield.
Importantly, only 10 percent of those 790-plus cases were purely
military offenses.
The commander ensures soldiers retain their dignity in combat. One
necessary method to enforce battlefield standards is through the court-
martial. Indeed, at its foundation, the preservation of good order and
discipline is why the commander has this authority. James McDonough
expressed this notion most eloquently in his famous book Platoon
Leader, an autobiographical account of his experience leading soldiers
in Vietnam. ``I had to do more than keep them alive. I had to preserve
their human dignity. I was making them kill, forcing them to commit the
most uncivilized of acts, but at the same time I had to keep them
civilized. That was my duty as their leader. They were good men, but
they were facing death, and men facing death can forgive themselves
many things. War gives the appearance of condoning almost everything,
but men must live with their actions for a long time afterward. A
leader has to help them understand that there are lines they must not
cross. He is their link to normalcy, to order, to humanity. If the
leader loses his own sense of propriety or shrinks from his duty,
anything will be allowed. And anything can happen.''
As good as Army lawyers are, they cannot substitute their legal
experience for a commander's expertise and moral authority in the unit.
It is this moral authority (highlighted by McDonough) that soldiers
follow, even at the risk of their own lives. If that authority is
outsourced--even to lawyers in uniform--soldiers will lose respect for
their commander and the natural constraints command authority places
upon them. Further, commanders are uniquely suited to address insidious
behavior within the unit stemming from reports of crimes. For example,
commanders understand that retaliation against victims who report
sexual assault is a very real threat to victim safety, readiness, and
unit cohesion. Commanders are in the best position to take meaningful
action to address retaliation.
Retaliation for any report of a crime is unacceptable. By policy,
any allegation of retaliation must be thoroughly investigated. On
January 1, Article 132--the first punitive Article that expressly
prohibits retaliation--went into effect. Even before January 1, though,
commanders have prosecuted crimes that affected witnesses in the
military justice system, from violating a no-contact order to
obstruction of justice. Social retaliation is complex: although clearly
harmful, much of it is not criminal, but a commander's commitment to
fostering an environment in which victims are supported is key to
establishing a culture in which such acts rarely occur.
calculus in command decisions--good order and discipline
I fully acknowledge that the Army is not a perfect institution when
it comes to addressing sexual assault and sexual harassment. We will,
like any institution or system, make mistakes. But we are an
accountable organization, one that subjects itself to a level of
scrutiny for which there is no parallel in civilian society. I believe
this is what we owe the mothers and fathers who send us their sons and
daughters.
Some may point to prosecution or conviction rates and argue that
these are litmus tests of our ability to handle sexual assault cases. I
do not agree. Just because something can be measured does not mean it
is a valuable metric. Conviction rates are the quintessential poor
metric: they are simple to record, yet they reveal little.
Further, no criminal system should be graded by a conviction rate
alone. Show me a 98 percent conviction rate, and I'll show you a system
that doesn't try the hardest cases. Nonetheless our overall conviction
rate is 86 percent. It is true that a narrow subset of fully-contested
sexual assault cases is lower--around 40 percent in any given year.
Yet, some cases that should be tried are also harder to try than
others. To take these deserving cases to trial means accepting a lower
conviction rate. And anyone who has experience in trying sexual assault
cases will acknowledge this fact--these can be, quite simply, the
toughest cases often for such reasons as the victim's word against the
accused's, alcohol, bad memory, and little-to-no physical evidence or
witnesses.
I embrace the criticism that comes with trying these hard but
meritorious cases. We will take cases to trial that a civilian
jurisdiction will not because our commanders have a different
calculus--one based on the unique requirements of discipline in a
warfighting Army where soldiers must rely on each other, have
confidence that they can count on the person to their left and right,
and that when one soldier gets out of line that their commander will
fix the problem and enforce the standard. Whether it is weapons safety
or victim safety, this is the essence of discipline. This is good
order. This is what commanders enforce. And so, a commander's
discipline, good order, and safety calculus is different from any
United States district attorney's (DA), commonwealth's attorney's, or
state's attorney's calculus.
A commander may decide to prosecute a case of an aircraft mechanic
who distributes small amounts of cocaine to his fellow soldier
mechanics even when the local DA's threshold may be higher. Why? The
commander may have 12 soldiers on that Blackhawk tomorrow. Our calculus
in the best Army in the world is simply different.
So it is with sexual assault crimes for which there may be little
corroborative evidence. Law enforcement and judge advocates spend
significant time developing cases and assessing the available evidence.
Based on that work, our commanders take cases not because they know to
a certainty that the Government will win, but rather when they believe
the victim and that victim seeks justice in court and there is a
reasonable chance of a conviction--and then only after receiving the
benefit of their judge advocate's thorough review of the evidence. When
that is true, the crucible of the courtroom--bound by the requirements
of due process--is the American way of deciding what the facts are. We
must remember that the military justice system is an adversarial
criminal process that must honor the non-negotiable constitutional
protections for an accused. Our scales of justice are balanced for
sound reasons--our sacred charter is to ensure we show proper respect
for both sides of the scale.
Commanders must also carefully consider the concerns of the victim
and the safety of our community when addressing any allegations of
crime--most especially sexual assault. As a society, we must be
concerned for the victim, but we cannot lose sight of the potential for
future victims, should an accused not be prosecuted and held
accountable. In a recent case where a victim declined to participate in
a rape prosecution, the United States, after careful, thoughtful
consideration, decided to subpoena the victim, who ultimately
testified, albeit reluctantly. The soldier was convicted and given a
lengthy sentence. This is a rare occurrence, admittedly, but noteworthy
as it is a reminder that the safety of our community is one of the
foundational principles of every criminal justice system, to include
our own. It can be a very difficult balance with many considerations:
we must also think of how forcing a victim to participate in a
prosecution might negatively affect reporting in the future as word
potentially spreads. Yet, public safety is paramount.
congressionally mandated empirically based commissions have concluded
commanders should remain in the system.
The proposal to remove the commander from the military justice
process is not a new one. Significantly, where the role of the
commander has been thoroughly examined, the conclusion is clear:
removing commanders from the military justice process will not improve
either reporting or prosecutions of sexual assault.
Over the past several years, three significant external reviews
have examined the military response to sexual assault and each of those
reviews has focused on the role of the commander. Not one has
recommended removing the commander.
The congressionally-mandated Response Systems Panel (RSP), which
consisted of nine civilian members, led by retired federal Judge
Barbara Jones, exhaustively studied sexual assault in the military:
more than 70 public meetings, testimony from over 600 witnesses, 10
site visits, and thousands of pages of information. Multiple advocacy
organizations were invited to submit materials and appear before the
RSP. This was, in short, a comprehensive, evidence-based review of our
system by outside experts.
After conducting their thorough review of the military's response
to sexual assault, the RSP found the evidence did not support the
conclusion that removing commanders would reduce sexual assault or
increase reporting. It would not, the RSP concluded, improve
investigations or prosecutions. Finally, and importantly, the panel
concluded removing the commander would not increase victim's confidence
in the military justice system or reduce concerns about potential
reprisal.
More recent evidence suggests that commanders are making sound
decisions in sexual assault cases. The Defense Advisory Committee on
Investigation, Prosecution, and Defense of Sexual Assault in the Armed
Forces (DAC-IPAD), another congressionally-chartered commission,
recently released the preliminary results of a study in which members
evaluated a commander's disposition decision in 164 randomly selected
cases--74 percent of which did not involve a court-martial. That
ongoing review, conducted largely by lawyers, concluded in a
preliminary report that commanders' decisions were reasonable in 94
percent of the cases, and even in that 6 percent remainder, more often
than not, the attorneys could not come to a unanimous conclusion on
whether the commanders' decisions were reasonable or not. This
demonstrates that even trained, experienced lawyers can disagree,
especially in these tough cases.
When evidence shows that change is needed, the Services have
welcomed it. Indeed, following the RSP, the Services embraced reviews
by the Judicial Proceedings Panel and the Military Justice Review Group
(MJRG). In particular, from 2014 to 2015, a Secretary of Defense-
established entity, the MJRG, which included judge advocates from each
of the Services, comprehensively reviewed the UCMJ and identified areas
in which we could strengthen our system.
Congress accepted most of these recommendations, and with the
Military Justice Act (MJA) of 2016, the most significant changes to the
military justice system in more than 50 years went into effect. Over
the 24 months that followed passage of MJA 16, our Military Justice
Training Team trained over 6,000 people at 50 installations, in 23
states and 6 countries on the changes brought by MJA 16. Though it is
too early to reach any conclusions about those changes, one thing is
clear: we welcomed them, trained accordingly, and are focused (along
with commanders) on moving forward and improving our system.
Of course, the sweeping changes to our criminal justice system by
MJA 16 follow successive years of hundreds of statutory and policy
changes to our criminal justice system. For any criminal justice system
to be effective, it must be predictable and stable. Article 120, UCMJ,
alone has undergone four substantive changes in 10 years, and the
statute we have is indeed the most progressive and responsive sexual
assault statute in existence. Yet, even justified change carries the
risk of unintended consequences. Only because of the energy and skill
of judge advocates across the Services and the flexibility and
adaptability of our commanders have we been able to absorb the sheer
volume of changes and ensure justice is done. Yet, with every change,
there exists an element of judicial uncertainty. Take, for example, the
challenges made to the burden-shifting elements in the 2007 version of
Article 120. In those cases, victims who came forward and bravely gave
testimony saw those cases overturned at the appellate level. We must,
as responsible policy makers, allow the system to breathe normally for
a period of time to absorb the changes.
allies' experience and historical context
Many of our allies have seen commanders removed from disposition
decisions for cases involving serious misconduct, and it can be
tempting to want to follow suit. Of course upon closer inspection, none
of our allies made this change because of concerns about sexual
assault. Their experiment in removing commanders has also shown that
there is no evidence that removing commanders from disposition
decisions has made their armies more ready or lethal by reducing
incidence of serious crimes like sexual assault.
The past can also be instructive. In 1947, General Eisenhower (then
the chief of staff) testified before the Senate Committee on the Armed
Services and when asked about the commander's role in military justice,
he said something prophetic: ``Remember this: you keep an Army and Navy
to win wars. That is what you keep them for. The line officer is
concerned with the 4,000,000 men on the battle line far more than he is
with the small number who get in trouble. The lawyer is there, of
course, to protect their absolute rights under our system to the
ultimate, but these men who are in charge of and are responsible for
these things which come from the President through the Secretary of War
to the commanders, have to win the war.'' General Eisenhower continued,
``If you make a completely separate staff body to whom is charged no
responsibility for winning the war and you say, `you can do as you
please about these people,' you are going to have trouble.''
ongoing efforts
Commanders and their judge advocates have spent the last 12-plus
years focused on preventing, and responding to, sexual assault, with
positive results, including an increase in victims reporting, seeking
services, investigations, and prosecutions. There have been
improvements, but like any such effort, there will be some setbacks,
such as the recently released prevalence reports from the academies.
We know that there remains much more to do, and the Army remains
committed to doing it. Like the rest of society, we cannot prevent
every crime, and we cannot, consequently, prosecute our way out of this
problem. What we can do is continue to make preventing sexual assault
the priority it must be--which is something that, in the military, only
commanders can do. We can hold commanders accountable, but only if we
give them the authority that they need.
In the end, commanders drive priorities and emphasis on those
priorities yields results. Commanders, not uniformed prosecutors, are
in the best position to make decisions affecting good order and
discipline because, in the end, it is ultimately a commander's
responsibility to ensure good order and discipline--a well-trained,
well-equipped, and well-disciplined force that is ready for any mission
that they are assigned.
I thank the committee for your attention and the opportunity to
speak with you today, and I look forward to answering your questions.
Senator Tillis. Senator Scott, I know is going to go vote.
You had a brief question?
Senator Scott. First of all, thank you for your concern
about this. Thanks for your service and thank you for your
commitment.
The first thing is, has anybody been held accountable--has
any commanding officer been held accountable for their failure
to properly deal with sexual harassment? Does anybody have any
examples of people that have been held accountable for not
handling it the proper way?
Lieutenant General Pede. Sir, I can tell you that we have--
if we speak to retaliation issues, we have--I have got a number
of cases this year in fiscal year 2018 where I can identify
command elements, either the officers that were responding to
the allegations, similar to things described in the first
panel, that were held accountable. I do not have evidence of
courts martial.
I would simply offer to the committee that notions of
retaliation comprise a spectrum, and some of it is very
difficult to criminalize with criminal sanction. But that which
is, we have a couple cases where it resulted in a charge at a
court martial. But it is very difficult thing to get after
criminally, sir.
Senator Tillis. Senator Scott, one thing I will tell you is
that one of the privileges that Senator Gillibrand and I have
as the chair and the ranking member is that we are consulted
with promotions that are sent forward. One of the questions
that I have asked of the DOD is if those are ones that pass
muster within the Department in each of the branches. I know
that some promotions are held back as a result of somebody's
adverse activities being in the file, and then some make it
past, a handful that come before us. I will guarantee you if
there is any credible evidence in a file, that person will
never get promoted as long as I am in the U.S. Senate. I said
there is that congressional responsibility as well. It is not
foolproof. I do think that there are probably other actions
that we need to take, but there are those checkpoints that you
may not have been familiar with being relatively new to the
committee.
Senator Gillibrand, I think Senator Scott and I are going
to go vote. The cloakroom said they are going to close in about
5 minutes.
Senator Gillibrand. Lieutenant General Rockwell, your
prepared remarks were inaccurate. You said that as further
evidence by an increase in investigations, prosecutions, trial,
and appellate litigation. In fact, just looking at the last 3
years, we have seen such a reduction in performance, it is
mind-blowing. In 2015, 46 percent of the cases were command
action considered; in 2016, 47 percent; and 2017, 53 percent.
So you assume the commanders are looking at more cases and
they had actually sent more to trial. No. So in 2015, 33
percent went to trial--excuse me--court martials preferred. 33
percent were court martial preferred; 2016, 27 percent; in
2017, 22 percent.
You would say, well, at least more must be going to trial.
Right? No. In fact, in 2015, 20 percent went to trial; in 2016,
13 percent went to trial; in 2017, 11 percent went to trial.
You say, well, surely convictions must be up. No. In fact,
in 2015, 15 percent were convicted, 413 cases; in 2016, 9
percent were convicted, 261 cases; and in fact, in 2017, 8
percent resulted in conviction, 284 cases.
So we are not going in the right direction on any possible
measure that you could create.
What I am most disturbed about in your testimony is that
you feel you are doing a good job, and I am just trying to tell
you if commanders are in charge of good order and discipline,
then why do we have a 59 percent retaliation rate? Why do they
allow so much retaliation to happen in the ranks, both
professional, both career-wise, and both peer-to-peer? Look,
all of these forms of retaliation sit within your jobs of
maintaining good order and discipline.
So I am very concerned that you are not even briefed well
by your people who are helping you to be here to testify
because I am sure you did not mean to testify a false
statement, General Rockwell. I am certain of that. But the
person who wrote your remarks did not look at the actual facts.
So it is disturbing to me that you might not realize the depth
of the problem, the depth of the absolute problem.
No one is trying to make commanders less responsible.
Nobody. We would like you to maintain good order and
discipline. We would like you to stop retaliation. We would
like you to stop sexual assault. We would like you to prevent
sexual assault. But when it comes to the technical decision, as
if there is enough evidence that 3 percent of you who get to
decide this, let us leave it to an expert, someone who is
trained in criminal justice, who has prosecuted cases and
defended cases, somebody who has a career in it because you are
trying to make these decisions yourself, and it is only 3
percent of you anyway. It is not the average commander. We are
not making you less responsible. We are taking one thing off
your to-do list that you are not very good at. That is it. We
are just taking one thing off your list.
To say that we are making commanders less involved is a
false statement because, first of all, 97 percent of you never
have the right to be a convening authority. You are just not
senior enough. You are not there. You will never have that
right. 97 percent of you have to instill good order and
discipline and not have the right to decide whether a case goes
to trial.
When we had a hearing about article 60 in the beginning
of--6 years ago, every commander said, oh, commanders must have
the right to overturn a jury verdict because that goes to these
things that you mentioned, Vice Admiral Hannink. You say we
have to be able to assess the effect on morale, safety, health,
and wellness of the unit. Well, you insisted that you have this
right. The Secretary of Defense said, yes, it is a vestige of
pre-World War I. We really do not need it. Everyone said, oh,
yes, it was not necessary.
I promise you this is the same thing. You do not need to
decide a technical decision about whether a felony has been
committed. You do not need to do that because your job is to
make sure that crimes do not get committed, to make sure they
get investigated properly, to make sure there is no
retaliation, and to make sure you have unit cohesion, and that
you actually have good order and discipline, and you do not
have 15,000 rapes, sexual assaults, and unwanted sexual
contacts a year.
So that is the truth of the matter, and so your testimony
is leaving me wanting because I do not think you are up to the
task. Every Secretary of Defense for 20 years has said zero
tolerance. Never would you accept this level of failure for any
other mission you are asked to complete. Never. Never would you
say over 25 years, we have been doing our best, zero tolerance,
and still have a conviction rate of 3 percent. That is so sad.
And, yes, you are right. There is sexual assault
everywhere, in society, at college campuses, in the military.
The reason why I am spending so much time trying to
professionalize the Services is I want you to be state-of-the-
art. I want the world to look to the U.S. military and say,
yes, we have the greatest men in the world and women, and we
have the greatest ability to win wars and to keep national
security. We have the best and the brightest. So why not give
you the tools that I really think you need to be really good at
this too?
A lot of DAs around the country are terrible at this. DAs.
They are professionals. Their conviction rates are terrible
because they do not handle sexual assault well.
So why not, as the Navy has done, allow for a
professionalization of their JAG system to become career
criminal justice lawyers? It is exactly what all the Services
should do. Then let the prosecutor make the ultimate decision
about whether there is enough evidence to go forward to convene
a court martial. There is no reason why commanders should not
opine on it, should not be part of the process, should not
influence the process. But just let it be a technical decision
because as our defendants' rights advocates have said, why do
we want to push the scales either way?
I think a lot of commanders did overreact and say, oh, I am
going to send every case to court martial. Well, maybe they
did, but if you are sending false cases forward, you are not
going to instill confidence in the system. If all of your cases
that you move forward end up not convicting and saying that it
did not happen, do you think a survivor is going to think that
system works? No. So you only want to send forward the cases
that actually have the legitimate basis and have the evidence
that a prosecutor would look at and say, ``I can win this
case.''
I would love to work with all of you on trying to address
how we deal with sexual assault better. I do not think you need
to retain this right. I think it is a red herring to say we are
making you less in charge. We are not. We are just taking one
technical decision away so that when Senator McSally testified
she was actually assailed by her commanding officer, that a
survivor can say the chain of command still has my back because
you need to have their back. Let someone else decide, who has
no skin in the game, who just is going to make a technical
decision on the merits of the evidence.
I do not think you should fight me on this. I do not think
you should fight the millions of survivors who have said this
is the one change they want in criminal justice. That is all
they are asking, for one change because they just feel like if
there is no skin in the game, if there is nobody who has a bias
against the accused or against the accuser, that in fact
justice might be possible.
If you had a higher conviction rate, to Senator McSally's
question, what do you do about the culture? I promise you if
more bad guys went to jail for sexual assault and rape, you
would have less sexual assault and rape. It is how it changes.
I have gone over my time. I do not have questions for any
of you. I just want you to know that I deeply want to work with
you on this. I want to solve this problem. I think our failure
in this is embarrassing.
One thing that Senator Tillis asked about was other
jurisdictions. So Israel did it in the 1960s. The UK [United
Kingdom] did it maybe 10 years ago. Australia, Canada, Germany,
Netherlands--all of them took this one decision point out of
the chain of command for one reason. They did it because of
defendants' rights. They thought if you can put someone in jail
for more than a year of their life, why not allow a
professionalized system to look at it.
We know our commanders have so many responsibilities. We
know they do an amazing job in winning wars and training
troops. I do not know why we ask them to be good at sexual
assault cases. It is the hardest case in the world to
prosecute. It is the hardest case in the world to get right.
People who professionalize in this area still do not do very
well at it.
That is my only request. Please work with me on these
issues.
I am now going to put our hearing in recess to go vote.
Thank you for your service. Thank you for your commitment, and
thank you for your dedication to our country.
[Recess.]
Senator Tillis. We will have the committee come back to
order.
It turns out I was off by about 20 minutes. Apparently the
15-minute vote was roughly 40 minutes.
So I suppose I may be the final person to ask questions.
General Pede, I want to start with you. You were talking
about the empirical data in your opening comments that would
seem to refute the benefits or that it would produce numbers
that would, on their face, be an improvement. Tell me more
about that and what the basis of the research was.
Lieutenant General Pede. Mr. Chairman, yes, thank you.
I was referring in particular to the various commissions'
studies that have been directed through congressional and DOD
oversight, beginning with the Response Systems Panel, then
followed by the Joint Judicial Proceedings Panel, and then now
we have the--well, it is called DAC-IPAD for short. But it is
reviewing our cases, our investigations, and our prosecutions.
So taken together, although DAC-IPAD is still meeting and their
results are preliminary, the Response Systems Panel spoke
directly to the issue of the role of the commander.
In fact, if I can say in my experience, most were inclined
to support Senator Gillibrand's bill as they began their work
with that committee. In particular, Representative Holtzman was
quite clear on the record that her mind was changed through the
course of, I think, over 60 public hearings and thousands of
witnesses' testimony. She changed her mind. She saw no evidence
that taking the commander out of the process of justice would
solve anything, whether it would improve prosecutions or
anything. So her testimony, her statements are quite
compelling. But the RSP actually published a statement to that
effect as well, sir. The Judicial Proceedings Panel drew
similar results.
That is particularly what I was referring to, and then my
own sense, sir, of the empirical data that I know dealing with
commanders and dealing with lawyers. My experience is that the
desired end state of some kind of improvement, whatever that
might be, if it is more prosecutions, higher conviction rates,
will not result by removing commanders. That was the context of
my statement, sir.
Senator Tillis. Does anyone else have to add to that? I
have other questions.
Vice Admiral Hannink. Sir, I would just add the feedback I
received from our victims legal counsel is that the role of the
commander is not the thing that factors into the concerns that
they are hearing. They deal a lot with the peer ostracism that
was talked about in the last panel. But I think the sense that
I get from them kind of reinforces what the Response Systems
Panel indicated which, as General Pede said, found no evidence
that removing the commander would decrease sexual assaults or
increase reporting.
Senator Tillis. I did want to go back and ask about in the
first panel the discussion of the Fort Rucker incident and the
SHARP office. Can I get some information from you, General
Pede, on exactly what actions occurred after this was brought
to your attention?
Lieutenant General Pede. Sir, yes. Again, I would start by
offering this committee and you, sir, an acknowledgement that
we are not perfect and we will make mistakes. That
investigation, the manner in which Ms. Bapp described some of
the errors in the processing of her allegation were mistakes
made at the local level. When we became aware of those, the
Army took notice of that. Fort Rucker itself conducted an
investigation, and because of our concerns about what we were
hearing, the TRADOC commander, the four-star level commander,
decided to conduct an investigation. So we had a very senior
level oversight look that discovered and examined the details
of, from A to Z, what we think happened in her particular case.
We identified errors, and as a result, certain required
actions were directed to fix those. One was the training of
certain SHARP personnel. One was the termination of SHARP
personnel. There were other actions taken. The forms that were
used, for example, were out of date. All of that has been
fixed.
Subsequent to that a DA-IG [Department of the Army
Inspector General] investigation was conducted to ensure
compliance with the requirements of the program and that
yielded a positive report back that things had been fixed at
that location.
Then, of course, sir, I would offer that Army senior
leadership was very concerned as well. They looked at this case
very carefully and took appropriate action.
Senator Tillis. In the prior panel, I asked a question
about our allies who have moved to a program similar to what is
being proposed by Senator Gillibrand, or frameworks. And they
were doing it, at least based on the information that I have
read, to protect the rights of the accused.
There have been some who have said that the standard of
evidence or proof, if you were to move this out of command, is
a higher bar, and you could have a risk of fewer cases actually
being brought forward. Do you all agree or disagree with that?
General Lecce, we will start with you.
Major General Lecce. Thank you, Mr. Chairman.
I have to state that in the current process, there are
lawyers throughout the process, sir. So from really the
inception, as we have been briefing, the victims legal counsel
is involved in the case, and that as it moves through, we have
specially trained prosecutors, special victims investigation
prosecutors, and a full team that deals with these cases, sir.
Additionally, each general court martial convening has a staff
judge advocate assigned who provides advice. So regarding the
entire chain of command, lawyers are involved providing advice,
good, sound, and accurate advice, on how to handle cases.
Frankly, I think if you took the commanders out, then you
strip the system of the bedrock, the mantel of command, sir,
and that is the welfare of all the marines--for the Marine
Corps--under his or her command. That includes the victim and
the accused and the unit itself, sir.
So if you took the commander out, how would that affect
prosecution rates? I could not say exactly, sir, but I do not
think that you would see an improvement in the rates. You
actually might see a decline, sir.
Senator Tillis. Anything to add down the line and Dr. Van
Winkle, of course.
Lieutenant General Rockwell. Mr. Chairman, that was driven
by a European Court decision, and it was focused on accused's
rights, defendant's rights, which drove that decision or some
of that pressure to remove the commanders from that process. We
do not see any evidence that it has gotten better--sexual
assault and how we handle it across the board--in looking at
those systems. We are hesitant to look at those systems because
we do not tell other countries how to do things, but we are
convinced things have not gotten better and probably have
gotten worse with regard to attacking sex assault based on that
unity of command and unity of effort and continuum issue that
we see.
Senator Tillis. Admiral, anything to add?
Vice Admiral Hannink. I would just add it is very clear
that probable cause has to exist for charges to be referred. In
the non-binding disposition guidance that was required by the
Military Justice Act of 2016, put out by the Secretary of
Defense, it also requires consideration of whether admissible
evidence will likely be sufficient to obtain and sustain a
conviction in a trial by court martial. So I think that
standard is there, and I think in the Navy, just like in the
Marine Corps and the other services, lawyers are there in a
process talking to and informing the commanders at every step.
Senator Tillis. What do you say to the--and, Dr. Van
Winkle, I see you taking notes. So I want to come back to you
and maybe you do cleanup on some of the questions, or I should
say not cleanup, but you know, like in baseball.
What about the pushback that says, yes, I have got a
lawyer, but it is not a trained lawyer? What is your response
to that? I got a lawyer, but they are not somebody who is an
expert in sexual assault. I do not know what your resources are
and who is in the loop when you have legal advisors, but how
would you all respond to that assertion? We will start with
General Pede.
Lieutenant General Pede. Sir, with respect to the last 10
years in particular, we have devoted extraordinary attention to
the development of expertise in the prosecution, and defense as
well, of sexual assault. So whether it is not a prosecutor and
a prosecution function, defense function, and now the special
victim counsel, sir, superbly trained--I just attended and
spoke to a course in our JAG School in Charlottesville, our
special victim counsel course. The training is just top notch.
So the level of training and experience that counsel for each
of the components of our system is superb. They are well
trained. They are also well exercised, sir. The number of cases
that we have, as you know, is going up. The allegations are up,
and that requires a level of robust energy that I think we
would all admire.
That does not mean we are not making mistakes, sir. That
does not mean there is not a learning curve. There is. It is
very, very hard. These are the hardest cases to try and win and
also to defend, sir.
Senator Tillis. Similar position among the others?
Vice Admiral Hannink. Yes, sir. In the military justice
litigation track that I mentioned, we have 81 officers in
there. That is about 10 percent of our Navy JAG Corps: 16
billets on the prosecution side, 14 on the defense side. We
currently have five in victims legal counsel. These are people
who, through the course of their career, are spending the
majority of their tours in military justice in the courtroom or
helping victims.
Senator Tillis. Is that somewhat unique to the Navy?
Vice Admiral Hannink. I believe that we are the only one
with a track, but the other Services can tell you how they try
to develop similar capability.
Senator Tillis. General Rockwell?
Lt. Gen. Rockwell.Yes, sir. It is similar if you look
across the Services. Although we may not call it a litigation
track, we have a military justice capability that includes
significant litigation. When you look at it from an
institutional capability across the Services--and I think you
need to look at it from a special victims prosecutor
standpoint, which we have several of who handle these complex
cases, particularly sex assault--equally our defense counsel
are getting very smart in these cases. Our victims counsel are
phenomenal.
Our victims counsel are driving change. A lot of times, we
say they are too young and inexperienced to help this effort. I
think it is the other way around. They are actually young and
know what they are doing, and they are telling us things that
otherwise we would not know about. The power of that program is
phenomenal. When you bring all these pieces together, I think
we all equally have an institutional capability that is as good
as anyone's.
Senator Tillis. General Lecce?
Major General Lecce. Mr. Chairman, I have almost 70 LLM,
master of law, trained judge advocates in criminal justice.
They all have their advanced degree. They rest both on the
trial and the defense side. In any complex litigation, sir,
involving felony level, including all sexual assaults, these
cases are handled by a complex trial team that is made up of--
4409 is the additional MOS. That is an LLM trained criminal
prosecutor and a civilian, a GS-15 level attorney advisor that
has a lot of experience and provides expert advice. Also, sir,
we have a specially trained SVIP, as we call it, special
victims investigative prosecution investigator, a CID
investigator also assigned to the team, along with a legal
administrative officer. That is for every case. Every case that
is at this level, felony level case, gets this team assigned.
Resource-wise, looking at my civilian counterparts, I think
I outpace any of them. Getting to Colonel Christensen's point,
what we do not have is the number of sets and reps, which may
be a good thing because we do not have the level of sexual
assault that is occurring out in the civilian world. But I will
match my team against any team that you have out there on the
civilian side, sir.
Senator Tillis. Dr. Van Winkle, in the prior panel CALISTO
was mentioned as a tool that allows victims to possibly connect
the dots. I think most of what I have read suggests that
somebody who is guilty of sexual assault seldom does it only
one time. Have we taken a look at this as a tool that we could
use within the DOD?
Dr. Van Winkle. We have, and thanks for the question.
Trying to get folks to come forward and report is our
primary way of holding offenders appropriately accountable. So
it is very critical to us to get more people to come forward
and report, understanding it is a personal decision, and we
certainly rely on the victim to make that decision themselves.
One of the things we hear, particularly from our academy
students, is the concern about coming forward on their own and
concern about it being a label that they have to live with.
That is something we hear in colleges and universities too. The
CALISTO program aims to do a number of things, both address
repeat offenders, but also address that concern of being the
voice of one.
What we are doing in terms of this is in the summer, we
will be implementing something we are calling the CATCH
program, which aligns with what CALISTO does. It allows
somebody to make a restricted report and then, in their own
time, to provide us information about the offender, their name,
biomarkings, tattoos, those types of things, as well as social
media handles, any information that identifies the offender.
That then gets locked, only accessible to the military criminal
investigative organizations. If somebody else, even years
later, identifies the same offender, the military criminal
investigative organization is notified. They then notify those
victims to let them know that somebody else identified their
offender and would they be willing to come forward and make a
report. So, again, it aligns with the goals of CALISTO, and we
are hoping that it will address some of the concerns that we
hear.
Senator Tillis. Final question. And we may follow up or our
committee staff will be following up because, obviously, this
is something we will continue to focus on.
Right now, when you are sitting down and you are talking
with commanders about expectations, standard operating
procedure for how a commander should deal with this, is there a
consistent message that every line of service conveys, or is
there an adjustment based on the branch? In other words, is
this the whole of the DOD, this is how we deal with it, this is
what we expect of our commanders, or is that left to each of
the Services to determine how to do that?
Dr. Van Winkle. I would have to defer to my colleagues for
the specifics on that.
I will say that we do often recognize that within this
space, not all servicemembers look the same. What resonates for
a member of the Air Force does not always resonate for the
Marine Corps. So we do allow some of that unique culture.
Senator Tillis. Let me poison the well before you answer
the question. I do not see any rational basis for any
difference. Sexual assault is sexual assault. The expectation
that you have of the command should be the same. Period. End of
story. It would be the same sort of response I would get from
somebody that says that housing is different for the Army than
it is for the Marines when I am dealing with this family
housing situation.
Now, one of the problems is we do have some adjustments in
changes, and I think that is going to be the root cause of the
issues we have.
If we want to create a pervasive culture, if we want to
have a standard, if we want to have the same expectation of the
commanders, I tend to be biased more towards keeping this with
the command. I think that it has to start with the whole of the
DOD because, incidentally, this is not limited to just people
who work in the DOD who happen to have uniforms. We hold you
all to a higher standard because of the jobs that you do.
But I really think we need to look long and hard at for
say, for some reason the way that I tell a commander in the
Marines to deal with a sexual assault is different than
something I tell somebody in the Army, I do not see any
rational basis for it. If we want to perpetuate, we want to
make pervasive a culture that is a consistent message in every
case, we really ought to think about comparing notes and
building on better or best practices.
Final comments for any of you on that?
Lt. Gen. Rockwell.I think the linchpin of this decision, if
you break down a process, is in the referral process. That is
where you sit down with the commander and say are you going to
refer this to court martial or not. The standardization is
there under the rules of court martial. Do you have probable
cause to determine whether or not an offense has been committed
that would take it to the next piece of this process, which is
the trial? We are more comfortable with that process, of
course, the trial, because it is judge-driven and all the rules
that you see at a trial come out then. But you are right, sir.
That is what I think is the primary, fundamental point.
Senator Tillis. I do not mind somebody taking a lead, but
it is like you get to a best practice and build on a best
practice versus going four different ways and creating four
different cultures.
The other thing I will tell you that the Lieutenant
Commander brought up in a prior panel, whatever person in the
chain of command would have inappropriately shared information
about her personal circumstances, I am sure that is a violation
somewhere along the lines. We have to make sure that that is
also a part of the culture. I mean, what a disgrace to have
somebody do that. That is, somebody whose file comes before me
better be thinking about a new line of work because that is not
the way to deal with these cases.
Look, it was really impactful to see the housing. Again, I
was down at Fort Bragg on Friday. It was amazing to me to see
these young people apprehensive about reporting that they have
mold growing on their walls. Right?
Now, imagine somebody who has been a victim of sexual
assault, the bar that that raises for them to actually come out
and have trust and feel like they will have the support of
their command as they are going through it.
I know that not everybody who is accused is guilty. That is
why we have a legal process that we have to go through to
determine guilt or innocence. But all along the way, we need to
show respect for all the parties. We need to keep their
information in the utmost confidence, and there needs to be
very clear accountability for anybody to share in this
information along the way.
Well, I want to thank you all for being here today. I tend
to go last so that I can go over. I appreciate you all
indulging me on two or three times more time than I had.
But this is only the beginning. We will be asking you
additional questions. We will be asking you for suggestions on
how we can improve things. I will also have the committee reach
out.
I want to see how some of our allies have done this and I
want to learn from their strengths, weaknesses, and their own
implementation failures.
But I tend to agree with the positions of the folks before
us today that we can get better. I also believe that Senator
Gillibrand brings a lot of expertise and a lot of ideas on
things that can improve the process regardless of whether or
not we shift responsibility from the commands.
Thank you all for being here.
The meeting is adjourned.
[Whereupon, at 5:01 p.m., the committee was adjourned.]
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator Kirsten E. Gillibrand
retaliation
1. Senator Gillibrand. Dr. Van Winkle, chain of command retaliation
against survivors not only is a gross injustice against them, but too
often results in our military losing good soldiers, sailors and marines
who no longer feel like they have received fair treatment in the
military. We heard from just such a soldier, one of West Point's top
graduates, on the earlier panel. It makes those who have not reported
hesitant to come forward, undermining justice and good order and
discipline. The most recent DOD data show that unpunished retaliation
continues to be a major problem. Seventy percent of respondents
perceived retaliation, but DOD tallied less than 5 percent of
retaliations being addressed--and only through administrative actions
or counseling. And perhaps the most chilling of reports on unpunished
retaliation, this year the DOD Inspector General substantiated
allegations against 350 officials for retaliation against
whistleblowers, but only one of the officials was fired. Of the
survivors you interview, how many cite retaliation as a reason that
they are reluctant to come forward or make their reports unrestricted?
Dr. Van Winkle. Survivors we speak with do cite concerns about
retaliation. The results of the Department's 2018 Workplace and Gender
Relations Survey provide additional relevant information for this
matter: While most respondents who experience sexual assault and do not
report cite reasons related to privacy (e.g., ``You did not want more
people to know;'' 61 percent of non-reporting women and 41 percent of
non-reporting men) or wanting to move on with their lives (e.g., ``You
wanted to forget about it and move on;'' 73 percent of non-reporting
women and 49 percent of non-reporting men), some do indicate concerns
about negative experiences associated with reporting. These reasons for
not reporting were unchanged from the last survey in 2016. Of the
Active Duty members who indicated experiencing a sexual assault in the
past year and did not report it to a DOD authority, a number of them
provided responses that may indicate they were concerned about
retaliatory behavior, including responses such as:
You thought it might hurt your performance evaluation/fit
rep/career (25 percent of non-reporting women; 23 percent of non-
reporting men; both statistically unchanged from 2016)
You were worried about potential negative consequences
from supervisor/someone in chain of command (26 percent of non-
reporting Active Duty women; 26 percent of non-reporting Active Duty
men; unchanged from 2016).
You were worried about potential negative consequences
from your coworkers or peers (37 percent of non-reporting Active Duty
women; 32 percent of non-reporting Active Duty men; unchanged from
2016).
2. Senator Gillibrand. Dr. Van Winkle, our office works with a
multitude of survivors, and many of them relate that once they get the
courage to report a sexual assault, the command immediately charges
them with a lesser, collateral misconduct office such as drinking. In
fact on the last panel, we heard from two such survivors and they
unfortunately know similar stories of many others. At a minimum this
makes investigation and determinations more complex and undermines
survivors' willingness to continue with the case. At worst these are
focused retaliatory measures by the chain of command that punish the
survivor and leave the accused unpunished. This adversely effects the
justice process and morale. Have you seen fear of collateral misconduct
charges chill reporting?
Dr. Van Winkle. Some victims note that collateral misconduct is a
concern. In the 2018 survey of the Active Duty, of servicemembers who
indicated experiencing a sexual assault in the past year and did not
report it to a DOD authority, 34 percent of non-reporting women and 26
percent of non-reporting men selected a response of, ``You thought you
might get in trouble for something you did/get labeled as a
troublemaker'' as a reason for not reporting a sexual assault. For
women, this is a more prominent concern among junior enlisted members
(41 percent of non-reporting E1-E4 women) and points to a specific need
to address this issue in this population, who are also at greatest risk
of experiencing a sexual assault.
3. Senator Gillibrand. Dr. Van Winkle, from your perspective, would
command climate suffer if collateral misconduct charges were brought
only after finishing the sexual assault investigation in the case?
Dr. Van Winkle. The Department recognizes that every sexual assault
case presents unique facts and circumstances. Since a number of factors
impact command climate, isolating the effects of a single change is a
near impossibility. Nonetheless, the Department's current SAPR policy
recognizes that ``[c]ollateral misconduct by the victim of a sexual
assault is one of the most significant barriers to reporting assault
because of the victim's fear of punishment.'' Consequently, the policy
requires the secretaries of the Military Departments to ``[e]stablish
Military Service-specific guidance to ensure collateral misconduct is
addressed in a manner that is consistent and appropriate to the
circumstances, and at a time that encourages continued victim
cooperation.'' In addition, the SAPR policy explicitly states that
``Commanders shall have discretion to defer action on alleged
collateral misconduct by the sexual assault victims (and shall not be
penalized for such a deferral decision), until final disposition of the
sexual assault case, taking into account the trauma to the victim and
responding appropriately so as to encourage reporting of sexual assault
and continued victim cooperation, while also bearing in mind any
potential speedy trial and statute of limitations concerns.''
Effective, January 1, 2019, the Manual for Courts Martial was revised
to facilitate commands in dealing with collateral misconduct. Before
that change, only general court-martial convening authorities could
grant immunity for such misconduct. Now, subject to service
regulations, the power to grant immunity may be delegated to special
court-martialing convening authorities. In practice, this change should
make it easier for those reporters who wish to do so to seek and
receive immunity for collateral misconduct (the Department has heard
from some sexual assault victims who did not want to receive immunity
for collateral misconduct and who thought their credibility would be
damaged if they did not receive discipline comparable to that which
other servicemembers receive for the same misconduct). Discussion has
also been added accompanying Rule for Courts-Martial 704 stating:
``When the victim of an alleged offense requests an expedited response
to a request for immunity for misconduct that is collateral to the
underlying offense, the convening authority should respond to the
request as soon as practicable.''
false allegations
4. Senator Gillibrand. Dr. Van Winkle, are you aware of studies or
analyses on how many allegations of sexual assault are false
allegations?
Dr. Van Winkle. There are a variety of studies in the civilian
sector that attempt to discern how many allegations of sexual assault
are false cases. However, the Department can speak best to our own data
that we report to Congress each year. Since about fiscal year 2013,
about 2 to 3 percent of subject case dispositions each year are
determined by a command and legal review of the evidence in each case
to be what the Department refers to as ``unfounded,'' which is our
category for false cases. Unfounded cases are those for which the
evidence showed the accused did not commit the crime or the crime did
not occur. The 2 to 3 percent ``unfounded'' disposition statistic is
not a binary statistic and no inference can be drawn that an allegation
not disposed of as ``unfounded'' is or is likely accurate.
5. Senator Gillibrand. Dr. Van Winkle, it was disturbing to read
the recent Annual Report on Sexual Harassment and Violence at the
Military Service Academies for Academic Program Year 2017-2018. Despite
years of promises from the Pentagon to eliminate sexual harassment and
assault from the service academies, unwanted sexual contact has
increased at the academies by almost 50 percent in the last 2 years and
more than doubling in the last 4 years. Despite these alarming numbers,
only 12 percent of survivors are reporting assaults at all and only 9
percent in a way that can result in investigation. This all amounts to
4 convictions for unwanted sexual contact out of 747 cases. This is a
clear sign that they do not feel confident in the military's ability to
adjudicate and prosecute these crimes without retaliation. What steps
are you taking to stem what can only be described as a systemic
problem?
Dr. Van Winkle. In June 2017, the Secretary of Defense directed
that the academies develop and implement plans prior to the start of
classes in 2018 to reinvigorate sexual assault prevention, improve
reporting of sexual assault and harassment, enhance a culture of
respect, and promote responsible alcohol choices. The impact of these
plans will be assessed in future reports. The survey results and self-
report information in the Academic Program Year 17-18 report will
function as a baseline for future years' assessments of progress.
Sexual assault has no place at the Military service academies or
anywhere in the DOD. It is imperative that the Department and the
academies fortify efforts to promote and sustain safe and respectful
climates. Cadets and midshipmen must play an active role in combating
misconduct at the academies. The Department will continue to partner
and collaborate with other experts in this field who have found
strategies in certain subpopulations that show promise. Furthermore, in
support of the Services, OSD [Office of the Secretary of Defense] will
be fully engaged and will use our summer on-site visits to assess
progress and provide technical assistance. We have hired prevention
specialists from the Centers for Disease Control and Prevention to
inform our efforts and assessments. We will provide additional
reporting options available throughout the Armed Forces, but geared
towards the unique concerns of cadets and midshipmen and aimed to
address repeat offenders. We will refocus our efforts to look at the
full lifecycle of the cadets and midshipmen, from selection through
graduation, and work to ensure our efforts target the peer cadre
specifically. Our focus will be on employing our resources in the right
combinations, at the right times, in the right places, in order to not
only achieve progress, but sustain it over time. Our approach must
change. It is imperative that cadets and midshipmen understand their
responsibilities to hold each other, and their subordinates,
appropriately accountable for treating each other respectfully.
6. Senator Gillibrand. Dr. Van Winkle, after all these years of
addressing the problem, how can the prevalence of sexual assault be
going in the wrong direction?
Dr. Van Winkle. In the decade between 2006 and 2016, rates of
sexual assault in the Active Duty decreased for men by two thirds and
decreased for women by a third. So the evidence indicates that--while
there have been certain fluctuations between specific shorter periods
of time viewed in isolation--when we look at trends over time, the
overall prevalence data is going in the right direction: sexual assault
in the Active force occurs much less often than it did over the last
several years as the Department has substantially increased its
prevention and response efforts. Nonetheless, we must do better at
understanding why rates may fluctuate from year to year. The
Department's Fiscal Year 2018 Annual Report on Sexual Assault in the
Military showed the greatest increase was in sexual assaults against
servicewomen ages 17 to 24. The challenge we have is every generation
we have coming into the military is new and different and coming from a
different place. We have a responsibility as a military to change the
behavior of our servicemembers as they come in, to teach them what is
right and wrong in the military, and what our expectations are for them
no matter where they come from. That is our charge and we take it very
seriously. What we are finding is we have not identified the strategies
that work, consistently over time, with this 17 to 24 year old group.
Social media has also changed attitudes in the newest generation of
servicemembers and often leads to different ways of interaction. The
evidence we currently have indicates that unit climate is a significant
driving force behind changes in sexual assault prevalence. Our data
consistently shows that men and women who serve in disrespectful
climates have much higher rates of sexual assault than those that serve
in climates that are comparatively healthy. As a result, our focus
going forward must provide leaders, from our junior first line
supervisors to our most seasoned commanders, with the preparation and
tools they need to foster climates of dignity and respect.
7. Senator Gillibrand. Dr. Van Winkle, what systemic changes must
be made to improve survivor reporting?
Dr. Van Winkle. In the summer of 2019, the Department will field
the Catch A Serial Offender Program, which will allow servicemembers,
including cadets and midshipmen, to make a Restricted Report and
confidentially provide information about their alleged offender or
incident. The military criminal investigative organizations will review
this information against other reports of sexual assault, and--should
there be a match--servicemembers will have an opportunity to change
their report to unrestricted and participate in the military justice
system. We must also ensure that the military service academy
environments promote and support the reporting of sexual assaults. As a
result, we have tasked the academies to take specific action on this
point. One new program we are watching closely is the Air Force
Academy's ``Safe to Report'' program, which allows cadets to report
sexual assault without fear of being charged with minor collateral
misconduct, such as possessing or using alcohol underage or being
outside academy boundaries improperly. While this program is still too
new for us to evaluate, concerns about collateral misconduct are
consistently indicated on academy surveys as a reason not to report
sexual assault.
8. Senator Gillibrand. Dr. Van Winkle, in your prepared statement
for this hearing, you said that the sentiments from your most recent
Active Duty focus groups echoed culture concerns similar to what you
had heard from focus groups at the service academies before the rebound
in sexual assault rates at the academies. Specifically, what did you
learn from these focus groups, and what does that tell us about what we
might learn when the latest survey results are released next month?
Dr. Van Winkle. Participants noted that relationships between the
genders were not optimal and attitudes had become somewhat cynical
largely because men were concerned that what they say or do may be
misinterpreted as sexually harassing behavior or other misconduct.
Female participants in the groups felt as though they had been somewhat
marginalized because academy men did not know what to say to them or
how to say it. We also noted these similar themes in Active Duty focus
groups in the summer of 2017, the year before we fielded the Workplace
and Gender Relations Survey. These findings are concerning, and I think
it may speak to the broader cultural issues that underlie experiences
of sexual harassment and sexual assault in the military force.
Unfortunately, no one in the country has a full account of all factors
that drive changes in sexual assault rates. As a result, it is
difficult to conclude with statistical certainty how observations in
focus groups predict changes in sexual assault rates.
community coordination
9. Senator Gillibrand. Dr. Van Winkle, sexual violence and intimate
partner violence advocates and professionals who work in community-
based response agencies (e.g., victim-witness specialists attached to
district attorneys' offices, rape crisis center advocates, domestic
violence shelter staff, etc.) often have minimal knowledge of the
military IPV [intimate partner violence] and sexual assault programs.
In addition, military installation personnel often lack a basic
understanding of the programs and types of assistance available to
military victims of IPV and sexual violence in the communities in which
they reside and serve. This disconnect can lead to negative experiences
for military survivors using community resources. Although DOD
Instruction 6400.06, Domestic Abuse Involving DOD Military and Certain
Affiliated Personnel, has many references to DOD personnel
participating in local coordinated community response efforts, and DOD
Instruction 6495.02, Sexual Assault Prevention and Response (SAPR)
Program Procedures, includes language that encourages military sexual
assault programs to ``collaborate with local community crisis
counseling centers, as necessary, to augment or enhance their sexual
assault programs'' and engage in partnerships with community-based
programs for prevention. Please let us know how often such
collaborations occur, and whether any new procedures are needed to
support greater collaborations.
Dr. Van Winkle. In addition to the policy language referenced,
DOD's Office of the Under Seretary of Defense for Personnel and
Readiness (OUSD(P&R)) and the Department of Justice's Office for
Victims of Crime have a long-standing cooperative agreement related to
this very issue. Our joint training initiative, ``Strengthening
Military-Civilian Community Partnerships to Respond to Sexual
Assault,'' brings together civilian and military responders, including
local Department of Veterans Affairs (VA) personnel, on or near an
installation to improve response to the needs of military sexual
assault victims who choose to seek assistance off-installation. DOD has
already completed over 40 such trainings around the country in
locations with a large military presence. In addition, we have
continued to enhance our partnership with the VA to ensure
servicemembers and those transitioning out of the military are aware of
the availability of VA's MST coordinators around the country. This
information is also available from the DOD Safe Helpline (SHL), which
has a publicly searchable database, wherein victims and their
supporters can search by installation or zip code to receive not just
military responders phone numbers, but also a link to Vet Centers and
phone numbers to nearby civilian sexual assault service providers. All
civilian service providers on SHL have been vetted by The Rape, Abuse,
and Incest National Network (RAINN), giving us additional independent
confidence servicemembers will receive a quality response off-base.
social media
10. Senator Gillibrand. Major General Lecce, social media is
frequently used to bully and retaliate against survivors who report a
sexual assault. The Commandant of the Marine Corps established a task
force, Task Force Purple Harbor, to look at the issue of social media
misconduct. What did this task force learn about the use of social
media?
Major General Lecce. The Task Force learned how the use of social
media can be a medium to commit a variety of offenses. The Task Force
reviewed and revised Marine Corps policies regarding unlawful
discrimination, harassment, hazing, and other conduct that is
prejudicial to good order and discipline. On 26 Mar 2018, the
Commandant of the Marine Corps signed the Marine Corps Prohibited
Activities and Conduct Prevention and Response Policy, Marine Corps
Order 5354.1E.
11. Senator Gillibrand. Major General Lecce, did the Marine Corps
develop any best practices for addressing the issue of retaliation
through the use of social media?
Major General Lecce. Yes. In March 2017, the Marine Corps created a
headquarters element task force to review allegations of social media
misconduct, to include retaliation through the use of social media.
This task force involved a multi-disciplinary team of senior Marine
Corps leaders, law enforcement, judge advocates, and equal opportunity
and force preservation personnel. The task force studied the issues
that contributed to servicemembers engaging in destructive behaviors
against one another and developed efforts to curb this conduct. The
Marine Corps also issued a Leader's Handbook and Discussion Guide for
use in small group discussions about social media misconduct as it
relates to gender discrimination, harassment, non-consensual sharing of
intimate images, and other types of misconduct online. Furthermore, the
discussion guide provides leaders with scenario based training and
resource links for victims and those who report these offenses. In
March 2018, the Marine Corps consolidated its regulations governing
prohibited activities and conduct into a single order which streamlines
reporting requirements, creates a more robust legal review process, and
ensures Headquarters, U.S. Marine Corps level visibility.
12. Senator Gillibrand. Major General Lecce, how does the Marine
Corps address social media retaliation against survivors of sexual
assault?
Major General Lecce. The Marine Corps takes every report of
retaliation against a victim of sexual assault seriously, whether it is
conducted on social media or in person. The Naval Criminal
Investigative Service investigates all reports of sexual assault. As a
result, any report of retaliation against a victim will be referred to
law enforcement.
military housing privatization initiative
13. Senator Gillibrand. Lieutenant General Pede, in your opening
statement, you referenced the Military Housing Privatization Initiative
(MHPI) as a failure of the military to ``outsource'' command
responsibilities: ``Look at our current housing crisis, we outsource
responsibility for housing our soldiers to privatized partners. Who do
our families look to for solutions? Who do you look to to drive change?
Soldiers look to their commanders. Every town hall is hosted by a
commander. Will every commander deal with mold or leaky basements
perfectly? Of course not. But there is no set of leaders on this earth
better trained, better resourced and more consistently successful than
an American commander. And in my view, so it must be with sexual
assault.'' Are you aware that installation commanders have remained
responsible for the quality of housing under MHPI?
Lieutenant General Pede. Yes, commanders remain responsible for
their units and installations, including housing. But like the Military
Justice Improvement Act (MJIA), privatized housing puts a third party
between commanders and their soldiers. It turned the housing of
soldiers into a business relationship--one that was governed largely by
contracts. Yet, when the issues in privatized housing received
scrutiny, it was commanders who were expected to address the problem.
The MJIA would also insert someone between commanders and unit
discipline, and commanders will be able to achieve that discipline only
by acting through--and, perhaps, only with the permission of--lawyers.
Commanders will remain responsible for discipline; they will just be
less able to ensure it.
14. Senator Gillibrand. Lieutenant General Pede, do you believe
that the MHPI in any way excused commanders from being responsive to
problems in housing units?
Lieutenant General Pede. Please see response to question 13.
15. Senator Gillibrand. Lieutenant General Pede, given the
widespread failure to address housing issues--at installations
nationwide--do you believe commanders have met their responsibilities
to address the MHPI crisis?
Lieutenant General Pede. Improving and sustaining the quality of
Army housing is an ongoing process. Army senior leaders and commanders
at every level have been, and will remain, focused on this issue.
Commanders have taken immediate steps to address the situation in MHPI,
including through town halls and regular visits to MHPI housing. The
health and welfare of Army soldiers, families, and civilians is of
paramount importance to the Army and its commanders.
mishandling of the lt bapp (ret.) case
16. Senator Gillibrand. Lieutenant General Pede, in response to
Senator Tillis' questioning on the mishandling of Ms. Bapp's alleged
sexual assault at Fort Rucker, Alabama, you provided the following
response: `` . . . the manner in which Ms. Bapp described some of the
errors in the processing of her allegations, were mistakes made at the
local level. And when we became aware of those, the Army took notice of
that and Fort Rucker itself conducted an investigation. And because of
our concerns about what we were hearing, the TRADOC commander, the
four-star level commander, decided to conduct an investigation. So we
had a very senior level oversight look that discovered and examined the
details from A-Z what we think happened in her particular case.'' To my
knowledge, the Army did not take notice of local issues with the SHARP
program--which Ms. Bapp had voiced to her Special Victims Counsel--
until congressional engagement with senior Army leadership. Independent
of top-down scrutiny from Army leadership to TRADOC, did Fort Rucker's
Commanding General proactively elevate any of the failures identified
by Ms. Bapp at the lowest level?
Lieutenant General Pede. Privacy interests prevent me from
disclosing relevant details in my public response to this question, but
I or other members of my staff are available to provide those details
to the subcommittee privately, for subcommittee use only, if the
subcommittee chairwoman so requests.
Every commander is necessarily empowered to resolve issues within
his/her command at the lowest-level possible and to seek assistance
from higher headquarters when necessary. The special victim counsel
program also ensures victims' voices are heard throughout the
processing of sexual assault allegations. As soon as the Fort Rucker
Commanding General learned of concerns about the processing of sexual
assault allegations on Fort Rucker, he began to look into those
concerns--and take appropriate actions--before the Army received any
relevant congressional inquiries and before TRADOC began its
investigation into the Fort Rucker SHARP program. Actions the Fort
Rucker Commanding General took did not require elevation to higher
levels within the Army and included revising local SHARP procedures to
ensure compliance with Army policy, creating a process of continuous
updates to the local standard operating procedure, confirming that
SHARP professionals were using the most up-to-date forms, and ensuring
victims had access to uninterrupted victim-advocacy services.
__________
Questions Submitted by Senator Elizabeth Warren
sexual assault
17. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce, do
you believe that removing prosecution decisions for serious crimes from
the commanders who have general court-martial convening authority would
meaningfully diminish the authority of the remaining commanders that do
not have such authority, and if yes, in what ways? Please explain.
Dr. Van Winkle. I would respectfully defer to the Military
Department's Judge Advocates General and the Staff Judge Advocate to
the Commandant of the Marine Corps on this issue. However, I take
seriously the critical findings announced by The Role of the Commander
subcommittee of the congressionally-mandated Response Systems Panel
(Sec.576, FY13NDAA). The subcommittee found that:
``Finding 19-5: None of the military justice systems
employed by our Allies was changed or set up to deal with the problem
of sexual assault, and the evidence does not indicate that the removal
of the commander from the decision making process in non-U.S. military
justice systems has affected the reporting of sexual assaults. In fact,
despite fundamental changes to their military justice systems,
including eliminating the role of the convening authority and placing
prosecution decisions with independent military or civilian entities,
our Allies still face many of the same issues in preventing and
responding to sexual assaults as the United States military.''
``Finding 19-6: It is not clear what impact removing
convening authority from senior commanders would have on the military
justice process or what consequences would result to organization
discipline or operational capability and effectiveness.'' o ``Abstract
of Subcommittee Recommendations and Findings,'' Annex to the Report of
the Response Systems to Adult Sexual Assault Crimes Panel, p. 13.
http://responsesystemspanel.whs.mil/Public/docs/Reports/00--Final/RSP--
Report--Annex--Final--20140627.pdf
Lieutenant General Pede. Yes. Taking the decision to prosecute
serious crimes from a general courts-martial convening authority
(GCMCA) removes the entire chain of command from that decision. The
disposition of charges goes through the chain of command, and although
a GCMCA is near the top of that chain, the GCMCA is an integral part of
it. In addition, unless withheld by a higher authority, all commanders
have the authority to act on allegations of misconduct within the scope
of their authority. Often that will mean forwarding a matter--with
recommendations--to a higher level commander, but that is not always
the case.
More importantly, when a GCMCA acts, soldiers understand that it is
a commander in her or his chain--even if at a high-level--that is
acting. As a consequence, that fact alone reinforces the authority of
every other commander within that unit. A commander makes the decision
to prosecute a case, and when that happens, it communicates that
commanders are the officers responsible for--and fully empowered to--
enforce good order and discipline throughout the force.
Vice Admiral Hannink. I believe removing the prosecution decision
for serious crimes from commanders who have general court-martial
convening authority would have a detrimental impact on the ability of
those commanders--and other commanders--to ensure good order and
discipline. Commanders are called upon every day to make difficult
decisions to accomplish their assigned missions while simultaneously
protecting the wellbeing of their subordinates. The authority that
commanders exercise under the Uniform Code of Military Justice (UCMJ)
is important to achieving these goals. Military commanders, who are
entrusted with the lives of their subordinates and the security of our
Nation, can and must be trusted to make decisions, informed by advice
from military lawyers, concerning the disposition of offenses. Good
order and discipline in subordinate commands is a shared responsibility
of that unit's immediate commander and the superior commander.
Lieutenant General Rockwell. Yes. Limiting prosecution decisions of
general court-martial convening authorities diminishes the ability of
subordinate commands to create, foster, and maintain the correct
culture within their units. A commander's role in the prosecution
decision-making process is an essential tool for commanders at every
level of command to maintain good order and discipline. Command
authority allows a commander to set the expectations, enforce standards
and hold airmen accountable when they fail to meet them. While felony-
type offenses are generally referred to a general court-martial,
subordinate commanders in the command chain are critical in providing
unit-level input and being involved in the decision-points along the
way. If we do not involve our commanders at the lower echelons, we
limit their opportunity to develop into senior commanders. Moreover,
removing a commander's authority to refer charges has the unintended
effect of relieving the commander of accountability for the disposition
results. Command involvement must be holistic and empowered; it cannot
be as effective if the most serious form of accountability, the
authority to refer charges to a court-martial, is severed from command
authority. There are two main components to the prosecution decision:
preferral and referral. Preferral is the step at which the initial
charges are formalized and delivered to the accused. Commanders at any
level may prefer charges if they have personal knowledge of, or have
investigated, the matters set forth in the charges and specifications,
and if they assert the matters set forth in the charges and
specifications are true to the best of their knowledge and belief.
Referral is the step whereby a court-martial is ordered to try the
offenses. Only convening authorities have the power to order a court-
martial. Once charges are preferred, they are forwarded to the special
court-martial convening authority (SPCMCA) for review. In the Air
Force, the SPCMCA is normally an O-6 wing commander. The SPCMCA must
consult with their SPCM staff judge advocate, and if they believe the
allegation constitutes a felony-level offense then the SPCMCA orders an
Article 32 preliminary hearing. At the hearing an independent judge
advocate reviews the evidence and recommends whether probable cause
exists to prosecute and the appropriate court-martial forum. Based on
the advice of the staff judge advocate and the Article 32 hearing
officer, the SPCMCA decides whether to refer the case to a special
court-martial or forward it to a general court-martial convening
authority (GCMCA), who receives independent advice from their staff
judge advocate. Throughout this process, the SPCMCA and GCMCA legal
offices are fully engaged to identify issues that warrant GCMCA
attention. Commanders stand at the center of the military justice
system, and when a GCMCA orders a court-martial a clear and impactful
message is sent about the proper disposition of allegations of
misconduct within the Air Force. The safeguards in processing a case
alleging a penetrative sexual assault allegation are even more
extensive. Per DOD policy, only a SPCMCA in the grade of O-6 or above
may take initial disposition on a penetrative sexual assault
allegation. The Air Force increased the review process by requiring any
decision made by the SPCMCA to be forwarded to the GCMCA for review.
This additional step provides the GCMCA the opportunity to intervene if
they believe a different disposition is appropriate. Even though a
GCMCA makes the ultimate decision whether to refer charges to a court-
martial, this discretion is also checked by a series of reviews. With
these review mechanisms in-place, it is unnecessary to diminish
subordinate command authority by elevating all serious offenses to the
GCMCA-level.
Major General Lecce. Commanders do not make prosecution decisions;
they make disciplinary decisions by determining the appropriate forum
to adjudicate allegations of misconduct. One of these forums is a
general court-martial. In the Marine Corps, attorneys handle
prosecution decisions. These decisions consist of drafting appropriate
charges, determining the evidence to present at trial, and, if there is
a conviction, determining the sentence to seek. These decisions are
separate and distinct from a senior commander's authority to send
serious crimes to a general court-martial. Removing a commander's
authority to send serious crimes to a court-martial would prohibit the
visible and engaged action by a commander necessary to good order and
discipline and combat effectiveness. Commanders must have the authority
to engage in visible efforts to prevent and respond to offenses of all
kinds. An inability to do so would lead to a loss of trust in the
commander, degraded discipline, and a corresponding threat to combat
effectiveness. Removing disciplinary authority from commanders also
frustrates prevention and response efforts by impairing unity of
command, leaving commanders responsible for the discipline and
effectiveness of a unit without the authority essential to meet that
responsibility. The proposal to remove a commander's authority to send
sexual assault cases to courts-martial has been studied extensively by
multiple federal advisory committees. They found no evidence to suggest
this will protect victims, reduce crime, or result in more
prosecutions. There is no reason to believe the results would be
different if we remove this authority for other offenses.
18. Senator Warren. Dr. Van Winkle observed in her testimony,
``Removing command authority from our process and efforts to date,
would have a negative effect on military discipline and readiness.''
Please describe in detail how removing prosecution decisions for
serious crimes from the commanders who have general court-martial
convening authority would harm military discipline and readiness.
Dr. Van Winkle. I believe the quote in the question was
misattributed and I respectfully defer to The Judge Advocate General of
the Air Force, Lieutenant General Rockwell, who made the statement in
testimony.
19. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce, in
your view, what is inherent to being a commander that qualifies that
person to make prosecution decisions on serious crimes versus the
qualifications and experience of a licensed attorney that has tried
cases involving such crimes?
Dr. Van Winkle. I respectfully defer to my colleagues on this
issue. I know that every command decision in this space is informed by
a licensed attorney who advises the commander on legal considerations,
the available evidence, and the means by which the allegations before
him or her may be addressed in the military justice system. Concerns
about this system should focus on improving a commander's ability to
support victims, ensure appropriate accountability, and create a
command climate in which sexual assaults are less likely to take place
because servicemembers understand such behaviors undercut the good
order and discipline necessary for a military unit to be effective and
ready.
Lieutenant General Pede. Commanders have led a disciplined Army for
more than 243 years. Indeed, as George Washington argued, ``Discipline
is the soul of an Army.'' In a very real sense, commanders are
commanders because they are able to enforce good order and discipline
with the highest sanction our society recognizes--a criminal
conviction. We are not the best Army in the world because of
coincidence. We are the best because we are unique. Command authority
is what sets us apart--what makes us unique. We tinker with it at our
peril on the next battlefield.
In addition, a commander bears the ultimate authority over acts
enforcing discipline because a commander is ultimately responsible for
discipline. But importantly, commanders never exercise their authority
in a vacuum. Commanders are fully trained and carefully advised on how
to exercise this authority at every level of command. Allegations of
serious criminal misconduct are fully investigated by trained criminal
investigators, and a commander is carefully advised by a qualified,
licensed attorney. A commander combines that investigation and a
lawyer's advice with the commander's training and experience to make
the best decision possible to further the interests of good order and
discipline throughout the commander's unit. In the rare instance in
which a commander and a lawyer disagree, a disposition decision can be
continued up the chain of command. There is a formal process in place
to review specific disposition decisions under section 541 of the
fiscal year 2015 National Defense Authorization Act. This is, in short,
a robust system.
Finally, it is worth noting that the hypothesis that removing
commanders will improve the military's response to sexual assault is
unsupported by the data. In 2014, the Response Systems to Adult Sexual
Assault Panel found that there is no evidence that removing commanders
will result in more reporting, more thorough investigations, or more
effective prosecutions. Unsurprisingly, the panel recommended against
further limiting a commander's authority. Further, in 2019, the Defense
Advisory Committee on the Investigation, Prosecution, and Defense of
Sexual Assault in the Armed Forces published the results of its first-
of-a-kind study of commander decision making, concluding that
commanders' decisions to bring charges or not ``were reasonable in the
overwhelming majority (95 percent) of cases reviewed.'' The committee
further concluded that there is ``no systematic problem with command
decision making'' in these cases. This is the latest evidence
available; it was developed through rigorous examinations by outside
experts; and it simply does not support removing commanders.
Vice Admiral Hannink. In the civilian sector, the District Attorney
(DA) is an elected or appointed official who has the responsibility to
make prosecution decisions. In making these decisions, the DA acts as
the ``representative of the community,'' deciding which actions, and in
what circumstances, merit prosecution.
In the Military Services, the commander is responsible for
accomplishing the unit's mission, for protecting the wellbeing of
subordinates, and for ensuring good order and discipline within the
unit. Given these responsibilities, in the Military Services, it is the
commander who is the best ``representative of the community,'' and who
can best evaluate the circumstances and impacts in determining the
right prosecutorial course of action. Commanders do this in close
coordination with lawyers. The Secretary of Defense (SECDEF) has issued
factors that military commanders should consider when determining the
proper disposition of a case, including the mission-related
responsibilities of the command and the effect of the offense on
morale, health, safety, welfare, and good order and discipline of the
command. SECDEF also emphasizes that military commanders should seek
advice from a judge advocate regarding all possible dispositions of an
allegation.
Congress established the Response Systems Panel (RSP) as an
independent Federal Advisory Committee to assess, among other matters,
whether commanders should continue to exercise prosecutorial discretion
in the military justice system. The RSP expressly concluded that
``[t]he evidence does not support a conclusion that removing authority
to convene courts-martial from senior commanders will reduce the
incidence of sexual assault or increase reporting of sexual assault in
the Armed Forces.'' The RSP also concluded that ``[t]he evidence does
not support a conclusion that removing authority to convene courts-
martial from senior commanders will improve the quality of
investigations and prosecutions or increase the conviction rate in
these cases.''
Lieutenant General Rockwell. The purpose of military law, as stated
in the Preamble to the Manual for Courts-Martial, is to promote
justice, to assist in maintaining good order and discipline in the
Armed Forces, to promote efficiency and effectiveness in the military
establishment and thereby to strengthen the national security of the
United States. It is the commander who is responsible for mission
success. A commander brings all of their training, background,
experience, and judgment to the fight. They command all of the people
and resources within their organization which can be employed to shape
the environment and instill confidence in our airmen. There is much
more to military discipline than criminal prosecution and commanders
possess an arsenal of tools to effectuate and change behavior. This is
why, unlike a civilian District Attorney or a licensed attorney, the
commander must remain at the forefront, responsible for ensuring
justice and maintaining disciplined forces in defense of the Nation. In
a military environment, prosecution decisions on serious crimes require
the commander's informed judgement on the particular circumstances and
stresses a disposition decision will have on the unit. We believe the
best model to achieve both justice and discipline is the teaming of the
commander with a staff judge advocate.
Major General Lecce. Commanders must have authorities commensurate
with their responsibilities. A commander is responsible and accountable
for maintaining good order and discipline, and for ensuring the welfare
of every member of the unit. Prosecutors do not bear that
responsibility. Forcing a commander to request permission from a
prosecutor to discipline the members of a unit will degrade unity of
command at the expense of victims and those accused of offenses.
Commanders do not make these disciplinary decisions in a vacuum. They
are advised at every step of the process by trained attorneys, to
include senior prosecutors and civilian litigation attorney advisors
with significant experience in military justice. Ultimately, the
commander must be the one to make the decision because the commander is
the one responsible and accountable for the consequences of sending or
not sending a case to trial.
20. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce, are
there any improvements that you would recommend to the current legal
assistance and survivor advocate services available to survivors of
sexual assault in the military, and if yes, what are those
improvements? Please explain.
Dr. Van Winkle. I respectfully defer to my colleagues on the legal
assistance/legal advocacy aspects of this question. I do note that
servicemembers consistently cite Special Victims' Counsel/Victims'
Legal Counsel (SVCs/VLCs) as one of the most-used and highest-rated
resources available to them in the DOD response system. The Department
believes that the approximately four-fold increase in victims choosing
to come forward and report may, in part, be a result of the
improvements we have made in our support to victims, including the
availability of SVCs/VLCs. Nonetheless, the Department must continue
its efforts to address sexual assault in our ranks.
Lieutenant General Pede. Army Special Victim Counsel (SVC) services
are instrumental in improving victims' confidence in the UCMJ process
and increasing resilience. An SVC is the most effective when able to
establish a relationship with the client through face-to-face
interactions. As SVCs have begun representing more children, they must
determine the capacity of those children to enter into an attorney-
client relationship. SVCs have little expertise, however, with
assessing a young child's capacity to understand that relationship. The
development of a framework to make this assessment and to ensure the
child's holistic interests are addressed, like a guardian ad litem
program, would be helpful.
Vice Admiral Hannink. Navy Victims' Legal Counsel (VLC) serve
victims of misconduct, including indecent viewing/recording (Article
120c, UCMJ) and stalking (Article 130, UCMJ), in addition to victims of
sexual penetration and contact offenses. However, victim advocates
currently only serve victims of penetration and contact offenses.
Lieutenant General Rockwell. Additional mental health resources
that do not require records would be an improvement to services
available to survivors. Mental health resources are a critical piece of
a victim/survivors' recovery. However, many do not seek services due to
stigma and privacy concerns. Sexual assault victims in the military are
encouraged to seek mental health counseling at medical treatment
facilities. When they do so, the treating mental health provider
creates records which include statements that a victim makes to them,
and may contain a clinical diagnosis, a list of prescribed medication
and other observational thoughts. Military Rule of Evidence (MRE) 513
prescribes procedures trial judges must perform in order to determine
whether the victim's mental health records will be disclosed to trial
counsel, defense counsel, and accused during a court-martial
proceeding. Protecting private mental health records is very important
to sexual assault victims, and the record's potential disclosure by
military trial judges to the trial counsel, defense counsel, and the
accused has a chilling impact on whether sexual assault victims will
pursue the mental health care that the Service provides them. The
recommendation is for the Services to provide additional resources for
mental health care that does not produce mental health records which
may become discoverable to the parties during litigation. This could be
similar to the limited privilege suicide prevention program available
to individuals under investigation.
Major General Lecce. The VLC program in the Marine Corps will
benefit from additional personnel and funding for training in domestic
violence (DV). We are currently the only service whose VLCs represent
DV victims as a matter of policy. Sexual assault and DV often go hand
in hand. Many of the victims our VLCs represent are victims of both
sexual assault and DV. Domestic violence has its own complexities. Our
VLCs could use more training in this area. Legal assistance services
are available for all persons, including victims of sexual assault, who
are eligible to receive military legal assistance under Federal law and
implementing Department of the Navy and Marine Corps regulations.
Eligible persons include Active Duty members, spouses, children,
retirees, and others allowed by regulations. Services include legal
counseling involving family law matters, consumer protection,
immigration and naturalization, landlord/tenant issues, income tax
matters, Exceptional Family Member educational issues and special needs
trusts, estate planning, deployment-related matters, and the
Servicemembers Civil Relief Act. If the Legal Assistance Program is not
able to provide a needed service to a sexual assault victim, attorneys
have access to other family support services to which they can refer
victims.
21. Senator Warren. Lieutenant General Pede, Vice Admiral Hannink,
Lieutenant General Rockwell, Major General Lecce, would you agree that
commanding officers who fail to respond to allegations of rape, sexual
assault, or other sexual misconduct should be held accountable for such
inaction?
Lieutenant General Pede. A commander who fails to follow law,
policy, or appropriate procedures in that commander's response to an
allegation of sexual assault should be held appropriately accountable.
Vice Admiral Hannink. Commanding officers who fail to respond to
allegations of rape, sexual assault, or other sexual misconduct should
be held responsible for such inaction. By regulation, commanding
officers must immediately notify Sexual Assault Response Coordinators
(SARCs) and appropriate Military Criminal Investigative Organizations
(MCIOs) upon receipt of unrestricted reports of sexual assault.
Additionally, command climate surveys allow Navy leadership another
opportunity to determine if a commanding officer has failed to respond
to an unrestricted report of sexual assault.
Lieutenant General Rockwell. Yes. commanders who fail to properly
respond, according to the laws, Department of Defense regulations, and
Air Force regulations, to allegations of such misconduct should be held
accountable for inaction. Commanders have the lawful authority and
responsibility to promote and safeguard the morale, physical well-
being, and the general welfare of persons under their command.
Moreover, commanders are expected to display exemplary conduct as
outlined in Title 10 United States Code, Section 9233. Specifically,
they are required to be vigilant in inspecting the conduct of all
persons who are placed under their command; to guard against and
suppress all dissolute and immoral practices, and to correct all
persons who are guilty of them; and to take all necessary and proper
measures to promote and safeguard the morale, the physical well-being,
and the general welfare of the officers and enlisted persons under
their command or charge. Failure by a commander to respond to an
allegation of sexual assault would violate the law and Air Force
policy, which requires commanders to immediately refer any alleged
sexual assault to the Air Force Office of Special Investigations and
the Sexual Assault Response Coordinator. Further, the commander is
required to prepare and submit a Sexual Assault Incident Response
Oversight Report (SAIRO) within 8 days of learning about the allegation
to the first general officer in the subject's and victim's chain-of-
command. Just like with any violation of policy, a violation of this
policy should be properly addressed by appropriate levels of command.
It is critical to consider the response to this question against the
backdrop of the safeguards and review processes currently in place.
While commanders still possess a great amount of authority in the
disposition decision of sexual assault cases, every case is subject to
multiple levels of review by independent senior commanders at each
level with the advice and counsel of their own staff judge advocate.
These reviews also include a thorough review of the evidence and, in
sexual assault cases, an outside review by our most experienced
prosecutors, who fall under an independent chain of command through the
Chief, Government Trial and Appellate Division in Air Force Legal
Operations Agency. These cases are also tracked through the Air Force's
Automated Military Justice Analysis and Management System, which
provides notification of the status of a case all the way up to The
Judge Advocate General, in appropriate cases.
Major General Lecce. Yes. Commanders must respond to allegations of
rape, sexual assault, or other sexual misconduct in accordance with the
law and applicable orders and regulations. A commander who does not
respond to an allegation of rape, sexual assault, or other sexual
misconduct should be held appropriately accountable.
22. Senator Warren. Lieutenant General Pede, Vice Admiral Hannink,
Lieutenant General Rockwell, Major General Lecce, how many commanding
officers, if any, for each year in fiscal years 2014-2018 were
disciplined for failing to respond to allegations of rape, sexual
assault, or other sexual misconduct?
Lieutenant General Pede. In fiscal year 2017, two battalion
commanders were disciplined (relieved from command) for failing to
properly respond to allegations of rape, sexual assault, or other
sexual misconduct. The Army is unaware of any disciplinary actions for
the other fiscal years requested.
Vice Admiral Hannink. No commanding officers were court-martialed
for failing to respond to sexual assault allegations. We do not have
databases that give us fidelity on the reasons for other disciplinary
actions such as nonjudicial punishment or administrative forms of
censure. There have been commanding officers relieved based on command
climate over this timeframe. I welcome the opportunity to arrange a
briefing to provide a more detailed accounting of these circumstances,
as desired.
Lieutenant General Rockwell. During the specified timeframe, we are
aware of one commanding officer who was disciplined for failing to
respond to allegations of sexual misconduct. An Air Force Inspector
General investigation determined a brigadier general failed to
investigate allegations of sexual harassment made by a female employee
against a male employee, which constituted an abuse of his authority.
Due to this misconduct, the brigadier general received a Letter of
Counseling, which is a quality force management tool to improve,
correct, and instruct those who depart from standards of performance.
The brigadier general is still serving on Active Duty, has not been
promoted, and is no longer serving in a command position. The system is
designed in such a way that would make it nearly impossible for a
commander to fail to respond to an allegation of sexual assault and, as
demonstrated above, there is a method to investigate any claims of a
failure to respond. Victims have several reporting options to include
the Sexual Assault Response Coordinator, the chain of command, law
enforcement, and the legal office. All of these agencies are required
to immediately forward sexual assault reports to the Air Force Office
of Special Investigations (AFOSI). In addition, victims may make a
report directly to AFOSI or other law enforcement agencies. AFOSI must
open an investigative case file, and then AFOSI and the local legal
office monitor the case until final disposition is complete. In other
words, a commander could not simply sit on an allegation without making
a disposition decision or forwarding the case to the proper disposition
authorities, because the allegation is actively monitored by
investigative and legal channels until completion.
Major General Lecce. The Marine Corps is not aware of any cases,
from fiscal years 2014-2018, in which a commanding officer was
disciplined for failing to respond to an allegation of rape, sexual
assault, or other sexual misconduct. However, the Marine Corps is also
not aware of any case in which a commander failed to respond to such an
allegation.
23. Senator Warren. Lieutenant General Pede, Vice Admiral Hannink,
Lieutenant General Rockwell, Major General Lecce, how many general and
flag officers, if any, were not promoted in each fiscal year from 2014-
2018 because credible evidence was discovered that he or she failed to
respond to allegations of rape, sexual assault, or other sexual
misconduct?
Lieutenant General Pede. Since fiscal year 2014, four general
officers have been disciplined for failing to meet policy requirements
related to the handling of sexual-assault allegations. None were
subsequently promoted, and two officers were retired at lower grades.
Vice Admiral Hannink. From 2014-2018, no Navy flag officers,
selected or nominated for promotion, were not promoted based on
credible evidence of failure to respond to allegations of rape, sexual
assault, or other sexual misconduct.
Lieutenant General Rockwell. During the specified timeframe, we are
aware of no general officers who failed to promote due to the specified
misconduct.
Major General Lecce. The Marine Corps has no record of general
officers not promoted in each fiscal year from 2014-2018 because
credible evidence was discovered that he or she failed to respond to
allegations of rape, sexual assault, or other sexual misconduct.
24. Senator Warren. Dr. Van Winkle, in January 2019, a Defense
Department survey entitled ``Annual Report on Sexual Harassment and
Violence at the Military Service Academies, Academic Program Year 2017-
2018'' found that the number of unreported sexual assaults at three
military service academies (United States Military Academy at West
Point, the United States Naval Academy, and the United States Air Force
Academy) increased by nearly 50 percent--to 747 during the 2017-18
academic year--compared to the number of unreported assaults in the
2015-16 academic year. In a January 31, 2019 hearing, you were quoted
as saying: ``We are disheartened that the strategies we have employed
have not achieved the results we had intended.'' Why have the
strategies to reduce cases of unwanted sexual conduct and increase
reporting rates at the service academies not worked better?
Dr. Van Winkle. We know that our approaches can work in many
circumstances. However, we must constantly reassess and adjust based on
variety of evolving factors, including--for example--evolving research
and changes in our populations at large and at local levels. After many
years in this mission space and despite the commitment of resources and
leadership efforts, we are fully aware that we have not mastered the
factors that drive prevalence and reporting rates. In fact, no subject
matter experts in the country have fully succeeded to date. At the same
time, we have learned that there are certain environments, such as the
academies, that require different approaches than those we employ in
the Active force. This year's military service academies report
emphasized that the climate factors strongly associated with sexual
assault at the academies did not improve--they worsened. As a result,
our efforts at the academies will be to improve leadership's ability to
address climate factors and to provide technical assistance to identify
what efforts appear to be working, what efforts need improving, and
areas in which we can shift resources from less effective to more
effective efforts.
25. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce, the
Defense Department survey entitled ``Annual Report on Sexual Harassment
and Violence at the Military Service Academies, Academic Program Year
2017-2018'' proposed four categories of actions to address sexual
assault in the service academies: 1) Promote Responsible Alcohol
Choices, 2) Reinvigorate Prevention of Sexual Assault, 3) Enhance a
Culture of Respect, and 4) Improve Sexual Assault and Harassment
Reporting. Are there any recommendations in this report regarding the
service academies that are useful to commanding officers in the
services? Please explain.
Dr. Van Winkle. Yes. The recommendation that these problems are the
responsibility of leadership and can be mitigated by addressing the
overall climate of dignity and respect within the unit is useful for
every leader. Sexual assault is strongly correlated with experiences of
sexual harassment and other misconduct within military units. As a
result, we must prepare leaders at all levels, including those leaders
interacting with our most junior personnel, to promote a climate that
prevents misconduct before it happens and ensures our personnel are
treated with the dignity and respect to achieve unit readiness and,
thus, our critical national security missions.
Lieutenant General Pede. Although the U.S. Military Academy and the
other service academies are unique in terms of their structure and
their missions, the proposed actions in the report can be helpful with
continuing the effort against sexual assault in the Services.
Sexual violence fundamentally undermines readiness and lethality,
and consequently, Army commanders are the center of gravity for the
prevention of sexual misconduct. In 2015, the Chief of Staff directed
commanders to develop prevention plans to reduce the likelihood of
sexual assault across the Army, including promoting active leader
engagement, addressing alcohol use, monitoring barracks, and regularly
assessing these plans. Commanders and their staffs can also consider
the lessons from the military service academy reports as they work to
refine these efforts.
Vice Admiral Hannink. These objectives discussed in the report are
driven by the overarching commitment across the Department of Defense
(DOD) and Military Services to create behavioral and culture changes
that will eliminate sexual assault from our organizations. Social
research informs us that such measures are most effective when tailored
to the organization or community targeted. Accordingly, the initiatives
undertaken by the military service academies are specifically designed
for efficacy in the academic setting and in the sociocultural setting
unique to each institution.
However, the initiatives described in the report reflect broader
strategies that can be implemented in any military community. In fact,
many of the initiatives described in the report, though tailored for
the academy environment, are comparable to programs already in use by
military commanders. Discussed below are some specific considerations
that have broader Service applicability:
1) Promoting Responsible Alcohol Choices. The Navy is focused on
promoting responsible alcohol choices across the Service, including
prevention efforts such as modifying on-base alcohol beverage sales
policies to reduce availability and footprint, authorizing commanders
to use alcohol detection devices as an additional tool for deterrence,
and implementing a ``Keep What You've Earned'' prevention campaign
targeting younger sailors.
2) Reinvigorating Prevention of Sexual Assault. All Navy leaders
are accountable for what happens in their units and are key to
affecting institutional change. Leaders are charged with fostering a
command climate that neither condones nor ignores sexist behavior,
sexual harassment, or sexual assault.
3) Enhancing a Culture of Respect. The Navy's ongoing Culture of
Excellence campaign builds on our understanding of the continuum of
harm and findings of the 2016 Workplace and Gender Relations Survey of
Active Duty members. The campaign is an integrated, holistic approach
to preventing destructive behaviors--from suicide and sexual assault to
excessive use of alcohol--that leverages behavioral science and
analytics, and is aimed at promoting signature healthy behaviors.
4) Improve Sexual Assault and Harassment Reporting. There is a
correlation between improved reporting and victim confidence in
response efforts. The Navy continues to prioritize victim support and
investigative and legal capabilities, through high-quality services
provided by trained and accessible personnel. Highly-effective and
responsive victim assistance and advocacy services instill confidence
and trust, strengthen resilience, and encourage victim reporting.
Lieutenant General Rockwell. Our airmen come into our Service from
every demographic, economic, and cultural background. In other words,
they are merely a reflection of society with one main difference, the
have made a choice to defend our Nation through military service. Once
they become a member of the Air Force, it becomes the responsibility of
leadership to mold them into a cohesive fighting force. This charter
does not come without its challenges. For many of our young airmen,
this is their first step to becoming adults. We expect them to grow,
learn, and adhere to the professional standards expected of our
military. This is a process and a part of this process is understanding
they are responsible for their own conduct. Accordingly, Air Force
policy recognizes that alcohol misuse negatively affects individual
behavior, duty performance, and/or physical and mental health. Through
its Alcohol and Drug Abuse Prevention and Treatment Program, the Air
Force provides comprehensive clinical assistance to Active Duty
servicemembers, and will support referral coordination for other
eligible beneficiaries, seeking help for an alcohol problem. The
primary objectives of the Alcohol and Drug Abuse Prevention and
Treatment Program are to: promote readiness, health, and wellness
through the prevention and treatment of substance misuse and abuse; to
minimize the negative consequences of substance misuse and abuse, to
the individual, family, and organization; to provide comprehensive
education and treatment to individuals who experience problems
attributed to substance misuse or abuse; and to restore function and
return members to unrestricted duty status, or to assist them in their
transition to civilian life, as appropriate. These objectives are met
through four levels of activities: universal prevention and education,
selected prevention, indicated prevention, and treatment and continuing
aftercare. Universal prevention and education include population-based
outreach, education, prevention programs, screening, and consultation.
Moreover, selected prevention involves global screenings for alcohol
misuse, as well as initiatives to prevent future alcohol misuse.
Indicated prevention is indicated for those who are engaging in risky
drinking. Additionally, treatment and continuing aftercare provide
evidence-based substance use disorder treatment for individuals who are
abusing or are dependent on alcohol. Finally, Staff Judge Advocates,
Sexual Assault Response Coordinators and Violence Prevention personnel
must provide installation commanders with information on trends and
characteristics of sexual assault crimes and relevant risk factors,
including alcohol related incidents, to enable local sexual assault
prevention and response efforts. In response to the Under Secretary of
Defense's initiative to promote responsible alcohol choices, the United
States Air Force Academy (USAFA) also took some additional steps to
address alcohol abuse. All three-degree cadets (sophomore) since
academic year 2018 participate in Alcohol Skills Training conducted by
the Peak Performance Center (PPC) in small group sessions. Alcohol
Skills Training highlights responsible drinking skills and responsible
alcohol consumption prior to beginning their sophomore academic year.
The PPC and Substance Abuse Prevention Services (SAPS) clinic provides
cadets with alcohol assessments, psychoeducational materials, and
regularly conducts outreach to proactively address responsible alcohol
consumption. Staff from USAFA SAPR and the legal office identified an
opportunity for additional efforts and created and conducted training
for bartenders at the cadet area bar, Hap's, about bystander
intervention and laws concerning sexual assault and intoxication. USAFA
SAPR also utilizes the Bystander Intervention Training for Alcohol
Servers which was developed by the Air Force. Additionally, the Safe to
Report policy was instituted at around the same time that the alcohol
policy changes were made. While at the same time promoting responsible
alcohol choices, USAFA aimed to remove barriers to reporting sexual
assaults that involved alcohol misuse. The Safe to Report policy is
specifically designed to address issues within the academic environment
of the USAFA in an effort to explore barriers to reporting among the
cadets and change the culture at the institution. While expanding this
policy Air Force-wide may appear to be beneficial, we oppose its Air
Force-wide implementation due to its serious, unintended consequences.
First, this type of blanket immunity for collateral misconduct would
inadvertently and unnecessarily challenge the credibility of victims in
many cases, and degrade the fair and impartial adjudication in every
case. A blanket immunity for collateral misconduct fails to take into
account that the facts and circumstances of each sexual assault case
are unique, and therefore requires tailored approaches to maximize
support for victims and ensure appropriate accountability of offenders.
Our objective is to maximize support for victims, encourage them to
come forward and report these crimes, and ensure they are more likely
to participate in the military justice system so that we can hold
offenders appropriately accountable. While waiving collateral
misconduct in some cases helps achieve these objectives, in a few other
cases a requirement of blanket immunity may inadvertently make it less
likely that a victim comes forward to report, receive support and
resources, and participate in the military justice system. For example,
a few victims have indicated that they do not want any form of immunity
for collateral misconduct, while expressing their concerns about even
the slightest suspicion among any colleagues that the victim reported a
sexual assault in order to `get out of' an otherwise minor issue.
Conversely, we also know that in many cases, encouraging commanders to
not consider collateral misconduct--particularly when in the interest
of encouraging victims to come forward, get needed support and
resources, and help participate in the military justice system so we
hold offenders appropriately accountable--is appropriate. But a
blanket, inflexible requirement on consideration of collateral
misconduct, despite the best of intentions, may in fact harm our
efforts to support certain victims and hold offenders appropriately
accountable. For a variety of reasons, sexual assault allegations are
particularly difficult to prosecute and, in many cases, challenges to a
victim's credibility through cross-examination can be the difference in
the outcome. A grant of immunity for collateral misconduct is a
``soft'' target because instead of limiting cross-examination to the
unique facts of a particular case, in practice, a blanket application
of Safe to Report would open the victim's report of sexual assault to
defense challenges alleging the report was made merely to escape
disciplinary or punitive action, detract from the victim's testimony,
and may lend itself to injecting ``reasonable doubt'' into the case, in
turn frustrating the military justice system's ability to fairly
adjudicate each case on its merits. From our Special Victims' Counsel's
perspective, most victims do not want to be treated differently than
any other airman who commits minor misconduct and want to avoid the
appearance of preferential treatment or implication that their sexual
assault report was made to avoid being held accountable for their minor
misconduct, when testifying at a court-marital or administrative
hearing. From our Air Force Integrated Resilience Office, while this
proposal seeks to minimize barriers to reporting for some victims, it
may actually have an adverse impact on reporting and victims as a
whole. Misconceptions of false reporting already exist where there is
an assumption that sexual assault reports are made to receive a
``benefit'' such as an expedited transfer. If the policy were to be
implemented Service-wide, there is the potential that it will reinforce
these misconceptions by further reinforcing an incorrect belief that
victims make reports to avoid punishment for misconduct. This is of
particular importance given the prevalence of alcohol-facilitated
sexual assault. Such attitudes may not only present additional barriers
for victims seeking to make a report, but could actually increase the
risk of retaliatory behavior towards them. Second, pursuant to Section
547 of the John S. McCain National Defense Authorization Act for Fiscal
Year 2019, the Services recently conducted a data call to be provided
to the Defense Advisory Committee on Investigation, Prosecution, and
Defense of Sexual Assault in the Armed Forces (DAC-IPAD) on collateral
misconduct. Raw data of AF Office of Special Investigations Reports of
Investigation published and disseminated for command action between 1
April 2017 and 31 March 2019 reveals only 4.5 percent of sexual assault
victims were accused of collateral misconduct. Applying an immunity
policy across the AF would unnecessarily cloud the testimony of the
other 95.5 percent of victims not accused of collateral misconduct in a
manner that negatively impacts the military justice system. Finally,
the USAFA Safe to Report Policy was constructed to target the unique
academic environment where cadets and cadet candidates are afforded
fewer due process protections and far greater consequences for similar
misconduct than traditional airmen. For example, in certain academic
disciplinary scenarios at USAFA, an individual victim accused of
collateral misconduct does not have a right to legal representation. In
contrast, there is no scenario in the operational Air Force in which
disciplinary action may be taken without the opportunity for
representation by a Special Victims' Counsel in conjunction with joint
representation by a trial defense counsel. Moreover, at this point,
there is insufficient data to demonstrate that the USAFA policy, rather
than other external factors, has had a statistically significant impact
on victim reporting.
Major General Lecce. Yes. The Marine Corps is implementing the
recommendations to the military service academies in the following
ways: 1) Promote Responsible Alcohol Choices. The Marine Corps promotes
responsible alcohol choices through low-risk to no-risk use of alcohol.
USMC targets alcohol misuse through education, deterrence, and
evidence-based marketing. The goal is to build and sustain an
understanding of risk levels concerning alcohol consumption and ensure
both officers and staff non-commissioned officers support, mentor, and
empower their subordinates to make healthier, low/no risk choices
involving alcohol consumption. 2) Reinvigorate Prevention of Sexual
Assault. The Marine Corps continues to leverage subject matter experts,
research efforts, and training programs to help combat this crime.
Prevention remains the highest and most enduring priority. The USMC is
building an inclusive prevention system that integrates a variety of
stakeholders and builds skills that promote protective factors and
mitigate risk factors that lead to sexual assault. The Marine Corps is
developing rank-specific leadership training to address skills and
knowledge of the SAPR program applicable to each phase of a marine's
career, including training for staff non-commissioned officers (SNCO)
and officers. USMC is working with DON [Department of the Navy] and DOD
SAPRO to integrate the recently signed DOD Prevention Plan of Action,
and an enterprise-wide self-assessment of sexual assault prevention
efforts. 3) Enhance a Culture of Respect. Cultivating a culture of
respect is inherent to the ethos of the Marine Corps. Leadership at all
levels must enforce the core values of the Marine Corps and set a tone
that fosters respect, cohesion, and communication. USMC empowers front-
line leaders with tools, knowledge, and training to help them create
and maintain a healthy culture. In addition, symposiums and small-unit
leadership-led discussions are used to address topics including: social
media misconduct, sexual communication in the digital age, recognizing
and reducing victim blaming, and barriers to reporting. These efforts
empower marines to be more cognizant of the different forms of sexual
assault and harassment. 4) Improve Sexual Assault and Harassment
Reporting. To minimize reporting barriers, the Marine Corps includes
retaliation prevention and response content in all SAPR annual training
and leadership courses. Leaders, Sexual Assault Response Coordinators,
and SAPR Victims' Advocates receive instruction and information related
to individual responses to trauma. The Marine Corps continues to
explore ways to leverage the sphere of influence of peers and first-
line leaders within education, training, and intervention efforts, and
by developing tools to assist leaders at all levels to set the
standards for a climate of respect within their area of responsibility.
26. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce, the
Defense Department survey entitled ``Annual Report on Sexual Harassment
and Violence at the Military Service Academies, Academic Program Year
2017-2018'' reportedly evaluated the role of alcohol consumption in
unwanted sexual contact for the first time. How do the Services promote
responsible alcohol choices?
Dr. Van Winkle. While the Services will speak to their Service-
specific efforts, the DOD approach is to leverage a combination of
education, robust policy, and strong accountability to improve
outcomes. That said, we are aware that civilian environments also face
challenges when applying best practices to drive more responsible
alcohol choices for people of this age and stage of development among
our military service academies' population. Nonetheless, we continue
our efforts to get this right.
Lieutenant General Pede. Ensuring that any consumption of alcohol
is done responsibly is an issue of readiness. Commanders at every level
reinforce this through local prevention plans and active leader
engagements.
The Army supplements these efforts through a comprehensive
healthcare framework. This framework includes education efforts,
training materials, and Substance Use Disorder Clinical Care (SUDCC)
providers, who are now co-located with Embedded Behavioral Health teams
at units across the Army. Soldiers can now voluntarily seek alcohol-
related behavioral healthcare. A pilot of this initiative demonstrated
a 34-percent reduction in the number of soldiers who were not
deployable while receiving voluntary care.
Finally, leaders are equipped with tools to help reduce risk
factors and improve leaders' visibility of their soldiers. These tools
help leaders to ``see'' their soldiers and identify behaviors that may
be an indicator of a larger problem. These tools include the
Commander's Risk Reduction Dashboard, which provides individual soldier
and overall unit risk history, trends, and the impacts on personnel
readiness.
Vice Admiral Hannink. The Navy continues to reinforce healthy
alternatives to alcohol, and promotes responsible use for those of
legal drinking age who choose to consume alcohol. We have also modified
on-base alcohol beverage sales policies to reduce availability and
footprint, authorized commanders to use alcohol detection devices as an
additional tool for deterrence, and implemented a ``Keep What You've
Earned'' prevention campaign targeting younger sailors.
Lieutenant General Rockwell. Air Force policy recognizes that
alcohol misuse negatively affects individual behavior, duty
performance, and/or physical and mental health. Through its Alcohol and
Drug Abuse Prevention and Treatment Program, the Air Force provides
comprehensive clinical assistance to Active Duty servicemembers, and
will support referral coordination for other eligible beneficiaries,
seeking help for an alcohol problem. The primary objectives of the
Alcohol and Drug Abuse Prevention and Treatment Program are to: promote
readiness, health, and wellness through the prevention and treatment of
substance misuse and abuse; to minimize the negative consequences of
substance misuse and abuse, to the individual, family, and
organization; to provide comprehensive education and treatment to
individuals who experience problems attributed to substance misuse or
abuse; and to restore function and return members to unrestricted duty
status, or to assist them in their transition to civilian life, as
appropriate. These objectives are met through four levels of
activities: universal prevention and education, selected prevention,
indicated prevention, and treatment and continuing aftercare. Universal
prevention and education include population-based outreach, education,
prevention programs, screening, and consultation. Moreover, selected
prevention involves global screenings for alcohol misuse, as well as
initiatives to prevent future alcohol misuse. Selected prevention is
indicated for those who are engaging in risky drinking. Additionally,
treatment and continuing aftercare provide evidence-based substance use
disorder treatment for individuals who are abusing or are dependent on
alcohol. Finally, Staff Judge Advocates, Sexual Assault Response
Coordinators and Violence Prevention personnel must provide
installation commanders with information on trends and characteristics
of sexual assault crimes and relevant risk factors, including alcohol
related incidents, to enable local sexual assault prevention and
response efforts.
Major General Lecce. The Marine Corps promotes responsible alcohol
choices through low-risk to no-risk use of alcohol by targeting alcohol
misuse through education, deterrence, and evidence-based marketing. The
Marine Corps Substance Abuse Program emphasizes:
Building and sustaining an understanding of risk levels
concerning alcohol consumption.
Shifting the focus from alcohol-related incidents to the
consumption of alcohol itself.
Ensuring staff non-commissioned officers and officers
support, mentor, and empower their subordinates to make healthier, low/
no risk choices involving alcohol consumption (they are key in
decreasing alcohol misuse). Program initiatives include the Alcohol
Screening Program (ASP) and PRIME For Life (PFL).
ASP is a key tool for deterring alcohol misuse. The
program utilizes random breathalyzer testing of marines and sailors to
screen for underage drinking and alcohol use while in a duty status.
PFL is an early intervention, evidence-based prevention
and education program that provides marines with the ability to self-
assess high-risk behaviors. PFL influences changes in attitudes,
beliefs, and behaviors related to alcohol use. It emphasizes the value/
benefit of making low risk/no risk alcohol-related choices.
27. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce,
under current military justice procedure, are sexual assault survivors
required to be provided, or given the option to be provided, all non-
privileged court material filings at the time a case is filed? If not,
why not?
Dr. Van Winkle. As these matters fall outside my purview, I
respectfully defer to my colleagues on this legal question.
Lieutenant General Pede. The military is in the process of fully
implementing the new Article 140a. In addition, the Department of
Defense recently submitted a legislative proposal to clarify that the
Privacy Act does not prohibit the Military Services from making non-
privileged court filings available to the public, including to any
victim of any offense.
Until the legislative solutions are fully enacted, however, the
Army has instituted a disclosure policy. Under that policy, once a case
is filed in court, that is, it is referred to a court-martial, the
victim is provided with: the referred charges that pertain to that
victim; any request to interview the victim from the defense counsel;
the court's scheduling orders; a copy of any pleading that may affect a
victim's ability to participate in the trial; a victim's possessory
interest in any property; and a victim's privileged communications or
private medical information. A victim also has standing to litigate any
issue that affects that victim under Military Rules of Evidence 412
(victim sexual behavior), 513 (psychotherapist patient privilege), and
514 (victim-victim advocate privilege), and the law allows the victim
to file a writ of mandamus in the courts of criminal appeals to enforce
these rights.
Finally, these disclosure rights are in addition to pre-referral
disclosures under Army policies. These include the preferred charges
that relate to the victim; a copy of all statements or evidence
provided by the victim; and a copy of the victim's summarized testimony
from any preliminary hearing. The victim is also kept informed of any
pre-trial confinement hearing or preliminary hearing.
Of note, any disclosure policy that would exceed the disclosure
rights of the public should be carefully evaluated to ensure that the
right of the accused, and of the community, to a fair trial is
protected and the privacy interests of others are assured.
Vice Admiral Hannink. Our procedures allow all statements provided
by or adopted by a victim to be given to him or her upon request.
Additionally, victims receive motions and accompanying evidence for
litigation that implicate a victim's rights, such as a victim's mental
health records, evidence of prior sexual behavior under Military Rule
of Evidence 412, or other matters under Article 6(b), UCMJ.
Victims are not provided other court materials at the time of
filing. One situation of potential concern is that trial witnesses,
including victims, might gain access to other witnesses' statements or
evidence in the case. Such access could potentially distort the
victim's memory of an event or otherwise affect the victim's testimony
about the event. As a consequence, the practice of providing filings
containing other witnesses' statements and other evidence concerning
the case could lead to a damaging line of cross-examination by the
defense against the victim.
In accordance with Article 140a, UCMJ, the Secretary of Defense
(SECDEF) has recently prescribed military justice case management,
data, and accessibility uniform standards to be implemented not later
than December 23, 2020. This policy provides that, to the greatest
extent possible, military justice docket information, filings, and
records should be no less accessible to the public than comparable
information and documents from the federal civilian criminal justice
system. However, an important legal distinction exists between the two
systems: the Privacy Act applies to the military justice system. SECDEF
also acknowledged that Privacy Act concerns are directly relevant to
the manner in which information and documents from the military justice
system may be made available to the public. Therefore, according to the
SECDEF prescribed standards, if the law is changed to exempt from the
Privacy Act the release of military justice docket information, filings
and records, then all dockets, filings, and court records will be made
available to the public on a website as soon as practicable after
filing. If the law is not changed, then the SECDEF prescribed
guidelines would require dockets, filings, and court records to be
published as soon as practicable after the completion of the following
two events: a) the certification of the record of trial, and b) when
all such documents to be published have been properly redacted in
compliance with the Privacy Act.
Lieutenant General Rockwell. Court-martial filings are protected by
the Privacy Act, which prevents the Government from freely providing
all court records and filings to victims. That said, there are certain
records that must be provided to the victim as a matter of law. That is
the audio recording or transcript from an Article 32 preliminary
hearing (upon request) and the completed record of trial (provided
automatically to victims who testify, provided to all others upon
request). Though these laws do not serve as an exception to the Privacy
Act per se, the Air Force's system of records notice allows the
Government to provide records to victims as required by law without
violating the Privacy Act. In addition, Special Victims' Counsel (SVC)
may request any court-martial filings or other records as an ``official
use'' exception to the Privacy Act. As long as the record is needed to
assist SVCs in the performance of their official duty to represent
their client, then the Government may provide it unredacted without
violating the Privacy Act. Air Force policy specifically outlines these
official use procedures to allow more efficient flow of information
between the Government and SVC community. Finally, the Uniform Rules of
Practice Before Air Force Courts-Martial require all motions filed
under Military Rules of Evidence 412, 513, 514, 615, or any other
motion that relates to Article 6b, UCMJ, to be served on the Special
Victims' Counsel.
Major General Lecce. Under Marine Corps regulations, victims of
sexual assault are provided with a redacted copy of the charging
document, copies of motions related to the victim's rights, copies of
their testimony during the pretrial proceedings, and any statements
they made during the investigation. Victims are not provided all non-
privileged filings because those filings are subject to Privacy Act
restrictions. Additionally, providing victims with routine access to
all non-privileged filings may jeopardize the Government's ability to
obtain convictions at courts-martial. The practice risks contaminating
victims' and witness' testimony. For example, by providing all non-
privileged filings to a victim, that victim may gain access to another
witness' statement or other evidence in the case. This will result in
the victim being subjected to greater scrutiny on cross-examination.
Even if receipt of this information does not actually change the
victim's testimony, a defense counsel could still argue that the
testimony has been contaminated by the victim reviewing other
statements or evidence in the case.
28. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce,
under current military justice procedure, are sexual assault survivors
always provided the opportunity to be heard through an impact statement
or other testimony at the sentencing phase of a court martial
proceeding? If not, why not?
Dr. Van Winkle. As these matters fall outside my purview, I
respectfully defer to my colleagues on this legal question.
Lieutenant General Pede. Under Rule for Courts-Martial 1101(c), any
victim of an offense of which the accused was convicted is provided the
opportunity to be heard--whether in sworn testimony or through a victim
impact statement--at a pre-sentencing hearing. In addition, such
victims are offered the opportunity to submit matters for the convening
authority's consideration after the trial has concluded.
Vice Admiral Hannink. Yes. Rule for Courts-Martial 1001(c) allows
victims of the crime of which an accused has been found guilty to be
reasonably heard at the presentencing proceeding. However, our Victims
Legal Counsel Program leadership have recently informed me that there
are occasionally challenges encountered by victims who wish to testify
remotely, but have to overcome certain procedural requirements
associated with using video teleconference capabilities in lieu of in-
court testimony. I have provided those concerns to the Chief Judge,
Department of the Navy and to the Chief Judge, Navy-Marine Corps-Trial
Judiciary (NMCTJ) so that they may consider revision to the NMCTJ
Uniform Rules of Practice to address this issue.
Lieutenant General Rockwell. Under the Rules for Courts-Martial,
when a charge and specification with a named victim results in a
conviction, that victim may provide a victim impact statement as part
of the sentencing phase of a court-martial proceeding. The victim
impact statement may be oral, in writing or both. The victim may also
provide either a sworn or unsworn statement. However, if the court-
martial proceeding results in an acquittal on all specifications for a
particular victim or all specifications are dismissed regarding a
particular victim prior to a verdict, that victim would not be able to
provide an impact statement because the charges and specification
regarding that victim did not result in a conviction.
Major General Lecce. Yes, victims are provided an opportunity to be
reasonably heard during the sentencing phase of a court-martial. In the
majority of cases, victims may exercise this right through submission
of a sworn statement, an unsworn statement, or both. In capital cases,
the victim's right to be reasonably heard is limited to sworn
statements. Sexual assault victims are provided the opportunity to be
heard throughout the court-martial process, including during the
investigation, before making a decision on whether to prosecute a case,
during trial, and during the sentencing phase of court-martial
proceedings.
29. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce,
would you support a modification to the current way in which military
sexual assault survivors obtain protective orders so that the survivor
is not required to obtain a protective order through the survivor's
chain of command, and can instead obtain a protective order directly
from a military judge or military magistrate?
Dr. Van Winkle. As protective orders fall outside my purview, I
respectfully defer to my colleagues on this question.
Lieutenant General Pede. I am not aware of any issue with a victim
seeking a military protective order, but of course, I am open to
considering any effort to ensure a victim's safety. No victim is
required to directly ask the alleged offender's chain of command for a
military protective order. Such orders are routinely issued and a
special victim counsel or victim advocate can assist a victim with
obtaining a military protective order. In addition to military
protective orders, a victim can obtain a state order of protection,
which have robust procedures to enforce them.
Vice Admiral Hannink. I support efforts to enhance the safety,
well-being and readiness of all servicemembers. The consideration of
whether to issue a protective order is a responsibility that resides
with commanders. Under DOD and Navy regulations, denial of a protective
order in a sexual assault case must be raised to the installation
commander or equivalent command level for final decision in
consultation with a judge advocate. I am open to further considering
whether this authority should be provided to military judges or
military magistrates as well.
Lieutenant General Rockwell. We do not support a modification
giving military judges the authority to grant protective orders. We
refer and rely upon the Office of Management and Budget's Follow-On to
Statement of Administration Policy on S. 2987, the John S. McCain
National Defense Authorization Act for Fiscal Year 2019 (June 26,
2018). The statement provided in relevant part: Although the
Administration strongly supports providing necessary protection to
victims, the Administration objects to section 544, which would
authorize military judges to issue and enforce domestic protective
orders, because it would strain the military judiciary's limited
resources and greatly expand the authority of military judges into an
area that has been reserved to civil courts. Currently, servicemembers,
DOD dependents, and non-DOD affiliated civilian victims in the United
States have access to State civil courts, which have robust and long-
standing procedures to issue and enforce protective orders that meet
the requirements for registration in Federal and civilian databases for
background checks and firearms purchases. Military Victim-Witness
personnel, Special Victims' Counsel, Victim Advocates for both the
Family Advocacy Program and the Sexual Harassment/Assault Response and
Prevention Program, and law enforcement personnel are all trained on
referring and assisting victims with obtaining these civilian court
orders and ensuring that the orders are registered with military police
for enforcement on installations. Additionally, for victims both in the
United States and overseas, military commanders can issue protective
orders in appropriate circumstances. Additionally, we note that a
military judge often has jurisdiction over only one of the parties
involved in the conflict giving rise to the need for a protective order
(i.e. in the case of a civilian spouse or intimate partner). Thus, they
do not have jurisdiction to adequately protect all parties involved. A
civilian court would have full jurisdiction over all parties. For these
reasons, we recommend maintaining the current process whereby
commanders issue military protective orders and refer them immediately
to law enforcement for proper indexing in criminal databases. The
parties then seek a complementary civil protective order to maximize
personal security both on and off base.
Major General Lecce. Protecting victims is a priority. The current
system in place is fast, effective, and places minimal burdens on
victims. This proposal is similar to a provision opposed last year in
the Follow-On to Statement of Administration Policy on S. 2987. That
statement explains that such a change would strain the military
judiciary's limited resources and expand the authority of military
judges into an area that has been reserved to civil courts. I am open
to expanding the role of military judges and magistrates to earlier in
the military justice process. However, military magistrates are not
currently trained or well positioned to deal with the many legal facets
of issuing restraining orders. This area of the law often requires
expertise or support in family law matters. Additionally military
judges and magistrates would only have authority over Active Duty
servicemembers whereas state courts have authority over all parties
regardless of their civilian or military status. State civil courts
have robust and long-standing procedures to issue and enforce
protective orders. Those orders meet the requirements for registration
in Federal and other databases used for background checks and firearms
purchases. Furthermore, those orders are enforceable on military
installations.
30. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce,
please describe your understanding of the appropriate role of military
commanders, in relation to the chain(s) of command of the alleged
perpetrator and the alleged survivor, in preventing or stopping
retaliation for reporting a sexual assault claim.
Dr. Van Winkle. DOD's SAPR Policy requires that all supervisors,
(officer, enlisted, civilian) down to the most junior supervisor,
receive training that explains:
The appropriate, professional response by peers to a
victim and an alleged offender when a sexual assault is reported in a
unit. This training uses scenarios to facilitate discussion of
appropriate behavior, to include discussing potential resentment of
peers for victims, bystanders, or witnesses who report a sexual
assault. Additionally, the training must explain that incidents of
retaliation, reprisal, ostracism, and maltreatment violate good order
and discipline, erode unit cohesion, and deter reporting of sexual
assault incidents.
That all supervisors in the victim's chain of command,
officer and enlisted, are required when they become aware of
allegations of retaliation, reprisal, ostracism, or maltreatment, to
take appropriate measures to protect the victim from retaliation,
reprisal, coercion, ostracism, and maltreatment.
What constitutes retaliation, reprisal, ostracism, and
maltreatment in accordance with Service regulations and Military
Whistleblower Protections and procedures for reporting allegations of
reprisal.
The resources available for victims (listed in Enclosure
4 of DOD Instruction 6495.02) to report instances of retaliation,
reprisal, ostracism, maltreatment, or sexual harassment or to request a
transfer or military protective order.
That victims who reported a sexual assault or sought
mental health treatment for sexual assault, have the opportunity to
communicate with the general officer/flag officer regarding issues
related to their military career that the victim believes are
associated with the sexual assault. In addition, our approach
emphasizes that command climate largely addresses how servicemembers
making a report of sexual assault will be treated. For this reason, we
have provided commanders questions about the reporting climate on
climate surveys. We have also enacted a proactive means by which senior
mission commanders at installations collect information about
retaliation allegations through Case Management Groups. This senior
leader focus allows them to understand the nature of such allegations
at their installations and get the allegations to the appropriate
authority for review and investigation, as appropriate.
Lieutenant General Pede. Every commander across the Army is
responsible for preventing or stopping any act of retaliation for
reporting a sexual assault. The Uniform Code of Military Justice
criminalizes acts of professional retaliation; and punitive regulations
reinforce the prohibition against retaliation. Under Army policy, a
Sexual Assault Response Coordinator asks every victim at least monthly
whether the victim has suffered from either professional or social
retaliation. Any allegation of retaliation must thoroughly be
investigated. All allegations are reported both to an installation's
senior commander through the Sexual Assault Response Board and in the
Army's annual report on sexual assault. Finally, each commander must
conduct anonymous command climate surveys upon assumption of command
and at least annually after that, which ask the servicemembers'
opinions of the unit's climate regarding, among other concerns, sexual
assault, sexual harassment, and retaliation. The results are shared
with higher level commanders. The results inform a commander whether
proactive action to prevent such acts is necessary.
Vice Admiral Hannink. The Navy is concerned with retaliation for
sexual assault reporting. Accordingly, Navy leaders are responsible for
establishing prevention and response programs that ensure their
servicemembers are treated with dignity and respect, including
fostering a climate of inclusion that does not tolerate retaliation for
reporting. This responsibility holds true for the commanders of both
the alleged perpetrator and the survivor of the alleged assault.
Article 132, UCMJ provides an additional mechanism for commanders to
hold leadership and peers accountable under appropriate circumstances.
Although the military has more control over the workplace and social
behaviors of its sailors than a civilian employer would, social
ostracism is a complex behavior that is challenging to deter. To
overcome this, we continue to educate the Fleet and keep expedited
transfers as an option for victims to avoid social ostracism if
necessary.
Lieutenant General Rockwell. An act of retaliation can be charged
as a violation of Article 132 of the Uniform Code of Military Justice,
which provides to the commander the full range of disciplinary tools in
order to punish those who engage in retaliation and to deter future
violations. Most importantly, if a victim of sexual assault experiences
any form of retaliation, whether it be reprisal, ostracism, or
maltreatment, there are multiple avenues to raise concerns and seek
assistance, including the Inspector General, Area Defense Counsel/
Special Victims' Counsel, Sexual Assault Response Coordinator or Victim
Advocate, Staff Judge Advocate, or Air Force Office of Special
Investigations. Every report of retaliation is referred for
investigation. The commander's Case Management Group (CMG) is charged
with monitoring sexual assault cases, providing victims support, and
tracking retaliation allegations brought to the Group's attention. The
CMG is required to track retaliation against victims, SARCs, and SAPR
Victim Advocates until resolution, and the CMG Chair refers cases
against witness, bystanders, and responders to the appropriate
authority. Early engagement by leadership makes a difference. It is the
commander who carries the message as to the seriousness of every
allegation of sexual assault and that any form of retaliation will not
be tolerated. Commander's authority to set standards and enforce them
is at the core of the military justice system. Commanders have the
ability, opportunity, and responsibility to shape the expectations and
standards within their units. Experience has taught us that, if we wait
to address issues surrounding sexual misconduct until after it has
occurred, we are many times too late. As a result, we train our senior
commanders at the Air Force's Senior Officer Legal Orientation about
the importance of talking to their airmen about these cases and their
perspectives before an incident occurs. It is imperative commanders
protect the rights and the reputations of all the parties involved in
an allegations of sexual assault.
Major General Lecce. Commanders are responsible for ensuring their
marines understand that retaliation is not tolerated. In addition to
required Sexual Assault Prevention and Response training, which
explains that retaliation for reporting a sexual assault is prohibited,
all commanders are required to conduct training on the Marine Corps
Order prohibiting destructive behaviors. That order also prohibits
retaliation and ostracism for making a report of sexual assault.
Commanders of the accused and victims both play vital roles in
preventing and responding to retaliation. Commanders must take
seriously and investigate all reports of retaliation. Where that
investigation substantiates a complaint of retaliation, commanders have
a range of disciplinary tools to hold accountable those who engage in
retaliation, and to deter future violations.
31. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce,
please describe your understanding of the responsibilities of the
Special Victims Counsel when retaliation occurs against a survivor of
sexual assault.
Dr. Van Winkle. As these matters fall outside my purview, I
respectfully defer to my colleagues on this legal question.
Lieutenant General Pede. A special victim counsel is responsible
for representing her or his client's interests to the best of their
ability within the scope of the SVC program.
In the event of an allegation of retaliation, an SVC has a number
of options to represent their client effectively. Often, an SVC is able
to quickly address the issue through the trial counsel who advises the
command of the perception. In other circumstances, the SVC can assist a
client by raising the issue with the chain of command directly or, when
in the best interests of the client, through law enforcement or the
inspector general.
Social retaliation is often the most difficult to formally address,
but here, the SVC can ensure clients are aware of services available to
them, including a request for an expedited transfer to a new unit.
Vice Admiral Hannink. Where a victim of a sexual offense has been
retaliated against after making a report, VLC advise the client on all
of the options available to him/her to make a complaint about the
retaliation, to include filing complaints with the Inspector General
and congressional members. By instruction, VLC are authorized to assist
in the drafting and filing of these complaints. VLC have generally been
successful in addressing the issue on behalf of the victim directly
with the chain of command; commanders have been accessible and
responsive in correcting the issue. Additionally, VLC advise and assist
victims in taking advantage of the Expedited Transfer Program or a
temporary duty assignment in order to move to another command.
Lieutenant General Rockwell. The 10 USC 1044e permits Special
Victims' Counsel (SVC) to represent eligible sexual assault victims who
have reported an allegation of sexual assault. As a part of that
representation, SVCs assist clients with reporting retaliation claims
when there is a connection between the retaliation claim and the
underlying reported sexual assault. SVCs assist sexual assault victims
who want to file a complaint of retaliation or reprisal through various
reporting channels to include, but not limited to, command channels,
the Department of Defense or service Office of the Inspector General,
Equal Opportunity Office or to members of the United States Congress.
In addition to assisting clients with reporting retaliation claims, SVC
assist victims who participate in any investigation related to the
claim and coordinate with investigation authorities to keep victims
informed as to the status of the investigation and the disposition of
allegations.
Major General Lecce. Our VLCs take retaliation very seriously. The
standard VLC introductory brief that all victims receive upon entering
a VLC office includes an explanation of retaliation as well as an
assurance that it should not be happening. With regard to the VLC's
responsibilities in handling a report of retaliation, VLCs normally try
to handle the situation at the lowest level possible, and elevate as
necessary. The lowest level is generally the commanding officer or a
senior enlisted marine. Commanding officers are responsible for
establishing a command climate free from a fear of retaliation. They
take that responsibility very seriously. We do not often see
retaliation, but when we do it is generally in the form of ostracism or
gossip by the victim's peers or coworkers. A commanding officer or
sergeant major can address those situations quickly and successfully.
In the event that a command is unable to address the situation, VLCs
will assist the victim in communicating concerns to other resources,
such as a higher level of command or the IG. Success is ultimately
measured by the victim's satisfaction that the situation has been
remedied.
32. Senator Warren. Dr. Van Winkle, Lieutenant General Pede, Vice
Admiral Hannink, Lieutenant General Rockwell, Major General Lecce, why
do you believe sexual assault continues in the Armed Forces despite
your attempts to reduce it, and are there steps, beyond what you are
currently doing, that would significantly reduce and potentially
eliminate the incidence of sexual assault?
Dr. Van Winkle. Despite the reductions in the prevalence of sexual
assault observed in the force between 2012 and 2016, researchers
continue their efforts to better understand the factors that drive
increases and decreases in prevalence. We can and must do better in
driving these rates down. The Department of Defense will implement the
Prevention Plan of Action to help optimize and coordinate prevention
systems throughout the Department. In addition, as we have recommended
in the military service academies report, we know we must prepare
leaders, including student leaders, to better address these problem
behaviors within their climates. Acting Secretary of Defense Patrick
Shanahan also issued a memorandum on May 1, 2019, which is accessible
on defense.gov, that has a full suite of actions to address sexual
assault and sexual harassment.
Lieutenant General Pede. Sexual assault is a society-wide problem,
and it will take a society-wide effort to reduce it. Data from
throughout the United States demonstrate that this is truly a national
problem. It is also complex and arises from multiple contributing
factors. Although criminal prosecution has an important role in
addressing this crisis, we cannot prosecute our way out of this, either
in the military or in communities across the United States.
Changing culture in the military is a question of empowered
leadership, and leaders at every level--and especially commanders--must
be at the center of this effort. The authority our commanders have to
use a disciplinary system that allows for the criminalization of
conduct not possible in the civilian community, allows the military to
take action on the wide-variety of misconduct that ultimately
contributes to the rate of sexual assault. I am committed to working
with Congress, civilian partners, and leaders at every level of the
Army to ensure that we build a culture in which every servicemember
understands that acts of sexual assault and sexual harassment are
abhorrent and impede our readiness to fight. We must build a culture in
which every servicemember works to eliminate this crime from our ranks.
Vice Admiral Hannink. Sexual assault is a persistent challenge
across all Military Services--the results from this year's report
highlight critical challenges the DOD and the Services must, and will,
address.
At the request of Senator McSally during the Senate Armed Services
Committee Hearing on March 14, 2019, Acting SECDEF Shanahan formed a
team of experts to take a fresh look at issues involving sexual
assault, with a focus on the investigative and accountability
processes. The Sexual Assault Accountability and Investigation Task
Force (SAAITF) was tasked with identifying, evaluating, and
recommending immediate and significant actions to improve the
investigative process and disposition of cases. On April 30, 2019, the
SAAITF issued its report with recommendations to help commanders set
command/organizational climate, enhance victim support, and ensure fair
and just support for the accused. On May 1, 2019, Acting SECDEF
Shanahan directed the Department to implement the recommendations of
the SAAITF's report as well as developing new climate assessment tools
focused on providing leaders information on the extent of their unit's
climate, launching the Catch a Serial Offender (`CATCH') Program to
improve the identification of repeat offenders, enhancing efforts to
select recruits of the highest character, preparing new leaders and
first-line supervisors for applied leadership challenges, and executing
the DOD Sexual Assault Prevention Plan of Action.
Lieutenant General Rockwell. It is critical to recognize our airmen
come from every cultural, economic, and demographic background. We
attempt to shape them into a professional, disciplined fighting force,
but this objective takes time and we are faced with the same challenges
our counterparts in society face. The difference is our airmen
generally do not get to elect those they work with or the locations
they are stationed. This increases our obligation to identify ways to
educate, identify, and prevent behaviors which may culminate in a
sexual assault. It is an unrealistic expectation to believe we can
eliminate every instance of sexual assault. Our culture demands we
remain dedicated to finding tools and methods to reduce sexual assault
within the military. We also recognize these cases within the military
automatically move to the forefront and are consistently reviewed and
scrutinized. The Air Force embraces the challenge. We have made
significant strides in addressing allegations of sexual assault. The
Air Force has always provided victims a voice through the Victim
Witness Assistance Program, and has always pursued cases which, at
times, solely rest on the testimony of the victim in the case. Those
cases are among the most difficult to prosecute. Across the Military
Services, victims are represented by Special Victims' Counsel, a
program first initiated by the Air Force. To make any true assessment
on the effects of our efforts is premature. Change takes time and an
allegation of an offense today may take years to work through the
court-martial process to be compounded by the time a case takes to work
through the appellate process. But one needs look any further than the
congressionally-established Response Systems Panel that found
commanders must take the lead in implementing and overseeing DOD's
prevention programs and strategies. Proposals for systemic changes to
the military justice system should be considered carefully in the
context of the many changes that have been made to the form and
function of the military justice system. Additionally, the Panel
concluded that Congress should not further limit the authority of
convening authorities to refer charges for sexual assault crimes to
trial by court-martial. The Military Justice Act of 2016 created the
greatest changes to the Uniform Code of Military Justice (UCMJ) in 30
years, and its impacts are still being realized. These vast changes
must be given time to take effect and to be studied. The Air Force is
committed to strengthening our system. We are working to launch the
CATCH program which will improve reporting and ensure greater
accountability. In May 2019, the Sex Assault Accountability and
Investigation Task Force made a number of recommendations to our system
which will ensure that our military justice system continues to serve
as a strong deterrent to criminal conduct. We are also reviewing
legislation designating sexual harassment as a specific crime in the
UCMJ. This is intended to assist with cultural climate, as our studies
show that the likelihood of sexual assault increases in an environment
with a higher prevalence of sexual harassment or disregard for sexual
harassment complaints. While the majority of our efforts should be
focused on preventive measures, recently we have worked with our
Military Criminal Investigative Organizations to develop more effective
ways for reducing the time for completing investigations and
adjudications. The Air Force remains committed to identifying new
inroads to combat these offenses, as well as instill a culture of
dignity and respect in our airmen at the earliest possible point.
Major General Lecce. Sexual assault is a crime and an affront to
everything marines and the Marine Corps represent. It erodes the trust
and cohesion within the Marine Corps team, degrades our lethality and
readiness, and is incompatible with our core values of honor, courage,
and commitment. Prevention begins with leadership. Commanders must
enforce standards and set a tone that fosters respect, communication,
and cohesion. Empowering front-line leaders, young company grade
officers and non-commissioned officers, with the knowledge, training,
and tools to swiftly address sexual assaults in their units is key to
combating this issue. The most at-risk population are female marines
24-years-old and younger, serving in the ranks private through
corporal. Their perpetrators are often peers within one or two ranks.
With this knowledge, commanders and front-line leaders need to ensure
they are building teams that do not tolerate sexual assault.