[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
         
         
         
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              U.S. GOVERNMENT PUBLISHING OFFICE 
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                      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.