Top Service Lawyers: Commanders Crucial to Attacking Sexual Assault, Harassment
The armed services are relentless in attacking the problem of sexual assault and sexual harassment, and experience shows that commanders must be part of that attack, the service judge advocates general told the House Armed Services Committee’s military personnel subcommittee April 2.
Commanders will be key to getting after this affliction, said Army Lt. Gen. Charles N. Pede, who told lawmakers that commanders must be responsible for getting after the problem, protecting the victims and guarding the rights of the accused.
He called commanders “the fulcrum to any solution” in the Army.
“The notion that stripping commanders of authority over serious crimes will reduce crime [and] results in more or better prosecutions or higher conviction rates is simply not supported by any empirical evidence,” Pede said. “In the multitude of congressionally mandated studies, where diverse panels of experts have exhaustively examined the military justice system, hearing from hundreds of witnesses who gave thousands of hours of testimony, they reported back to you one critical consistent conclusion: that commanders should not be removed from the justice system.”
Commanders are responsible for discipline in their units, the Army’s top lawyer noted. “In my professional view, taking away a commander's decision over discipline -- including the decision to prosecute at court-martial -- will fundamentally compromise ... the readiness and lethality of our Army today and on the next battlefield,” he said.
The Navy’s JAG, Vice Adm. John G. Hannink, asked three questions: Would removing commanders' convening authority decrease the prevalence of sexual assault? Would it increase the reporting of sexual assault incidents? Would it improve case disposition decisions?
A study released in 2014 showed the answer to the first two questions was no, he said. “The evidence does not support a conclusion that removing convening authority from senior commanders will reduce the incidence of sexual assault or increased reporting of sexual assault.,” Hannink said.
On the third question, he added, a panel concluded that the disposition decision in 184 cases found the commanders were reasonable in 95 percent of them.
“I am grateful for these studies that have been conducted,” Hannink said. “The military justice system might be the most studied criminal justice system over the past decade. And we welcome the scrutiny. That scrutiny benefits everyone who serves in the armed forces -- those who are victims, those who are accused of crimes, and those who work within the system to achieve its objectives to be a system of justice and a system that enables commanders to maintain good order and discipline.”
Air Force JAG Lt. Gen. Jeffrey A. Rockwell stressed that 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,” he said. “Discipline is a commander's business, since they have the ultimate responsibility to build, maintain and lead the discipline force necessary to succeed in combat across multiple domains. Discipline makes us ready. Discipline makes us lethal.”
The military justice system works to strike a careful constitutional balance, Rockwell said.
“That balance is best struck when, at every critical junction of the process, a commander is armed with the relevant facts, including victim input, and advised by a staff judge advocate before making a decision on the next critical step in the process,” he added. “We also know that good order and discipline is best when command operates and executes a discipline across the entire continuum of discipline.”
This runs from prevention efforts and setting standards all the way to courts-martial. “This disciplinary continuum embodies the concepts of unity at command, unity of effort, and command and control needed to build a ready lethal and discipline force to execute the missions the nation asks of us,” he said.