Military Justice Improvement Act

The Act, an amendment to title 10, United States Code, to modify various authorities relating to procedures for courts-martial under the Uniform Code of Military Justice, and for other purposes, moving “the decision whether to prosecute any crime punishable by one year or more in confinement to independent, trained, professional military prosecutors, with the exception of crimes that are uniquely military in nature, such as disobeying orders or going Absent Without Leave.” This Act should be a separate Bill that clearly translates illegal crime into a criminal record for accountability.

Policy Lightning +Increasing number of rapes reported by the Pentagon. +The Invisible War documentary and an expanding dialogue about gender, sexuality, and rape –even within the context of the military (decreasing stigma) +Tragedies that make the news: Tailhook and Aberdeen

Statistical Information The Pentagon has determined that the rate of female victims victimized in sexual assaults went from roughly 1-in-26 to 1-in-16 between the 2010 study and 2012. The majority of reports come from women. An anonymous sexual abuse survey concluded that 26,000 service members were victims in 2012. Roughly 14,000 of the victims were male and 12,000 female, according to the Pentagon.

Male victims may be more likely to report sexual offenses in the absence of the former Don’t Ask, Don’t Tell policy since troops no longer have to fear being removed from the military if it is discovered that they are gay. Survivors of sexual assault say they do not report the crimes because they do not believe the perpetrators will be prosecuted. Eventually, many report sexual assault after seeking help from the VA. Well over half of those the VA sees for PTSD have suffered a sexual assault.

The Matter of Justice

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 Only about 8 percent of the cases went to court-martial (a judicial court for trying members of the armed services accused of offenses against military law). The majority of reports are from women.  The majority of assailants were given what the Pentagon calls “non-judicial punishments, administrative actions and discharges” but no criminal record. By contrast, in civilian life, 40 percent of those accused of sex crimes are prosecuted. (The Pentagon’s 2007 Annual Report on Sexual Assault in the Military)

New System

Current System

The MJIA Changes

Unrestricte d report of sexual assault

Unrestricte d report of sexual assault

Military Criminal Investigative Organizatio n notified and investigation completed

Military Criminal Investigative Organizatio n notified and investigation completed

Results of investigatio n sent to Staff Judge Advocate

Results of investigatio n sent to experienced prosecutor

Staff Judge Advocate advises commander on the facts of the case and gives recommendation on proceeding to court martial

*Experienced prosecutor who is not in the chain of command of the victim or the accused reviews the evidence

Commander decides if trial proceeds to court martial

Experienced prosecutor decides if trial proceeds to court martial

*Only applies to offenses that are not excluded as uniquely military and are punishable by more than one year of confinement. All excluded offenses will still be handled by the chain of command.

If yes, then the commander convenes the court martial

If yes, then the Service Secretary’s office assigns independent O-6 to convene the court martial

Ideally, Why Remove Command?

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 “The far-reaching role of commanding officers in the courtmartial process remains the greatest barrier to operating a fair system of criminal justice.” (Cox Commission, a panel formed on the 50th anniversary of the UCMJ in 2001)  Civilian world: prosecutors decide whether to investigate and try accused offenders.  Military: soldiers’ bosses—commanders—make those decisions.  The philosophy behind this post-WWII system is to keep soldier in line so they know they must answer to superiors.  Serial offenders can resign with administrative punishments. They then slip back into the civilian world with no criminal record.  The attitude of command is a large part of the problem. Is it the solution?

Policy: The Military Justice Improvement Act & Division in the Ranks

  Senator McCaskill: military commanders need to be part of the effort to combat sexual assaults and that removing them from the process could hurt attempts to combat the problem. (supported by Congressman Levin, Senate Armed Services Committee)  Senator Gillibrand: strip military commanders of the authority to decide whether sexual assault cases can go forward, handing that power to military prosecutors instead. (supported by Congressman Harry Reid, the U.S. Senate Majority Leader)  The NDAA (without MJIA) includes a number of changes already, like taking away commanders’ power to overturn convictions, removing statute of limitations (limited time) for court martial proceedings on sexual assaults, and provisions to make sure victims have access to legal counsel.

 Sen. McCaskill said the focus on certain policy disagreements shouldn’t take away from the broader effort to address the problem of sexual assaults in the armed services.

The Politics Trade-Off

Supporting Victims/Survivors In the Military

The Policy Trade-Off…

The Costs to Command Authority

Senator McCaskill, Levin, DOD

Senator Gillibrand, Reid, Advocacy Groups

The Costs to Command Authority

The Costs to Command Authority

The Military Justice Improvement Act Should be Stand-Alone Legislation

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 Senator Gillibrand should maintain the momentum behind this legislation as a separate bill and review it accordingly. I think she should ensure clear procedure for sexual assault and a criminal record.  Failure to enact the NDAA by Dec. 31 would result in a suspension of combat pay, loss of federal "impact aid" to school districts located near military bases, suspension of work on the Navy's newest aircraft carrier and a halt to military housing upgrades.  It also would prevent enactment of military justice reforms by Senator McCaskill  Among the defense bill's various proposals related to sexual assault cases, Gillibrand's was the only one that divided senators.  Her proposal is firmly opposed by military leaders and a majority of senators on the Armed Services Committee, indicating that applying the policy would be difficult and prove ineffective.

Slow to Change

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 In 1994, Congress required the military to set up advocacy programs, but the majority lack installation and victim advocates. Advocacy groups have advised the military to address the shortage. However, more soldiers are coming forward every year to report sexual assault. The silent epidemic is becoming “louder.”  The majority of cases the Miles Foundation has handled, the assailant had a higher rank. Even when cases are prosecuted, military rape victims say that they face mistreatment from commanders and others. Senator Claire McCaskill’s work seeks to break down the “psychological warfare” that is part of the context of order and command.  Reform takes time. Social pressure will continue. It is important to push for incremental change that the military supports and can implement with command support. The NDAA should pass with tremendous support for McCaskill’s reforms, and the MJIA should become a bill with deeper roots of coalition that will ensure unity for justice reform.