Sex Crimes in the Military: A Response to Senator McCaskill and her Conservative Supporters

Photo Credit: DVIDSHUBThe military is a specialized community. Commanders have unique control over their soldiers’ lives and for good reason—they are responsible for the health, welfare, and combat readiness of their units. A commander’s raison d’être is good order and discipline within his or her unit, whether on a ship, in a combat zone, or in garrison; and a commanders’ purview extends to preferring charges to initiate the courts-martial process when a soldier has been accused of a crime. However, a move is afoot led by Senators Claire McCaskill (D-MO) and Kirsten Gillibrand (D-NY) to remove commanders from that role in the military justice system when allegations of sexual assault and rape exist.

Senator Gillibrand is widely quoted as saying, “Commanders aren’t objective. Commanders may have different training, different perspectives. They may or may not want women in the armed forces. They may not understand what sexual assault is, or what constitutes rape. They may not agree, what is a rape or not a rape.” Similarly, Senator McCaskill claims that removing commanders from the process will result in “more and better prosecutions.”

Senators Gillibrand and McCaskill’s position not only casts doubt on the judgment of the very officers to whom we entrust the lives of our young soldiers in the most stressful and life-threatening of situations, but it also betrays a fundamentally poor understanding of the military justice system. In general terms, when there is an alleged sexual assault in the military, it is investigated by Criminal Investigations Division (CID) or an independent investigating officer or both.

A Judge Advocate General (JAG) officer then looks at that independent investigation to ensure that it is thorough and sufficient. Based on the investigation, a JAG officer, again independent, advises the commander regarding whether to bring forward the charges or not. Well over 95% of the time, the commander follows the JAG officer’s recommendation. In recent years, the Army has added Special Victim Prosecutors (SVPs) into the mix. SVPs are JAG officers who specialize in prosecuting sexual assaults, and as part of their education must go through an internship with civilian SVPs in a major metropolitan district attorney’s office.

Critics like Senators Gillibrand and McCaskill, who often cite a “low” conviction rate as evidence that the system does not work and that the military is not taking sexual assault seriously, have turned reality on its head. Military SVP’s will tell you that “low” conviction rates are a direct consequence of taking the very hardest cases to trial, cases that their civilian counterparts would never touch. Most are classic “he-said, she-said” cases that involve intoxication by both parties and actions and words by the accuser that strongly indicate consent. This sort of evidence rarely will produce a conviction. Indisputably, the military, like the U.S. culture as a whole, has room to improve in creating an environment free from sexual harassment and assault. However, diluting a commander’s authority within his or her unit is not the solution for this issue and will compromise what a commander does best—command.