Military #MeToo Justice: Is a Change Going to Come?

Posted in: Military Law

From the 1990s military sexual harassment and assault scandals of Aberdeen and Tailhook to the assault and murder of specialist Vanessa Guillén at Fort Hood and the death of private first class Asia Graham in her barracks on New Year’s Day 2021, it can feel like nothing changes. In just the past two months, the Pentagon released a report concluding that a former navy civilian auditor general, i.e. the top civilian auditor, engaged in a “pervasive and egregious pattern of sexual harassment” and retired with a full pension; a Marine’s tik-tok response to learning her assailant would remain in the Corps despite an admission of guilt and explaining why women in the military commit suicide went viral; and in just the past few days, in a scandal some refer to as Fort Hood 2.0, more than 20 Fort Sill servicemen were suspended for multiple assaults of a female trainee. Despite the societal awakening of #MeToo and the decades-long military promise of zero tolerance, the U.S. military, the largest employer in the world, has made scant progress on its pervasive sexual harassment and assault problem. However badly the civilian justice system handles these matters, the military seems to be doing worse with recent reports of sexual assaults doubling, but prosecutions cut in half and the conviction rate declining to seven percent.

Each instance of assault and harassment matters and their collective impact poses a threat to national security. It matters on an individual level, with survivors injured and traumatized. Over 60 percent that report experience the additional harm of retaliation, with studies showing even those who stay silent often also experience retaliation and social isolation. A recent Rand report found a staggering 10,000 plus individuals leave the military over sexual assault or harassment with another report finding a 30 percent of females reporting were “forced out of the military within a year.” Put differently, a single year of sexual assault and harassment have been “associated with the premature loss of at least 16,000 person-years of service over the following 28 months. In addition to retention issues, these events and their aftermath can affect accessions and performance of duty all of which in turn can impede readiness, unit cohesion, and battlefield effectiveness. These ongoing high-profile scandals erode the confidence of those in the military, the domestic public, and global audiences that U.S. military justice is just.

Over the past 15 years, Congress enacted 249 legislative proposals concerning sexual assault in the military. Some deal with climate and prevention, while others focus on the military justice system. For instance, Congress enacted procedural reforms to eliminate the “lengthy pretrial depositions of accusers that were intended to pick apart their credibility,” and changes standards for appeal courts seeking to overturn sexual assault convictions- both of which brought the military justice system closer to mirroring the civilian one. Yet none of these reforms seemed to have much bottom-line impact on the problem.

But a sea change may be coming. In late March 2021, the Army Forces Command responded to the Fort Hood Independent Review Committee by moving formal sexual harassment complaints out of the direct chain of command. Instead of referring complaints to brigade commanders who open a formal review and may investigate the complaint themselves, the investigation must be given to an investigating officer outside of the accused’s brigade. While this might read as a small procedural change, it is actually a meaningful step for an institution long committed to a commander-centric justice model. For the last decade, the U.S. military has mostly spoken with one voice in opposition to moving harassment, assault, or any other crime out of the chain of command in any way.

Of course, while any movement in this direction is significant, one might reasonably feel this investigator reform is a pretty modest alteration of the chain of command. The commander still gets to decide whether to approve of the investigator’s finding and whether further investigation is needed. What about more significant change? Should this step be extended to all military forces? Should sexual assault also be taken out of the chain of command in a similar way. Or even more outside the chain as per the I Am Vanessa Guillén Act? Should it be all felonies? What is on the table?

Candidate Biden promised to make this issue a top priority and some early evidence suggests President Biden will follow through. His Defense Secretary Lloyd Austin kicked off his own tenure by calling on the Pentagon to do an immediate review to identify “high risk” military installations for sexual harassment and assault and appointing Lynn Rosenthal to chair of the 90-Day Independent Review Commission on sexual assault in the military. The commission will look at climate, culture, and accountability. And unlike the numerous similar commissions in the past decade-plus, both Austin and Rosenthal have committed that all options are on the table, including the role of command in decisions to refer cases to prosecution as well as other major shifts.

In addition, increasing bipartisan support for the Military Justice Improvement Act suggests that major changes could come from the legislature if they don’t come from the executive branch first. Many legislators who rejected earlier iterations of the act have decided that the military has had ample time to make inroads and their failure to do so suggests stronger medicine is needed. The Military Justice Improvement Act (MJIA) would change who makes: charging decisions; dispositional decisions; and the decision whether to direct the charge to a court-martial. This legislation is significantly broader than the Army Command’s reform in two ways: first it would reach far beyond sex crimes, and second it would be a bigger move away from commander control. Senior lawyers rather than commanders would now be playing the largest role, though commander input would still be considered at various stages.

The move away from a commander-centric model is urged for a variety of reasons. First, studies show a massive underreporting problem. Victims fear that they will be ignored at best, or retaliated against. They understand that perpetrators often have a better relationship with the command or when the command has more investment in the perpetrator, and thus the investigation may be biased. They fairly worry that commanders may not move forward with charges that suggest a problematic command climate In addition, commanders are not attorneys, receive significantly less training in relevant military or criminal justice than military lawyers, and are generally promoted based on their skill set to address other matters traditionally felt to be more core to the job.

But many inside and outside the military want to keep the commander-centric model as is. Commanders are currently both responsible and accountable for all aspects of the command. Supporters of the status quo believe that failing to trust commanders to make decisions about military justice will erode trust in their ability to make other decisions including placing subordinates in grave danger. They contend that the great trust needed to make servicepeople willing to obey all lawful orders requires commanders have wide latitude in choosing among the many punishable offenses for disciplinary infractions. If the MJIA or other legislation limits commanders’ ability to do so for sexual assault or for felonies more generally, commanders’ disciplinary toolbox would be more limited. They fear that service members will no longer trust the commander to lead and will instead look to attorneys to guide their actions.

Adherents of the status quo might also fairly point out that civilian justice systems do not do particularly well on issues of sexual assault or harassment, though they certainly do better on measures of impartiality and compliance with global norms about fair trials.

So in contemplating this change in military justice, it is important to look at both sides of the ledger. The adherents of the status quo seem unwilling to acknowledge just how significantly the status quo is eroding trust in commanders. Yet some proponents of change seem unwilling to acknowledge just how significant a shift it would be to move decisions out of the chain of command for sexual assaults or for felonies more broadly. Even though trust in commanders relating to sexual harassment and sexual assault is low, it is possible things could get worse on that front if the move to attorneys not just failed to do better but actually did worse. I personally haven’t seen much in the literature either empirically from countries that don’t have a commander-centric model or theoretically that suggests that would be the case, but care must be taken to make sure that the reforms proposed both address the existing problems and don’t exacerbate them unintentionally or create new ones altogether. While the executive and legislative branches continue to hash this out, perhaps the Army Forces command experiment can provide some initial evidence on these questions.

Posted in: Military Law

Tags: MeToo, Sexual Assault

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