Will an Act of Congress Stop Sexual Assaults in the Military?

Typically, when a tough situation exists, you’ll hear someone utter the phrase “It’ll take an act of Congress to straighten that mess out.” The occurrence of sexual assaults in the military has been the hot topic “mess” in the media lately. In an organization with millions of members, it would be naïve to think that sexual harassment, sexual assaults and rape do not occur in the military; they do.

While this article is not an attempt to say that incidences of these acts occur more or less than in the civilian world, several acts of Congress have been passed to address the issue. The “acts of Congress” over the past year were designed, among other things, to make reporting these crimes an easier process for the victims and the prosecution of those accused more likely.

Gillibrand
Sen. Kirsten Gillibrand (D-N.Y.) speaks at a news conference on Capitol Hill on Wednesday after Senate failed to support her bill to change how military prosecutes sexual assaults. Photo credit: Charles Dharapak/AP

Yet, even within that hallowed institution, there’s debate about what’s the best way to accomplish the same goal. In the Senate, a fight ensued two weeks ago over a bill that would have removed the power to investigate and prosecute sexual assaults from the chain of command, turning it over to an impartial panel of military prosecutors to ensure fairness. Supporters of the bill, sponsored by Sen. Kirsten Gillibrand, believed impartiality would increase the likelihood of sexual assault cases being prosecuted on the merits of the evidence and not political posturing or the biases of the commanding officers. Those who opposed the bill argued that it would have undermined discipline, removed accountability and resulted in fewer prosecutions. The bill lacked enough votes to break a filibuster led by Senator Claire McCaskill, who had a competing bill that passed the same week.

The news on Monday that sexual assault charges had been dropped against Brig. Gen. Jeffrey Sinclair brought the fight back into the limelight. USA Today ran a story that the judge had temporarily suspended Sinclair’s court-martial after learning that the commanding officer had rejected a plea deal on lesser charges. Both those who were for, as well as those who were against such decisions being removed from the chain of command, hailed the Sinclair case as support for their argument.

Critics of the current system pointed out that, in an effort to appear tough on sexual assaults, the commander politicized the case by pushing for prosecution on the most serious of charges in spite of reservations expressed by the original prosecutor, who eventually resigned from the case. In an editorial published by the New York Times, Sen. Gillibrand wrote “We need every case to move forward based solely on the evidence and judged solely on the merits, not political pressure or other nonlegal considerations.”

On the other end of the scale, Sen. McCaskill argued that had it not been for the commander, the case would never have been prosecuted, proof that the decision to prosecute should remain within the chain of command.

Other “acts of Congress” in the fight against military rapes and sexual assaults include reforms passed last December that removed the statute of limitations on reporting cases, criminalized retaliation against victims who report rape or sexual assault, and mandated the dishonorable discharge or dismissal of anyone convicted of rape or sexual assault. Earlier this month, Congress also passed a bill sponsored by Senator McCaskill that removed the “good soldier” defense in rape and assault cases, among other provisions. The bill awaits passage in the House.

So, the question remains, can morality be legislated? Sexual assault and rape are crimes in the civilian world…Should it take an act of Congress to make men (and yes, sometimes women) refrain from forcing themselves on another individual while serving in the military?

Perpetrators of these types of acts should be punished to the fullest extent of the law, whether that be through the Uniform Code of Military Justice or a civilian court.

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5 thoughts on “Will an Act of Congress Stop Sexual Assaults in the Military?

  1. There is no place, repeat no place in the military for sexual assault or sexual harassment. All allegations should be investigated by completely independent investigators and prosecuted by completely independent prosecutors.

    The chain of command has no role once the allegation is made. Sexual assault investigation and prosecution are specialist areas of endeavor that require years of experience. What contribution can a command officer add that would not be tainted by one form of self interest or another?

    The fact that the current legislative debacle has occurred is evidence of the need for investigative and prosecutorial independence. The fact that people continue to advocate against this independence should raise questions about the undisclosed motives of those advocates.

  2. First thing, your pose a question, “… can morality be legislated?” Are you joking or do you want to be taken as a joke. This is not a question of legislating obeying the UCMJ or social norms. This is a real crisis of effectively prosecuting soldiers who violate other soldiers or physically assault of soldiers for sexual dominance or gratification. The Chain of Command is no place for this inflammatory and divisive crime to be investigated or decisions made on whether to prosecute or not. As a leader, I would want to have an impartial professional team investigate and recommend actions, so that the unit itself is not seen as being for or against either the victim or accused and thus having to deal with the backlash within the ranks.

      1. Sir or ma’am, I fully understand the use of the rhetorical statement as a gimmick. But some topics do not by there very nature lend themselves to rhetorical attention grabbers. I have seen the devastation wrought on a female soldier and the long lasting impact on the female soldier that results from being raped. I would urge you and anyone that becomes part of this discussion to remember this is a subject so serious and demanding of an effective resolution that a basic tenant of the military culture – the Chain of Command runs the risk of being cut out of having any part of not only this criminal category but other just as serious crimes committed by soldiers, unless they get behind the independent investigation concept. The time for talk is over, action is needed and true leaders, those who can look a soldier in the eyes and say this is going to hurt but we are going to do this regardless, must step up and lead from the front!

  3. The problem is that commanders can’t let go. They have to try and maintain some element of influence. I have seen it personally on too many occasions for it to be mere coincidence. The independent investigation team comes in and the first thing the team leader is expected to do is provide a “private briefing” to the unit commander and is asked to “liaise” with the commander and provide adapfance warning of any arrest.

    What the commander really wants is the appearance of independence but the reality of covert, but deniable, control. This is a bad start for the investigation team because, from that point onward, every contact with command becomes suspect. Has there been any evidence tampering? Have witnesses been ‘worded up’. Is information being withheld or manipulated? What are the agendas that are being pushed? Who is aligned with whom.

    Apart from the investigative integrity issues, there are real problems with management and resources because assets are likely to be diverted from the investigation to deal with the “liaison” (read interference).

    My experience is at the investigation level, but I have also seen efforts to influence prosecutions, including attempts to influence the appointment or non-appointment of specific prosecutors, etc.

    While most influence peddling is reasonably subtle, occasionally it can become quite blatant. It is for these reasons that investigative and prosecutorial independence are vital to systemic and Service integrity.

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