The scourge of sexual assault continues to plague military policy.  This week, the Senate is considering competing reform proposals that could have dramatic consequences for sexual assault victims and the chain of command under the Uniform Code of Military Justice (UCMJ).  In this post, I outline and offer thoughts on two of the most important models for potential congressional reform of the military system.

I.  Problems of Prevalence & Underreporting of Military Sexual Assault

While there is as yet inconclusive, and conflicting, evidence as to whether the prevalence of sexual violence in the military is materially higher than in civilian life, there are disturbing estimates to suggest that fewer military victims report sexual violence.  One thing is clear, sexual assault is a very serious problem in the military and the government has a special responsibility over military affairs.

Certainly, civilian society deserves no prize.  I am continually horrified by the statistics I teach to my criminal law students.  According to a 2010 survey by the Center for Disease Control, nearly 18.3% of women in the United States (some 28.7 million out of a total 159 million) have been rape victims during their lifetime.  Even worse, rape is far too often a crime against children: 9.6 million of those victims experienced their first rape before the age of 18.  Twenty-seven percent of male rape victims (some 591,000 of 2.1 million total victims) were assaulted for the first time before age 10.

An important civilian-military statistical disparity relates to estimates of underreporting.  Based on the National Crime Victimization Survey, the Justice Department estimated that only 32% of sexual assault incidents were reported to law enforcement in 1994 and 1995.  By 2007, the Justice Department estimate ticked up to nearly 42%.  In contrast, over recent years the military estimated that reporting is a paltry 11%.  I do not know how much of that delta is attributable to methodological differences in the surveys, estimation error, or more severe military cultural problems (i.e., more hostility to reporting victims).  Of course, estimating what we don’t know (non-reports) is an inherently problematic enterprise.  Underreporting represents a significant threat to successful anti-rape efforts and is emblematic of cultural problems across military and civilian worlds.  This month, the military released new data that indicated a 50% increase in reported sexual assaults over the previous year, which amounted to 3,553 sexual assault complaints (some 10% of which reported assaults that occurred prior to military service).  So, more reporting is good if it represents a decrease in non-reporting, but it is terrible if it indicates more assaults.

There are other questions that one could ask in comparison, like whether if ages are held constant (removing the youth skew of military demographics) that the civilian and military statistics might look alike.  It is very hard to get an apples-to-apples comparison because of different offense definitions and question methodology.  It is simply an unacceptable criminal phenomenon in all its contexts.  However, military and civilian contexts are different.

Even if there were military-civilian offense parity, policy makers have a heightened responsibility with respect to military culture.  Of course, as a society we all have an obligation to prevent and punish sexual assault.  Thus, we enact and enforce criminal laws.  Hopefully, we are also improving civilian mores about gender equality and sexual autonomy.

But military culture is uniquely government sponsored.  Basic training and military indoctrination are designed to extract young people from civilian life, strip them of inconsistent civilian cultural norms, and rebuild them in the image of the disciplined warfighter.  Whereas civilian culture is largely organic, military culture is predominately intentional.  As such, problems within the ranks should garner special attention by civilian leaders.

In light of the problem, there are lots of reform proposals circulating.  I address the leading proposals below.

II. The McCaskill Proposal: Protecting Those Who Report

The proposal authored by Sen. Claire McCaskill (D-MO), and supported by Senate Armed Services Committee Chairman Carl Levin (D-MI), has three basic elements.  First, it would offer safeguards against retaliation for those who report sexual assault.  Second, it would remove commander ability to overturn jury verdicts.  Third, it would mandate dishonorable discharge for anyone convicted of sexual assault.  Anti-retaliation protections promote reporting.  Where, as here, underreporting is such a central concern, it is important.

The New York Times Editorial Board succinctly articulated criticisms of the McCaskill plan:

Cracking down on retaliation, though necessary, does not address the low prosecution rate or the sense among many victims that their claims, especially against someone higher in rank, will not be believed.

It is true that anti-retaliation provisions will not address problems that are rooted in cultural perceptions that continue to heap undue skepticism on victims of sexual assault.  Military leaders need to more effectively enhance prevention, prioritize prosecution, and tackle cultural problems.  Officers care about their careers, and failure to expeditiously and appropriately handle sexual assault allegations should be a career killer.

There are some signs that the military is making progress.  As noted above, the uptick in reporting could be a positive sign.  In addition, services are implementing reforms.  For example, the Army is starting to hold leadership to account for inaction.  According to a Stars & Stripes report, Lt. General Donald M. Campbell, Jr. opened an Army leadership summit in Europe on sexual assault by noting that “It is no secret in the Army that we now have senior-level commanders and NCOs who, because of their lack of action, are being held accountable.”  The Army is also now providing victims with attorneys to advise them on the process.  Those are important developments.

On balance, though, we need comprehensive efforts to tackle this problem.  Sen. McCaskill’s anti-retaliation protection makes perfect sense for victims of sexual assault (or, frankly, victims of any crime).

III. The Gillibrand Proposal: Removing Screening from the Chain of Command

The more dramatic proposal, championed by Sen. Kirsten Gillibrand (D- NY), would remove sexual assault cases, and other crimes, from the chain of command.  In the current system, it is a commander’s responsibility to refer a subordinate accused of a crime to a court martial.  Sen. Gillibrand’s concern for victims in such a system is meaningful because a commander may take into account unit cohesion considerations that are contrary to victim interest.  In the civilian context, a system in which a police precinct’s captain had sole authority to refer criminal conduct of his subordinates would lack credibility. Without benefit of an independent internal affairs function in the police department, there is a much stronger likelihood that misconduct will not be reported for fear of retaliation within the unit.  Add to that concern the particularly thorny issues related to victim reporting of sexual assault offenses, and the commander model seems problematic.  Whether a ‘wall of silence’ is blue or green, barriers to reporting are always worse in matters of sexual assault.

Unsurprisingly, there is a great deal of resistance in the military to any proposal that would bypass the military chain of command.  Critics of reform believe that the unique need for command authority in the military requires chain-of-command power.  Indeed, Sen. Gillibrand’s proposal took a hit when opponents of the plan signaled that they would invoke filibuster rules to require 60-votes to pass her amendment as part of the annual National Defense Authorization Act.

The commanders’ central role in the military justice system has been designed to promote accountability within the chain of command.  Military command control is, of course, a valid concern.  A recent Heritage Foundation report by Charles “Cully” Stimson underscores the problem of military assault but mounts a vigorous defense of current commander authority in case screening.  He writes:

Taking that power away from commanding officers eliminates an indispensable authority that cannot be delegated or transferred to another if we are to demand accountability from commanders for prosecuting and preventing sexual assaults and other serious crimes. This notion of accountability to one’s commanding officer may seem mysterious to civilians who have never served in the armed forces. But chain of command, and accountability up and down the chain of command, is essential to carrying out the missions as ordered by the President, whose authority as Commander in Chief owes accountability to the people via elections and assures a military that will not threaten a constitutional democracy—whether our country is engaged in an armed conflict or not.

I’m not convinced that adding an independent criminal investigative unit would destroy a chain of command that includes numerous options and gradation of sanction.  The Heritage report itself cites a range of remedies available to a commander that would be undisturbed by the Gillibrand plan.  Furthermore, in the modern era, military personnel are generally not subject to incommunicado deployments for years at a time in which there is no ability to remove and replace soldiers on the lines of battle.  If an accused soldier had information so critical to national security or military operational goals that they needed to be immunized (e.g., a hypothetical accused military operator crucial to a planned bin Laden raid), couldn’t we handle that with a Defense Secretary waiver rather than a determination at the commander level?

IV. The Likely Pathway Forward

To me, the Gillibrand proposal, while targeted at sexual assault cases, points to a much larger question about military justice in the modern age.  I’m not sure that original chain-of-command rationales would hold up to present day scrutiny.  However, these are significant enough changes to military culture and the military justice system that they merit comprehensive study.  The chain-of-command issue is significant and complicated, and I think it merits more study of direct and indirect consequences of reform proposals that would alter it.

Such study should include military justice case screening as an incident of command authority, technological remedies for traditional battlefield complications to the administration of military justice, contexts that give rise to sexual assault, commander promotion criteria, problematic cultural norms, and potential unintended consequences of reform proposals.

As one such inquiry, I recently heard a presentation by Eric Carpenter about his forthcoming empirical research project that would bear on some of these issues.  Professor Carpenter starts with Dan Kanan’s Cultural Cognition Project study that included a test as to whether hierarchical or egalitarian worldviews could account for how people solve a non-stranger sexual assault fact pattern.  Professor Kahan found that people with hierarchical world views were more likely than those with egalitarian world views to find that the man was not guilty.  Professor Carpenter’s project would apply Professor Kahan’s approach to assess whether military lawyers, as a group, would be more likely to aggressively pursue sexual assault cases than military commanders.

The current debate in the Senate is whether commanders should continue to decide whether cases go forward or whether the military’s lawyers should make those decisions.  If [military lawyers and commanders] have the same gender role belief systems, though, it might not matter.  The military lawyers would likely process the cases the same way that the commanders do….If our goal is to have bias-free processing, then the real answer might be to send these cases to specialized systems that are administered by people who reflect the beliefs systems of the population at large.

If he is correct, Sen. Gillibrand’s proposal could rearrange boxes on the organizational chart without meaningful benefit to victims of sexual assault.  This is just one of a number of important questions that should be studied as leaders continue to tackle this problem.

Reading the political tea leaves, it appears that Sen. McCaskill’s proposal is one part reform and one part cooptation of a reform message designed to dilute support for Sen. Gillibrand’s proposal.  This is likely the desired effect of some at the Pentagon, and like-minded commentators, who adamantly oppose a disruption to the chain of command.  Thus, the thinking would be that a less-stringent Senate reform proposal would meet further dilution, or untimely demise, in the U.S. House of Representatives.  It doesn’t look like Sen. Gillibrand’s late breaking effort to scale back her proposal to only apply to sexual assaults will clear a path to Senate passage this year.

On the other hand, Sen. McCaskill’s approach may well pass the Senate this week.  That would be a good start.  It will need champions in the House, where it will still face hostility.  But Sen. Gillibrand’s ideas should not die due to a tabling or dilution exercise.  Rather, policymakers should undertake a rigorous study of the Gillibrand proposal as well as broader implications for military justice reform.  Such study might, or might not, indicate that the entire chain-of-command approach to military justice is outmoded in an age of modern technological warfare.  But right now, bowing to the art of the possible, let’s promote reporting by protecting those that report.