Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Sexual Assault, the Military, and Public Justice

Julia K. Stronks


June 21, 2013

By Julia K. Stronks

This past year, sexual violence in the United States military has been the focus of Congressional hearings, investigative journalists, and filmmakers. While everyone agrees that military sexual assaults (MSAs) must end, there is disagreement about whose job it is to hold our military accountable.

Under the Uniform Code of Military Justice (UCMJ), commanders have significant control over their units in deciding when and how discipline should be meted out. In sexual assault cases, commanders often decide what to do with a complaint; senior commanders even have the ability to quash court martial convictions. However, the US Constitution gives Congress the power to regulate the land and naval forces, so Congress has the right to change any or all of the UCMJ procedures.

Sexual assault by the military has always existed. War rape is recorded as far back as Homer and the Bible. However, three things have combined to put sexual assault within the military on the front burner in recent years. First, women have entered the active military in greater numbers. Second, data gathering and media reports have exploded in recent decades. And third, sexual assault has been recognized as an independent crime since the 1970s. It took civil lawsuits and special prosecution teams to tackle the issue of sexual assault in the civilian world. The question is: what will it take to bring justice to MSA victims?

For forty years, the military has asserted zero tolerance for sexual harassment and assault, but in the aftermath of the 1991 Tailhook Scandal, a task force was put together to determine the extent of the problem. In 2005, the Pentagon’s Sexual Assault and Prevention Response Office (SAPRO) was formed, charged with oversight of the Department of Defense approach to sexual violence in the military. SAPRO’s most recent report states that over 3,200 MSAs were reported in 2011, but more than 19,000 had probably occurred. The vast majority involved higher ranked men over age thirty five perpetrating assaults against enlisted women under age twenty five.  This rate of one in three military women is higher than the civilian rate which is usually reported at one in four or five.

The SAPRO report compelled Congress to investigate, focusing on whether commanders of military units should be allowed to maintain supervision over MSAs. Senator Kristen Gillibrand (D-NY) has argued that because commanders have demonstrated disregard for prosecuting these crimes, the only way to get justice is to transfer power to specially appointed independent military prosecutors and tribunals. However, the Chief of Staff of the Army and the Commandant of the Marine Corps say appointing independent military prosecutors would hurt morale by suggesting that commanders could not be trusted. 

Senator Carl Levin (D-MI), chair of the Armed Services Committee, recently rejected Gillibrand’s proposal and offered his own solution that keeps power in the chain of command.  He proposes that unit commanders control assault cases, but if the commander declines to proceed, then that decision gets reviewed by a senior commander.

I spoke with a number of former soldiers about this matter and their agreement on the substantive issues was interesting. They made a compelling argument for allowing the military to handle violations of its code of conduct internally in almost all cases.  Military units are unlike civilian life.  Members of the unit are evaluated and monitored in all aspects of their lives, and the morale of the unit often depends on the commander’s control. Commanders have better access to the victim, the defendant, and the evidence, and they can break through the code of silence that permeates a unit.  However, the soldiers all agreed that in sexual assault cases, they do not think it is likely commanders will do more to change a culture that is built on “power, physicality, aggression, and control.”  They said that the problem is the informal retribution that occurs whenever someone breaks ranks and complains about treatment. Most of the soldiers also agreed that sexual violence against males is an unreported morass that will never be uncovered without outside pressure and supervision of the sort that Gillibrand recommends.

Levin’s proposal will not work as a solution for two reasons. First, if a commander declines to prosecute, a senior officer will not overturn because this would clearly hurt unit morale. Second, current commanders were trained by senior officials. It is unlikely a senior commander would see a situation differently than those he supervises.

Sexual assault is a tremendous problem in our culture, military and civilian alike. Government has a responsibility to protect citizens and a special responsibility to protect those who are serving our country. The military has had ample time to change a culture through command responsibility, and it has not been successful.  Gillibrand’s proposal reflects lessons learned from the civilian world over decades, and it would put the US military procedures in line with those of the United Kingdom, Canada, Australia, and Germany.

- Julia K. Stronks has practiced law and has a Ph.D. in political science.  She holds the Edward B. Lindaman Chair at Whitworth University in Spokane, Washington.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”