Comprehensive Resource Center for the Military Justice Improvement Act

Introduction

The men and women of our Armed Forces are America’s greatest asset in keeping our nation safe at home and promoting our interests abroad. Service members put their lives on the line for our country, and Congress owes them a debt of gratitude that can never be fully repaid. Congress has failed at their solemn responsibility to protect our service members.

Unfortunately, each year, thousands of service members are raped and sexually assaulted. In many of those cases, the assailant is someone in the survivor’s own chain of command. Only a small fraction of the perpetrators are ever held accountable for their heinous, violent crimes. Last year, the Department of Defense announced a record number of sexual assaults reported against service members,and the lowest conviction rates for their assailants on record, at just 9%.Worse yet, despite repeated efforts to stamp out the scourge of retaliation against military sexual assault survivors, the most recent Pentagon survey found that nearly 6 out of 10 survivors say they have experienced some form of retaliation for reporting the crime. The amount of retaliation remains essentially unchanged from 2012 to 2014, while fewer cases are moving forward to prosecution and conviction.

Over the last five years, there has been a stream of national headlines and new investigative reports exposing the military’s failure to combat sexual assault in the ranks or provide a military justice system that holds assailants accountable in order to maintain good order and discipline. Despite incremental reforms passed in the last four National Defense Authorization Acts (NDAA), and a sharp focus in Congress on the issue of military sexual assault, Congress has not done enough to protect our service members from sexual assault in the ranks and punish the perpetrators who commit these violent crimes. Congress owes it to the brave men and women who defend our country to fix a broken system deliver a system of justice worthy of their sacrifice.

By the Numbers, from the latest annual Department of Defense Sexual Assault Prevention and Response Office (SAPRO) Report, FY2016

• The Department of Defense estimated that there were nearly 15,000 sexual assaults against service members in fiscal year 2016

• 7 out of 10 service members did not report their assault in an “unrestricted” (actionable) manner to their chain of command, showing a severe lack of confidence in the current system

• Of those 30% who were brave enough to make an unrestricted report, approximately 60% of them told the Department of Defense that they had experienced some form of retaliation for reporting

• More than 70% of cases considered for court martial were never even referred to court martial proceedings

• Just 9% of cases ended in conviction

• Only 20% of survey respondents indicated that they were satisfied with official action(s) takenagainst their alleged perpetrator

• The odds of being sexually assaulted are approximately 16 times higher for active duty women and 50 times higher for active duty men who indicated experiencing sexual harassment than for their counterparts who did not

In addition to the annual Department of Defense SAPRO report, Senator Gillibrand and Human Rights Watch independently released reports that demonstrate how poorly survivors are treated and how few rapists are ever punished. Human Rights Watch found that service members who reported a sexual assault were 12 times more likely to suffer retaliation than see their offender, if also a service member, get convicted for a sex offense. Much like Senator Gillibrand’s 2013 Bases Report analyzing sexual assault cases at four of the largest military bases in the country, her 2014 Bases Report exposed a troubling command culture that seems to favor the higher-ranking accused, and also seems to value closing cases over pursuing justice. In this group of case files, there were multiple instances of commanders choosing not to proceed to court-martial, despite a recommendation from the military investigating officer that probable cause existed. Shockingly, Senator Gillibrand’s review found a case where the accused confessed to a sexual assault, but was allowed to be discharged in lieu of trial and faced no legal consequences or appropriate punishment. That an admitted sex offender was allowed to go and live freely in an unsuspecting community suggests a disturbing disregard for public safety. The Human Rights Watch report is available here. Senator Gillibrand’s report is available here.

The Military Justice Improvement Act

The carefully crafted Military Justice Improvement Act is designed to professionalize how the military prosecutes serious crimes like sexual assault, and to remove the systemic fear that survivors of military sexual assault describe in deciding whether to report the crimes committed against them. Repeated testimony from survivors and former commanders says that the widespread reluctance on the part of survivors to come forward and report is due to the bias and inherent conflicts of interest posed by the military chain of command’s sole decision-making power over whether cases move forward to a trial. This bipartisan and commonsense reform moves the decision over whether to prosecute serious crimes to independent, trained, professional military prosecutors, while leaving uniquely military crimes within the chain of command. The decision whether to prosecute 37 serious crimes uniquely military in nature, plus all crimes punishable by less than one year of confinement (Article 15, non-judicial punishment), would remain within the chain of command (see excluded offenses here).

After earning the support of a bipartisan majority of Senators for the second straight Congress, the Military Justice Improvement Act was unfortunately filibustered again, meaning the fight to pass this critically needed reform will continue.

Many of our closest allies’ militaries, including the United Kingdom, Canada, Israel, Germany, Norway, and Australia, have already moved reporting and prosecution of violent sex crimes outside of the chain of command. At a September 2013 Senate hearing, military leaders from Australia, the United Kingdom, Israel, and Canada testified on how changes they have made to their military justice systems — including the one up for debate in the Senate as part of the Military Justice Improvement Act —have not diminished the accountability of commanders or their ability to maintain good order and discipline.

The Military Justice Improvement Act has been endorsed by Iraq & Afghanistan Veterans of America (IAVA), Vietnam Veterans of America (VVA), Service Women’s Action Network (SWAN), National Women’s Law Center (NWLC), Protect Our Defenders, and the National Task Force to End Sexual and Domestic Violence Against Women, just to name a few. The bill is also supported by dozens of U.S. military flag officers, including the first female three-star General of the Army, Claudia Kennedy; UCMJ experts; and major newspaper editorial boards across the country.