Fed SOL progress

Congress confronts military sex assault

2014 defense bill makes major changes in the Uniform Code of Military Justice

By Mark Walker10:41 A.M.DEC. 11, 2013

Sweeping changes in the military justice system designed to stem an explosion in sexual assault cases are at the forefront of a defense bill awaiting action in Congress.

The National Defense Authorization Act would enact many of the reforms sought by assault victim advocates, including ending commanders’ authority to dismiss a court-martial finding entirely or reduce a guilty verdict to a lesser offense.

Among the more than 30 changes to the Uniform Code of Military Justice are minimum sentencing guidelines for sex convictions, elimination of a five-year statute of limitations on rape and other forms of sexual assault and allowing victims the option to skip testifying in an initial investigative phase known as an Article 32 hearing.

“It’s all part of making the military a better place,” said Greg Jacob, policy director for the Service Women’s Action Network and a leading proponent of the reforms. “These are very significant changes. Elimination of the statute of limitations is particularly important, because in many cases it takes a victim years to process and years of therapy before they are willing to come forward.”

The changes were negotiated by House and Senate lawmakers.

The full bill, which authorizes $632 billion in military spending for fiscal year 2014, is due for consideration this week. It also includes a 1 percent pay raise of troops, rejects Obama administration calls to increase retiree medical fees and includes money for a Marine Corps amphibious combat vehicle.

Whether the full bill gets consideration remained uncertain Wednesday. Congressional aides suggested a battle over numerous additional amendments may scuttle to full bill in favor of a slimmed down version. Even if that happened, there was an expectation the sexual assault changes would be part of any substitute legislation. House Republicans are scheduled to discuss the bill in a caucus meeting set for Thursday morning.

A Pentagon report this year said Marine Corps women had the highest rate of unwanted sexual contact in fiscal year 2012 at 10.1 percent. The Navy recorded a rate of 7.2 percent, slightly higher than that reported by female members of the Army. Air Force women reported a rate of just over 3 percent.

The Defense Department last month reported that 3,553 sexual assault criminal complaints had been filed by U.S. troops between October 2012 and June of this year, almost a 50 percent increase from the same period a year earlier. Sexual assault is defined as rape, sodomy or unwanted sexual contact, including touching. It does not include harassment.

The problem is believed to be much larger than those statistics, however. Earlier this year, a voluntary Pentagon survey across all the services found that about 26,000 women and men said they had been sexually assaulted in 2011, an increase of 7,000 cases from 2010.

The Department of the Navy in July said 29 percent of 219 major courts-martial in the first half of this year — 63 cases — involved sex crimes, including 21 at West Coast installations such as Camp Pendleton.

Rep. Susan Davis, D-San Diego and a member of the House Armed Services Committee, called the changes significant progress in combating military sexual assault, increasing victim empowerment and holding commands accountable.

“I will continue looking for ways to build on measures to establish a respectful and safe working environment for all personnel,” she said.

Rep. Duncan Hunter, R-Alpine, and also a member of the Armed Services panel, said the reforms are good no matter how the bill is ultimately shaped and serve as a foundation for more changes.

A pair of local military defense attorneys, David Brahms of Carlsbad and Jane Siegel of San Marcos, said the proposed changes won’t end what some members of Congress call an epidemic of sexual assault cases. Cultural changes to give women full equality and more emphasis on prevention and substance abuse are equally important, they said.

“The real hard work isn’t being done,” said Brahms, a retired brigadier general who once serves as the Marine Corps top legal officer. “The hard work is to change the culture, which starts at the bottom We’ve done a pretty damn good job to integrate minorities into the armed forces, but that took a long time. In the case of women, we still haven’t integrated them and made them our sisters in arms.”

Brahms, who represents troops accused of sexual assault and assault victims, said he worries that removing many of the commanders’ discretionary powers that have been in place for decades will disrupt traditional lines of authority.

“Revamping military justice should be done in an orderly way and in consideration of the full impact. Commanders should continue to have discretion at least in the initial phases of a case.”

That provision remains part of the code, despite a push by Sen. Kirsten Gillibrand, D-N.Y., to remove that authority entirely. Her proposal is now expected to come up as stand-alone legislation next year.

Like Brahms, attorney Siegel said she believes changing a major section of the military justice, which is wholly administered by the armed services, is worrisome.

“It is the Uniform Code of Military Justice,” she said. “You cannot take out one section and expectation the system to function appropriately because it is a complete and unified system. Believe me, it is not a perfect system, but commander are key because they know their people and they know the needs of the service.”

Siegel said multiple avenues already exist for sexually assaulted troops to pursue a case outside of their chain of command, such as the Naval Criminal Investigative Service for Marines and sailors.

Alcohol is a factor in about 60 percent of all military sexual assault cases, something Siegel said is key.

“We are supposed to be a team and a band of brothers and sisters,” she said. “If we put more effort into that and prevention, we may not see the number of allegations we do.”

But the Service Women’s Action Network believes the changes are long overdue.

“We look at this as the larger issue of sexual violence and integration of women in the military,” said Jacob, who spent 10 years in the Marine Corps and was a captain when he left the service. “Once these kinds of barriers that keep many women out of the military are removed, more women will want to serve.”