Tuesday, February 18, 2014

Sexual assault and U.S. military justice reform

Sen. Claire McCaskill (D.-MO), who has a pending proposal for further change in the military justice system, recently responded to questions from MSNBC viewers about sexual assault in the U.S. military. Here is part of what she wrote about the competing bill (the Military Justice Improvement Act) introduced by a fellow Armed Services Committee member:
". . . My key objection to an alternative proposal by my colleague Senator Kirsten Gillibrand which would strip commanders of their ability to launch courts-martial is this: I believe such a move would result in fewer prosecutions of predators, and less protections for victims. As I noted above, it would leave a huge number of victims behind (over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which a commander launched a court martial—that’s 93 victims who would never have had their day in court if commanders lost the ability to bring a case to court-martial). It also hasn’t worked where it’s been tried—supporters of this alternative point to a number of our allies that have moved to similar military justice systems, but not one of these countries has seen the increase in reporting that proponents promise. In fact, many of our allies changed their systems to better protect the accused, not victims. Lastly, I believe this alternative would raise the likelihood of retaliation against victims who report an assault. If you’re a victim, agonizing over whether to report your crime, your foremost worry is likely to be whether you’ll be retaliated against by fellow servicemembers. So what system will better protect you from such retaliation: one in which your unit’s commander signs off on a case moving forward, or one in which outside lawyers, possibly hundreds of miles away from your unit, do so? Civilian review of the decisions commanders make is needed, but stripping commanders of the ability to move cases forward removes a key tool for protecting victims. . . ." (Emphasis added.)

Exam question: Sen. McCaskill's claim that transferring charging authority from commanders to lawyers outside the chain of command "hasn’t worked where it’s been tried" assumes that the numerous countries that have made that change did so for the purpose of increasing reporting by crime victims. Regardless of the purpose for which countries have abandoned the traditional (see George III) command-centric military justice model, have their systems "worked"? Is her claim true? Has any country that made the change reversed direction because it didn't "work" -- or for any other reason?

Readers from the UK, Canada, Ireland, Israel, Australia, New Zealand, South Africa, Netherlands, and anywhere else where such a change has been made, feel free to comment. Real names only, please.

1 comment:

  1. I cautiously enter this debate, as I appreciate the sensitivities within the US about it. I do find myself, however, fearing that Sen. McCaskill is focusing too much on the driver rather than the destination.
    There is something fundamentally troubling, I believe, when the chain of command determines the course of serious criminal allegations. A fortiori where those allegations impinge upon the reputation of senior individuals or units The CO is too close to the problem and may have an interest in seeing it go away.
    While I do not doubt the vast majority of cases are dealt with quite properly, one has to look at the system from the point of view of the victim and, moreover, the victim whose treatment at the hands of the chain of command leads to concerns such as those raised after the Aviano case, where a conviction by a lawfully constituted court, with legal counsel on both sides and a professional judge, was overturned by an unqualified and non-judicial body. Does such a system appear fair? I have never understood the argument for having a confirming officer with power to overturn or adjust a conviction or sentence imposed by a court. Surely, if the Serviceman or woman has a problem with the verdict or sentence (s)he should take the same route as everyone else and appeal the decision to the appeal court. Morris-v-UK held that the very fact that review of court martial decisions was conducted by 'a non-judicial authority is contrary to the principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of "tribunal".'
    Sen. McCaskill's point about retaliation is surely just as relevant whoever it is that makes the prosecution decision. This is a man-management issue for the chain of command, where policy can require complainants in certain cases to be moved to other units for their safety. In the UK we have done this in sexual cases and other cases where unit pressure may cause witnesses or victims to change their story.
    Changing to an independent system is not about increasing complaints. It is about instilling confidence that complaints are treated properly and fairly, and that lawyers free from command chain influence make the relevant prosecutorial decision. There is, of course, always the possibility of command influence in a system such as the one we have in the UK, because prosecutors will return to roles advising the chain of command. This is not the case where civilian prosecutors make the decisions. All the same, the ECtHR made it clear, in the case of Morris-v-UK, that there was nothing wrong with the Director Army Legal Services also being the Prosecuting Authority as sufficient safeguards of independence existed in that, in his advisory role, he did not deal with disciplinary matters and, in any event, he was in that role answerable to the Adjutant General, while as Prosecuting Authority he was answerable to the Attorney General. So uniformed prosecutors did not really trouble the ECtHR.

    To answer your exam question, I can only speak for the UK. In the UK the post AFA 1996 system works very well. Rather than going back to the old system, we moved forward even further and, since the AFA 2006, we have a tri-service independent prosecuting authority, staffed by lawyers from the three Services who advise on and prosecute cases under the authority of the Director SPA (a former army legal officer, now a QC) who, in turn, is under the supervision of the Attorney General, with whom he meets regularly.

    I wish the US well in its deliberations on this question. All I can say, as a friendly outsider, is that if Sen Gillibrand's changes are accepted, the chain of command within a very short time will wonder what all the fuss was about - if they give it a moment's thought, that is. It is win-win: victims will have confidence in an impartial prosecutorial process and the chain of command will free itself from any criticism of nepotism or interference in a judicial process, thereby enhancing its reputation.


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