Response Systems Panel final report issued; powerful dissent on a core issue

The 9-member Response Systems to Adult Sexual Assault Crimes Panel has just issued its final report. The lengthy report and annexes can be found here. On the role of commanders, the executive summary states (at 5):

Military commanders are essential to the prevention of sexual assault. Commanders lead their units and organizations in war and peace, and are responsible for ensuring mission readiness, including maintaining good order and discipline within their units. Commanders must establish organizational climates that are intolerant of the behaviors and beliefs that contribute to sexual assaults. When a sexual assault does occur, military commanders must lead decisive response efforts and ensure care for victims. They must also take appropriate administrative and criminal action against those determined to be offenders while respecting the due process rights of those suspected or accused of sexual assault. A commander’s success or failure in fulfilling these responsibilities should be considered in his or her performance evaluation, as it directly reflects on the quality of a commander’s leadership and effectiveness. It should also be weighed in promotion decisions and the officer’s ability to advance in the Armed Services. The Department of Defense, the Services, and senior leaders must ensure all commanders understand their responsibilities, are held accountable, and fairly evaluated on their execution of these critical tasks. (Emphases added.)

Such a policy unquestionably incentivizes commanders to err on the side of prosecution when exercising their power under present law to dispose of allegations. It is difficult to imagine a clearer conflict of interest.

The executive summary also states (at 6-7):

The Panel determined and concluded (with two members dissenting) that Congress should not further limit the authority of convening authorities under the UCMJ to refer charges for sexual assault crimes to trial by court-martial beyond the recent amendments to the UCMJ and DoD policy. After reviewing the practices of Allied militaries and available civilian statistics, and hearing from many witnesses, the Panel determined the evidence does not support a conclusion that removing convening authority from senior commanders will reduce the incidence of sexual assault, increase reporting of sexual assaults, or improve the quality of investigations and prosecutions of sexual assault cases in the Armed Forces. In addition, proposals for systemic changes to the military justice system should be considered carefully in the context of the many changes that have recently been made to the form and function of the military justice system. The numerous and substantive changes recently enacted require time to be implemented and then assessed prior to enacting additional reforms.

At the same time, the Panel recommends Congress repeal Section 1744 of the FY14 NDAA, and Congress not enact Section 2 of the Victims Protection Act of 2014, both of which require higher-level review of a convening authority’s decision not to refer certain sexual assault cases to trial. The Panel believes these sections may cause undue pressure on convening authorities and their legal advisors to refer cases to trial in situations where referral does not serve the interests of victims or justice. Even if convening authorities are not affected by these provisions, they create the perception that decisions not to refer such cases are not favored.

A dissent by panel members Dean Elizabeth L. Hillman and former Virginia Beach Commonwealth's Attorney Harvey Bryant begins at page 173 of the panel's report. Because it is important, brief, correct and buried far down in the document, it is reproduced here in full (footnotes omitted):

Congress created the Response Systems Panel to make an independent assessment of the military’s response to sexual assault. Perhaps no other aspect of military operations has generated worse outcomes in recent decades than military leaders’ efforts to reduce and punish sexual assaults. The Panel’s assessment revealed many improvements already in place and other areas in which changes should be made. Removing prosecutorial discretion from the chain of command, however, is not among the changes recommended by the Panel. We write separately because it should be.

Court-martial convening authorities, a small and high-ranking part of the military’s command structure, should no longer control the decision to prosecute sexual assault cases in the military justice system. The Panel’s recommendation that the authority to prosecute remain within the command structure of the military is based on the testimony of high-ranking commanders and attorneys within the U.S. military. It neglects the words of survivors of sexual assault, rank-and-file Service members, outside experts, and officers in our allies’ militaries. They tell us that the commander as prosecutor creates doubt about the fairness of military justice, has little connection to exercising legitimate authority over subordinates, and undermines the confidence of victims.

Preserving command authority over case disposition, pre-trial processes, and post-trial matters prevents commanding officers from acting assertively to deter and punish military sexual assault. It also undermines the rights of both victims and accused Service members, all of whom deserve an independent and impartial tribunal.

Command authority in military justice has already been reduced significantly over time. It will be further limited through recently enacted changes. The United Kingdom, Canada, Australia, and many other countries have already ended command control of courts-martial. When these nations proposed replacing convening authorities with experienced and trained prosecutors, opponents of reform voiced concerns about the deterioration of command similar to those articulated by some U.S. military leaders and accepted by our colleagues on the Panel. Yet no country with independent prosecutors has reported any of the dire consequences forecast by those opposed to prosecutorial independence.

Maintaining the status quo on this issue was often justified on the basis that there was no evidence changing it would increase victim reporting. But increasing victim reporting rates, while an important goal, is not the only or even primary goal and benefit of having prosecutors and judges make, respectively, prosecutorial and judicial decisions rather than convening authorities. Even the suggestion of a pilot program to test the premises advanced on both sides of the issue, which would presumably result in evidence as to the efficacy of a change, was met with resistance.

Requiring commanders to exercise prosecutorial discretion and perform judicial functions hinders their ability to respond vigorously and fairly to sexual assault. It also exacerbates the negative impact of inevitable failures of commanders to fairly and objectively act as prosecutors and judges. It rejects the independent prosecutors on whom every other criminal justice system—U.S. state and federal criminal courts, our allies’ military courts, and  international criminal courts—relies. As a result, the U.S. military justice system will continue to operate outside the constraints of 21st-century norms for fairness and transparency in criminal justice. We dissent.

Four of the nine members of the RSP were retired senior officers.