Dissenter on Response Systems Panel speaks out

Retired Virginia Beach chief prosecutor Harvey Bryant was one of two dissenters from the recent main report of the Response Systems to Adult Sexual Assault Crimes Panel. He has now elaborated on his concerns in a powerful interview with The Virginian-Pilot:

Bryant, who served for 13 years as Virginia Beach commonwealth's attorney before retiring last year, said his biggest disappointment was the panel's support for keeping authority over the judicial process in the hands of military commanders.

"There would be a lot more confidence in the system if we... let prosecutors make prosecutorial decisions," Bryant said during an interview at his Virginia Beach home last week.

Commanders "are warfighters and that's what they should concentrate on," he said. "They just need to get out of the criminal prosecution business."

Bryant said he accepted his appointment to the Response Systems Panel on Military Sexual Assault hoping its work would have lasting impact. But after a year of meetings and conversations with victims, commanders and military and civilian lawyers, prosecutors and judges, he's disappointed. . . .

"After the six or seven month mark, I began to feel like we weren't going to make a lot of substantive, game-changing recommendations," he said. Bryant and another panelist dissented, writing that the recommendation was based on testimony from high-ranking commanders and ignored the words of survivors, rank-and-file service members, experts and members of allied militaries that have successfully made those reforms.

The system now "creates doubt about the fairness of military justice, has little connection to exercising legitimate authority over subordinates and undermines the confidence of victims," wrote Bryant and fellow panelist Elizabeth Hillman, a law professor at the University of California.

Bryant compared the "convening authority" of military commanders to a police chief who has the power not just to determine if one of his officers should go to trial for committing a crime, but also whether to overthrow the conviction or sentence.

"Nobody would stand for that," he said.

Bryant said the panel also failed to take a stand on several other key issues, including "collateral misconduct" - in which a victim reporting sexual assault can be prosecuted if they admit to violating a law themselves.

So, for example, if an 18-year-old rape victim tells an investigator she was drinking before the incident, she can be charged with underage drinking. That inhibits what victims tell an investigator and can lead victims either not to report an attack or to lie, Bryant said.

"The investigators told us, the prosecutors told us, everybody told us this really puts a damper on their ability," Bryant said.

On this and several other issues, Bryant said that several panel members felt they had enough information to make a recommendation, but the panel instead left the issue for "further study." . . .

Bryant, who spent three years on active duty in the Army and five years in the reserves, said he felt members of the panel had "the best interests of the military at heart." But most of his fellow panelists were formed by careers spent in the military.

"I felt it might be a lot more difficult for them to see and agree on changes that needed to be made in a system of which they were a part and had spent their careers," he said.