More submissions to the Military Justice Review Group

Comments submitted to the Defense Department's Military Justice Review Group are unfortunately not posted on the official website, but do pop up from time to time on the internet. Here are two more:

National Women's Law Center, June 26, 2014:

The Center supports the proposed Military Justice Improvement Act (MJIA), which would reform the military justice system by moving the decision-making on whether and how to prosecute serious offenses, like sexual assault, out of the chain of command and give these decisions to trained, experienced military prosecutors. Such a change would strengthen, not weaken, the authority of commanders. Although commanders typically receive advice from judge advocates under the current system, they do not typically have legal training themselves. But the system requires them to make legal judgments, with potentially adverse consequences for all concerned if they make the wrong judgments. This is like asking a commander without flight training to fly a fighter jet or a commander without medical training to perform surgery. It is hard to see how putting a commander in such a position enhances the respect and authority the commander seeks and is due from those in his or her command.

Similarly, it is hard to see how requiring that legal decisions be made by individuals with legal training undercuts a commander's authority in other realms. Equally important, particularly when it comes to sexual assault, there are critical areas in which a commander has expertise that can and should be brought to bear. Separating military justice decision-making from the chain of command will make it possible for commanders to concentrate on improving the climate in their commands to help prevent sexual assaults. They can model the behavior they expect from those they command. This is the leadership job that commanders should be called upon to do and the job for which they have particular expertise.

We urge the MJRG to recommend that prosecutorial decision-making responsibility be removed from commanders and given to military prosecutors, as provided in the MJIA. This would go a long way to ensuring a strong, independent and impartial military justice system that is essential to preventing sexual assault and other serious crimes.

Columbia Law School Sexuality and Gender Law Clinic, June 2014:

The Clinic’s comments focus on four areas that are particularly troubling: 

• commander discretion over sexual assault investigations and punishments;
• the absence of thorough sentencing guidelines;
• the lack of sufficiently protective evidence rules; and
• related difficulties with the Boards of Corrections of Military Records and the Department of Veterans Affairs provision of benefits to service members who suffer from Post-Traumatic Stress Disorder as a result of sexual assault.