New report from Sen. Gillibrand

Sen. Kirsten Gillibrand

Sen. Kirsten Gillibrand (D.-NY) has issued this report in response to the latest DoD data. The report comments:

No data bear out the military’s claim that commanders have been tougher on sexual assault cases than independent military prosecutors would be. In fact, using the limited files provided by the DoD for this report, it appears that commanders are leaving convictions on the table by refusing to effectively prosecute sexual assault cases. It is here that it is vital to note that commanders, acting as the sole convening authorities in these cases, lack the significant legal and investigative training and experience that highly trained prosecutors have. Where many variables may appear odd to an untrained observer, fact patterns in sexual assault cases, both inside and outside the military, can offer key insight to a trained prosecutor. [Emphasis in original.]

Policy recommendations:

Below are several policy recommendations for the Congress to consider implementing via this year’s NDAA that would positively benefit the efficiency and effectiveness of the UCMJ in combating sexual assault:

1. Remove the decision to prosecute from the chain of command: Align the military with the federal criminal justice system by removing the convening authority as the disposition authority and instead vest that decision with experienced military prosecutors with extensive litigation experience.

2. Improve transparency of the military justice system: Provide public access to court-martial records, modeled off of a system such as the civilian PACER system, as well as provide an opportunity for any member of the public who wishes to observe a trial in progress to do so.

3. Ensure accurate accounting of crime statistics: Track military justice statistics in one common database, including information on case disposition, administrative action, and non-judicial punishments. The database should capture statistics from all sexual assault cases, including those involving military spouses, domestic partners, and children.

4. Improve the proficiency of the military’s litigation field: Cultivate and retain the most talented and motivated litigators through added career protections for those judge advocates who have volunteered to spend consecutive tours in litigation billets.

5. Provide adequate supervision in complex cases: Ensure that the most experienced litigators are supervising more junior counsels in every complex case, to ensure that the counsel is adequately representing the interests of the government or accused.

6. Adequately address retaliation against crime victims: Currently, the services do not adequately track or address retaliation against victims of crime, especially sexual assault victims, despite evidence that retaliation is prevalent in the services. Establish a system to track incidents of retaliation, including the initial report, subsequent investigation, punitive or administrative action taken against the o ender, supportive actions taken for the victim, and information on the victim’s ultimate career trajectory. Hold those who retaliate accountable, rather than ignore the problem.

7. Enhance punishment for offenders who abuse their authority: Amend Article 120 of the UCMJ to increase the maximum punishment available for sexual offenders who abuse their authority and assault military victims who are lower-ranking.