The paper's unstated but central premise is that concern over sexual assault in the armed forces is properly the beginning and end of such congressional interest as there is in restructuring the Uniform Code of Military Justice to transfer the commander’s power over the disposition of charges in major cases to a judge advocate who is independent of the chain of command. While dismay over the persistence of sexual assault has certainly (and appropriately) contributed powerfully to continuing congressional interest in modernization, the need for this structural reform transcends such cases. As a result, the paper’s comparative assessment of military and civilian prosecution and conviction rates is basically misplaced. Having an independent legal professional make the disposition decision in all serious cases is the sensible, necessary step regardless of the impact of that overdue reform on the court-martial body count.
Even if it made sense to allow the disposition of sex offenses alone to drive the structural issue, the paper’s comparison between the military setting, on the one hand, and the civilian and university settings, on the other, is a red herring. The armed forces are unlike either of those social settings. Rank and hierarchy in the armed forces have a potent, pervasive legal dimension and legal consequences that are different in kind from anything a civilian, including a college student, must deal with in daily interactions with others. Issues of consent, acquiescence, and willingness to complain play out very differently in the unique social framework of the armed forces.
Relatedly, it is not probative (or relevant) that “[t]he military has a conviction rate for cases with sufficient evidence to support the commander’s action that is more than twice the conviction rate for cleared cases for New York and Texas,” as the paper asserts (at 41). Indeed, buried in a footnote (n.194), the paper undermines itself by noting that “[t]he FBI cautions that UCR [Uniform Crime Reporting] statistics should not be used to rank different jurisdictions because ‘these rankings lead to simplistic and/or incomplete analyses that often create misleading perceptions adversely affecting cities and counties, along with their residents.’” Despite that caveat, the paper goes on to assert that “the military prosecutes more felony-level sexual assaults per capita and based on reporting levels than Texas, New York or 40 large representative counties containing about 60 million people.” Therefore what?
In the end, the paper boils down to a plea to await the work of the Military Justice Review Panel that was created by the new Article 146, UCMJ and some period of observation and analysis thereafter before Congress finally gets to consider the core of George III’s command-centric 1774 Articles of War. That structural decision is for Congress, not the Review Panel, to make. None of the changes Congress enacted in 2016 affect the command-centric defect, and in any event the Review Panel’s initial review (due in FY21) will cover a five-year period most of which will have preceded the 2019 effective date of the 2016 Act. The report after that won’t be due until FY24. Reading Article 146, it is difficult to see what data flowing from the Review Panel's analysis would drive a decision on the role of the nonlawyer convening authority one way or the other.
A century has gone by since Brigadier General Samuel T. Ansell proposed deep reforms in the military justice system and half a century has gone by since Senator Birch Bayh and others proposed important reforms. It is time for Congress to grasp the nettle.
The professors use of data is sloppy at best. For example on table 37 they claim there were 311 general court-martial convictions for sexual assaults in 2018. According to the 2018 SAPR report (Appendix B, p. 24) the actual number of convictions was 108 and this includes both special and general court-martial convictions. This number would also include civilian victims. This is important because they are using convictions as a comparison to the estimate of 20,500 active duty victims in 2018. They also inflate the report rate in table 37 by combining reports by both civilian victims and military victims. While they claim 5805 military victims reported in 2018, this number actually includes 903 civilian victims. The number of military victims report in 2018 was 4898. The professors inflating the actual conviction and report rapes brings into question the validity of all of their conclusions on the data comparisons.
ReplyDeleteRegardless, I agree with you Gene. The issue of reform is greater than sexual assault and what the military's relative failure or success compared to a a tiny number of other jurisdictions is. The question is whether in 2020 should prosecution decisions for felony level common crimes be made by lawyers or the select few 140 or senior commanders who use their general court-martial convening authority to convene courts?
While the ABA has made it clear prosecution authority must vest with licensed attorneys subject to ethical standards, the professors believe that somehow it makes more sense for 140 distant (either by location or multiple levels of command) general court-martial convening authorities to engage in the practice of law without these prerequisites in the most weighty of decisions -- whether the admissible evidence is sufficient to send someone to a trial.
The consequences are too serious for the accused, the victim or society to continue the archaic system of allowing non-lawyers to practice law without a license.
I find it ironic that two law professors apparently have so little faith in the students that they teach and who graduate from their law schools that they think a pilot, infantry officer or SWO is more qualified to engage in the practice of law and determine whether a case of murder, child abuse or rape should be prosecuted than a JAG is.
Response to Don Christensen:
DeleteDon Christensen’s review primarily challenges the statistics in the S & S paper. Mr. Christensen errs in his conclusions about the relevance of the inclusion of civilian victims (902) in the total of unrestricted reports for FY 18 (5,805). He omitted the key information that convening authorities receive legal advice from senior attorneys on disposition of sexual assault offenses. Convening authorities are seasoned, highly educated leaders with a wealth of experience dealing with disciplinary issues over many years and in different roles.
The S & S statistics discussion compared the total numbers of sexual assault victims nationally, in colleges, and in the military, based on three surveys involving estimates or extrapolations, and concluded that the military had the lowest rate of sexual assault victimizations. Next, the S & S paper looked at reporting rates for victims to law enforcement. In FY 18, there were 6,676 reports of sexual assaults by victims in the military; 623 of the 6,676 reports were by civilians; there were 6,053 reports by military victims during military service; military and civilian victims made 5,805 unrestricted reports; 4,603 military victims made unrestricted reports during their military service. (See FY 18 SAPR Report, Tbl. 1 at 8.) The number of military victims that the S & S paper selected for comparison was 6,053, not 5,805, and did not include civilian victims. (S & S paper at 12, 13.) The S & S paper concludes, “In 2018, 6,053 military victims of sexual assault reported the previous occurrence of a sexual assault during their military service. The 2018 WGRA Survey indicated 20,500 victims reported they were sexually assaulted by someone in the previous year…In 2018, about 30% of military victims (6,053 ÷ 20,500 = .295) reported the sexual assault, which is about 30 times higher than 1% of college undergraduate victims in the UT-Austin study and 50% higher than the 20% in the NCVS whose sexual assaults in the NCVS to police.” (S & S paper at 13.)
Next, the S & S paper compared “cleared law enforcement” cases as reported to the FBI with convictions and cases with sufficient evidence to support the commander’s action with military convictions as reported in the FY 18 SAPR Report. Here, the focus is on the effectiveness of military dispositions of military sexual assault cases, and not on the military status of victims. In this instance, 1,845 military cases had sufficient evidence to support the commander’s action. By this measure, the military had about twice the conviction rate of Texas or New York. (S & S Paper at 35-36.) The paper also found the military has a substantially higher conviction rate than Texas, New York, and 40 large urban jurisdictions. (Id. at 36, 40-41.) The obvious limitations to these comparisons are detailed in the S & S paper.
The S & S paper noted in several places the number of unrestricted reports but rejected comparison of the unrestricted reports with convictions because it included l,464 cases (such as 900 unknown perpetrator cases) that would not be considered “cleared” under the FBI criteria. (Id. at Tbl. 26, at 29.) Of course, the S & S paper is complex, and terms such as preferral, referral, cleared cases, etc., make precise comparisons difficult. The surveys ask different questions and use different methodologies, and the FBI’s warning about the risks of comparisons is certainly well taken. However, after all the comparison difficulties are accounted for, the bottom line remains that statistics provide no support for the notion that removing commanders and transferring military prosecution authority to lawyers will increase sexual assault prosecutions. The available information strongly suggests that the military has a better record of supporting victims and prosecuting sexual assaults than any of the jurisdictions considered. The S & S paper is a welcome addition to the debate about the role of the convening authority.
Response to Eugene R. Fidell:
ReplyDeleteRecent reform proposals by critics of the military justice system have been based upon claims that military victims of sexual assault have not reported their victimization because of an alleged belief that the chain of command would not prosecute a military perpetrator. As a remedy, critics recommend transferring control of sexual assault prosecutions (and now other serious offenses) from the chain of command to attorneys in a separate entity outside the chain of command.
The Schlueter and Schenck (S & S) article indicates that surveys and reports establish that military victims are, in fact, significantly more likely to report their sexual assaults than in the civilian sector, and this is most likely because the military has a comprehensive system for supporting victims and offers greater transparency and oversight of case disposition decisions. Professor Fidell’s comment on the S&S article cites no statistical evidence that any civilian jurisdiction where sexual assault prosecutions are controlled by attorneys has a higher reporting, prosecution, or conviction rate than in the military. Indeed, no such evidence exists, and Fidell’s critique therefore misses the mark.
Professor Fidell concludes by stating, “A century has gone by since Brigadier General Samuel T. Ansell proposed deep reforms in the military justice system and half a century has gone by since Senator Birch Bayh and others proposed important reforms. It is time for Congress to grasp the nettle.” Fidell overlooks a century of reforms. Congress has implemented the most important reforms that Brigadier General Ansell recommended— limits on the convening authority’s post-trial discretion, appellate review, and establishing nonjudicial punishment in lieu of summary courts-martial. Compare S.T. Ansell, "Some Reforms in Our System of Military Justice," 32 YALE L.J. 146, 151 (1922), and Manual for Courts-Martial 2019. Most importantly, Brigadier General Ansell did not recommend that the chain of command abandon its time-tested responsibility of enforcement of discipline by ending the convening authority’s role in referring charges to trial.
Professor Fidell notes in a previous blog that Senator Birch Bayh’s proposed “Court-Martial Command” in “his Military Justice Act of 1971 (and 1973) sank without a trace.” See J. Fidell, "Military Justice Reform, the 2020 Pledge, and the President’s Power," Just Security (Feb. 14, 2020). Senator Bayh’s proposal to transfer the convening authority’s military justice responsibility has not been enacted into law for many of the good reasons detailed in the S & S paper. The military justice system is in the midst of a long-term study after the most significant changes since 1969 when the role of the military judge was established. Congress should await the results of the ongoing study before further changes are made.
Readers of Col. Einwechter's comment may wish to read ¶ 2 of the post to which he is responding:
ReplyDelete"The paper's unstated but central premise is that concern over sexual assault in the armed forces is properly the beginning and end of such congressional interest as there is in restructuring the Uniform Code of Military Justice to transfer the commander’s power over the disposition of charges in major cases to a judge advocate who is independent of the chain of command. While dismay over the persistence of sexual assault has certainly (and appropriately) contributed powerfully to continuing congressional interest in modernization, the need for this structural reform transcends such cases. As a result, the paper’s comparative assessment of military and civilian prosecution and conviction rates is basically misplaced. Having an independent legal professional make the disposition decision in all serious cases is the sensible, necessary step regardless of the impact of that overdue reform on the court-martial body count."
He has thus made precisely the same fundamental error as Dean Schenk and Prof. Schlueter.