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From Draft NOtices, January-March 2014

Legal Changes in Military Sexual Assault

— Kathy Gilberd


The Department of Defense has just released preliminary figures showing that reported cases of sexual assaults in the military have increased by 50% in the last fiscal year -- from 3,374 in 2012 to more than 5,000 in 2013. While DoD officials are still evaluating the numbers, their initial public statement claims that this does not represent an increase in the total number of sexual assaults (which they assume to be about the same as the 26,000 cases in 2012), but rather in the number of people willing to come forward and file reports after having been assaulted.

If DoD’s assessment is correct, the increase in reporting is the result of a year of public and congressional pressure on the military to treat assaults seriously, and resulting new regulations that have provided some additional protections to victims/survivors of assault. Congressional hearings and statements, lawsuits challenging the military’s handling of assaults, and diligent work by organizations such as Service Women’s Action Network (SWAN) have created a climate in which servicemembers may have a little more confidence that reporting assault could lead to punishment of the offenders and, hopefully, that reporting would not lead to retaliation.

If the trend of increased reporting is to continue -- and if the high number of sexual assaults is to decrease -- then continued pressure on the military is essential. It is clear that the current process of handling sexual assault complaints and prosecuting offenders (or not doing so) has serious problems. Scandals this year have included sexual assault charges against officials of the military’s sexual assault programs, commanders’ decisions to set aside punishment or convictions after courts-martial found officers guilty of rape or assault, and charges of assault against recruiters and Air Force drill instructors. Most recently, a woman bringing charges of rape against three Navy academy cadets was grilled for hours about her personal life and sexual habits by defense attorneys at a pre-trial investigation (called an Article 32 hearing). And despite recent regulations increasing their rights, sexual assault survivors have little power over what happens to their attackers. Mid-ranking commanding officers (called convening authorities for their power to convene courts-martial) have full discretion to decide whether or not to act on complaints at all, whether to court-martial offenders or use lesser disciplinary measures or administrative discharge when they believe the complaint, and whether to uphold sentences and convictions handed down by courts-martial. While prosecutions have apparently increased in the last year, there can be no guarantee under the present system that this will continue.

Congress has spent some time in the last year debating policy changes on sexual assault, most notably changes in how assault and other serious cases should be prosecuted. A bold initiative by Sen. Kirsten Gillebrand, which would have taken the power to send cases to court-martial (convening authority power) out of the hands of commanders and placed it in the hands of prosecutors, won significant support in the Senate but did not make it into the National Defense Authorization Act (NDAA) recently signed into law. Senator Gillebrand hopes to bring the bill before the Senate again in the next few months.

Other changes did make their way into the NDAA, which includes a whole section on sexual assault policy. Article 32 hearings will be revised to resemble civilian preliminary hearings, with limitations on the types of issues and evidence that may be introduced, and survivors cannot be compelled to attend and testify at these hearings. Defense attorneys wishing to interview survivors must do so through military prosecutors, and survivors have the option of having a prosecutor, their own attorney, or a victim’s advocate present during the interview. A new group of military attorneys, called Special Victims Counsel, will be available to consult and assist survivors. Survivors will have the right to make statements at confinement hearings, court-martial sentencing hearings, and clemency proceedings.

The power of convening authorities to review court-martial decisions will also be limited under the act, so that convening authorities handling serious offenses of any kind will not have unfettered power to set aside, commute or suspend all or part of sentences. Mandatory minimum sentences of dishonorable discharge (or dismissal, for officers) will be required when servicemembers are convicted at general courts-martial of rape, sexual assault, forcible sodomy or attempts to commit these crimes.

In addition, the NDAA requires DoD to prepare regulations prohibiting retaliation against victims or other servicemembers who report an offense. Interestingly, retaliation is defined here to include taking or threatening to take adverse personnel actions, withholding or threatening to withhold favorable personnel actions, and “ostracism and such acts of maltreatment as designated by the Secretary of Defense,” committed by peers or other servicemembers. Similarly, the act strengthens the Military Whistleblower Protection Act, which already protects those who make complaints of sexual assault.

Because of recent exposés of sexual misconduct by military recruiters and drill instructors, Congress also included in the act specific prohibitions on inappropriate contact, relationships, communication or conduct by recruiters, personnel at Military Entrance Processing Stations, drill instructors and others with authority over prospective and new recruits. Violators will be subject to prosecution and, if not given a punitive discharge at court-martial, will be administratively discharged after a single substantiated violation.

These and other changes to military sexual assault policy in the NDAA provide new protections for survivors of sexual assault, though they leave the basic system in place. Commanding officers still have extensive discretion over the handling of cases and may, of course, simply decline to believe a survivor’s report of assault in the first place. Changes are being made piecemeal in this manner, and none address the underlying problems causing the military’s epidemic of sexual harassment and sexual assault. Until Congress or DoD begins to look at basic causes in military culture and training, and takes a more fundamental approach to the problem, sexual assault will remain a serious problem. Nonetheless, recent changes and the new provisions of the NDAA should have some positive effect.

President Obama, on receipt of the NDAA, praised its policy changes but also said that the military must show significant improvement on this issue within the next year to avoid more serious changes (presumably along the lines of the Gillebrand legislation).

It’s clear that Congress and the military are taking action on this issue because of continued pressure from advocacy groups and the public. So long as that pressure continues, we can hope that the military will be obliged to follow the policy reforms and, if they are not effective, adopt more serious changes in the handling of prosecutions.

This article is from Draft NOtices, the newsletter of the Committee Opposed to Militarism and the Draft (


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