- The Foundry: Conservative Policy News from The Heritage Foundation - http://blog.heritage.org -

Sexual Assault in the Military: Fix the Right Problem

Posted By Steven Bucci On July 24, 2013 @ 8:06 am In Legal | Comments Disabled

Some conservatives have joined Senator Kirsten Gillibrand’s (D–NY) effort to remove the chain of command from cases of sexual assault in the military [1]. They give the bill’s champion critical conservative cover in her well-intended but ill-aimed battle to create a new prosecution system for military sex crimes.

They are trying to fix the wrong problem. Pulling the chain of command out of the process will leave a system like those found in Europe, where a leader can send his or her subordinates to fight in combat but cannot discipline them without the intervention of a lawyer. This could destroy the normal functioning of the American military.

There is clearly a problem with how the military handles the sensitive and critical cases of sexual assault. But instead of looking at the fact that military judges have thrown out several convictions and assume that they failed in their duties, perhaps Congress should look at why they made the decisions they did.

Could it be that the prosecutions were faulty? In the American justice system (civilian or military), if a prosecutor does not do an adequate job at convincing both a jury and an appellate authority, even the guilty go free. The true problem with the dismissal of sexual assault charges lies not with the commanders who bring the charges or the senior commanders who exercise appellate authority but with the prosecutors.

As a military commander, I have taken action to see subordinates sent to jail for sexual assault and for trainee abuse (non-sexual), and I have presided at a court martial board that sent a sexual child abuser away for 25 years. Sexual crimes have no place in an organization that prides itself on honor, fellowship, and trust, such as the United States military.

With due respect to the military prosecutors who try these complicated and difficult cases, they are essentially amateurs compared to their civilian counterparts, many of whom do nothing but try sex crimes. These complex cases—which often involve ambiguous evidence and conflicting stories—are not the proper place for a prosecutor who has spent more time advising commanders in non-judicial punishment and operational law or helping soldiers write their wills. These functions are vitally important, but they are poor preparation for trying a rape case.

The Senators would do a much greater service [2] if they mandated the development of a dedicated corps of career defense attorneys and prosecutors [3] within the military JAG system. If the prosecution does its job right, military courts will not throw out their cases. Solve the right problem and the military will benefit without a doubt, and they’ll do it without resistance.

All cases in the military, sex crimes included, would achieve better results if Congress mandates that the services create a career track for criminal litigators, not destroy a commander’s ability to ensure good order and discipline.

The problem is real. Let’s have an effective solution.


Article printed from The Foundry: Conservative Policy News from The Heritage Foundation: http://blog.heritage.org

URL to article: http://blog.heritage.org/2013/07/24/sexual-assault-in-the-military-fix-the-right-problem/

URLs in this post:

[1] cases of sexual assault in the military: http://www.politico.com/story/2013/07/military-sex-assault-bipartisanship-94273.html

[2] much greater service: http://www.heritage.org/research/reports/2013/05/changing-the-military-justice-system-proceed-with-caution

[3] dedicated corps of career defense attorneys and prosecutors: http://www.heritage.org/research/reports/2013/06/jag-corps-and-reforming-the-military-justice-system

Copyright © 2011 The Heritage Foundation. All rights reserved.