Media Center

By Jeremy Herb 

Hagel’s recommendation to strip military commanders’ ability to dismiss guilty verdicts in most criminal cases has given proponents of revamping military's sexual assault policies new momentum to make major changes this year.

The latest push to change the military’s judicial system has come in the wake of an Air Force sexual assault case from Aviano Air Base where Lt. Gen. Craig Franklin dismissed a guilty verdict in a post-trial review. 

The dismissal sparked a firestorm from lawmakers in both parties and prompted Hagel to review the military’s judicial policies, leading to his recommendation this week.

But not all calling for reforms agree with how much change is needed, as lawmakers are divided over whether to remove investigating and prosecuting sexual assault cases from the military’s chain of command.
The issue is poised to be one of the most spirited debates for the Armed Services Committees when they mark up the Defense authorization bill in the coming months, the expected vehicle for changes to the military’s Uniform Code of Military Justice (UCMJ).

Sen. Kirsten Gillibrand (D-N.Y.) was one of several lawmakers who praised Hagel’s proposal but said more must be done.

“Now Congress must act on legislation I am drafting with several of my colleagues that will remove authority over these cases outside the chain of command to increase reporting and strengthen accountability in the military justice system," Gillibrand said in a statement this week after Hagel’s announcement.

Several lawmakers and advocacy groups have long called for structural changes to the military’s judicial code, where convening authorities have the ability to determine whether to bring cases to a court martial as well as the right to post-trial review.

"The question is, will Lt. Gen. Franklin's actions be the tipping point?” said Nancy Parrish, president of Protect Our Defenders, an advocacy group for military sexual assault victims. 

“There appears to be a growing number of members of Congress who are fed up with the status quo and the cycle of scandal after scandal," she said.
Protect Our Defenders and the Service Women’s Action Network (SWAN) said that Hagel’s proposal this week did not do enough to address the underlying problems of how sexual assault cases are handled in the military.

“Just focusing on post-trial powers that a commander has isn’t very useful, because the sort of thing that happened at Aviano very rarely happens,” said Rachel Natelson, the legal director at SWAN, which also wants larger structural reforms made. 

Some vocal advocates for military sexual assault reform, however, are not onboard with the changes that Gillibrand, Sen. Claire McCaskill (D-Mo.) and the advocacy groups are proposing.

Rep. Mike Turner (R-Ohio) said he supports Hagel’s changes to the judicial code and wants to look at more than just post-trial reviews, but he is opposed to taking prosecutions outside the chain of command.

“I think that goes too far,” Turner told The Hill Friday. 

“You really do have to have the chain of command and the military structure be different than civilian… The criminal code in civilian society is completely separate from the unified system you have within the military, and I think it has to be maintained.”

The Pentagon estimates there are 19,000 sexual assaults in the military annually, while only about 3,000 incidents are reported.

Under former Defense Secretary Leon Panetta and now Hagel, the Pentagon has undertaken a number of initiatives to try to curb the prevalence of sexual assault and encourage reporting the crimes. Some other changes have come from Congress in the Defense authorization bill.

But critics say the changes made don’t get at the heart of the problem, and the military’s approach to dealing with sexual assault has come under attack in the wake of several recent scandals. 

Lackland Air Base in Texas has been reeling after more than two-dozen basic training instructors were investigated last year for sexual assault and misconduct in cases involving more than 60 victims.

The Aviano case, in which Lt. Col. James Wilkerson’s one-year sentence and dismissal from the Air Force were overturned, prompted a new round of allegations that the military doesn’t take sexual assault seriously enough.

Lawmakers blasted Franklin’s decision to overturn the verdict during the Senate’s first hearing on sexual assault in nearly a decade last month, and the release of Franklin’s explanation for dismissing the verdict prompted a new round of criticism this week.
“It was outrageous. It had language in it that even seemed to blame the victim, that he took things into consideration that have nothing to do whatsoever with the facts, and used them to dismiss findings of fact-finders,” Turner said.

The case may ultimately lead to changes in the post-trial review process for military commanders. Hagel recommended that a convening authority be stripped of the ability to overturn guilty verdicts in most criminal cases, while still allowing sentences to be reduced with a written explanation.

His proposal is likely to face some opposition too, chiefly from Sen. Lindsey Graham (R-S.C.), a military prosecutor still in the Air Force reserves. Graham defended the importance of a convening authority — a system that dates back to the Continental Congress — during last month’s sexual assault Senate hearing.

The chairmen of the House and Senate Armed Services Committee both appeared open to looking at changes in the Defense authorization bill. Sen. Carl Levin (D-Mich.) told reporters that Hagel’s proposal sounded “about right,” while Rep. Buck McKeon (R-Calif.) said it “could be a good initial step towards resolving a dysfunctional element of the UCMJ.”