Pentagon Panel Recommends Removing Sexual Assault Cases From Chain of Command

[Standing Wolf]

I think the "you have to believe the woman" rule went out the window at the Kavanaugh hearings and a few other popular cases like the one at UVA.

I'm thinking there should be some qualifiers before they take the responsibility away from the command.

I think it helps to think about how a comparable situation would be received in other contexts. Yes, the military, in how it administers justice to its members, has some inherent differences. For one thing, your civilian boss can't, in most cases, have you locked up for disobeying his or her directives. However, deciding whether an individual should be prosecuted and at what level, when the alleged offense is a serious crime against another Service Member, should be the call of a legal professional - one not personally involved with what may be the internal politics and machinations of a military command. Again I'll ask the question: If your wife, daughter or sister were raped by a co-worker, would you want their boss to decide whether to prosecute the alleged offender?

[Peter1469]

There is no justification for rape.

So you want female service members to be charged to in some cases.

[Peter1469]

Qualifiers like commanders not wanting to allow their tenure as a commander look bad by recognizing the rape of a soldier under their command?
And using Kavanaugh as an example is a joke.

Covering up rape will ruin a commander's career.

[Dr. Who]

Covering up rape will ruin a commander's career.

Covering up within the military would be easier than in the civilian world. The issue of rape could involve conflicts of interest on the parts of those in command with respect to the defendant. As noted, it would be comparable to letting one's employer decide whether or not a fellow employee can be prosecuted for sexual assault in the office. If the employer needs the accused more than the victim, there is a conflict of interest.

[Peter1469]

Here is an article that explains the cons of taking the authority over sex crimes away from commanders:

These initiatives are intended to reduce the number of sexual assaults in the military, but the method being pursued will result in fewer cases brought to court martial and a deterioration in overall order and discipline in our military. Policymakers should abandon this approach before real damage is done to the fabric of the U.S. military justice system.

While the rationale for taking commanders out of the justice system is questionable, the reasons for keeping them involved are not. There are three fundamental reasons why taking military commanders out of the loop in serious crime cases is a bad idea.
First, the military operates in a unique environment, where the system of justice directly contributes to the accomplishment of the mission. Commanders are responsible for the mission, but if justice is removed from their control, they lose the direct ability to maintain good order and discipline in their units. Instead, they must rely on some amorphous external agency. This will impact military readiness.


Second, commanders who refer court martial charges are the most experienced and carefully screened officers in the military. They usually have over 24 years of service under their belts, have served in multiple assignments, and have undergone hundreds of evaluations. They are personally invested in the success of their units. The experience of military lawyers is much narrower and much more focused on the law. Placing responsibility for justice in a lawyer located miles away from the unit in question introduces the likelihood that any justice delivered will be inappropriate and thus less effective.


Finally, if the decision to refer serious criminal cases is given to military lawyers, far fewer cases will be referred to courts-martial. That is because military lawyers, like their civilian counterparts, must comply with the bar ethics rules and the standards for prosecutors. Prosecutors may not prosecute a case unless there is a reasonable likelihood of success on the merits. Unlike commanders, they cannot simply refer a case to a court-martial simply because they want to enforce good order and discipline.

[Standing Wolf]

First, the military operates in a unique environment, where the system of justice directly contributes to the accomplishment of the mission. Commanders are responsible for the mission, but if justice is removed from their control, they lose the direct ability to maintain good order and discipline in their units. Instead, they must rely on some amorphous external agency. This will impact military readiness.

"Sorry, Airman, but if the man who raped you goes to jail I lose the best pilot in the squadron and the morale of the command will suffer."

Second, commanders who refer court martial charges are the most experienced and carefully screened officers in the military. They usually have over 24 years of service under their belts, have served in multiple assignments, and have undergone hundreds of evaluations. They are personally invested in the success of their units. The experience of military lawyers is much narrower and much more focused on the law. Placing responsibility for justice in a lawyer located miles away from the unit in question introduces the likelihood that any justice delivered will be inappropriate and thus less effective.

Where it absolutely should be focused. The writer is, in effect, asking sexual assault victims to "take one for the team". Also, the fact that someone is "one of the most experienced and carefully screened officers in the military" has, in any number of cases, not precluded that individual from either having been prosecuted (and found guilty) of sexual assault or misconduct themselves, or of covering it up.

Finally, if the decision to refer serious criminal cases is given to military lawyers, far fewer cases will be referred to courts-martial. That is because military lawyers, like their civilian counterparts, must comply with the bar ethics rules and the standards for prosecutors. Prosecutors may not prosecute a case unless there is a reasonable likelihood of success on the merits. Unlike commanders, they cannot simply refer a case to a court-martial simply because they want to enforce good order and discipline.

This is logical sleight-of-hand. Fewer cases may be referred to courts-martial if an attorney is making the decision whether to prosecute, but if commanders are referring cases where the prosecution has no reasonable prospect of winning, how is that a good thing? The better marksman is not the one who takes the most shots, but the one who more consistently hits the target.

[Peter1469]

"Sorry, Airman, but if the man who raped you goes to jail I lose the best pilot in the squadron and the morale of the command will suffer."

A commander that did that would get relieved of command.

Where it absolutely should be focused. The writer is, in effect, asking sexual assault victims to "take one for the team". Also, the fact that someone is "one of the most experienced and carefully screened officers in the military" has, in any number of cases, not precluded that individual from either having been prosecuted (and found guilty) of sexual assault or misconduct themselves, or of covering it up.

That isn't what the writer is asking. And yes, senior commanders have committed sexual crimes. Some have been punished, but many allowed to retire.

This is logical sleight-of-hand. Fewer cases may be referred to courts-martial if an attorney is making the decision whether to prosecute, but if commanders are referring cases where the prosecution has no reasonable prospect of winning, how is that a good thing? The better marksman is not the one who takes the most shots, but the one who more consistently hits the target.

Around 2011 the Army took the position that they would try all allegations of sexual assault. I think they thought it would be a deterrent to sexual misconduct. But, as I said before, most sex crimes in the military, not all, are date rape cases. What happened was the Army's conviction rate for sex crimes went from very high to extremely low.

[Peter1469]

Two-star general among group of soldiers punished after sexual misconduct probe

A timely article from the Army Times.

An investigation into an Army Reserve command’s mishandling of sexual harassment and assault allegations found significant shortcomings in the unit’s practices and resulted in a total of 15 soldiers being punished, including a major general.

The inquiry into the Illinois-based 416th Theater Engineer Command started in early 2020 following allegations that the unit’s leaders had improperly conducted internal investigations of sexual assault allegations rather than refer them to outside investigators, as required by Pentagon policy.


“The investigation revealed numerous shortfalls and found various individuals and units improperly handled reports of sexual assault and harassment,” said Maj. Gen. Greg Mosser, deputy commander of Army Reserve Command, during a Monday press briefing ahead of the investigation’s release.


The 416th TEC’s commander, Maj. Gen. Miyako Schanely, has relinquished command and received a formal memorandum of reprimand from Gen. Joseph M. Martin, the Army vice chief of staff.


Martin also sanctioned two other senior leaders for their performance failures, though officials declined to name the individuals.


Amy Braley Franck, a civilian victim advocate with the 416th TEC, told the Associated Press last year that the command launched internal investigations into at least two sexual assault complaints rather than refer them to Army CID, as required.


In another case, the command put an alleged victim on a firing range with a person she previously accused of sexual harassment, which made her fear for her safety, the AP reported.


The investigation found that Schanely, who had been suspended in June, failed to properly implement the Sexual Harassment Assault Response Prevention program at the unit.