It’s Time to Break the Chain

Service members have lost faith in the military justice system. Fifty percent of female sexual assault victims in the military stated they did not even bother to report the crime committed against them because they believed that nothing would be done. Sexual assault in the United States Armed Forces has been and continues to be a pressing issue as thousands of cases are reported each year but rarely end in a conviction.

The lack of real involvement and action against sexual assault in the military is not a new situation. For most of history, the United States’ military criminal justice system was not even in charge of service members’ crimes. Service members accused of sexual harassment, assault, or other common law crimes used to be tried in civilian courts. While the military courts have similarities to the civilian court systems, there are also many differences. For example, in military courts, commanding officers have the option of imposing non-judicial punishments, the government only needs two-thirds of the military panel to secure a conviction, and military members are subject to the Uniform Code of Military Justice as well. The military rape law—a law stating that military personnel accused of rape between 1986 and 2006 can be charged, regardless of the five-year statute of limitation—was only truly enforced in the late 1980s after a series of publicized sexual assault scandals forced the legislations and task force to change the military justice system. Thus, the Department of Defense formed the Sexual Assault Prevention and Response Office (SAPRO) to specifically oversee the department’s sexual assault policy.

Since then, the sexual assault rates within the United States Armed Forces have gotten even worse. The Pentagon’s anonymous survey released in 2019 revealed that 20 thousand service members, 13 thousand of whom were women, had experienced some type of sexual assault in the military. However, only one-third of the 20 thousand filed a report, which could easily be attributed to the fear of retaliation. A survey by the Department of Defense in 2015 showed that 62 percent of active service members who reported sexual assault crimes faced professional, social, and administrative consequences such as career setbacks and social ostracization. This effect was the case with Kayla Kight, who filed an unrestricted report that opened a criminal investigation. She was given a compassionate reassignment to another unit, but one of her mentors was friends with her assailant. She was then given low marks on the officer evaluation reports, and her career was jeopardized.

The 1993 “Don’t ask, don’t tell” policy—part of a military directive that prohibited any homosexual or bisexual who disclosed sexual orientation from serving—was also used to discharge LGBTQ+ members, regardless of whether the sexual conduct was consensual or not. Despite its repeal in 2011, the effects of the policy still linger in the military today. Over 80 percent of LGBTQ+ service members reported sexual harassment during their time in the military.

The root of the sexual assault crisis within the military goes back to the failure of the chain of command. A service member who is sexually assaulted is expected to report the incident to the commander, who will investigate the misconduct and determine if any type of punishment is necessary or if it should be legally pursued. This procedure means that almost all of the authority regarding sexual assault lies in the hands of the commander. If the commander refuses to acknowledge that the sexual assault should be pursued further, there is no other person or management the victim can turn to, as the commander is the one to refer the allegations to the Sexual Assault Response Coordinator. The victim will not be able to receive specific health care or support and cannot file a criminal charge against the assailant since an unrestricted report cannot be filed. The chain of command military justice process system that produces only 302 prosecutions out of 2,558 actionable reports does not work and needs to be changed.

In the past couple years, the military has been making several changes specific to preventing these sexual assaults in the first place. SAPRO initiated the Sexual Assault Prevention and Response program, a U.S. military required training that educates service members on sexual assault. It also provides support and treatment for the service members who may have experienced any form of sexual assault.

Additionally, the odds of experiencing sexual assault are higher in units with the prevalence of gender discrimination, workplace hostility, and sexual harassment. Not requiring female recruits to take the same physical tests as their male counterparts can send the wrong message and often leads to the other recruits seeing the female recruits as lesser beings.

Today, Senator Kirsten Gillibrand is proposing new legislation: sending sexual assault cases to a specialized military prosecutor. Gillibrand’s bill, the Military Justice Improvement Act (MJIA), would cut out the chain of command from decisions over whether or not the service member should be prosecuted for sexual assault among other crimes. Despite what many argue, commanders would still be able to discipline their troops, enforce non-judicial punishment with the MJIA in place, and be responsible for handling other felony-level, misdemeanor-level, and specific military-related crimes. Similar to the MJIA, a Pentagon panel also recommended that the decisions to prosecute service members for sexual assault should be made by an independent authority, not by the commanders.

Reducing the number of sexual assaults should be one of the military’s top priorities. They have disappointed too many of their service members by allowing all the power to be in the hands of commanders. The military justice system needs to be modernized, and Gillibrand’s proposed bill will do exactly what is necessary.