The U.S. military is one of the single largest organizations on the planet, and it is right now engaged in a complex and lengthy culture change in how it handles sexual assault. This process has been underway since before the 2014 National Defense Authorization Act ushered in its high-profile slate of reforms. But these reforms are extraordinary in scope, and were made in response to victims whose voices rightly got unprecedented attention from legislators, policy makers and, crucially, military commanders themselves.
Commanders have been stripped of their power to overturn jury convictions, civilian review of military decisions not to prosecute cases of sexual assault has been mandated, and from now on military personnel convicted of sexual assault will be required to be dismissed or dishonorably discharged. In addition, as of January this year, all those who report sexual assault will be entitled to a Special Victims Counsel.
Having access to this personal legal advocacy could radically change for the better the military’s criminal justice process. But this solution, like the other reforms that have been enacted, needs time and resources before we can evaluate its impact on victims. Importantly, commanding officers will need to be fully engaged in order to embed these reforms in both the legal and cultural systems and norms of the military.
The Gillibrand bill, as it is popularly known, would take the military leadership out of the justice process altogether, and set up a separate and independent prosecutorial system outside the chain of command. This is the most extreme option on the table, and it is one that is always available to us. But until we have a chance to evaluate the reforms we have already undertaken, it is risky indeed to take out of the equation the very people ultimately responsible for changing the culture.
The list of what we don’t know about sexual assault in the military is a long one. We lack accurate data on everything – from the number and nature of the assaults to the processes used to deal with them. We know that reporting of sexual assault is up, but we don’t know to what extent that means more assaults or more victims coming forward. We know that there remain real barriers to reporting, but it matters what those barriers are. Is it because victims are fearful of reprisals by their peers or commanding officers? Or is it because going to trial means they must stay at home and not deploy – and not deploying could mean missing promotion?
The goal is to create a justice system that does not penalize those who come forward. It is not just individual commanders that have to be fair – the whole system has to be fair – and the support of commanders will be essential to this evolving change.
Taking the commanders out of the prosecution process will also remove needed attention and resources from the services that have just been afforded to victims. Let’s see if the new reforms work before we take a drastic step – one that we have no evidence will ultimately help sexual assault victims.