The Defense Department’s independent review commission on sexual assault held its first meeting on Wednesday, announcing 13 members who will make recommendations to Defense Secretary Lloyd Austin on how to change the military’s culture around sexual assault, how to make itself more accountable and how it can better prevent assaults and support survivors.
Will DoD implement those recommendations ― particularly those that may up-end centuries of military tradition ― from a panel of legal, military and advocacy experts? That is the main question, more than a decade after senior Pentagon leadership began publicly declaring that they are taking sexual assault very seriously.
“I mean, certainly the IRC is hopeful that the secretary of defense and the president, ultimately, will adopt our recommendations,” Lynn Rosenthal, the commission’s lead, told reporters on Wednesday. “But I can’t say what the outcome might be.”
Part of that hope, she added, came out of the Wednesday meeting, where senior leaders displayed what she described as a “deep understanding of sexual assault.”
She recalled that Army Gen. Mark Milley, chairman of the Joint Chiefs of Staff, explained that he’d come around to the idea that sexual assault is part of a pattern of predatory behavior.
“I think what we are moving past is this idea that has been long-held…that sexual assault is just this confusion between two parties, that somebody didn’t understand whether they had consent,” Rosenthal said, calling that idea a “rape myth.”
Given the many years and the many iterations of sexual assault prevention and response efforts in the military, multiple reporters asked why this time could be different.
“I also think that what makes this moment in time different are the words of President Biden and Secretary Austin, who have both said that all options should be on the table,” she said. “And one of those is carefully examining the role of command in decisions to refer cases to prosecution, and we will be considering that very carefully.”
Senior military leaders have long said that commanders must have this decision-making power in order to maintain the good order and discipline of their units.
Lawmakers have accused them of sleeping on that job.
“We have given the military enough time and enough resources to fix this problem,” said Sen. Kirsten Gillibrand, D-N.Y., who chaired a Senate Armed Services Committee hearing on Wednesday.
That includes roughly $1 billion allocated, she added, for panels, commissions and advisory committees, as well as 429 provisions included in the annual National Defense Authorization Act.
“Not one of these steps has reduced sexual assault within the ranks,” she said, pointing to increases in reporting and decreases in prosecution and conviction rates. “We are right where we were when we started.”
Commanders have the authority not only to decide whether charges are pressed or send a case to trial, but they can overturn a conviction wholesale.
Gillibrand has argued since 2013 that decision-making power in sexual assault cases belongs in the hands of professional sexual assault prosecutors, rather than officers who have little education in the law and very rarely any experience in prosecuting sexual violence.
“Today, nearly all commanders are not attorneys, and are ill-equipped to make the kind of increasingly complex legal decisions that the military justice system requires,” Eugene Fidell, a Yale law school researcher and former Coast Guard judge advocate, said Wednesday.
While commanders listen to the advice of criminal investigators and uniformed judge advocates before they make decisions, they often have other considerations aside from the law, given their primary role to complete their missions, he added.
“For example, in preserving the viability of the fighter pilot in whom the taxpayers may have invested a fortune in training costs, or a very senior noncommissioned officer, staff NCO or master chief petty officer,” he said. “These are valuable people … and the commander may be loathe to give up the utility of such a member of the command.”
The military’s history of relying on commanders’ judgment has often been pointed to as a reason the sexual assault problem in the military has proven so intractable, but is also one of the reasons that many senior military leaders, as well as lawmakers, have flatly rejected the idea of any justice decision being removed from a commander’s control.
“Despite the objective data proving its failure, military leadership continues to vigorously argue that commanders alone are the solution to solving … sexual assault and harassment, and in opposing reform, leadership argues that commanders need more authority, not less,” Don Christensen, a retired Air Force judge advocate and president of Protect Our Defenders, said in his testimony. “Yet I have never heard them explain what additional authority they need that they do not now possess that would drive down prevalence rates or increase accountability.”
The independent review commission has three members devoted to the military’s culture and climate, to offer recommendations on how changes can be made.
But much of what has become the SAPR program has been mandated by Congress, and it remains to be seen whether the Pentagon can self-direct a change of its own deeply-ingrained culture, particularly when the decision is up to senior Pentagon leadership with more than four decades in the military ― Austin, most notably, but also Milley, his top uniformed advisor.
“If this act were to pass, commanders would be just as responsible for their service members as they are today,” according to Lawrence Morris, a retired Army judge advocate and current chief of staff to the president of the Catholic University of America. “They would just have a more empty toolbox. It’s paradoxical to leave this responsibility to commanders, but to take away a key element of authority and undermine good order and discipline and military readiness.”
Morris’s testimony reflects what military senior leaders have argued in the past, that because commanders are responsible for their command climates, taking away convening authority in sexual assault cases would undermine their ability to preside over the good order and discipline of their units.
Gillibrand fired back that only 3 percent of commanders have convening authority, those ranking O-6 and above, and that 97 percent of commanders continue to maintain their command climates without the ability to prosecute sexual assaults.
“And in fact, most staff judge advocates have no more than two years of criminal justice experience,” she said. “So, the commander has no experience, and the lawyer that they have touted as being part of this process all along has very little relevant experience.”
Christensen added that the proposed law wouldn’t affect commanders’ other powers when it comes to responding to a sexual assault, including administrative separations, non-judicial punishment or ordering pre-trial confinement.
“Military leaders have had their chance,” Sen. Elizabeth Warren, D-Mass., said during the hearing. “They said they would fix this and they didn’t.”