Levin Armed with New Joint Chiefs Evidence in Military Sex Abuse Battle

The chairman of the Senate Armed Services Committee dug in further this week against a coalition of senators wanting to take military sexual assault cases out of the chain of command, presenting evidence from the Joint Chiefs that sours the coalition argument of using other militaries as a shining example of how to handle such cases.

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) presented a letter from Army Brig. Gen. Richard C. Gross, legal counsel to the chairman of the Joint Chiefs of Staff, stressing that U.S. allies who have adopted policies to take prosecutorial discretion on sexual abuse and other cases out of the hands of military commanders have done so to protect the accused more than the victims.

Gross said he and Chairman of the Joint Chiefs Gen. Martin Dempsey had consulted with counterparts in the UK, Canada, Australia, New Zealand, the Netherlands and Germany to survey their military justice systems, and found that "no allied country changed its system in response to sexual assault crimes specifically or the rights of victims generally."

"In most cases, commanders were removed as convening authorities to better protect the rights of the accused, often in response to decisions by domestic courts and/or the European Court of Human Rights," Gross wrote Levin. "...None of the allies surveyed could draw a correlation between their new system and any increased (or decreased) reporting by victims of sexual assault. There was no statistical or anecdotal evidence that removing commanders from the charging decision had any effect on victims' willingness to report crimes."

This week, Vice Chairman of the Joint Chiefs of Staff Adm. James Winnefeld expanded upon his July 18 testimony before Levin's committee on the sexual assault cases picked up by the military justice system when civilian prosecutors didn't want to try them -- nearly 100 over the past two years.

"In one case, for example, two soldiers engaged in sexual intercourse with a victim who was substantially incapacitated by alcohol," Winnefeld wrote to Levin. "When questioned, both soldiers lied to civilian law enforcement. A civilian investigator accused the victim of lying, and concluded as much in the official report. After local authorities declined to prosecute, military investigators opened a case, located additional victims, and discovered evidence indicating that the soldiers had conspired to obstruct justice. Both soldiers were convicted by a court-martial, sentenced to confinement, and punitively discharged."

Winnefeld cited another example in which a soldier raped and sodomized his 10-year-old autistic stepdaughter and civilian authorities declined to prosecute "lacking physical evidence and a statement from the accused." Military prosecutors took the case, discovered key evidence, and he was sentenced to 35 years in a court-martial.

"After querying the field, the Army, Navy, and Air Force have responded that they have no recollection of cases in which commanders declined to prosecute, or a court-martial ended in an acquittal, and civilian authorities subsequently prosecuted," the vice-chairman added.

Levin said these confirmations strengthen his hand in a battle that should resurface soon as this week the House passed the defense appropriations bill and sent it to the Senate.

After Sen. Kirsten Gillibrand's (D-N.Y.) effort to remove sexual assault cases from the chain of command failed in Levin's committee, she and other supporters have vowed to bring it to the full Senate as an amendment to the defense reauthorization bill.

“Our goal should be to prevent sexual assaults and to bring perpetrators to justice. Following the lead of allies who removed prosecution decision from the chain of command to provide greater protection for defendants will hurt our efforts rather than help,” said Levin. “This is more evidence that removing commanders from our military justice system would weaken our efforts to combat sexual assault.”

Gillibrand countered Levin's letters with a fact sheet from her office after hearing "more of the same in opposition to the bipartisan coalition sponsoring the Military Justice Improvement Act."

That measure moves the decision whether to prosecute any crime punishable by one year or more in confinement to independent military prosecutors, with the exception of 37 crimes deemed “uniquely military in nature,” such as disobeying orders or going absent without leave.

Gillibrand's office called it a "myth" to suggest their proposal will lead to fewer trials because prosecutors are concerned about their win/loss record and will only recommend cases they can win.