Removing military commanders from sexual assault cases won’t yield meaningful solutions

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For Our View, read Defend U.S. troops against sexual assault and harassment in the military – finally.

The problem of sexual assault in the military needs to be a top focus of military and civilian leaders, and Defense Secretary Lloyd Austin should be applauded for making early efforts to address this issue. Any changes to the military justice system in response to this problem must actually contribute to meaningful solutions. 

Unfortunately, the most recent proposed legislation co-sponsored by Sens. Kirsten Gillibrand, D-N.Y., Joni Ernst, R-Iowa, and which would remove military commanders from the court-martial charging process for these cases, is unlikely to provide meaningful solutions to this serious and important problem. 

First, those supporting this legislation argue that the charging decision should be placed in the hands of legally and professionally trained military lawyers. However, this argument is an inaccurate characterization of the current system. Under the current system, commanders cannot make court-martial charging decisions without first consulting with and obtaining detailed legal advice from their lawyers. So, the input and analysis of professionally trained military lawyers is already a fundamental feature of the court-martial process, and commanders overwhelmingly follow the advice of their lawyers, who are then tasked with prosecuting these cases.

Second, commanders must be held accountable for leadership failings that contribute to bad command climates where these crimes continue to perpetuate. Commanders are key to eliminating sexual assault and harassment in the ranks. If commanders are removed from the very system that is intended to help ensure good order and discipline, then they would be less invested in addressing the problem of sexual assault and less accountable when they fail. This is precisely the wrong approach.

Third, reporting on, investigating and prosecuting sexual assault cases is challenging and complex for many reasons that have little to do with who makes the charging decisions. Civilian prosecutions of these crimes suffer from many of the same problems we see in the military. Removing the commander from the system will not change this.

Victor M. Hansen is a professor of law at New England Law Boston and a retired Army lawyer. 

Victor M. Hansen is a law professor at New England Law Boston and a retired Army JAG Officer. (Photo: New England Law Boston)

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