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Korb and Laich: Sex assault and the chain of command

Nov. 19, 2013 - 11:15AM   |  
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Most individuals and groups inside and outside of government agree that the U.S. military has a sexual assault problem, and that it is getting worse. Army Chief of Staff Gen. Ray Odierno has called military sexual assault a “cancer.”

But there is disagreement about whether the problem is serious enough to remove jurisdiction over sexual assaults from the military chain of command.

Many of those in the military and Congress who object to removing the issue from the chain of command rely on several myths to justify their position.

First, they argue that the problem is overstated. In fiscal 2011, the Pentagon’s Sexual Assault Prevention Office reported there were approximately 26,000 cases of sexual assault, up 35 percent from the previous survey, conducted two years ago. Some critics complain that the data are flawed because they conflate sexual assault with sexual harassment. In fact, the survey differentiates between the two and excludes harassment.

If anything, the SAPRO survey results understate the problem. The data cover only active-duty incidents but exclude incidents of sexual violence at the service academies, where a person is more than twice as likely to experience sexual violence as someone in the active force.

Additionally, the results don’t account for violence committed by military people against civilians, such as the incident involving the head of the Air Force’s SAPRO office, who was charged but not convicted of sexual assault in an Arlington parking lot. Finally, the data do not account for multiple attacks against the same victim, counting separate incidents as a single event.

The second myth used to assure critics that the military has the problem in hand is that the number of incidents has gone up because more and more combat positions in the military have been opened to women. Proponents of this argument are essentially blaming the victim. But as Army Gen. Martin Dempsey, the chairman of the Joint Chiefs of Staff, has pointed out, making women equal members of the military by allowing them to serve in combat positions should decrease the number of incidents. According to Dempsey, “when you’ve had one part of the population that is designated as warriors and another part that is designated as something else, I think that disparity begins to establish a psychology that, in some cases, led to that environment [of sexual assault].”

The third myth is that removing jurisdiction over sexual assault from the chain of command will undermine military readiness. Not only is there not empirical evidence to support this claim among our allies who have removed the issue from the chain of command, but this line of reasoning ignores that military readiness has already been undermined by the way in which commanders are handling the situation. The apocalyptic claims about military readiness are similar to the claims that military leaders made when women were admitted to the military and when the ban against gays and lesbians serving openly was lifted. Moreover, in many cases, it is people in the chain of command who are responsible for the violence — the same people currently responsible for ultimately deciding the cases.

Fourth, opponents of removing the issue from the chain of command already support changes which amount to a similar transition. For example, everyone agrees that commanding officers should not be allowed to overturn convictions or findings, nor modify sentences, as two Air Force lieutenant generals recently did, provoking controversy.

Those supporting keeping the jurisdiction over these crimes within the chain of command also ignore the fact that commanding officers lack legal expertise and have strong incentives to downplay or not prosecute cases brought to their attention. Even when there is a higher-ranking officer responsible for the assault, commanding officers do not want to prosecute cases because it could reflect poorly on their leadership, harming their career prospects. This may be part of the reason why, according to the data, most of those who reported sexual assaults to the chain of command experienced some form of retaliation.

Rather than asking for the right to retain authority over sexual assault cases under the Uniform Code of Military Justice within the chain of command, our military leaders ought to be asking for forgiveness from the tens of thousands of soldiers, sailors, airmen and Marines they have failed to protect.

Lawrence Korb is a senior fellow at the Center for American Progress and a former assistant secretary of defense, serving in the Reagan administration. Maj. Gen. Dennis Laich (ret.) served in the Army for 35 years.

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