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Gillibrand’s Error

Sen. Kirsten Gillibrand (D., N.Y.)

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Senator Kirsten Gillibrand (D., N.Y.) has made a hallmark issue out of the problem of sexual assault and related misconduct in the U.S. military, and her bill to change the way that crimes are prosecuted throughout the armed forces has drawn support from key Republicans, first Senator Chuck Grassley and now Senators Rand Paul and Ted Cruz. Senator Gillibrand and her associates are doing a service by drawing attention to these detestable crimes, but the solution they have put forth is the wrong one.

The legislation in question involves a good deal more than sexual assault. Senator Gillibrand’s bill, the Military Justice Improvement Act, would identify 37 specifically military crimes, such as disobeying orders or absence without leave, that would remain under the jurisdiction of the offending soldier’s chain of command. Other serious crimes — those punishable by a year’s incarceration or more — would be referred to a new, independent system of military prosecutors. It would, in short, replicate the civilian criminal-justice system. The direct involvement of commanders is part of what makes a court-martial a court-martial, and it is a fundamental part of the U.S. military’s command structure. Upending that structure is a serious thing to contemplate, and it is not at all clear that crime in the U.S. military, lamentable though it is, justifies doing so.

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There is a great deal of irresponsible talk about an “epidemic” of sexual assault in the U.S. military, but it is far from clear that there is any such thing. A 2012 troop survey purported to show a 35 percent increase in unwanted sexual contact (USC) since the 2010 survey. (The military being the military, USC is an initialism with a life of its own, and it includes everything from a soldier getting handsy at happy hour to forcible rape, making it a metric of questionable value.) It is worth noting that the 2010 survey showed a 44 percent decrease from 2006. It is possible that USCs really did decline by 44 percent between the 2006 survey and the 2010 survey before spiking up 35 percent afterward; that would mean, among other things, that in these days of “epidemic” sexual misconduct, the rate of offense is lower than it was in 2006. A much more likely explanation is that these surveys, completion of which is not obligatory, suffer from selection bias. Perhaps more important, they also have a very low response rate, which introduces an element of randomness into the results. It is not clear whether such surveys tell us much of anything useful.

A more reliable indicator, the number of soldiers who in fact report sexual assaults, has risen, albeit less dramatically, up 13 percent since 2010. In 2012, there were 880 sex-crime suspects in the U.S. military, which has 1.4 million active-duty personnel. Of those 880 cases, 509 were dismissed because of insufficient evidence, and 81 were dismissed because commanders had determined the charges were false. Of the 594 suspects who faced a court-martial, only 302 went to trial, the other cases either ending in discharge, resignation, or dismissal or still pending resolution. Of the 302 tried, 238 were convicted, and 64 were acquitted. That is a conviction rate that compares favorably with the results achieved by civilian prosecutors in felony cases.

In any case, those 238 convictions are a far cry from the 26,000 episodes of criminal sexual misconduct that, relying on those questionable survey findings, critics of the military attribute to it, the latter a number that probably has no meaningful basis in reality and yet rounds out articles in The New Republic and elsewhere. Those same critics charge that this gaping disparity is itself evidence of a sick military culture that discourages soldiers from seeking justice. If we are to believe that there are in fact tens of thousands of sexual assaults happening in the military every year, and a commanders’ conspiracy so vast that fewer than a thousand suspects are named each year, and barely 300 make it to trial, we are going to want better evidence for that implausible proposition than has been presented. It is possible that commanders are throwing out sexual-assault cases at too high a rate; Senator Carl Levin has proposed additional reviews of such decisions by the Judge Advocate General corps, along with additional measures to protect complainants, and those measures deserve support.

The 2013 National Defense Authorization Act already institutes important reforms that are more narrowly targeted toward the specific issue of sexual assault in the military. They include the prohibition of recruitment waivers for those with sexual-assault convictions and the mandatory discharge of personnel convicted of sexual assault. It also creates a system for gathering data about sexual assault in the military, and the military’s response to it, which may or may not justify taking additional steps. Another possibility is training prosecutors with a special competence in sexual assaults, to whom commanders can turn when needed. Rather than upending the command structure — over the objections of the military’s leadership — we should give those reforms time to produce results, and give reformers a chance to gather data sufficient for constructing a more reliable picture of what is and is not happening in the U.S. military.

That Senator Gillibrand would have so little regard for the leadership structure of the military is unhappily no surprise, but we do expect a more sober assessment from Senators Cruz and Paul.



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