The military has too many sexual assaults. I don’t think any serious commentator disputes that, and the military certainly acknowledges the problem. I would strongly dispute, however, that the problem is a result of current military command policy, or that it can be materially corrected if we diminish command authority by taking sexual-assault prosecutions largely out of commanders’ hands (a current popular proposal, which Betsy Woodruff discussed in a piece on the homepage today). In fact, there’s good evidence that the military is a substantially better and safer environment for women than, say, a civilian college campus.
Further, it is utterly false to claim that commanders (aside from the smallest number of outliers) don’t take sexual assault seriously. In fact, to argue otherwise is collective slander of a group of men and women who discharge their duties with competence and care that often puts our civilian system to shame. The problem with prosecution in the military is not command authority, it’s quite often proof — the same problem that encumbers civilian prosecutions time and again.
I was recently at the JAG Legal Center and School where a roomful of more than 100 fellow military lawyers watched The Invisible War, a documentary that has caused quite a stir in the halls of civilian and military power. At the end of the documentary, a number of the JAGs present expressed outrage — mostly at the story the movie told about military justice. These lawyers had prosecuted sexual assaults and many had also defended soldiers from sexual-assault claims, and the vast majority who spoke up defended the military justice system.
The typical assault case is not like the cases highlighted in the documentary. For one thing, most aren’t rapes. For another, they often involve copious amounts of alchohol (even on deployment), few witnesses (aside from the participants — who often have very different stories to tell), and minimal physical evidence. As much as the military (and any person of good will) wants to prevent and punish sexual assault, we cannot and should not repeal constitutional protections for the accused to do so. The burden of proof for criminal prosecution is still proof beyond a reasonable doubt, and no amount of shifting of prosecutorial responsibility or discretion will change that fact.
Again and again, the military’s critics conflate accusations with assaults. While it may very well be true that the large majority of accusations are made in the aftermath of actual illegal conduct, it is most certainly not true that every accusation is true, or even that fundamentally true accusations are true in all the important particulars. PowerPoint briefings, congressional tirades, or media inquiries cannot make it any easier to sort out the truth amongst competing stories, much less make that truth easier to (constitutionally) prove in military court.
So what can we do?
Sexual assault is a question of character. People make mistakes, especially when alcohol is involved. However, most true sexual assault involves a willful, malicious act — and it’s often an act by a repeat offender. (One point The Invisible War makes well is that most sexual offenders are repeat offenders and often serial offenders). Since the military is recruiting from a youth population suffering from its own (worse) sexual-assault problem, it has a tremendous challenge in keeping offenders out. But I would suggest that perhaps front-end prevention could be more effective than changing command authority.
First, all pre-enlistment sexual offenses of any degree of severity should be non-waivable (and pled-down convictions should be examined for presence of an original sexual-violence component) – whether juvenile or adult. Second, in connection with searches of any academic or employment records, any record of a sexual-misconduct complaint should raise a red flag requiring thorough and complete explanation from the prospective recruit and relevant school officials. Third, required character references could include specific questions regarding sexual misconduct. No one has a right to join the military. As the military shrinks, now is exactly the right time to become more selective and rigorous in the recruiting process itself.
There are problems with the status quo, but military command structures have been cultivated for centuries of western warfare. They exist for good reasons. Disrupting command authority to apply an ultimately cosmetic and ineffective fix to a problem that lies more with our wider culture than with the military itself would be a serious mistake.