Senate Holds Hearings on Military Sexual Assault

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San Diego Civilian Court-Martial Defense Attorney, Sean Dunn, of the Law Office of Sean R. Dunn, APC, comments on the Senate Armed Service Subcommittee on Personnel hearings reviewing the recent handling of sexual assault cases in the military.

The historical responsibility and authority vested by Congress in military commanders is now being called into question.

The United States Military and the Uniform Code of Military Justice face growing scrutiny in the handling of rape, sexual assault and other sex offenses in the military.    

Last week, the Commanding General of the Third Air Force, Lieutenant General Craig Franklin, USAF, overturned the General Court-Martial guilty verdict and punishment for sexual assault of Air Force Lieutenant Colonel James Wilkerson who was convicted and sentenced in a general court-martial convened by General Franklin at Aviano Air Base in Italy last November. General Franklin's action appears to be the final straw for some law makers. In a March 4, 2013 letter to Secretary of Defense Chuck Hagel, Senator Barbara Boxer (D-CA) and Jeanne Shaheen (D-NH) said the Air Force General’s action was a “travesty of justice” and asked Secretary Hagel to completely review the actions of the Air Force General.

The Senate Armed Services Subcommittee on Personnel convened hearings this week to specifically discuss Military Sexual Assault. You can watch the hearings here - Panels Iⅈ Panel III

Testifying before the Subcommittee Executive Director and Co-Founder of Service Women’s Action Network (SWAN), former Marine Corps Captain Anu Bhagwati, asked, “What is it going to take to convince the military that sexual assault is a vicious and violent crime?” The Department of Defense Report on Sexual Assault in the Military for 2010 reported that over 19,000 sexual assaults occurred in the military in Fiscal Year 2010.

Ranking Subcommittee Member, Senator Lindsay Graham (R-SC), said in the hearing “I can’t think of a more devastating blow to a unit than to have one member assault another.” Senate Armed Services Subcommittee Chairwoman, Senator Kirsten Gillbrand (D-NY), stated in the hearing, “Congress would be derelict in its duties of oversight if we just shrugged our shoulders at these 19,000 sons and daughters.”

Senator Boxer appeared before the Subcommittee and testified that in response to her letter, Secretary Hagel informed her the actions of the Air Force General were “final” and could not be overturned. Expressing her outrage at the actions of the Air Force General, Senator Gillbrand stated the question before the Subcommittee was, “Whether we need to remove such disposition authority from the chain of command entirely and place it in a trained professional prosecutor instead.”

Major General Ary, Staff Judge Advocate to the Commandant of the Marine Corps, informed the Subcommittee in his formal written statement to the committee, “A commander setting aside a finding is atypical, and even rarer in cases involving sexual assault offenses.” General Ary further detailed that of the 967 Marine Corps general and special courts-martial in 2011 and 2012 that resulted in convictions, convening authorities disapproved guilty findings of the court in only 5 cases, or less than 1%, of the total number of convictions. He further stated none of these cases involved sexual offenses.

During her testimony Senator Boxer told the Subcommittee members, “It is time for us to take swift and decisive steps to ensure that decisions in the Military Justice system do not rest in the hands of one individual.”

“Congress in Article 60 of the Uniform Code of Military Justice authorized military commanders convening courts-martial, at their sole discretion, to modify the findings and sentence of the court.” said Sean Dunn, a former Marine Corps Judge Advocate and San Diego, California Civilian Military Defense Counsel who was interviewed for this article. According to Mr. Dunn, “The sole discretionary power of the convening authority has a long history in our military justice system dating back to our first code of military laws enacted by the Continental Congress in June 1775. The Convening Authority’s powers are enacted by Congress and have remained relatively unchanged.” Mr. Dunn further stated, “The historic principle behind the commander’s Article 60 authority is that the commander is in the best position to balance the need for justice and the need for military effectiveness in the command. The historical responsibility and authority vested by Congress in military commanders is now being called into question.”

In his written testimony General Ary stated, “Article 60 interfaces with key aspects of the UCMJ and serves an important role in maintaining the commander’s ability to ensure a fair court-martial process. It is not a stand-alone section of the UCMJ that can easily be severed without significant effects on other key portions of the military justice system.”

According to Mr. Dunn, previous efforts over the last few years to change Article 60 have not been successful. In November 2011, Congresswoman Jackie Speier (D-CA) introduced the “STOP ACT” (Sexual Assault Training and Oversight Prevention Act.) This bill included provisions to create a separate entity, not unit commanders, to convene and prosecute sexual offenses in the military. The bill did not make it out of the House Armed Services Committee. Mr. Dunn said new bill targeting Article 60 and specifically addressing the authorities and responsibilities of military convening authorities was just introduced on March 12, 2013 by Senator Claire McCaskill (D-MO).

Senator Graham, a military lawyer with 30-years’ experience said in the hearing, “Another problem that can hurt a unit is for somebody to be wrongfully accused and feel like they have no voice because the system has gone from one extreme to another.” Senator Graham voiced there must be some balance between the rights of victims and the rights of the accused. Senator Graham said he would do everything in his power to make sure that sexual assault stops in the military as well as make sure, “… if you are accused in the military you will get a fair trial.”

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