April 18, 2016; CBS News
Just over a month after the Senate rejected a bill that would have drastically changed the prosecution procedures of military sexual assaults, an advocacy group is alleging the Pentagon knowingly misrepresented and omitted pertinent facts about the reality of sexual assault prosecution in the military. The reports have led several senators to call for a re-investigation into military procedures. Crucially, the report alleges that by incorrectly characterizing sexual assault prosecutions in the military and misleading Congress, Pentagon officials ultimately blocked reform that would have helped reduce the epidemic level of sexual assaults in the military.
Protect Our Defenders (POD), a national organization dedicated to addressing rape and sexual assault in the military, released a report on Monday illustrating how the Pentagon has argued to keep prosecution of sexual assaults within the military chain of command, specifically top commanders, instead of employing a military independent agency or military prosecutors. According to the report, some officials also incorrectly proffered that civilian or military prosecutors outside the chain of command are less likely to prosecute sex offenders.
“Whether you agree or disagree with the policy at issue, every Senator should be outraged, and revisit their votes” on the bill, said Col. Don Christensen, who was also a former Air Force prosecutor and is the president of POD, in a press release. The advocacy group and other activists are calling for a hearing to investigate why misinformation was used to block legislation.
Current policies mandate that military commanders have the authority to decide whether the military will prosecute sexual assaults. According to many activists, including Senator Kirsten Gillibrand, this procedure effectively sanctions sexual assault in the military because commanders may be biased or a victim may be more hesitant to report an incident to their commander. The situation is especially precarious when the alleged attacker is a commander. According to the Department of Defense, 60 percent of victims who reported their attack faced retaliation from their peers or their commander. In these cases, one can understand why an independent agency would be appropriate. A bill challenging the current procedure was defeated in the Senate in March, in part due to reports the Pentagon has delivered to Congress in the past that prosecutions are more diligent with the current protocol concentrating power in commanders.
However, as released in a report by POD and investigated by the Associated Press, while the Pentagon has pushed against reforming prosecution procedures and has instead maintained that military commanders are more insistent about prosecuting sexual assault cases than military prosecutors, there is reportedly no documented evidence to support their claim.
“The facts behind the Pentagon’s claims reveal the great lengths they went to in order to distort the data to counter momentum and prevent reform,” said the report. “[The cases investigated by POD] provide no evidence to support the argument that empowering trained, independent military prosecutors to decide which cases go forward to trial would lead to fewer victims having ‘their day in court.’ In fact, the cases provide no evidence that commanders are tougher than military prosecutors in responding to cases of sexual assault, and they support calls for professional and blind justice.”
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In the report, POD lists several instances where officials on behalf of the Pentagon cite facts and figures to support their claim. In one instance, Senator Claire McCaskill, a member of the Senate Committee on Armed Services, said:
In just the past two years, we found 93 cases of rape and sexual assault that prosecutors declined to prosecute, which were then referred to court-martial by commanders. That’s 93 victims who had their day in court because commanders, not prosecutors, had the ability to refer a case to court-martial.
Senator McCaskill was among the officials that have diametrically opposed reforming the current procedure.
After making several Freedom of Information Act requests to the Department of Defense to authenticate the claims about these 93 cases, POD found in the 81 cases made available, two-thirds were not sexual assault cases declined by a prosecutor and later prosecuted by the military. Moreover, there was not a single case where a commander insisted on a court martial after a case was declined.
“The allegations in the Protect Our Defenders report and the AP article include providing inaccurate information to a congressional committee, misleading the Congress, and undermining efforts to make critical reforms to a broken system,” wrote Senator Charles Grassley and Senator Gillibrand in a letter to President Barack Obama. “Due to the very serious nature of these allegations, we request that you direct an independent investigation into this matter.”
As noted by Vox, we can conjecture why the Pentagon would allegedly lie about such information: to keep the power to prosecute in their hands as long as possible. However, the March bill as it was proposed would only have affected the very top 150 commanders, not the rest of the 15,000 commanders who are not involved in the prosecution process.
According to Christensen, from his experience as a military prosecutor fighting commanders to pursue cases, it’s imperative the process changes, and the recent investigation confirms so. “That’s the fight I had as a prosecutor, is getting them to not stop cases,” Christensen said in an interview with Vox. “They can also slow down the process or discourage victims from going forward, retaliation, hostile work environments—that’s one of the things we see over and over.”—Shafaq Hasan
