For nearly three decades, our military has promised zero tolerance for sexual assault and sexual harassment. What we’ve gotten instead is zero accountability. According to a Protect Our Defenders fact sheet of 2016-2020 statistics:

• Sexual violence and harassment in the military remains as pervasive as ever: In FY 2018, as many as 20,500 service members were sexually assaulted or raped, according to Department of Defense estimates.

• Women are often victims of assault perpetrated by someone with a higher rank: Of women who reported a penetrative sexual assault, 59% were assaulted by someone of a higher rank, and 24% were assaulted by someone in their chain of command.

• A majority of cases go unreported: 76% of survivors did not report their crime in FY18.

• Retaliation is common: 64% of women who reported a sexual assault faced perceived retaliation, and a third of victims are discharged after reporting, typically within seven months of making a report.

• Despite an increase in reporting, prosecution and conviction rates are going down: In FY 2019, only 6.4% of unrestricted reports of sexual assault were tried by court martial, and 2.4% of offenders were convicted—the lowest prosecution rate since at least 2010.  

How is sexual assault and harassment in the military currently addressed? 

Today, the military justice system is handled by non-lawyer commanders who have near-universal decision-making authority when it comes to handling sexual assault and harassment charges. 

Military commanders have the authority to:

• Determine whether to charge an offender, and whether a case goes to trial;

• Authorize the use of expert witnesses;

• Approve or reject plea deals;

• And appeal adverse decisions by a judge.

That is a huge problem. To start, survivors are less likely to report assault because of distrust of their commanders, or fear of retaliation. These commanding officers are also not attorneys, and they have minimal legal training. 

And they’re inherently biased. Commanders cannot be expected to serve as impartial decision-makers when the survivor or perpetrator—or both, in many cases—are under their command. And while most are high-ranking enough that they haven’t actually met the service member(s) in question, they know—and talk to—lower-ranking commanders who have. They also have a professional incentive to prevent complaints from rising to the level of a formal report—commanders have a vested interest in keeping their units free of “scandals,” which reflect poorly on their leadership.

How would the Military Justice Improvement Act change the current system? 

As survivors of sexual assault tell us over and over, the reason they don’t report is that they fear retaliation and they don’t trust the chain of command to bring the assailants to justice. In the current system, the commanding officer has the sole decision-making authority over whether a case goes to trial. 

The Military Justice Improvement Act would put trained, independent military prosecutors, rather than commanders, in charge of sexual assault cases, giving survivors a chance to speak freely with real protection from retribution. It would, notably, leave uniquely military crimes within the chain of command, like dessertment or fraudulent enlistment. 

Would this change impact unit cohesion, or hinder a commander’s ability to lead?

In a word, no. These changes would actually free commanders of conflicting responsibilities, improve their ability to maintain good order and discipline, and actually help them keep the military free of sexual harassment and assault. It’s just taking the higher-level commanders, who often have no legal training or experience, out of a legal process. 

Who supports this bill? 

MJIA has wide bipartisan support—ranging from Senators Bernie Sanders and Tammy Duckworth to Senators Ted Cruz and Chuck Grassley.  

Where does MJIA stand today? 

Every year and in every session of Congress, I discuss this legislation with Republican senators—and it’s actually a policy solution that many can agree on. But right now, it’s a matter of convincing leaders on the Senate Armed Services Committee (where I serve), in particular the Chairman, Sen. Jim Inhofe, to prioritize it and put it on the Senate floor for a vote.