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Opinion The military should finally take sexual assault cases out of commanding officers’ control

Sen. Kirsten Gillibrand (D-N.Y.) listens as the Senate Armed Services personnel subcommittee  holds a hearing about prevention and response to sexual assault in the military, on Capitol Hill in March 2019.
Sen. Kirsten Gillibrand (D-N.Y.) listens as the Senate Armed Services personnel subcommittee holds a hearing about prevention and response to sexual assault in the military, on Capitol Hill in March 2019. (J. Scott Applewhite/AP)

THIRTY DAYS into its 90-day review of sexual abuse in the military, an independent commission established by Defense Secretary Lloyd Austin came to the same conclusion that has long been held by victims, victims’ rights advocates and many military experts: that decisions about prosecuting service members for sexual assault should be made by independent authorities, not commanding officers. The commission’s recommendation comes as support is building in Congress for legislation mandating changes to the military justice system; we hope that means the long-overdue reforms will finally be enacted.

Sexual harassment and violence have dogged the military for decades. The Tailhook incident in 1991 put a spotlight on the issue, and with each new scandal leaders of the armed services have vowed that there would be no tolerance of sexual assault. Some changes have been made, including strengthening assistance to victims. But the problem has persisted, with the number of sexual assaults steadily rising since 2006, according to the Defense Department. Its reports showed a 13 percent jump in incidents in 2018 and a 3 percent increase in 2019.

When he took office, Mr. Austin made clear that dealing with sexual assault was a top priority, with the need for “direct accountability to drive meaningful change.” At the direction of President Biden, he created the independent commission and gave it 90 days to come up with recommendations. Whether the group’s proposal to break with long-standing military practice is implemented will be up to Mr. Austin, who said he will first consult with military leaders. This is not the first time that a military advisory committee has supported removing the decision about whether to prosecute sexual assaults and other serious crimes from the chain of normal command: The Defense Advisory Committee on Women in the Services voted to do so in 2013. But military leaders have vehemently opposed the proposal, saying it would erode commanders’ authority and hurt unit cohesion.

That stance has been a source of frustration for lawmakers. “I am tired of the statement I get over and over from the chain of command: ‘We got this, madam, we got this.’ You don’t have it! You’re failing us,” Sen. Kirsten Gillibrand (D-N.Y.) shouted during a Senate Armed Services Committee hearing in 2019. Ms. Gillibrand first introduced legislation in 2013 that would put charging decisions for serious, non-military crimes — which would include sexual assaults — in the hands of a military prosecutor rather than a commander.

The logic behind Ms. Gillibrand’s bill — that commanders are often reluctant to pursue charges against their troops, and that makes victims reluctant to come forward — as well as the military’s inability to effectively deal with the issue seem to have persuaded a growing number of senators from both parties to sign on to the Military Justice Improvement Act. Among the most recent is Sen. Joni Ernst (R-Iowa), a retired National Guard lieutenant colonel, who told the New York Times her own experience with assault and her daughter’s stories from West Point helped shift her views on this issue. “I know we have to do more,” said Ms. Ernst. She’s right.

Read more:

Read letters in response to this editorial: Military justice is in need of much reform

Miriam Becker-Cohen: How the Supreme Court can help sexual assault survivors in the military

The Post’s View: Lloyd Austin’s focus on sexual misconduct in the military offers hope for real change

Sara Darehshori: Here’s what the military can do to address its sexual assault crisis

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