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Guest Post: Top Ten Reasons Sen. Gillibrand’s Bill is the Wrong Solution to Military Sexual Assault

[Editor's Note: Today's Guest Post from Gen. Dunlap is, in part, a response to an earlier post from Andy Wright on the current congressional reform proposals addressing sexual assault in the military.  Tomorrow, Andy will revisit the debate with a reply to Gen. Dunlap.]

In my 34 years as an active duty Air Force lawyer, I saw plenty of Congressional efforts to “improve” the military justice system.  Few issues, however, have generated more offerings than did the Pentagon’s report this past spring of an estimated 26,000 victims of “unwanted sexual contacts” in the armed forces.  Some initiatives to address this very critical problem (like the bipartisan effort of Senators Barbara Boxer and Lindsey Graham) look promising; others, not so much.

Most controversial is the proposal of Sen. Kirsten Gillibrand which Andy Wright included in his quite thoughtful review of military sexual assault reform proposals found here.  Although we agree on much, I have a bit of a different take than Andy on the gravamen of the Gillibrand bill.

Essentially, Sen. Gillibrand thinks a “fix” to sexual assaults in the armed forces is to remove disciplinary authority from field commanders and give it to a new, $113 million, 600-person bureaucracy that she wants the Pentagon to create.   That bureaucracy would make military lawyers the “deciders” in disciplinary cases involving sexual assault and other serious matters.

Based on my experience as a military lawyer, it is hard to think of a scheme that could be more wrong for the armed forces and, especially, for the victims of sexual assaults.  That’s why I drafted a new essay suggesting “ten top reasons” her bill ought to be rejected.  

Frankly, it is mindboggling to me as to why anyone would think that the way to fix anything in the military would be to take the commander out of the process.  Isn’t disciplining sexual assault offenders important enough to be commander-led and, crucially, commander accountable?

Some worry that commanders might be biased against sexual assault complainants.  Fair enough.  The reality is, however, that commanders are keenly aware of how destructive these offences are to the kind of morale and discipline so necessary for battlefield success.  It can be difficult for outsiders to understand, but commanders are driven to purge out offenders not simply because it is the right thing to do, but also because of hard, warfighting realities.

But, sure, rogue commanders exist (as do, incidentally, rogue lawyers).  Regardless, there are multiple, statutorily-protected avenues for victims to address such issues including contacting the IG or Congress, making a complaint under Article 138 of the UCMJ (which must be reported to the politically-appointed civilian service secretary), or even swearing out charges against the commander.

What is more is that military lawyers (judge advocates or “JAGs”) are already “entitled” under existing law to contact their most senior JAG leaders with complaints from alleged victims, even if that means circumventing the chain of command.

To be clear, I have a very deep respect for JAGs.  After all, I was one for decades.  But my time as a military prosecutor, defense counsel, trial judge, and command advisor convinces me that commanders are irreplaceable in the justice system as they – not lawyers – are the ones who can engineer the cultural change that is needed to effectively address the problem of sexual assault plaguing the ranks.

And we also need to consider that in thousands of years of military history there are almost no examples of successful warfighting commanders who lacked disciplinary authority.  This is no small consideration.  As the Supreme Court points out, it “is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”

Moreover, Sen. Claire McCaskill’s characterization of some in the Gillibrand camp caught my attention.  She called them “Washington-based advocacy groups with limited membership, participating in personal attacks, [and who] do not represent the views of all survivors”.

Although she is a former prosecutor and ferocious advocate of sexual assault victims, I still wondered: is McCaskill’s “participating in personal attacks” allegation just political hyperbole?  Disturbingly, it seems to be borne out by a recent attempt by a Gillibrand booster to muzzle active duty JAGs who were simply trying to explain the Department of Defense’s position on the commander’s essential role in the disciplinary process.  That’s why I knew I had to speak out.

I was also troubled by the fact that the popular narrative which apparently underpins Sen. Gillibrand’s proposal is so fraught with misinformation.  Consider the notion that the majority of the estimated 26,000 victims are women (actually, 53% are men); that military personnel do not “trust” the commanders (polls show they do); that the handful of foreign militaries who have removed their commanders have shown progress in combatting sexual assault (they have not); and that prosecutor-centric systems like the one Sen. Gillibrand wants to impose on the military are more successful than the military’s in suppressing sexual assault (the evidence indicates they are less so).

While there are many aspects and nuances to the flaws in her proposal, I offer ten “top” reasons (which I detail in my essay) for rejecting Sen. Gillibrand’s scheme.

In addition, the essay describes legislative initiatives that should be examined, but are not being considered by anyone in CongressAs I say, if you want to see the detail of my arguments, I invite you to check out the essay found here and also here on SSRN.

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About the Author

is currently a Professor of the Practice of Law and Executive Director, Center on Law, Ethics and National Security, at Duke Law School. He retired from the Air Force in 2010 as a Major General.