The Right Kind of Change?

The National Guard Bureau recently launched a campaign aimed at slowing the alarming sexual assault increases throughout the military. The campaign, part of a DoD-wide effort, has three phases aligning with the Secretary of Defense’s goals. The first phase began on June 28 with mandatory training for the entire National Guard Joint staff and requires all Sexual Assault Response Coordinators and Victim Advocates be certified for their positions by the end of the year. According to the National Guard Bureau, “commanders are also getting specialized training aimed at creating an environment that will encourage Soldiers and Airmen to report incidents.”
The Guard’s campaign may be a precursor to military-wide sexual assault policy change. 
Senators Carl Levin, D-Mich., and Kirsten Gillibrand, D-N.Y., proposed bills that could limit the responsibility commanders have in leading cases to prosecution. Levin proposed allowing a higher ranking commander to review cases deemed unworthy for prosecution. Gillibrand went a step further by proposing removing the chain of command from prosecution. Levin’s bill passed the Armed Service Committee. Gillibrand’s did not.
The National Guard processes sexual assaults differently from Title 10 forces depending on the status of the solider. Only active duty personnel are subject to the Uniform Code of Military Justice (UCMJ).  For instance, while at drill, the Guard is under Title 32 status. However, members of the National Guard are fully subject to state laws regarding sexual misconduct, and public criminal courts are always available for prosecution outside the military.  In fact, public courts are available for all members of the military.
Another procedure more readily used by the Guard than their active counterparts is administrative separation. This option enables commanders to remove individuals accused of misconduct from the Guard. Unlike legal prosecution, an administrative separation carries with it a lower standard of proof and a less restrictive evidentiary standard. Thus, it can be expeditiously effective for removal purposes if the command chooses not to pursue a military criminal action, while leaving the option of a civilian criminal prosecution to the local authorities.
It will be interesting to see what passes Congress this year and what the results of the sharp focus on stopping sexual assault will bring. Is keeping review through a traditional chain of command enough?  
The answer is uncertain.  
Adherence to the chain of command is fundamental to our military. Soldiers must respect the decisions of their commanding officers. Officers have the dual responsibility to lead troops and follow orders. Without a functioning chain of command, decision making, discipline and overall military effectiveness can erode. Removing the chain of command from the equation will not guarantee better results. In some cases, commanders may seek prosecution more aggressively than an outside prosecutor given the difficulty of winning a guilty verdict in the courtroom.
On the other hand, the sheer quantity of sexual harassments and assaults belie chain of command effectiveness. The numbers indicate commanders have failed to protect their personnel from sexual misconduct.  
Here are a few suggestions for Congress and our military leaders as they continue debating new policies:
  1. Promote the use of embedded mental health professionals. Through language found in the FY 2012 National Defense Authorization Act (Section 703), licensed civilian mental health professionals are available to Guardsmen during training and deployments. Sexual assaults can lead to post-traumatic stress, and identifying positive mental health options early is essential. Embedded mental health professionals have proven effective despite minimal Pentagon support.
  2. Continue to protect victims from the negative repercussions of reporting sexual assaults.
  3. Remember that sexual assault is not just a woman’s issue. It affects both men and women, and offenders come from both genders as well.
  4. Implement more aggressive training standards for new personnel. Developing a new attitude to sexual assault has to start from the top with national military figures and the bottom with our new era of recruits.
  5. Live up to the high standards set. Congress should not allow this issue to be held up for political reasons, and the military should not shy away from taking whatever steps necessary to fix the deluge of sexual misconduct in their ranks.

Adam Lutterloh is an intern in the NGAUS legislative department. He is working on his master’s degree at Duke University’s Sanford School of Public Policy.

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