Last month, senators, advocacy groups, and service women and men spoke out about sexual assault in the military and the inequality of not having an impartial third-party justice system. Last week, the Pentagon asked Congress to take a look at those flaws. The Department of Defense has outlined some changes to Article 60 of the Uniform Code of Military Justice which states, "the authority ... to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority." According to Chuck Hagel, the changes are to "increase the confidence of service members and the public that the military justice system will do justice in every case."
The changes are a good start, but there is a long way to go before we can feel confident in the military justice system. The only true way to provide military victims justice in every case would be to enact a third-party justice system — one that senior officers do not and cannot affect.
The first change proposed in the statement would remove the right for a "convening authority to change the findings of a court-martial." This rule would not apply to "minor offenses" that do not require a court-martial. It is baffling that after a jury trial and unanimous conviction, a single commander can decide that the case did not meet the standards for conviction and overrule the sentence. Like in the case of the dismissal of Lt. Col. James Wilkerson's aggravated assault conviction, the convict is reinstated in the army after the original sentence is tossed out.
However, commanding officers can much affect more than just the outcome of a trial. In fact, of the reported sexual assaults in 2011, only 489 cases resulted in court-martial. The Department of Defense's revision to Article 60 is a good one, as just knowing that a conviction can potentially be overruled can keep someone from reporting at all, but it doesn't address the whole problem because even before a case gets to trial it can be thrown out by someone in the chain of command. Crimes are reported to and filed by senior commanders. The same issue of one’s officer’s “sole discretion” exists at both of those steps.
The second change would require any convening authority to "explain in writing any changes made to court-martial sentences" or minor offenses. Again, this a good issue to address and also sheds light on where the military justice system is at right now. It’s shocking that the reversal of criminal convictions can take in effect without a written explanation. When tossing out a jury conviction, what kinds of records does the military keep? Understanding that we are just now addressing this in 2013 should encourage Congress to take a look at other illogical or outdated aspects of the military justice system.
Although senior commanders will be held more responsible with written explanations the senior commander still has opportunities to change what should be handled through legal proceedings in an appellate court. Again, this process should not include the discretion of a single commander.
The underlying problems of victims being discouraged from reporting or sole convening officers finding an allegation unfounded still exists. As Brian Lewis, a serviceman who testified at the March 13 senate hearings, put it, "Service members must report rape to their commanders. However, if their commanders take action and prove that rape occurred, they also prove a failure of their own leadership." These issues can only be alleviated by introducing a third-party system that removes any commanding officer's potential bias.
The current system is unjust is because individuals, however unintentionally, can unjustly affect the outcome of a crime at multiple levels. Hagel has got the right idea. As he says in his statement, "I am currently reviewing other options and actions to strengthen the department’s prevention and response efforts, and will announce those decisions and actions soon." Let's hope that he continues to work to the root cause of the injustices.