Military Justice Improvement Act Fails, But Won’t Die

Last Thursday, the Military Justice Improvement Act (MJIA) failed in the Senate on a 55-45 vote, 5 votes shy necessary for passage. But have no doubts: although this legislation did not have sufficient votes to proceed to the House, there will be additional attempts to push similar legislation through. We can count on modifications and with members of both parties grandstanding on this issue, some form of military justice changes will eventually be made.

Just minutes before I submitted this article for editing, the Senate voted 97-0 to abolish the century old “good soldier defense” in sexual assault cases in the military. The new legislation would change the military rules of evidence to prohibit the accused from using good military character as an element of his defense in court-martial proceedings unless it was directly relevant to the alleged crime. The “good soldier defense” could encompass a defendant’s military record of reliability, dependability, professionalism and reputation as an individual who could be counted on in war and peacetime:

Senator Claire McCaskill, the primary proponent of this change described it as “the ridiculous notion that how well one flies a plane should have anything to do with whether they committed a crime.” That is true but the Senator missed a fact in that ability is not a component in this change. It has to do with character, honesty, and integrity. This proposal will now move onto the House.

I suspect that many members of the military, veterans, NCFM & AVFM readers and constitutional advocates contacted their respective legislators and asked them to vote against this bill, not because they are rape apologists, but rather because this bill was so far removed from basic due process and constitutional protections.

That’s not stopping those in the Senate from chipping away at every original proposal in the first draft of the act. Little by little, these changes will be implemented. Some command authority has already been removed, and the statute of limitations for sexual assault cases in the military has been eliminated. We may now see cases coming out of WWII and Korea.

As I have reported on in the past, this legislative proposal was sparked by what many have said is an “epidemic” of sexual assault in the military. This so called “epidemic,” was based on an anonymous Department of Defense Survey that claims that there were approximately 26,000 sexual assaults in the military during fiscal year 2012.

One part is true, the survey was in fact anonymous, but it was conducted by the Defense Manpower Data Center (DMDC)  a separate component of the Department of Defense. Their website at the time of the writing of this article indicated that their security certificate was not valid. Their website does not list any names, contact information or phone numbers. Why their security certificate is invalid at this time is unknown. Who are they and what is their function is unknown.

A copy of the 600 page report and survey was obtained through a Freedom of Information Act (FOIA) request and can be found here: “2012 Workplace and Gender Relations, Survey of Active Duty Members, Tabulation of Responses.”

There were also several other organizations who took part in the formulation and analysis of the survey including defense contractor SRA International . Public records reveal that SRA International was paid approximately a half million dollars for this survey. Preliminary information, pending the compliance of an additional FOIA request reveals that SRA International, has spent substantial sums of money on political candidates and lobbying, and has been the recipient of nearly $500 million dollars in defense contracts primarily for conducting “surveys,” since 2002.

One has to suspect that any survey conducted by the U.S. Government and its contractors is driven to arrive at a pre-determined outcome. The figures of 26,000 cases of sexual assault are an extrapolated figure based on the number of satisfactory responses received; essentially it’s a guess.

What was counted in the figure were actual cases of sexual assault, sexual harassment, and what is described as “gender-related behaviors” such as asking someone out on a date who didn’t want to be asked, adjusting yourself; virtually anything that is offensive to anyone, primarily females. This figure included time periods up to one year prior to the service member entering military service.

The actual reported figure was approximately 3,500 cases that included everything; sexual assault, harassment and gender related behaviors resulting in approximately 300 courts martial convictions, and another 1,100 sanctions through non judicial punishment (Article 15).

This epidemic that many are repeating ad nausea is fiction. Any politician, reporter, advocate, or anyone else to infer that our nation’s military is infested with uncontrollable sexual predators should be embarrassed and ashamed of themselves. I challenge those who make this claim to offer an apology to our military, and I have never seen such a lack of integrity, and a level of ignorance on the part of some of elected leaders who repeat this information as if it were accurate.

What has also been repeated are the claims that most victims do not report incidents? Some of that might be true in that it is usually the case with male victims. But the claims that 90% of victims do not report it are utterly ridiculous and there is no way to validate that figure. As they survey indicates, some alleged victims were not aware or did not consider that certain acts were violations, so they didn’t report them.

If you go onto the websites of every military instillation, there are large tabs and links that go right to the offices that handle cases of sexual assault and harassment. In fact, the survey reflects that 96% of all military members are fully aware of the resources available to victims of sexual assault and harassment, and have had specialized training sessions and briefings on sexual assault and harassment.

Do sexual assaults, harassment, and offensive behavior occur in the military? Of course they do and no one is going to deny that. Do they happen in such great numbers that they must be classified as an “epidemic?” Absolutely not, nor does this require sweeping legislative reform that discriminates and is constitutionally defective. Should we convict violators and rid the military of sexual predators? Absolutely! Should it be done in a manner that violates constitutional protections and due process? Absolutely not!

If Gillibrand and her angry, hysterical, and ravenous supporters get their way, an allegation alone, void of any other verifying information will initiate a process that will be disastrous for any military member.

During WWII, General George Patton made a statement that rings true to this day. He commented that some politicians would wipe their ass with the American flag if would get them a few more votes. Do we see a pattern here?

There were a number of provisions in the MJIA however the emphasis was focused on the sexual assault component. Other serious crimes were covered in the proposed legislation and there were a number of amendments. The reader’s digest version and amendments would codify the following changes with respect to allegations of sexual assault, sexual harassment, and “gender-related behaviors.” Some of these changes have already been implemented in unrelated legislation.

  • Expansion of definitions of sexual assault and harassment.
  • Elimination of the statute of limitations for sexual assault cases.
  • Criminalization of “gender-related behaviors.”
  • Elimination of command authority in sexual assault & harassment cases.
  • Elimination of commander’s ability to overturn a wrongful conviction.
  • Eliminate accused’s ability to challenge wrongful or dishonorable discharges, or loss of benefits.
  • Eliminate accused’s ability to offer positive character references or superior service records in any proceeding involving sexual assault or harassment.
  • Virtual elimination of cross examination of alleged victims of sexual assault in probable cause (Article 32) hearings.
  • Immediate referral of alleged offenders to courts martial by severe restrictions in probable cause determination hearings.
  • Provide sanctions for uninvolved third parties such as non-commissioned officers and commissioned officers in the chain of command.
  • Provide expanded and additional advocates for sexual assault victims above and beyond what is provided now such as medical and counseling personnel, advocates of various types including religious counselors and advocates, and assigning personal attorneys to alleged victims.
  • NO wording, provisions or sanctions for false allegations, false accusers, or anyone who provides false information, who may or may not be alleged victims of sexual assault or harassment.

What Gillibrand, her co-sponsors and supporters are trying to accomplish is to expand what constitutes an offense, remove command oversight of any type, send sexual assault, harassment and offensive behavior cases directly to courts martial, to limit an accused’s ability to offer an affirmative defense, to place evidentiary restrictions on the accused, to severely limit and in some cases eliminate the appeals process and discharge status, and to provide sanctions for uninvolved third parties regardless if they had knowledge of the incident or not.

During all of Gillibrand’s and her cohorts comments, grandstanding and parading of victims, she and the others have not uttered a syllable, word, or has given any attention or voice to those who have been falsely accused, nor the problems they have faced or will face in the future.

Within the past week, two high profile Army cases are in the news. At Fort Bragg NC, Brigadier General Jeffrey Sinclair is being court martialed for sex related offenses involving a subordinate. What gets missing from most mainstream news media outlets is that his accuser claims that the General forced her into sex acts and threatened to kill her family, but even after those allegedly occurred, his accuser continued to send sex filled text messages to him. Does that sound like someone whose credibility is in question? To top that off, the judge in the case has ruled that there was undue command influence in the case, as evidence was kept from the defense until the last minute.

Also in the last week the Army’s top sexual assault prosecutor, Lieutenant Colonel Joseph Morse was relieved of duty as a result of allegations of groaping by a female JAG attorney which occurred more than two years ago. Given all of the resources of reporting, the confidentiality, the advocates, the investigative resources, and what should be known to the female JAG attorney; why did she wait two years before reporting the incident? And why was this announced the same day that the Senate was voting on the MJIA? More than likely, LTC Morse’s career in the Army is over, and his employment prospects in the public sector will be affected.

Is everyone starting to see the pattern of inflaming the public with the shrills of an “epidemic,” salacious allegations and inaccurate reporting?

Like any other ill-conceived legislation, certain types of legislation morph from their original legislative intent. If this legislation passes in any similar form, an unsubstantiated allegation of any type will result in sanction, discharge, and/or conviction.

A life altering and lifetime event for those caught up in the hysteria of an invented and manufactured “epidemic.”

There is no arguing that incidents occur and problems arise in the chain of command, but to turn portions of the Uniform Code of Military Justice into a college kangaroo court to satisfy the delusional ranting’s of special interest groups and political grandstanding will further decimate the morale and effectiveness of the military; a process that has been in steady decline in the past 5+ years.

Readers are urged to contact their respective political representatives and ask them to vote no on the Military Justice Improvement Act or any version of the act that is sure to be re-introduced at a later time. We must deal with facts, logic and common sense solutions, and so must our legislators. As this affects our national security, we cannot rely on misinformation, contrived, manufactured, and inaccurate statistical data, hysteria, and political grandstanding.

Please refer your Representatives and your Senators to this article and others that have been posted for those facts.

Useful PDFs:

2012 DoD Survey Report Tabulations of Responses & Questions

2013-12-15 NCFM FOIA Request DoD Survey

Military Justice Improvement Act Bill Description

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