[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
[H.A.S.C. No. 116-24]
EXAMINING THE ROLE OF THE
COMMANDER IN SEXUAL ASSAULT
PROSECUTIONS
__________
HEARING
BEFORE THE
SUBCOMMITTEE ON MILITARY PERSONNEL
OF THE
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD
APRIL 2, 2019
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
36-885 WASHINGTON : 2020
--------------------------------------------------------------------------------------
SUBCOMMITTEE ON MILITARY PERSONNEL
JACKIE SPEIER, California, Chairwoman
SUSAN A. DAVIS, California TRENT KELLY, Mississippi
RUBEN GALLEGO, Arizona RALPH LEE ABRAHAM, Louisiana
GILBERT RAY CISNEROS, Jr., LIZ CHENEY, Wyoming
California, Vice Chair PAUL MITCHELL, Michigan
VERONICA ESCOBAR, Texas JACK BERGMAN, Michigan
DEBRA A. HAALAND, New Mexico MATT GAETZ, Florida
LORI TRAHAN, Massachusetts
ELAINE G. LURIA, Virginia
Jamie Jackson, Counsel
Dan Sennott, Counsel
Danielle Steitz, Clerk
C O N T E N T S
----------
Page
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Kelly, Hon. Trent, a Representative from Mississippi, Ranking
Member, Subcommittee on Military Personnel..................... 3
Speier, Hon. Jackie, a Representative from California,
Chairwoman, Subcommittee on Military Personnel................. 1
WITNESSES
Bapp, Angela..................................................... 12
Christensen, Col Don, USAF (Ret.), President, Protect Our
Defenders...................................................... 5
Darpino, LTG Flora, U.S. Army (Ret.)............................. 14
Elliott, LCDR Erin, U.S. Navy.................................... 9
Hannink, VADM John G., USN, Judge Advocate General, U.S. Navy.... 36
Hanson, Nelli, Product Support Manager, U.S. Air Force........... 10
Haring, COL Ellen, USA (Ret.), Chief Executive Officer, Service
Women's Action Network......................................... 7
Lecce, MajGen Daniel J., USMC, Staff Judge Advocate to the
Commandant of the Marine Corps, U.S. Marine Corps.............. 39
Pede, LTG Charles N., USA, Judge Advocate General, U.S. Army..... 34
Rockwell, Lt Gen Jeffrey A., USAF, Judge Advocate General, U.S.
Air Force...................................................... 38
APPENDIX
Prepared Statements:
Bapp, Angela................................................. 89
Christensen, Col Don......................................... 50
Darpino, LTG Flora........................................... 99
Elliott, LCDR Erin........................................... 71
Hannink, VADM John G......................................... 119
Hanson, Nelli................................................ 80
Haring, COL Ellen............................................ 59
Lecce, MajGen Daniel J....................................... 145
Pede, LTG Charles N.......................................... 107
Rockwell, Lt Gen Jeffrey A................................... 132
Speier, Hon. Jackie.......................................... 47
Documents Submitted for the Record:
Senator McSally Letter to the Acting Secretary of Defense.... 161
Witness Responses to Questions Asked During the Hearing:
[There were no Questions submitted during the hearing.]
Questions Submitted by Members Post Hearing:
Mrs. Luria................................................... 173
Ms. Speier................................................... 165
EXAMINING THE ROLE OF THE COMMANDER IN SEXUAL ASSAULT PROSECUTIONS
----------
House of Representatives,
Committee on Armed Services,
Subcommittee on Military Personnel,
Washington, DC, Tuesday, April 2, 2019.
The subcommittee met, pursuant to call, at 2:00 p.m., in
room 2118, Rayburn House Office Building, Hon. Jackie Speier
(chairwoman of the subcommittee) presiding.
OPENING STATEMENT OF HON. JACKIE SPEIER, A REPRESENTATIVE FROM
CALIFORNIA, CHAIRWOMAN, SUBCOMMITTEE ON MILITARY PERSONNEL
Ms. Speier. Welcome to the Military Personnel Subcommittee
of the Armed Services Committee. This is a very important issue
that we are going to discuss today. I have been fighting this
epidemic of sexual assault in the military since 2011. We have
made meaningful, if fitful, progress addressing the scourge.
Survivors have more resources, and there is more accountability
for some commanders who would prefer to sweep assaults under
the rug.
We have also made important changes to the legal process so
that it more closely resembles the civilian justice system.
Commanders can no longer unilaterally throw out convictions.
The ``good soldier'' defense is gone, though one of our
witnesses suggests not all commanders are following the law.
And survivors don't have to suffer through excruciating Article
32 processes that require them to endure up to 48 to 72 hours
of cruel cross-examination, absent normal legal checks.
These reforms have undoubtedly made the system better for
survivors and more credible overall. Yet, assault rates remain
far too high, nearly 15,000 in fiscal year 2016; and reporting
rates perilously low, only 32 percent that year. The experience
of some survivors is better, but it is not good. More service
members trust female and male survivors when they report
assaults or harassment. But a culture of endemic retaliation
and doubt persists. Forty-five percent of all students who
reported assault at the military service academies suffered
from ostracism. Too many of our service members live and work
in toxic cultures, characterized by pervasive, unrelenting
harassment and assault.
Victims of sexual assault spend the rest of their lives
coping with the mental and physical after-effects of their
attack. Perpetrators often get off scot-free, get promoted, and
collect accolades. Many survivors resign from service,
humiliated and dejected.
I believe the Department and services care about fixing
this problem. I just think they have tied their own hands by
refusing to admit current efforts aren't working. Incremental
solutions are not good enough. Something here is fundamentally
broken, and we need to act, and act urgently. Reforming the
system requires balancing justice for survivors, the rights of
the accused, and commanders' abilities to build effective units
with diverse and inclusive cultures and minimal sexual assault.
I am convinced finding this balance must involve keeping
decision-making in the military but transferring the decision
to try special victims cases from commanders to an independent
prosecution authority. Our allies in the United Kingdom,
Canada, Australia, and Israel already exclude commanders from
sexual assault prosecutions, and it works. Giving a special
prosecutor this responsibility would make it easier for
survivors to receive just outcomes, reduce aimless
prosecutions, and allow commanders to better focus on
addressing and improving their units' cultures.
A special prosecutor would be better for survivors.
Survivors would know that an authority not influenced by
conflicts of interest, readiness concerns, or outside
perceptions, would decide whether to prosecute their cases.
Too often those factors, not legal concerns, drive the
military criminal justice process. There are countless cases of
commanders abusing their power to issue favorite subordinates
wrist slaps, ignore victims' preferences for trial
jurisdiction, or who are culpable themselves.
Senator McSally's commander raped her. No one in her chain
of command should have decided whether her case was prosecuted.
Limiting the commanders' legal role would encourage more
survivors to report, to trust the system, and to believe that,
no matter the outcome of their case, they had been given a fair
shake.
A special prosecutor would also be better for the accused.
Over the last few years, I have heard the commanders never
countermand their lawyers when the recommendation is to try a
case, that the commander brings charges in every case in which
a survivor wants to proceed. I have heard the commanders are
trying cases that district attorneys would never touch. Those
are not signs of a healthy system. They are signs of a system
that has overcorrected, in which the pendulum has swung wildly
to an opposite extreme.
Most years, less than 5 percent of sexual assault cases are
referred to court-martial, and of those cases, only 20 percent
result in successful convictions. Clearly, many commanders are
far better at trying cases to dodge political pressure than
they are to doing the hard work of referring charges when it is
most appropriate. That approach wastes time and money, and
makes the system less credible.
I don't want the military to try a case every time a
survivor names a perpetrator. I want the military to believe
the survivor, provide them the resources they need, and
investigate the offense. If there is sufficient evidence to
prefer charges, then charges should be preferred. I trust
military lawyers to make that determination far more than I
trust commanders.
Commanders would also be freer to fight sexual assault if
they didn't also serve as convening authorities. In a string of
recent decisions, the Court of Appeals for the Armed Forces has
raised the specter of unlawful command influence in a shocking
number of sexual assault cases. They have thrown out
convictions because the court believed the commander
compromised proceedings by preferring charges or choosing jury
members in response to political pressure.
Having commanders make prosecution decisions jeopardizes
convictions. And commanders' awareness of this legal risk
limits their ability to vocally and actively stamp out sexual
assault in their units. Loudly opposing assault today can get a
conviction thrown out tomorrow. If a special prosecutor instead
determines whether to try cases, it would remove those risks.
Commanders could trade something they are not experts in,
making legal decisions, for what they do very well, setting
tone and expectations. Commanders could more freely build and
enforce their unit cultures, while still being held accountable
for fixing the problem. Senior commanders could mentor their
subordinates on the front line to help them fight the problem
without worrying about legal ramifications.
This isn't a slippery slope. It is the way to strengthen
the foundation of military criminal justice.
Today, we will be joined by two panels, including three
brave women who will tell us about their experiences reporting
their sexual assaults, and the way their chain of command
responded when they did. I encourage my colleagues to learn
about their experiences and how the commander's role in the
justice system complicated the legal response.
These survivors will be joined by outside military legal
experts. I am interested to hear what they view as the military
justice system's strengths and weaknesses, responding to sexual
assault, and changes they would propose.
After a quick break, we will be joined by the top judge
advocates from each service. I will be eager to hear how they
think commanders can participate more effectively in the
military justice process, especially given recent rulings about
unlawful command influence.
Before I introduce our first panel, let me offer Ranking
Member Kelly an opportunity to make his opening remarks.
[The prepared statement of Ms. Speier can be found in the
Appendix on page 47.]
STATEMENT OF HON. TRENT KELLY, A REPRESENTATIVE FROM
MISSISSIPPI, RANKING MEMBER, SUBCOMMITTEE ON MILITARY PERSONNEL
Mr. Kelly. Thank you, Chairwoman Speier.
And I have been blessed beyond belief. I have commanded at
the brigade and higher levels. I have also been a district
attorney elected duly by the people. So I have prosecuted. I
have sent sexual predators to jail for consecutive life
sentences without parole.
One sexual assault is too many. One that goes unaccounted
for is too many. That being said, we don't need to throw out
the baby with the bath water. People, commanders, can make an
impact at the level. We need to ensure that we give that. There
are bad commanders and there are good commanders; there are
more good than bad, but when there is a bad commander, there
are actions that can be taken against that commander for the
things that happen.
Each of our witnesses today, thank you so much for being
here. I want you to know, you are brave, brave women. Thank you
so much for your service to this great Nation, and for you
coming here today to testify before this panel. I especially
want to thank all the survivors of sexual assault for their
bravery.
The UCMJ [Uniform Code of Military Justice] has evolved
significantly over a 75-year history, but the past 10 years
have seen particularly significant changes. From dramatically
improving victim rights to establishing new sexual assault
offenses, the UCMJ has experienced substantial improvement.
Notably, the 2007 NDAA [National Defense Authorization Act]
contained the most comprehensive overhaul of the UCMJ in over
50 years, the result of a multiyear study by the military
justice working group.
In fact, these extensive reforms were just implemented on
January 1 of this year. Clearly, much work remains to ensure
every sexual assault perpetrator is held accountable. However,
I would caution against additional major changes to the
commander-centric justice system, when we have not even seen
the results of the reform instituted just 90 days ago.
There can be no doubt that the problem of sexual assault
remains one of the most challenging and persistent issues in
society. As a former district attorney who has prosecuted
sexual offenses, I can attest that these horrific crimes have a
long-lasting impact on both the victims and the community.
But I can also tell you from personal experience, that the
answer to solving this problem in the military does not lie in
attempting to replicate the civilian prosecution system, where
less than 0.5 percent of sexual assaults will ever result in a
conviction.
I have been inside a grand jury. I have seen grand juries
not indict on one person's word against another, when they
should have. I have seen lawyers, district attorneys, who would
not take a case to trial for fear that they might lose because
they are worried about being re-elected, and they are worried
about losing.
Congress has established multiple independent commissions
to study sexual assault in the military, and specifically, the
role of the commander in prosecution. And I want to thank the
chairwoman and others on this committee for their role in
establishing them.
Not one of these independent panels, however, has
recommended removing the commander. In fact, one of those
panels, the response systems panel, included former Democratic
Congresswoman Elizabeth Holtzman and Ms. Mai Fernandez, a
civilian prosecutor and executive director of National Center
for Victims of Crimes. Both Representative Holtzman and Ms.
Fernandez came to the panel believing that removing the
commander sounded right. But after hearing from hundreds of
expert witnesses and reviewing the data, both changed their
mind. Representative Holtzman said that ``if removing the
commander and putting the power in the hands of prosecutorial
bureaucracy would make a difference, I would be saying junk
it.''
We can't have the present system, but we haven't seen any
evidence of that. Three weeks ago, one of our former Military
Personnel Subcommittee colleagues spoke on this subject.
Senator Martha McSally bravely came forward to tell about her
experience of sexual assault in the military. In a subsequent
letter to the Acting Secretary of Defense, she stated, ``I
strongly believe we cannot take responsibility away from the
commanders due to the unique roles commanders play in culture,
readiness, good order and discipline, and mission.''
Senator McSally went on to call for the Defense Department
to establish a task force to look for meaningful and immediate
changes to improve sexual assault prevention and response.
Madam Chair, I fully support this task force and ask that
Senator McSally's letter to the Acting Secretary of Defense be
made part of today's record.
Ms. Speier. Without objection, so ordered.
[The information referred to can be found in the Appendix
on page 161.]
Mr. Kelly. As a former commander and district attorney, I
know that sexual assault is a scourge on both the military and
society as a whole. But from both a military and legal
perspective, I am convinced that removing the commander from
the process will not help the root issue and will likely
undermine the process. I am committed to working to find
meaningful, effective solutions to this problem. I look forward
to hearing from today's witnesses about how to do that.
Thank you, and, Madam Chair, I yield back.
Ms. Speier. Thank you, Mr. Kelly.
Each witness will have the opportunity to present his or
her testimony, and each member will have an opportunity to
question the witnesses for 5 minutes. We respectfully ask the
witness to summarize their testimony in 5 minutes. Your written
comments and statements will be made part of the hearing
record. We will begin by welcoming our first panel: Colonel Don
Christensen, United States Air Force, retired, president of
Protect Our Defenders; Colonel Ellen Haring, U.S. Army,
retired, chief executive officer of Service Women's Action
Network; Lieutenant Commander Erin Elliott, U.S. Navy; Ms.
Nelli Hanson; Ms. Angela Bapp; Lieutenant General Flora
Darpino, U.S. Army, retired.
With that, Mr. Christensen, the floor is yours.
STATEMENT OF COL DON CHRISTENSEN, USAF (RET.), PRESIDENT,
PROTECT OUR DEFENDERS
Colonel Christensen. Chairwoman Speier, Ranking Member
Kelly, distinguished members of the subcommittee, thank you for
the opportunity to appear before you to examine the role of the
commander in sexual assault prosecutions.
I am glad you are holding this hearing on this topic, as
the role of the commander is greatly misunderstood. I believe
the common misconception is that all commanders have
prosecution authority, which is entirely not true. Prosecution
authority vests in a tiny subset of commanders called convening
authorities.
Convening authorities are the only commanders who have the
traditional prosecutorial authority to send a case to a court-
martial, to add or dismiss charges, or to approve a pretrial
agreement or a plea bargain.
Based on recent changes to law, convening authorities are
the only ones who can dispose of a sex assault or rape case. To
put this in perspective, the DOD [Department of Defense] has
around 14,500 commanders. But only 393 commanders have general
court-martial convening authority, and only 139 actually use
this authority to convene a court, according to most recent DOD
data.
In other words, less than 1 percent of all commanders
exercise prosecution authority for the most serious level of
court. Approximately 600 special court-martial convening
authorities referred a special court, or about 4 percent of all
commanders. I bring these numbers to your attention because it
is important to understand that despite what you may hear
today, prosecution authority is not integral to being a
commander.
Ninety-five percent of the commanders do their job every
day without the ability to send anyone to a court-martial.
These commanders have a wide range of tools to allow them to
set and enforce discipline. They can do this through
nonjudicial punishment, administrative counseling, discharges,
ordering pretrial restraint and confinement, and issuing
protective orders. The commanders without convening authority
have the greatest impact on a disciplined force, because they
are the commanders the rank and file work directly for and
know.
Convening authorities are many layers removed from the rank
and file and may be geographically separated by thousands of
miles.
Moreover, the reality is, courts-martial are almost never
used for purely discipline issues, such as disobedience and
AWOL [absent without leave]. Instead, over the last 230 years,
courts-martial have transitioned to an almost exclusive process
for prosecuting common crimes. By this, I mean conduct that
would be both a crime in the military and a crime in civilian
society.
Additionally, the use of courts-martial has and is
plummeting. According to the most recent data from the
Department of Defense, in fiscal year 2015, the entire military
convened less than 2,000 general and special courts. That is
for all crimes, not just sex assault. This is a dramatic drop
from fiscal year 2000, when the military prosecuted almost
5,000 special and general courts. Despite the military only
being 4.65 percent smaller, general courts fell 31 percent, and
special courts plummeted 73 percent.
If we look back to fiscal year 1990, the drops are even
more dramatic. That year, the military prosecuted almost 10,000
special and general courts. In the late 1950s, the Army alone
did almost 50,000 courts a year despite being the same relative
size as it is today.
It is clear that the military has transitioned away from
the court-martial as a discipline tool to a criminal justice
process. Yet, the military has demanded that nonlawyer
convening authorities retain control of a process they are
simply not qualified to administer.
The ABA [American Bar Association] has set out a clear
standard that the prosecution decision should be made by
lawyers admitted to a bar and subject to ethics standards. The
reason for this standard is obvious: Only lawyers are qualified
to act as prosecutors and make prosecution decisions.
The military's insistence that convening authorities are
more qualified is indefensible. There is nothing inherent to
command that qualifies someone to make prosecution decisions.
Someone does not become qualified to make prosecution decisions
from PowerPoint briefing and talking to their staff judge
advocate any more than they are qualified to perform surgery
because they have taken a Red Cross course.
It is time to accept that the practice of law is a
profession [in] which commanders should not be engaged.
And in my remaining time, I would just point out, Ranking
Member Kelly, only one of the three panels has actually looked
at the role of commander. The Judicial Proceedings Panel
refused to look at that issue. And the current DAC-IPAD
[Defense Advisory Committee on Investigation, Prosecution, and
Defense of Sexual Assault in the Armed Forces] has not yet
addressed the issue.
And with that, I look forward to answering any questions
you may have.
[The prepared statement of Colonel Christensen can be found
in the Appendix on page 50.]
Ms. Speier. Thank you, Mr. Christensen.
Ms. Haring.
STATEMENT OF COL ELLEN HARING, USA (RET.), CHIEF EXECUTIVE
OFFICER, SERVICE WOMEN'S ACTION NETWORK
Colonel Haring. Thank you for allowing me to make remarks
today on this important topic. I am the CEO [chief executive
officer] of the Service Women's Action Network. I retired from
the Army in 2014 after 30 years of military service. I am a
West Point graduate, and I have degrees--I have a master's
degree in public policy and a Ph.D. in conflict analysis and
resolution. I have taught at the Army's Command and General
Staff College, the Army War College, and Georgetown University.
My research and work focuses on women and gender in the
military. I commanded two Army units, the last at the brigade
level, during my military career. During my very first Army
assignment, one of my soldiers was murdered, and I closely
watched as the criminal investigation and subsequent conviction
unfolded. But at the unit level, we had no involvement in the
investigation.
Later, one of my soldiers was charged with selling drugs in
the barracks. He was immediately locked up in pretrial
confinement, and the only thing that we did was make health and
welfare visits to ensure that he was being properly treated.
Years later in 1997, when I was a major stationed in
Hawaii, I was assigned as the investigating officer in three
rape cases. I am not an MP [military police officer], a CID
[U.S. Army Criminal Investigation Command], or JAG [Judge
Advocate General], and I have no training in how to investigate
a sex crime. Although I found the three soldiers who had been
raped to be credible victims, the perpetrator, an NCO
[noncommissioned officer], was eventually reassigned to another
unit.
I juxtapose these experiences to illustrate the very
different ways the military has approached how felony crimes
have been handled over the years. Sex crimes against women have
never been treated with the same level of outrage or
professionalism as other serious crimes. Fortunately, and to
the credit of Members of Congress, the Army no longer allows an
untrained officer to investigate cases of rape. But other
problems persist.
First, while military officers and those selected to
command receive a great deal of training, they have little
legal training. Having taught at the two Army's premier service
colleges, I can tell you that their legal training is
superficial at best, and only senior-level commanders have JAG
officers assigned to their staffs to advise them. And these JAG
officers are generalists, they are not prosecutors, and they
don't have expertise in sex crimes.
Furthermore, the JAG officers assigned to senior leaders
are always junior and subordinate to the commanders that they
advise. This means that they are evaluated and rated by their
bosses and are therefore subject to command influence. They are
not independent, nor are they experts in sex crimes.
Second, at SWAN [Service Women's Action Network], we hear
from and work with survivors on a daily basis. Their stories
are always similar. If they decide to come forward and report,
they are generally not believed. They are seen as creating a
problem where none existed before. And they almost always
suffer retaliation. They consistently tell us that their
commanders failed them in profound ways.
As a former commander, I can tell you that I would not want
to have to decide if or when to move forward with the
investigation of a sex crime because I know that my knowledge
and expertise is limited in this area. In fact, in any criminal
area.
Furthermore, there are simply too many possible conflicts
of interest for commanders to be the best decision-makers in
sex crimes--in sex crime cases, not to mention the fact that
there are commanders themselves who have been perpetrators.
Finally, the next panel is going to sit here and say that
commanders must stay in the decision-making process in order to
maintain good order and discipline, a nebulous concept that
they won't first define. However, all of our European allies,
as it has been pointed out, have removed their commanders from
the decision-making process, but good order and discipline has
not melted away in their military organizations.
The panel will likely tell you that the U.S. military is
exceptional and cannot be compared to our allies. If we are so
exceptional, then why must our commanders have a degree of
authority over their subordinates that our allies don't need,
in order to maintain the same level of good order and
discipline?
At SWAN we support removing commanders from the decision-
making process, because doing so will send a signal that there
are certain crimes for which they are not qualified to make
decisions on.
Culture is ultimately at the root of our sexual assault
problem in the military. Sexual assault is simply not seen as a
serious crime. Until it is viewed as a serious crime and
treated as a felony, it will continue to pervade our culture.
Removing commanders from the decision-making process sends the
signal that there are some crimes that are so severe, that
commanders have no place in deciding if, when, or how they are
prosecuted. I believe that will fundamentally shift how we view
sexual assault and ultimately impact our culture in a way that
says this behavior is absolutely unacceptable.
Thank you. I look forward to your questions.
[The prepared statement of Colonel Haring can be found in
the Appendix on page 59.]
Ms. Speier. Thank you, Ms. Haring.
Lieutenant Commander Elliott.
STATEMENT OF LCDR ERIN ELLIOTT, U.S. NAVY
Commander Elliott. Good afternoon, Congresswomen and
Congressmen. Thank you for inviting me here today. I appreciate
the opportunity to speak about my experiences and share my
thoughts.
I have been in the Navy for little more than 14 years now,
and have served on six different ships and lived around the
country and the world. In August of 2014, someone who I
considered a close friend raped me. It was an extremely
traumatic experience, one that nearly destroyed me.
Initially, I made a restricted report. I did not want my
commanding officer to know, nor did I want law enforcement
involved. I spent months in shock, and the only way I made it
through was with the support of my good friends in the SAPR
[Sexual Assault Prevention and Response] team. As I progressed
in my healing, working through the PTSD [post-traumatic stress
disorder], anxiety, and depression I was diagnosed with because
of the assault, I moved to a new command with a new commanding
officer, and I began to consider changing my report from
restricted to unrestricted.
I was very lucky at my new command. I had a wonderful
commanding officer and a great work environment. When I decided
to change my report to unrestricted, I had the amazing support
from my commanding officer, someone I consider the best leader
I have ever known. He went above and beyond what was required
of him in the situation.
Unfortunately, I would learn through my experience and
through listening to other victims' experiences, that this
support is not the norm. While I did not expect everyone to be
the great leader he was--or he is, I did expect to be treated
with the same dignity and respect he showed me, and I was not.
When I moved to a new duty station overseas, to become a
commanding officer of a warship myself, it was made immediately
apparent to me that the fact I was a sexual assault survivor
was a burden and inconvenience to my bosses, and the upcoming
court-martial for the person who raped me was a hindrance to
them.
Due to appeals regarding a decision the presiding judge in
the case made, when I reported to my new command, it was
unknown when the court-martial would happen. One of the first
things my new boss said to me regarding the court-martial was,
``Well, I hope it is not during an important part of the ship's
life,'' which all I could think is, ``Well, next time I get
raped, I will try to plan it better.'' This is the first of
multiple comments that my boss has said to me, that not only
revictimized me and were extremely insensitive, but made me
seriously question continuing to move forward with the case.
One of the most degrading and humiliating occurrences was
when my boss was forwarded a copy of the NCIS [Naval Criminal
Investigative Service] report that discussed intimate details
of the assault. I was called into his office, where he told me
he had received and just read the report. After he handed it to
me and I read it, I very seriously considered dropping the
case, as I did not want my boss reading about my vagina.
And when I left my ship for a few weeks to be at the court-
martial, my boss told me how he had to temporarily relieve
someone in command for several months because they had had
cancer and needed to get treatment. He told me he would much
rather go through what I am going through than have cancer. I
can tell you, after being diagnosed and treated for breast
cancer last year, I would much rather go through that than
through an assault.
Upon returning from the court-martial, nothing within the
command environment got better. I was humiliated, ostracized,
outcast, and ridiculed from people of every rank. There were
multiple events for commanding officers that I was not invited
to attend. My ship was given unfair scrutiny magnitudes greater
than what any other ship was.
What nearly broke me, what was almost as bad as the assault
itself, my personal information regarding the assault was
divulged to my peers, including counseling information I had
only discussed with my bosses, who would then use it to
humiliate and demoralize me. If I could have gotten out of the
Navy at that point, I would have, but I was in a contract and
could not.
As commanding officers in the Navy, we are given a 3-day
legal course in preparation for our tours. I was by no means a
legal expert, but was equipped to deal with the minor
infractions that affect good order and discipline. It is my
belief, not just as a military sexual assault survivor, but as
a former commanding officer myself, that some infractions are
so grievous, so heinous, that they must be elevated to a higher
level than just command level.
Sending sexual assault cases to trained military judges
shows just how seriously this crime is taken, that we will not
allow perpetrators to get away with this crime, and it
reinforces to countless victims that they will be taken
seriously.
Additionally, victims will feel more comfortable coming
forward, knowing their bosses will not be reading the intimate
details of the assault.
Thank you for your time, Congresswomen and Congressmen, for
allowing me to share a small piece of my story with you today.
[The prepared statement of Commander Elliott can be found
in the Appendix on page 71.]
Ms. Speier. Thank you, Lieutenant Commander Elliott.
Ms. Hanson.
STATEMENT OF NELLI HANSON, PRODUCT SUPPORT MANAGER, U.S. AIR
FORCE
Ms. Hanson. Thank you, Chairwoman Speier, Ranking Member
Kelly, and distinguished members of a subcommittee, for the
opportunity to speak to you before today as a victim of
military sexual assault and harassment. I am Nelli Hanson,
product support manager for the Air Force.
I have dedicated my career to serving our country, first as
a United States Marine, and then as a civil service Air Force
employee. I have always believed in my work and dedication to
our United States military. And I still do. But when I followed
the military procedures for reporting my sexual assault, the
system failed to protect me and provide me with the justice
that I and all Active Duty and DOD employees deserve.
I have been stationed all over the world, to include Japan,
the Pentagon, and Gunter Annex in Montgomery, Alabama. I
arrived at Gunter in 2014 as the director of logistics. I
developed a close working relationship with the colonel, who
would eventually become my assailant.
The working relationship started out as professional, but
by the following spring, the colonel had started to
relentlessly sexually harass me. I did my best to keep things
professional by ignoring his lewd texts, inappropriate
behavior, and ensuring I was never alone with him and telling
him multiple times to stop. Eventually, he physically assaulted
me, and I reported it to my civilian Senior Executive Service
supervisor.
My supervisor instructed me to file a report with the Air
Force's Sexual Assault Response Coordinator. A day after I
filed the sexual assault complaint against the colonel, I
received a text message from him, admitting to his misconduct,
and conceding that he abused his position of power over me.
I followed the procedures, but it only made the workplace
hostile. I noticed that I was treated differently by my
colleagues and my supervisor. I was left off of important
meetings and emails, further straining my career.
Once the Air Force investigation was underway, I was told
by my general that several media inquiries had been made. I was
informed that he planned to give the media a watered-down
version to make them lose interest. I protested. If anything
should be released to the media, I said, it should be my
assailant's official charge sheet. I wanted the assailant to be
held accountable for his actions and not have his inappropriate
behavior downplayed. But the general ignored my wishes. Even
worse, the general gave his same watered-down statement to my
fellow colleagues and Air Force staff at Gunter, further
discrediting my report.
I requested that the general transfer the colonel to a
neighboring base so that I could continue to do my job, but he
refused. Instead, the colonel was moved only two buildings
away, to the logistics division, where I performed portions of
my daily workload.
Based on these series of events, I realized the general's
interest was to protect his colonel, with complete disregard to
me.
The general offered to transfer me to a new location. This
meant I would have to transfer my children out of a community
they loved, a strong church family, a great school, and a
community they loved.
At the time of the report, I was on the cusp of being
promoted to GS-15. But because keeping my current job had
become unbearable for myself and my family, I was forced to
relinquish the promotion and transfer to Eglin Air Force Base
in Florida to start the healing and rebuilding process.
As for the colonel, the investigation showed that he self-
admitted to sending over 400 text messages, sexually graphic
voicemails and photos, and using his position of power as
intimidation. Unlike, perhaps, many sexual assault cases, the
evidence here was overwhelming.
To my special victims' legal counsel, I made it clear that
any action taken against the colonel should include a finding
that he sexually assaulted me. The general ignored my wishes
and allowed my assailant to retire honorably from the Air
Force.
At every turn, the Air Force went out of its way to shield
him from the consequences of his misconduct and let me endure
his punishment. After my assailant was allowed to walk away
scot-free, I was informed that the Air Force considered the
colonel's character and record of military service in making
his disposition determination, which I understood is a
violation of the law.
I am rebuilding my career and making a home for my family
in Florida, but I have lost faith in the system that I have
devoted my life to. I followed protocol and expected to be
treated fairly. Instead, I was humiliated and ostracized for
being a victim of a predatory supervisor. And ultimately, my
assailant was allowed to retire with honor, against my express
wishes.
I will hope that you will reconsider the inherent conflicts
of interest in allowing my chain of command to make legal
decisions, and I urge you to critically examine the role of the
commander in sexual assault prosecutions.
Thank you for the opportunity to speak to you today, and I
look forward to answering any questions you have.
[The prepared statement of Ms. Hanson can be found in the
Appendix on page 80.]
Ms. Speier. Thank you, Ms. Hanson.
Now, Ms. Bapp.
STATEMENT OF ANGELA BAPP
Ms. Bapp. Chairwoman Speier, Ranking Member Kelly,
distinguished guests, thank you for the opportunity to speak
before you today as a survivor of military sexual assault. I am
here to share my story and to shine light on the systemic
failures that made justice impossible in my case.
I graduated from the top 3 percent of my class at West
Point and soon after arrived at Ft. Rucker, Alabama, to begin
my career as an aviation officer. Throughout my flight
training, I became close friends with a mentor and fellow
flight school classmate of mine who was going through a
divorce. He arrived at flight school married to an officer who
was given a leadership role in our battalion. After some time,
his wife became my company commander.
In a completely unrelated situation, a different flight
school classmate of mine sexually assaulted me. When it
occurred, my classmate was the only one who I trusted enough to
tell what had happened to me, to discuss filing a report, and
to care for my well-being.
I knew that making an unrestricted report in order to hold
my assailant accountable would mean that my commander would be
notified and automatically involved in matters of my sexual
assault. That was enough for me to delay reporting by several
days.
Despite the potential personal conflict, I trusted in her
professionalism and in the system's ability to treat an issue
such as sexual assault with pure objectivity. My trust was
misplaced.
The sexual assault occurred on a Sunday, and I reported it
the following Tuesday. On Friday, I was informed that Ft.
Rucker's criminal investigative division was investigating me
for adultery, with my commander's husband, not even 3 days
after I reported my sexual assault.
My commander's position of authority gave her immediate
access to the higher levels of my command, my prosecutor, the
investigators, and my cadre members.
Prior to my report, my commander contacted the prosecutor
who would eventually be assigned to my case about her personal
business, seeking advice for a private investigator to
investigate her husband. When her husband came forth as a
witness in my sexual assault case, the prosecutor linked my
case to my commander's personal situation.
My commander also had a preexisting relationship with the
installation commanding general, the two-star convening
authority responsible for deciding if my sexual assault case
would go to trial. She requested his audience about matters of
her divorce prior to my sexual assault investigation
concluding. This, too, I believe, hurt my case's ability to
move forward to trial.
Unfortunately, I did not have a unit commander who was able
to serve in the best interest of a sexual assault victim, due
to these and several other personal conflicts. The inherent
conflict of interest in my chain of command made it impossible
for me to have a truly objective case.
Ultimately, my case did not move forward because the system
failed to provide me with a conflict-free process I deserve. As
for me, I was given a general officer memorandum of record,
which was filed in my permanent record and effectively ended my
career.
A subsequent Army internal investigation into Ft. Rucker
found that the command subordinate relationship in my case
showed an obvious conflict of interest, which led to a lack of
lower-level command support for me, and confirmed my complaint
of feeling isolated.
While the finding confirmed what I already knew, it does
nothing to give me my career or life back. I am sometimes asked
what we can do together to address military sexual assault
within our ranks.
First, we need to believe victims. Believing a victim does
not mean charging or convicting the innocent. But the systemic
fallacy of victims making false reports and accusations needs
to stop. As a survivor, I was plagued by this false belief,
based on my personal circumstances with my commander's husband.
It is absolutely disgusting and absurd that this belief is so
common. Commanders absolutely have a role in addressing sexual
assault within their unit. They are still responsible for the
good order and discipline, along with decency and respect that
comes from their soldiers. We need to encourage our commanders
to act more when they can, and not expect them to be
professional law authorities and experts on the psychological
complexities of sexual abuse.
We need to raise our commanders to speak up and to take
action when insensitive or misogynistic comments are made, and
reward them when they do.
In my experience, those who utter sexually inappropriate
remarks are more likely to commit acts of sexual violence. If
my assailant had been reported on the spot for every
misogynistic or sexual comment, he would have been out of the
Army long before he had the opportunity and access to rape me.
All I ever wanted to do is to serve my country, lead
American soldiers, and fly the Apache helicopter. The loss of
my military career and my inability to trust larger
organizations, such as our military, has deeply impacted who I
am today. I struggle with accomplishing even minor daily tasks,
and my quality of mental and emotional health has greatly
deteriorated. I deserve better, and the Army lost a warrior.
I am hopeful that my testimony here today will aid this
committee in continuing to fight the scourge of sexual assault
within our ranks. Thank you again for your time, and I will be
happy to answer any questions you may have for me. Thank you.
[The prepared statement of Ms. Bapp can be found in the
Appendix on page 89.]
Ms. Speier. Thank you, Ms. Bapp.
Ms. Darpino.
STATEMENT OF LTG FLORA DARPINO, U.S. ARMY (RET.)
General Darpino. Thank you, Chairwoman Speier, Ranking
Member Kelly, other members of the committee. I am Flora
Darpino, and I support----
Ms. Speier. Have you turned on your microphone?
General Darpino. I am on?
Ms. Speier. You are on.
General Darpino. I did the gratuitous ``thank you all'' for
inviting me here today, and I just wanted to let you know that
I am Lieutenant General, retired, Flora Darpino. I served over
30 years in the Army. I had important military justice
positions. I also was a staff judge advocate at the two-star,
three-star, and four-star level, and twice in a combat zone.
Prior to my retirement in 2017, I had the honor of serving
as the 39th Judge Advocate General of the Army. The military
often has problems translating our concepts into plain English,
and so I want to just take a minute to explain what it means by
good order and discipline, command authority, and
accountability.
A commander is often equated with a parent. A commander,
like a parent, is responsible for everything regarding their
soldiers. Commanders must ensure that their soldiers are fed,
clothed, and housed, just like a parent. They are responsible
for their soldiers 24 hours a day, 365 days a year, just like a
parent. And like a parent, they are responsible to hold their
soldiers accountable, when they do not follow the rules.
So as a parent, when you set curfew at midnight, and your
son comes home at 1:00, you meet him at the door and you inform
him that he is grounded for the weekend. You ensure good order
and discipline in your home, and you do that by having
disciplined that individual and hold them accountable.
Now, imagine if you as a parent had the authority to--did
not have the authority to ground your child. You would meet him
at the door and you would state, Son, you broke curfew,
tomorrow morning I am going to go next door and ask the lawyer
if I can ground you. That is what happens when you set the
responsibility for good order and discipline from the ability
to hold someone accountable.
Now, that is not a perfect example, but it is just to give
you an idea what we mean when we say good order and discipline,
and the ability to hold someone accountable, and how they are
inextricably intertwined.
Pulling authority for court-martials away from commanders
does not just affect a small number of commanders as previously
stated.
First, Congress has withheld the authority to convene
general courts for very serious crimes, to a level where we
have commanders that have extraordinary experience, and they
are advised at every step of the way, by extraordinarily
experienced staff judge advocates. That is a good thing.
But, commanders at each level exercise court-martial
authority. At the lowest level, that authority may be exercised
through the preferral of charges that are forwarded up the
chain of command to the appropriate level to convene a court.
Even with nonjudicial punishment, a commander seeking to
impose it does so with a commitment that they will try the
offenses at a court-martial, should the soldier decline the
Article 15 nonjudicial punishment. So pulling court-martial
authority from commanders affects every level of command.
Additionally, proposed legislation that I have looked at
includes broad swaths of crimes, classic indiscipline offenses
such as barracks larcenies, serious fights between soldiers,
drug offenses. And, again, while some would argue a commander
could still impose nonjudicial punishment in those cases, she
only has the authority when she asks the lawyer's permission
and the lawyer commits to try that case, should the soldier
turn it down.
Truthfully, when you walk into a unit, the first thing you
see is a line of pictures, and the soldiers know that that
represents the chain of command and the chain of authority.
Orders run down that chain, and enforcement of discipline comes
from that chain. No commander should have to go next door to
ask a staff officer if they may discipline their soldier. I
look forward to discussing this issue with you.
[The prepared statement of General Darpino can be found in
the Appendix on page 99.]
Ms. Speier. Thank you.
Let me start off by asking the three very courageous women
here a very simple question. Was the response of the military
in your reporting your sexual assaults, worse than the rapes
itself? Just raise your hand. So all three of you basically
saying that while as horrendous as the sexual assault was, the
process that the military used to provide justice was worse?
[Nonverbal response.]
Ms. Speier. Lieutenant Commander Elliott, you had indicated
to me that you had been recently providing training at various
locations. Could you tell us a little bit about that and what
has happened since?
Commander Elliott. Yes, ma'am. For the past couple of
years, I have been invited to speak by different groups, down
in Norfolk, at U.S. Strategic Command, just to share my
experiences, and what I went through as a military sexual
assault survivor. And I have always worked through the unit COs
[commanding officers] and their respective SARCs [Sexual
Assault Response Coordinators] to give this training, and I
have received lots of positive feedback, from the most junior
enlisted up to vice admirals.
Last week, I received an email telling me that I am no
longer allowed to do this for any type of SAPR event or
training and that my talking points were inconsistent with the
current Navy SAPR program. And when I called to speak to this
person who sent me this email, I was told basically that I was
too raw, it was too real, and that--there was a lot of
negative, because there is a lot of negative in my story, but
that I could work on this, and if I wanted to talk about the
positives, that would be okay.
And I think that is sugar-coating the issue. I mean, the
reason, you know, we don't address it seriously with training
right now, and this is part of the problem, is we don't want to
address what it really is.
Ms. Speier. Ms. Bapp, do you think that your case would
have been handled differently if it was given to a different
commander who didn't have a conflict of interest?
Ms. Bapp. Entirely, wholly, yes, I do. And you know, it
doesn't go down to there are good commanders and there are bad
commanders. It goes down to the fact that commanders are
people. We are fallible. We are humans. And it is not that my
commander was a bad commander. I am sure she wouldn't want that
on her plate either, but it is just there is an inherent
conflict of interest. And it is one thing for me to trust
someone who eventually was my assailant, but for me to trust
the command and the system that I signed to risk my life for,
in order to serve my country; when that fails me, and my trust
was misplaced, that has a huge impact on just the outcome of
everything and our psychological well-being. And I--even if my
assailant wasn't prosecuted, I just think believing and
trusting in the system would have just been a wholly more
adequate response, yes.
Ms. Speier. Ms. Hanson, you indicated that you received
over 400 text messages that were sexual in nature. Were there
also videos or photographs that were sent to you?
Ms. Hanson. Yes, ma'am. He sent explicit voicemails, and
also on a government computer, sent inappropriate emails. He
would also set up meetings, and so when I would inquire what
the purpose of the meeting was, he would be like, oh, just to
get you alone. And then I would make sure that I had another
overlapping meeting so that way I couldn't attend his meetings.
And any time I did have to attend a meeting with him, I would
make sure other people were in the room, and I was never alone
with him.
But he self-admitted to every bit of it. He self-admitted
to physically attacking me, to sending voicemails, to sending--
to sending text messages, every bit of it.
Ms. Speier. Did you ask that the case be sent to court-
martial?
Ms. Hanson. Yes, ma'am, I did.
Ms. Speier. And what happened?
Ms. Hanson. It was not sent to court-martial. He received
an Article 15 and was allowed to retire from the Air Force.
Ms. Speier. And he gets full benefits, I trust?
Ms. Hanson. Yes, ma'am.
Ms. Speier. Colonel Christensen, you had, in your
testimony, indicated that when all is said and done, less than
1 percent of the convening authorities actually used their
prosecutorial authority for purposes of a court-martial. Is
that correct?
Colonel Christensen. One percent of commanders, yes. So----
Ms. Speier. Of commanders?
Colonel Christensen. Right. And so I disagree with the
lieutenant general. I do not agree that the prosec--or, excuse
me, a commander can punish without the permission of a JAG. It
absolutely is not true. Every action that a commander takes to
punish a JAG--or punish a member has to be reviewed by--for
legal sufficiency by the JAG. A commander convening authority
cannot send a case to trial without--to a general court-martial
without their staff judge advocate giving them legal advice
that meets the requirements of Article 34. So they have to get
the advice, and I think it is dismissive to call them staff
officers--to get the advice of JAGs when to do this, and they
have to have permission of JAGs to do certain things.
What they do not have to have permission of is to not do
anything. So the commander wants to do nothing, there is
nothing a JAG can do to force him to do it. So that is where
the disconnect is. Commanders, because of the inherent abuse of
authority that has existed over the last 230 years, many
restraints have been placed on the commanders' ability to
punish, but there is not the same kind of restraints on their
ability to ignore, as in Ms. Hanson's case, where the evidence
was overwhelming, the accused had confessed, and the victim is
asking, demanding, sent a very personal email to the convening
authority, please, begging him to send it to court, and
instead, because he liked that colonel and thought he was a
good person, allowed him to retire. That is what the issue is.
And I think it is also offensive to consider this the
equivalent of a parent and child relationship. A parent is not
qualified, just like a commander isn't, to criminally prosecute
their children, and no parent ever would criminally prosecute
their children. That is the problem. The inherent bias of
command is the problem.
Ms. Speier. The recent DOD IG [Inspector General] report
audited 82 sexual assault cases, and found that in 77 of them,
victims were either not asked their preference on where their
case would be tried, or that the preference wasn't recorded.
Are you concerned by this failure to comply with the Federal
law, and what does it mean to you that there is no system of
recording victims' preference?
Colonel Christensen. Yeah, I am very concerned. Protect Our
Defenders FOIA'd [Freedom of Information Act] this information
in July of 2017. Every branch responded and said they didn't
track the numbers, they had no idea how many people had been
informed, or whether they were even informing them. Our
experience at Protect Our Defenders is, survivors were not
told, or if they were told, they were talked out of going to
the civilians.
Congress made this very important change to law to give
survivors greater choices. There are times when a victim would
be much better off having their case adjudicated by the
civilian authorities than the military. There are times when it
would be better off having the military do it. That is a choice
that a victim has been given by you. It is not up to the
government, not up to the military, to ignore that choice. I am
very concerned. We put them on notice a year--almost 2 years
ago, that this was an issue. And it wasn't until this DOD IG
report came out last week that they suddenly seemed to care.
And this isn't the only time that Congress has imposed new
laws and imposed new requirements on the DOD, and they have
ignored them. For example, the DOD was told specifically by
Congress, you will no longer send penetrative sex cases to
specials or summary courts. They will only go to general
courts.
But the DAC-IPAD report that came out last week showed that
there are a number of occasions where penetrative sex assault
cases are going to special courts, and summary courts, what
aren't even a real court, and that is done in direction
violation of law that was passed by this Congress.
Ms. Speier. Colonel Haring, do you have any comments?
Colonel Haring. No, not at this time.
Ms. Speier. All right. I guess my last question would be
for each of you, what changes should we make in the UCMJ, or
what provisions should we put in the NDAA to rectify some of
these circumstances, short of taking these cases out of the
chain of command?
Colonel Christensen. Well, I can go first. Another issue
that Congress has addressed is to increase the quality of the
prosecutors; you have mandated that the services create
litigation tracks for prosecutors. I, against--going, swimming
upstream, was able to prosecute and defend cases in my entire
career. I was an extreme rarity. The average Air Force JAG
quits after its 2- or 3-year point, and we have a few that
might go on to a second or third assignment. There are very,
very, very few really experienced prosecutors. So that is one
thing. Push these gentlemen behind me for answers why they have
not created senior litigators. The Air Force has not had a
colonel going to a court-martial since I left. Why is that the
case?
The second thing--and I think, Mr. Kelly, you would agree
with me--that the investigative stage is the most critical part
of the criminal-justice process. No matter how good a lawyer
is, if there is a bad investigation, it is hard to overcome.
Our investigators, like our lawyers, are often experienced,
they are very eager, they try hard, but these are complex
cases, and you need good investigators.
I would say to the Congress, you need to ask the tough
questions of the Chiefs of Staff, why have you not prioritized
real experience with your investigators, and a 3-year-and-out
tour is not enough. It needs to be something that is a career
track for investigators as well.
Ms. Speier. Are you suggesting that they should be
civilian, then?
Colonel Christensen. Well, there are civilian investigators
in every one of the investigative services. I think what you
need to do is to give those who are in the military great
opportunity to continue in that track. I know it goes against
their career model. But it is 2019. Using a career model from
1940 is probably not the best thing to do. Let investigators be
investigators for their entire career.
Ms. Speier. Thank you.
Colonel Haring.
Colonel Haring. Thank you. This is a hard question, because
I don't think that a solution here is in the justice system at
all. Once it gets to the justice system, we have already had an
assault. I think the problems lie within our culture, and we
have not, one, acknowledged that we have got a cultural
problem; or two, how do we address a cultural problem that
allows for harassment and assault to exist in the first place?
One of the things that our organization has long worked
toward is systemic military culture change, and one of the
places that we have called attention to is that when soldiers,
sailors, airmen, and Marines first join the military services,
they are indoctrinated early, when they are very young, at
basic training. And we continue to see the highest rates of
harassment assault exist in the one service that continues to
segregate men and women during basic training, and that is the
Marine Corps. I think that this needs to begin at the entry
level and go all the way through in our training and education
systems. I don't think that incremental changes to the justice
system are the answer to, or a solution to this problem.
Ms. Speier. Lieutenant Commander.
Commander Elliott. Yes, ma'am. Two things I really
recommend is, first one being training. You know, we talk about
training, we all have training every year. And it is depending
on the trainer who gives it, but we still don't take things
seriously that we need to be. For example, whenever we do the
training in the Navy, we have, you know, women are raped and
men are groped. We never talk about men being raped by women or
men. And I feel like we are not addressing, again, the nitty,
the uncomfortable issues. We just gloss over them.
Also, a discussion I had after one of the presentations I
did with the--with the vice admiral is, I feel part of the
problem, when we are doing this training, is, we do a lot of
consequences-based training, like, don't do this because if you
do this, your career is over, or you could get in trouble, or
you could do this; whereas it is supposed to be, it should be,
we don't do this because we are good people, and we are good
sailors, and we take care of each other. And I think we need to
focus on that more, saying, Hey, this is why we don't do it,
because this is wrong.
Additionally, I feel like, I know there has been some
changes, you know, adding retaliation to the UCMJ and that sort
of thing. I believe retaliation and reports of retaliation need
to be looked at completely outside the chain of command.
Because when you have people inside the chain of command
looking at the retaliation within their command, I mean, that
sort of defeats the purpose because they don't want a bad
climate, they don't want a--you know, they might not
necessarily see that. And I feel like--and I am not saying it
needs to be a huge organization, but it needs to be someone who
is not in there at all. You know, they don't know these people,
and they are coming to truly look if there is some type of
retaliation going on.
Ms. Speier. Ms. Hanson.
Ms. Hanson. I also agree with your comments. I believe that
retaliation is prevalent, and it is relevant in all of our
cases. But when I go to the chain of command to report it, I am
reporting it to the same people that retaliated against me.
That is really basically ineffective.
Our training, we are required to sit through training every
year, and it is basically ``here we go again.'' We have to go
back through these slides, and it is just--they call it death
by PowerPoint, and click through them where they go through the
slides, and jokes are made about it. I believe that the
training needs to be revamped. I am not saying that more
training needs to have--happen, but it needs to be realistic
and up to date. It is not just throw a couple of things up on
the slides and we just talk to those and then we are done, and
then we walk out the door and forget everything that everybody
said.
Ms. Speier. Thank you.
Ms. Bapp.
Ms. Bapp. Yes, ma'am. My biggest piece of advice would be
zero tolerance. And I know that word has been thrown around. I
am not talking about zero tolerance with sexual assault. That
is clearly--I think everybody in this room can agree zero
tolerance for sexual assault, but how can we actually breed in
the culture and get everybody on the same page? It starts with
zero tolerance of the smallest level.
And as I mentioned how crude and lewd comments were made
and just how they are so easily thrown around of a sexual
nature, demeaning, misogynistic, that is what needs to stop.
And I am not saying we need to negatively--we need to punish
the soldiers, necessarily, who do that. We need our
commanders--we need to positively reinforce the commanders to
step up and stand up and say, hey, cut that out. That is not
right.
Because in a similar situation, you know, with gay
comments, for me, personally, I don't hear that as much. There
is a commercial on it, and kids were shopping, and they saw a
sweater they didn't like, and he was, like, oh, that is so gay.
But the commercial was stepping up and saying at the smallest
instance, hey, by gay, do you mean lame? Like, no. Let's change
that word. Let's change that culture.
So we need to--that is how we can empower our commanders. I
don't know what the system would be in place, but to truly
believe in that, because I do believe that most people who join
the military are good people at heart, and they mean well, and
they want to have effective combat missions. And in order to do
that, we need to have this positive culture, so we need to
stamp out all of the comments. That doesn't make you a better
soldier. That doesn't make you more of a man or a woman if you,
you know, made those crude comments.
We are professionals, and that needs to be constantly
reminded. So maybe integrating that within our training and
think of ways to incentivize our commanders to lead in that
capacity, rather than just laying on the hammer.
Ms. Speier. Lieutenant General.
General Darpino. Thank you. And the culture discussions
that we were talking about and how commanders are responsible
in solving that culture are well taken, and thank you, ladies,
for sharing that and also with the training that you have done
when it comes to educating the force.
You know, I think part of it is that the DAC-IPAD that just
came out last week that had looked at multiple, multiple cases
of sexual assault, and these are done by Federal judges and
civilian prosecutors. And they reviewed them down to the nitty
gritty, and they found that commanders are making both
appropriate decisions when it came to preferral, sending them
to trial, and in not sending them to trial.
And with that in mind, you know, what--really to get after
this, I think we often have to look at the other
recommendations that the DAC-IPAD had which have to do with
expedited transfers and how we can ensure that we are having
expedited transfers. We are moving the accused in a case where
you had a great commander, and you didn't want to leave, or a
great job, and you didn't want to leave. So we have to look at
ways to assist victims still. We are not done there.
And then we also have to help ourselves find offenders. And
when we have restricted cases, we often don't know who that
offender is because it is in a database that we can't touch,
that commanders can't see. And so if we are able to link the
different offenders together and then go back to our victims
and say, you know, it has happened to someone else, would you
like us to prosecute that? And so I think there are places that
we can improve our system. Something has to be done, other than
the DAC-IPAD had some great recommendations, even though they
did, in fact, support the commander in the system.
Ms. Speier. Thank you.
Mr. Kelly.
Mr. Kelly. I thank each of you victims again for sharing
your story. I don't know how difficult that is, but I
appreciate how difficult that is. Maybe that is a better way to
say that.
Lieutenant Commander Elliott, offline, if you would provide
me with information, the name of the person who told you it is
too raw, I would love that to have follow up with, if you will
provide that offline.
Commander Elliott. Yes, sir, I will.
Mr. Kelly. That is inappropriate, and I am sorry that that
happened. Provide it, and we will see if I can get a different
response.
The realistic training, Ms. Hanson, trust me, I have gone
through those briefings, and we have got to work on that. I
mean, we have got to get it so that it is right, so that people
aren't making jokes and doing that. So thank you all. That is a
very, very valid point.
Mr.--Colonel Christensen, thank you. I think a professional
CID and law enforcement at the level who knows what they are
doing at that early stage is--that is critical to every case
that I have ever prosecuted anywhere. So thank you. Very valid
comment.
And the only comment I have is going back to you,
Lieutenant Colonel--Lieutenant Commander. I am sorry. I am an
Army guy--Lieutenant Commander Elliott, is retaliation. We just
need to make sure folks understand there is an IG out there
that gets you outside the chain of command. And I think that we
already have an organization in place. We just have to make
sure that folks know how to use it.
General Darpino, I think there is a perception that
commanders make UCMJ decisions in a vacuum. What roles do
lawyers play in advising the commander on whether a case should
go forward or not, and what happens if a lawyer and a commander
disagree?
General Darpino. Well, I think that an earlier speaker
actually mentioned this, and I think it was Colonel
Christensen. And Colonel Christensen stated that lawyers are
involved in these processes at every level, and they are
advising commanders at every level. Just like a lawyer presents
to a grand jury, which is a group of civilians, and they
present all the evidence of the case and they lay it out for
them, that is what lawyers do for our commanders, and they lay
out the case and give them advice on what is the appropriate
disposition. The commander, however, who is the one who is
responsible for discipline, can make that decision.
Now, in a sexual assault case, should a commander decide
against the advice of their staff judge advocate not to send
that into trial? That goes to the next level commander to
review, to an even higher level commander to review. Should in
a sexual assault case a staff judge advocate say yes, this, in
fact, should go to trial, and--or I am sorry, should not go to
trial, and the commander agrees this should not go to trial,
that case goes up also for further review. In fact, if they
don't follow your advice of your attorney, it goes all the way
up to the Secretary of the military department concerned.
And if we are concerned that prosecutors are somehow being
sidelined in these cases, if a prosecutor out there believes a
case is being brushed under the rug and should, in fact, be
tried, they can refer that to the chief prosecutor of their
military service, and that can be acted on by the Secretary.
And so these cases are now controlled and pulled up to the
highest level, reviewed by the best lawyers, and commanders
cannot brush them under the rug.
Mr. Kelly. Some have said that removing the commander from
sexual assault prosecutions would solve the problem of unlawful
command influence. Could you explain what unlawful command
influence is and whether it would be eliminated if we removed
commanders from sexual assault cases, Lieutenant General
Darpino?
General Darpino. Okay. So unlawful command influence has
the word ``command'' in it. And so a lot of people think that
unlawful command influence can only be accomplished by a
commander, and case law is very, very clear that that is not
the case.
And while Colonel Christensen mentioned that there are a
number of recent cases where the court found unlawful command
influence, 50 percent of those cases had to do with a lawyer
being the one who unlawfully influenced that court. A commander
was not involved.
The third case actually had to do with a deliberation where
it was a panel member who brought politics into a deliberation
room. So it is really only one of those recent cases that had
to do with a commander that had committed unlawful command
influence. So forget the word ``command'' in our system. It
means when somebody unlawfully influences a case that has a
position of authority, and lawyers can do it too.
Mr. Kelly. Thank you. And what is the lowest level of
command that can make a decision regarding whether a sexual
assault offense should go to trial and the rank or rank
equivalent of that, Lieutenant General Darpino?
General Darpino. So that is withheld by Congress and
rightfully so. The services have already withheld it to this
level because they thought it was the right answer, and that is
at the O-6 level, which would be a brigade commander, someone
who--in the other services, it would be a commander. Is that
right?
Mr. Kelly. A captain.
General Darpino. A captain. I am sorry. Thank you. I looked
at her. A captain. And so it is already withheld to the very,
very highest level, and they have lawyers who advise them at
that level. They are not doing it blind.
Mr. Kelly. And just--I am kind of a glass half full kind of
guy. And so lots went wrong in each one of yours--each one of
you survivors. It went wrong. So--but let's learn from the
things that went right too. So for you--you survivors. I don't
like victims. You all aren't victims, you are survivors, and
you are much better than that.
But what part of the process worked good for you? What
part--if none, that is fine, but what part worked well for you?
Commander Elliott. I will say, you know, when I did first
go unrestricted in my first command, I did have a very
supportive commanding officer, and he went way above and beyond
anything that he should have ever been required to do, and that
made--that helped me a lot.
And then we won't talk about the bad part that happened
afterwards, but also, I will say we have the Victims' Legal
Counsel program that was started several years ago, and I know
Ms. Bapp had a different experience with that, but I had a very
positive experience, and she was able to--she was my lawyer.
She represented my interests as opposed to the prosecutor who
represents the government's interest, and she was able--she
walked me through every step. Everything we did, she was always
there with me, and that was a very good part of the program
which--a very positive change that I think--you know, I know
they are very overworked, most VLCs [victims' legal counsel].
And if that is something we could expand upon, I think that
would help a lot of people.
Mr. Kelly. Ms. Hanson.
Ms. Hanson. I was also assigned a special victims' counsel
by the Air Force. She assisted me. She was there with me every
step of the way. One part that they could kind of tweak a
little bit on that one is that she was assigned to me as a
captain, and she was going up against a full-bird colonel, a
three-star general, an SES [Senior Executive Service]. She was
great. She was absolutely phenomenal and amazing, but she also
ran into rank issues and admitted it along the way as well.
Mr. Kelly. Ms. Bapp.
Ms. Bapp. I had a different experience with getting to my
SVC [special victims' counsel] that I had outdated paperwork,
and the SVC collateral misconduct was never mentioned on mine.
However, once I found my way through the advice of a family
member, I had a phenomenal experience with him. He was
supportive. So basically, everything outside of my chain of
command, the resources that were made available to me. My
therapist, she was a saving grace, just an absolutely
phenomenal woman. My SVC, up until the point where there
appeared to be a conflict of interest because it is a very
small installation, and he represented my commander in a
completely unrelated instance, so he had to remove himself from
being my SVC, so I lost an integral support structure. But then
I got another one, and he was also fabulous, so those two were
really positive. But I also had a chain of command. No one
believed me. So, you know, but they believed me and they wanted
to help, and that was the most important experience that I had
in a positive manner.
Mr. Kelly. Thank you each for your amazing service to this
Nation and for your warrior spirit.
And with that, Madam Chairwoman, I yield back.
Ms. Speier. Lieutenant General Darpino, I can't get around
the decision made in Ms. Hanson's case. There was cold
evidence. She wanted a court-martial. It never went to court-
martial, and he got to retire with full benefits. How do you
explain that, and how is that sound command control influence?
General Darpino. Well, I don't know enough about Ms.
Hanson's case except for what she said here today, and I don't
know who made the decisions in those cases, so I really can't
say. But I can go back to what I saw and what the DAC-IPAD
found where they reviewed actual cases, not theoretical cases
but actual cases, and they found that the decision of the
commander to prefer or not prefer those cases was sound.
Ms. Speier. Well, I----
General Darpino. And so I think that there are a number of
cases where we don't get it right and that people don't get it
right because it is a human system, and lawyers make mistakes
too. And so it isn't a cure-all to just replace one person with
another. You are still going to have human error.
Ms. Speier. So I have a lot of high regard for the DAC-
IPAD, but I think what you are referring to is a situation
where the standard that they used was ``reasonable,'' and they
didn't define reasonable. So in reviewing the cases, they had
two people that would review each case, and the likelihood was
that they would make the finding that it was reasonable, but it
wasn't based on some standard. It was a very subjective review.
All right. Mrs. Davis, you are next.
Mrs. Davis. Thank you, Madam Chair, and thank you to all of
you for being here.
And it is really the testimony and the women, and some men,
like you that came forward a number of years ago that some of
the changes were created. It is a result of that, so I think we
have to continue, you know, to go beyond that. And the special
victims' counsel particularly was one that came out of those
discussions. And the thing that I think I found so disgusting
was that the few individuals who have been assigned to help out
victims were treated so poorly, and part of what I think we
discovered was that we need to have people who are given the
benefit of good, solid training in order to play a significant
role.
And what I would like to know, because a lot of you have
mentioned, whether there has been any erosion of that, to your
knowledge. And maybe you don't know. Colonel Christensen, maybe
you have a sense of this, whether they are playing that vital
role or, in fact, in some cases, they are not seen as, I don't
know the word, professional, whatever that might be in order to
play it.
Do you think that--and you have all--most of you have
testified that actually you think that was helpful. And we want
to be sure that it continues to be helpful and that the person
has the tools to be able to advocate so strongly.
Colonel Christensen. Congresswoman Davis, again, thank you
so much because you and Congresswoman Speier, Chairwoman
Speier, have been two of the most leading--I think the earliest
voices on this, and your leadership has meant so much to the
survivor community. So thank you.
But, yes. The SVC and the Victims' Legal Counsel program I
think have been one of the most significant, if not the most
significant change that has been made to the military justice
process. I want to make it perfectly clear. The military was
not happy about it. I was there when it happened. Some of the
people that are going to testify to you today about how great
it was specifically called it stupid and unneeded, but now they
have changed their tunes. It is an amazing program.
The biggest, I think, weakness comes from a lack of
experience, because too many of the SVCs, the first survivor
they ever talked to in their life is their first client. That
is not good. Again, there are people that think having
inexperienced lawyers is great. I don't think so. I think you
get better with experience, just like you get better practicing
medicine with experience.
And then I also think, as was pointed out, the huge rank
disparity that Ms. Hanson pointed out. We have--and this is one
of the problems also with the prosecutors. There are captains
or majors going up against a lieutenant general. It is a huge
rank disparity, and it tamps down dissent.
Mrs. Davis. Yeah. Thank you very much. I am going to move
on quickly because of time constraints. But certainly, I mean,
that is--in terms of rank, I think that is important. But talk
to me a little bit more about--you know, the retaliation is
such an important concern here, and we have some, I think,
training to try and help people, if they see a problem, you
know, to intervene. You know, it is almost like, you know,
don't let your friend drive drunk. I mean, don't watch somebody
doing something stupid and just let them continue to do it. I
mean, intervene.
But this retaliation piece. I mean, where would it change
if we were making a difference in terms of who--without going
up the chain of command, and you are going to judges. Because I
think one of the things that I kept hearing during the last
number of years and certainly as we started these discussions,
is that in many cases, it is the commander that wants to bring
the case to trial, because the judges--well, if we had those
judges, there are very few, as you mentioned, but the JAGs were
looking at it more like they would if they were, you know, a
prosecutor in the community. They wanted cases that they could
actually deliver on.
So where do you see that coming down that, actually--and in
some cases, the commanders are actually more aggressive about
wanting to make sure that this case goes to a court-martial.
Lieutenant Commander.
Commander Elliott. Well, in my personal opinion, I mean,
that is another reason that they should go to trained military
judges, because the system's broken on both sides, right. As
survivors, we feel--we have, we have been mistreated a lot, but
when you look on the other side of it, they are saying the same
thing. They are like, you know, commanding officers are being
too aggressive, you know. We need to go to someone who is
actually trained.
Mrs. Davis. How would that affect the retaliation?
Commander Elliott. I feel like with retaliation--and
retaliation is at every level. It can be from your peers. It
can be from anybody. But with retaliation, when you remove it
outside the chain of command, it is no longer, oh, well, we
don't like this person because, you know, she put this boss in
this bad situation where she--he had to choose between this
sailor and that sailor or whatever. It is no longer--it is
completely removed.
Mrs. Davis. Yeah. I guess part of the concern, and I
certainly yield, is that there are many of these cases that go
on, probably most of the time. I mean, I think that what we
have to be focused on is command climate and being very clear
that people are accountable for what goes on in their unit. And
any--you know, that kind of discussion, that kind of activity
is just not acceptable and will be punished. Because I am not
sure we have the judges to be able to deal with all of those
individual accounts that occur, and we have to kind of deal
with them on the ground. The extent to which we can do that,
give us the tools. We are happy to respond to those questions.
That is really important to all of us. Thank you.
Ms. Speier. Mrs. Luria.
Mrs. Luria. Well, thank you all for being here today. And
especially, thank you to the three of you for sharing these
stories, because I know that they are very difficult situations
and this is very difficult to do in a very public context.
And you know, having been a commanding officer myself, and
I know that several other people who may not be present right
at this moment on the committee as well have been in command in
the military, you know, I value the tools that the UCMJ gave to
me as a commanding officer and as an O-5, so any case relative
to sexual assault, I would have had to refer to the O-6, the
next in my chain of command. But, you know, as the lieutenant
general stated, that was a recommendation that I made reviewing
the full facts of the case to the next level in the chain of
command.
And, you know, I really appreciate the remarks that
Lieutenant General Darpino made, and I know that she didn't
read her statement in full, but, you know, as she says in her
written statement, and, you know, as I was thinking about this
leading up to the hearing, we trust our commanders to take our
sons and daughters into war. We trust them to make decisions
when people are risking their lives. But yet we are sitting
here questioning whether we trust them to make decisions such
as this about the well-being of the people who they command and
to apply the UCMJ fairly.
So I believe that there is a disconnect there, and as the
lieutenant general mentioned in her comments, that those duties
of responsibility and accountability are inextricably tied to
command.
So, Colonel Christensen, can you just elaborate on the
statement that you said, that I trust military lawyers to make
that decision, meaning the decision about these cases, more
than I trust commanders?
Colonel Christensen. Yeah. Sure. We trust commanders to
make decisions, life and death, when it comes to combat because
that is their profession. That is what they are trained in. You
are a fighter pilot. You have trained your entire career as a
fighter pilot to lead that fighter pilot squadron, and that is
what you have done. You have gone to Red Flag. You have done
all these other things. You have not----
Mrs. Luria. Throughout that leadership and that time that
you took to get to that position of command, and especially
when we are talking about the level of a general court-martial
convening authority, the 30-plus years that that commander has
had to get to that position, do you not acknowledge that they
have had to go through numerous decisions where they had to
take into account the good order and discipline of their
command and the UCMJ and the use of that?
My biggest concern, and Lieutenant General Darpino, if you
can comment on this in the last couple of minutes, is that
there is many tools in the commander's toolkit outside of
convening a court-martial. And, you know, reviewing the
background material that we were given by the staff before this
case, which included the subcommittee of the Judicial
Proceedings Panel, a report on Barriers to the Fair
Administration of Sexual Military Justice in Sexual Assault
Cases, sorry, long title, the 2017 study that was done by the
DOD is basically that when these--I am sorry. I lost my train
of thought.
But that there is numerous things within these cases that
we have changed in our policies and procedures, such as the
nature of an Article 32 hearing, such as, you know, when it is
not referred to a court-martial, the commander--because there
is not enough evidence, because there is not enough evidence
like others referred to for it actually to reach a conviction,
that there are other tools that a commander has. And other than
on a ship, you know, a sailor or a soldier or an airman can
refuse NJP [non-judicial punishment] or Article 15, and
therefore, you find yourself in a position where people sort of
sea lawyer the situation as an accused to find themselves where
it is on the track to a court-martial.
But a commander has a lot of other tools that they can use,
especially in the case where there is not enough evidence, but
the case is still on track for a court-martial and someone can
plea bargain. And therefore, the commander can use tools such
as, you know, non-judicial punishment, administrative action,
separation from service, reduction in rank, all of these things
that are way more punishment than can ever happen in the
civilian system because in the civilian system or outside of
the chain of the command, those tools don't exist.
So in time remaining, could you please comment on that?
General Darpino. And thank you for those comments, because
it is--these are extraordinarily difficult cases to try, and I
am not speaking about the three victims' cases here today. But
when you look at what these cases and the majority are, they
are--the victims are junior enlisted women. The offenders are
either junior enlisted soldiers or junior NCOs. They occur in
barracks on Fridays and Saturday nights, alcohol is involved,
and there is no one else present. And those are extraordinarily
difficult cases to try, and that is why the prosecution rates
are lower in the civilian sector.
And because, as we heard from a DA [district attorney]
previously, a grand jury is typically not going to. A
commander, however, because it affects good order and
discipline, with the advice of counsel, the Army is currently
trying 50 percent of their cases. Fifty percent of their trials
are sexual assault cases. Conviction rates aren't relevant to
this discussion because it is lawyers who try cases, not
commanders, so conviction rates aren't relevant, but 50 percent
go to trial. And those that they are not able to, we track
every single case, and we send a spreadsheet to the Hill every
year of every single case, and we tell you exactly what we did
with them. And we use those other tools, non-judicial
punishment, kicking someone out of the military. It isn't a
perfect system. It isn't a perfect system, but you don't throw
away an entire system, the baby out with the bath water, when
you already have made so many changes and rewrote the whole
thing that just went in effect 3 months ago.
Ms. Speier. Thank you.
Mrs. Trahan.
Mrs. Trahan. Thank you. Thank you, Chairwoman, for holding
this hearing. And thank you for coming in and sharing your
stories. It is our obligation now to make it better, so I
appreciate you coming in.
So how do we actually monitor variation in how commanders
deal with these offenses? And I will just elaborate. I believe
when Lieutenant Commander Elliott says that when she started
her case, her--I believe it was your first commander, you had a
lot of confidence that you were going to be taken care of, but
then that changed, right? And provided we are giving tools, I
am sure we are, I am sure there is different acceptance rates
of those tools, there is ways to fix that variability.
So I am just wondering, what are we doing today to take the
variation out of the problem?
General Darpino. And so, you know, that is why we have all
these surveys that we have, that we conduct in the military,
and that is why, you know, we are kind of often like the canary
in the coal mine, you know. You see a lot of the issues and
problems raised and seen with the mirror that the military is
of society because we have all these surveys.
One of the surveys that goes directly to that issue is that
we have command climate surveys within all the services, and we
ask a series of questions. And we ask them, you know, do they
trust their command? Do they promote a climate of sexual--
against sexual assault? Do they walk the talk, you know, and
act appropriately? And we poll soldiers on that and service
members, and, you know, I can give you a number that sounds
great out of four for all ages, but if we just focus on the
victims and the offenders, which is our junior enlisted and our
NCOs both, that number out of 4 is 3.4 or 3.3.
And so we use these surveys, and then guess what? The next
level commander who actually does the rating of that individual
officer gets to see that survey, and if they see problems, that
is how they know.
Mrs. Trahan. So it is an anonymous survey.
General Darpino. Anonymous surveys.
Mrs. Trahan. And so do we take time to figure out, like, to
really go into a deep dive on the 3.3, right? I mean----
General Darpino. Yes. A series of questions, Congresswoman.
Mrs. Trahan. Okay. You know, the systemic military culture
change, does anyone on this panel know, is this an internally
run culture change that we are--or is this--are we bringing
outside experts in to help with the culture change? Can someone
speak to that?
Colonel Haring. So in recent years, the military, DOD, has
hired a number of external experts and brought them inside the
military. At the last panel at the SASC [Senate Armed Services
Committee], Dr. Van Winkle spoke. I don't know what degree of
latitude they are able to exercise once they have been brought
in. I don't know of any external monitoring organization. Now,
RAND does do some of the research, but they are quasi-
independent.
So what I would love to see is for DOD to hire a truly
expert, say a red team type of external organization to
evaluate and analyze the work that they are doing.
Mrs. Trahan. It would be great if we could have visibility
into the culture change process just only because it is--I have
never seen a stronger culture, and, you know, there is movies
about how strong the culture is. I mean, the levers are so--are
so clear to me in terms of changing the culture that I don't
feel as though it is a 3-year process. It is likely more closer
to an instant.
My last question is on the Special Victims Counsel program.
My predecessor played a key role, along with the chairwoman and
Congresswoman Davis, in its creation. Like any program, I am
sure it requires improvement, and I am sure we have learned a
lot as it has been, you know--since its inception. Besides the
rank disparity, or maybe you have suggestions on how we fix the
rank disparity, but are there suggestions in terms of us making
that process better?
Colonel Christensen. Well, I think one thing is it has to
be made clear to the special victims' counsels and the VLCs
that their duty is entirely to their client. They are not there
to make services look better or to avoid embarrassment. That is
something we have heard from a number of VLCs and SVCs that
that is what they are getting from the top down is that they
are just to get the victim through the process.
So, for example, it may be very beneficial for a victim to
come to Congress or to go to the media, but I think most VLCs
and SVCs feel like they cannot do that.
Mrs. Trahan. Okay. Thank you. I am out of time.
Ms. Speier. All right. Colonel Christensen, Colonel Haring,
Lieutenant General Darpino, thank you for your participation.
And to Lieutenant Commander Elliott and Ms. Hanson, Ms.
Bapp, I hope everyone who is here, particularly the TJAGs [The
Judge Advocates General] that are going to come afterwards, are
going to have burnished in their minds your comments that the
process that you endured after your rapes was worse than the
rapes itself. So I want to thank you for the courage that you
have shown. I apologize on behalf of the United States
Government and our military that you have endured what you have
endured, and I want to make sure that you have every level of
support that you need as you move forward. And I hope you will
always feel comfortable coming to me, in particular, if you
have any problems in that regard.
Before closing this down, Mr. Cisneros has returned, so he
is going to have his 5 minutes of questioning.
Mr. Cisneros. Thank you, Madam Chair. Sorry I had to stop
and go to another--make an appearance at another committee
hearing and ask my questions there. But I want to thank you all
for being here today, and I want to thank the three of you
especially for sharing your story here. I know it is very brave
of you to do that.
Lieutenant General Darpino, I was troubled by your analogy,
the parents and the commanding officer of good order and
discipline. I totally agree it is the job of the commanding
officer to maintain good order and discipline, and he is given
things like NJP in order to help him do that, just like a
parent is able to discipline their child when they come home
late and they miss curfew. And the commanding officer, through
NJP, can do those certain things too if, you know, somebody
misses a curfew. I was in the Navy, so on a ship or for
whatever reason, they are allowed to do that.
But, you know, if that child goes and commits a serious
crime, the parent is not to say--allowed to say, well, you know
what, I am just going to discipline him, and I will take care
of it. So why would we do it any way different with a
commanding officer? If there is a serious crime, why do we
still allow the commanding officer to go and to make that
determination as to how he is going to discipline and make the
decision?
General Darpino. Yes. Thank you. And as I said, it wasn't a
perfect analogy, and it was really one to demonstrate how
command authority is linked to the ability to hold someone
accountable. And I do understand exactly what your point is,
and I did not intend for it to be used as the perfect example.
But I think an example that might help to illustrate it
that has to do with what we do, a core element of what we do as
warfighters, is that in the case of a law of war violation in
combat, it is the commander that you would expect to be able to
send that message to everyone else that to go out into the
village and murder citizens is not acceptable. You would expect
that a commander would be the one who would stand before the
troops and send that message by sending that case to a court-
martial.
And so that analogy--that example is an example where the
two are linked based upon exactly what it is that we do as an
Army in our service to our Nation.
Mr. Cisneros. You know, I hear your analogy, right, but a
lot of these aren't situations that are--they are not happening
in a wartime situation. And I can recall a situation where
there was an officer who committed, we will call it a crime,
was removed from the ship next day, and the CO had nothing to
do with it.
Lieutenant Commander Elliott, you were a commanding
officer, so I have this question for you. In your view, are
commanding officers adequately trained to handle sexual assault
allegations in their units, in their commands?
Commander Elliott. Absolutely not. We are trained as
commanding officers to provide the response and provide the
training of--you know, to prevent sexual assault, and we are
trained how to take care of our victims if they are assaulted,
but we are not judges. I mean, I had a 3-day legal course
before I became a commanding officer, and that was the extent
of my legal training.
So I feel like we are given good tools to address the
program. We could for sure improve, and like anything else, it
depends on who is providing us the training and what our bosses
find important. But I do not feel that we are trained as
commanding officers to be able to make these decisions about,
you know, felons by any means.
Mr. Cisneros. Okay. And I just have one last question for
all of you. And, Colonel Haring, you kind of mentioned this in
your opening remarks, but I am just going to read it back.
Where is it?
Sex crimes against women have never been treated with the
same level of outrage or professionalism as other serious
crimes.
Do you all agree with that? Colonel Christensen.
Colonel Christensen. I think it generally true, yes, but
there are some that are--some units are better, some legal
offices are better, others aren't. So I think there is a
general belief--a view of disbelief.
Mr. Cisneros. Colonel, you made the statement, so I am
going to assume you agree with it.
Colonel Haring. Not only do I agree, but I think that
history is replete with examples, not just within the military,
but across our institutions where sex crimes against women are
just not treated--perpetrators are not held to levels of--the
same levels of accountability as other types of crimes.
Mr. Cisneros. Lieutenant Commander Elliott.
Commander Elliott. Yes, sir, I would agree with that. And
as an example, it just happened less than 2 years ago. I
witnessed a young lady I mentored, someone very hard-grabbed
her rear end, which would be abusive sexual contact, and the
person that did that got a slap on the wrist. He was an E-6 and
who later that--2 months later found out he made chief, and
they allowed him to go ahead and become a chief petty officer;
where there were two E-5s that broke curfew, weren't doing
anything wrong, they were just out past curfew, and they are
now E-4s. So the joke in command is like it is okay to sexually
assault somebody and still have a career, but it is not okay to
break curfew. So, yes, I do not feel we treat these crimes
seriously.
Mr. Cisneros. I am out of my time, but if we could just
real quick, a yes or no, Ms. Hanson and Ms. Bapp.
Ms. Hanson. I agree as well. In my case, mine was my boss
and my full-bird colonel. And then when a congressional was
made about my case, Secretary Heather Wilson made the statement
in an official written statement that his character in service
and his record was taken into consideration in the disposition
of his case. I believe that we have lost the bubble and control
of where we need to be at.
Mr. Cisneros. Ms. Bapp.
Ms. Bapp. Real quick, I just think it is less about the
prosecution and the understanding of the actual criminal act,
but the psychological complexities around sexual abuse and the
cycles of abuse of power. I think that is what is misunderstood
and is at the core root. So I would say that is the bigger
issue than sex crimes.
Mr. Cisneros. Lieutenant General Darpino.
General Darpino. I definitely think there is more work to
be done, and violence against women is a problem in society,
and, you know, high school, Hollywood, and the halls of
Congress, and that we need to continue to focus on this issue
and not take our eye off the ball.
Mr. Cisneros. Thank you very much, Madam Chair.
Ms. Speier. Lieutenant Commander, you indicated that you
had 3 days of legal training. How much of that was set aside
for sexual assault?
Commander Elliott. I believe it was about a 2-hour block.
Ms. Speier. Two hours out of 72 or----
Commander Elliott. Two hours out of about 28, 29, so about
maybe 10 percent--or less than 10 percent.
Ms. Speier. Less than 10 percent.
Commander Elliott. Yes, ma'am.
Mr. Kelly. May I ask a question?
At what level did you command, what level?
Commander Elliott. I was a lieutenant commander when I was
in command.
Mr. Kelly. That is an O-4, correct?
Commander Elliott. Yes, sir.
Mr. Kelly. And the lowest level in which decisions on
sexual assault are made is the O-6 level. Is that correct?
Commander Elliott. Yes, sir.
Mr. Kelly. And I don't mean--but there are different levels
of command and different levels of training. I got a pre-
command course before going to battalion command, so there are
different levels, and you commanded at the O-4 level.
Commander Elliott. That is correct, sir. And I am not
exactly sure how the other services, but I know with the Navy,
we had O-6s that were going to command in the same legal class.
I don't know if they got anything additional.
Mr. Kelly. Thank you.
Commander Elliott. Yes, sir.
Ms. Speier. Mr. Bacon.
Mr. Bacon. Thank you, Madam Chairwoman.
I appreciate all of you being here today. And I got to hear
most of the testimony up front, but I am also on the Ag
Committee, so I had to run out real fast. But it was
heartbreaking stories and testimonies of what happened to you,
and so I just--I feel the pain and the hurt from that, and I
just thank you for sharing. I think it is important for our
society and the folks watching to know this.
I think Ms. Bapp made a very important statement, though,
that speaks to me is that we have infallible people. Infallible
commanders. I would also just say, though, we have infallible
judges--or I should say fallible judges. I am sorry. We have
fallible commanders, we have fallible judges, fallible district
attorneys, and we see imperfection everywhere we go in this
area, though it is never acceptable.
I was a five-time commander with the Air Force, and I
inherited one unit that had the highest sexual assault rates I
think we had in the Air Force at Ramstein. And so I--my first
week in command, it is, like, what are we going to do about
this? We can't just sit idly by. I have to build a plan. So I
studied it, and I just knew that education was vital, but also
make it clear I would hold people accountable.
And what we ended up doing is if we didn't have a verdict
that was certain, we went to court-martial. The victim had her
chance--typically her--to speak in front of a jury but also the
accused, and our conviction rates went up, and we ended up
having one of the lowest sexual assault rates in the Air Force
after about a year.
Another thing I did is every time I got a conviction, I put
a picture of the guilty and how many years in jail they got,
and I wanted every squadron to see it. I wanted deterrence out
there as well.
So I guess my whole point is I think there are examples of
failures, but I think there is also thousands of examples of
conscientious commanders who pour their hearts out to get this
right every time.
And so I just--I would like to ask one question of General
Darpino. Do we have--would we have any more confidence that a
judge in a local locality or a district attorney would have any
more infallibility than what we see with our commanders who,
for the most part, 99 percent of the time, love their service,
love their units? Just your thoughts.
General Darpino. I think you have hit on a key point, which
is what I was saying earlier, is that this is--the violence
against women is a societal problem, and society as a whole has
to grapple with this. We are the canary in the coal mine,
whatever it is that you want to say, and there are a lot of
organizations out there that do a lot of work to track this
kind of stuff.
And what we find is, and I am just looking for my card
where I write down numbers because I am--even though I am a
lawyer, I am, in fact, a number person, you know, like the
Rape, Abuse, Incest National Network, the RAINN, which
considers themselves the largest anti-sexual violence
organization, their numbers are horrifying. And when 50 percent
of our cases--our court-martials are sexual assault cases, 995
of 1,000 women--accused walked free in the civilian sector. You
know, one out of six women are attempted rapes outside.
And so, if having lawyers in charge of this system would
fix the system, we wouldn't see numbers like this in civilian
society. And so, no, I don't believe that lawyers are any
better. And when we send our folks for training that do these
sexual assault cases to DA's office and sexual crimes units,
that too is what they see, because prosecution rates matter to
attorneys. Conviction rates matter to attorneys.
Commanders care about good order and discipline, and it is
not perfect. And there is a lot of discussion about commanders,
and we are talking about company command and below. We are not
talking about the O-6 and above who handles the sexual assault
cases. And I don't mean to minimize in any way the other panel
members' testimony.
Mr. Bacon. Madam Chair, thank you for your time. I belong
to two other subcommittees, but this is an important issue, and
I appreciate you giving me a chance to join you.
Ms. Speier. Okay. Thank you.
Again, our gratitude to all of you for participating in the
panel, and you are now free to go.
And we will reorganize for the next panel. Thank you.
Ms. Speier. All right. We are going to have votes shortly,
so we are going to get started.
Okay. Our second panel consists of Lieutenant General
Charles Pede, if I am pronouncing that right. No? Pede. He is
the Judge Advocate General for the U.S. Army; Vice Admiral John
Hannink, the Judge Advocate General for the U.S. Navy; and
Lieutenant General Jeffrey Rockwell, the Judge Advocate General
for the Air Force; and then Major General Daniel Lecce?
General Lecce. Lecce, ma'am.
Ms. Speier. Lecce--Staff Judge Advocate to the Commandant
of the Marine Corps.
All right. General Pede, would you like to begin?
STATEMENT OF LTG CHARLES N. PEDE, USA, JUDGE ADVOCATE GENERAL,
U.S. ARMY
General Pede. Chairwoman, Ranking Member Kelly, and members
of the committee, thank you.
We have the best Army in the world because of commanders,
not in spite of them. Our Army is the most effective force on
the battlefield because our commanders and our soldiers are the
products of a justice system that for 243 years has rested in
the hands of those who fight and win our wars, commanders.
I have worked for over 15 years of my professional life,
often directly with this committee, confronting sexual assault,
especially with the tectonic changes to Article 120 in 2007. I
was personally involved in Secretary Garin's efforts to
resource this fight and had a direct hand in the establishment
of our Special Victim Prosecution program, as well as the
Special Victim Counsel program. I, therefore, thank this
committee for its continued commitment and leadership on this
issue.
I appear before you recognizing there is still much work to
do. While I disagree with the characterization of individual
lapses as systemic failures, one omission or failure is too
many. I recognize there is much the Army and the services can
still do. As the Army Judge Advocate General, I tell you that
we are relentless, relentless in getting after this problem,
protecting victims, our communities, and of course, the rights
of those accused.
In short, the commander has always been and will always be
the fulcrum to any solution in the Army at every level of
command, and so it is and must be with sexual assault. All of
us in this room recognize there is no easy solution. I have
been fighting this crime hand in hand with commanders for 31
years, but certainly no solution excludes military commanders.
And singling out the supposed 1 percent who convene general
court suggesting these are the only ones affected by the
proposed legislation fundamentally misses the point about
command authority and the sublime relationship between the
leader and the led.
Look at our current housing crisis. We outsource
responsibility for housing our soldiers. Who do our families
look to for solutions? Who do you look to to drive change?
Soldiers look to their commanders. Every townhall is hosted by
a commander. This is because there is no set of leaders on this
Earth better trained, better educated, resourced, and more
consistently successful than the American commander.
The notion that stripping commanders of authority over
serious crimes will reduce crime, result in more or better
prosecutions or higher conviction rates is simply not supported
by any empirical evidence. Indeed, the proposition, in my view,
is actually disapproved by the empirical evidence.
We know this. In the multitude of congressionally mandated
studies where diverse panels of experts have exhaustively
examined the military justice system, hearing from hundreds of
witnesses who gave thousands of hours of testimony, they
reported back to you one critical, consistent conclusion: The
commanders should not be removed from the justice system.
In fact, the DAC-IPAD's third annual report issued just
last week that has been referenced determined that in 95
percent of the cases reviewed, commanders acted correctly in
charging decisions. They found, and I quote, no systemic
problem with command decision-making regarding preferral of
charges for penetrative sexual assaults.
I am often told in response, General Pede, you haven't
moved the needle, and it is getting worse. Ten years ago,
sexual assault trials comprised 18 percent of trials in Army
courtrooms. The needle--and my apologies. In 2018, that
percentage is now 50 percent, 5-0. The needle has indeed moved,
and this is because commanders at all levels have set
priorities, established expectations, and have driven culture
change. This is not a coincidence.
The scope of sexual assault crisis in our society--in our
Army is as big as the society from which we draw our soldiers.
As you know, our Army is refreshed every year with 70,000 new
soldiers from every city in America, and we draw from that
society, and we face the common problems. A highly esteemed
university recently released a study that showed 48 percent of
their females experience sexual assault during their time at
the university. Within that 12-month period, 18 to 22 percent
had reported an assault.
I share these statistics not to place blame elsewhere or to
distract from the 4 percent--4.4 percent prevalence rate in the
Army, but simply to reflect that it is a societal problem, and
it is a demographic issue, in many respects, that we all own
and have to address, because we do. The Army owns this problem.
Discipline is the soul of the Army, as George Washington said,
and it still is. It is in our DNA.
In my professional view, taking away a commander's decision
over discipline, including the decision to prosecute and court-
martial, will fundamentally compromise--fundamentally
compromise--the readiness and lethality of our Army today and
on the next battlefield. And let's remember, you are trying to
give this authority to those sitting before you. One hundred
twenty years of legal experience on this panel is saying our
Nation will regret it in the next battlefield.
The Justice Act of 2016 you passed fundamentally altered
our justice system starting just 12 weeks ago. We spent the
last 18 months training those changes. The changes only began
12 weeks ago. I would appreciate--while I appreciate the desire
to see change, with a criminal justice system, we must exercise
some measure of strategic patience to ensure our changes have
healthy consequences.
Further, we cannot forget our obligations to those accused
of crime. We each in this room have----
Ms. Speier. You have already exceeded your time by a
minute, so could you wrap up, please?
General Pede. Yes, ma'am.
We have a sacred obligation to protect those accused of
crime as well, ma'am. And I fully acknowledge we are not
perfect, but we are truly an accountable system.
I thank your committee for the time, ma'am.
[The prepared statement of General Pede can be found in the
Appendix on page 107.]
Ms. Speier. Thank you.
Vice Admiral Hannink.
STATEMENT OF VADM JOHN G. HANNINK, USN, JUDGE ADVOCATE GENERAL,
U.S. NAVY
Admiral Hannink. Madam Chair, Ranking Member Kelly, and
members of the subcommittee, thanks for the chance to appear
before you today.
The testimony of the first panel reminds everyone of the
importance of our efforts to reduce sexual assault with the
goal of eliminating this crime from our ranks. April is Sexual
Assault Awareness Month, and it is worthwhile to keep in mind
that we all share this goal, even when there are multiple views
on the precise steps that will help us get there.
In my written statement, I outline the role of the
commander in the adjudication of sexual assault charges in the
Navy. First, there is an independent investigation by the Naval
Criminal Investigative Service and then an independent
prosecution merits review by Navy prosecutors. This
information, the investigation, the prosecution merits review,
along with input from the victim or victim's legal counsel,
then goes to an O-6 commander for disposition decision. And if
the case proceeds in the military justice system, there are
further reviews involving both lawyers and commanders.
These commanders are known as the Sexual Assault Initial
Disposition Authority and the General Court-Martial Convening
Authority, and I support the role these commanders have in
making the initial disposition decision on charges and in
referring cases to court-martial.
My written statement also noted what I think are some
threshold questions in considering whether to remove the role
of the commander.
Question one, would removing commanders' convening
authority decrease the prevalence of sexual assault?
Question two, would it increase the reporting of sexual
assault incidents?
And, question three, would it improve case disposition
decisions?
Now, on the first two questions, whether a change would
decrease the prevalence or increase the reporting of sexual
assault, we have the benefit of the 2014 report of the
congressionally directed Response Systems Panel. And after
studying changes to the military justice system of our allies
and hearing from many witnesses on both sides of the argument,
this was the conclusion shared by seven of the nine panel
members: that the evidence does not support the conclusion that
removing convening authority from senior commanders will reduce
the incidents of sexual assault or increase reporting of sexual
assault.
And today, when I speak with leadership of our Victims
Legal Counsel program, their sense is similar. Based on their
work, they don't think that the convening authority issue is a
significant barrier to reporting.
Now, on the third question, whether removal of convening
authority would improve case disposition decisions, as
mentioned before, we have the benefit of the recent report of
the DAC-IPAD. In its review of 164 sample cases, DAC-IPAD
concluded that the disposition decision of commanders were
reasonable in 95 percent of them.
As noted before, the committee concluded that its review
revealed no signs of systemic problems with the reasonableness
of commanders' decisions on whether to prefer charges in cases
involving a penetrative sexual assault.
And I look forward to the report that the DAC-IPAD will
submit next year in March 2020, that will expand its work to
include the 2,000 investigative cases it is reviewing.
I am grateful for these studies that have been conducted.
The military justice system might be the most studied criminal
justice system over the past decade, and we welcome the
scrutiny. That scrutiny benefits everyone who serves in the
Armed Forces, those who are victims, those who are accused of
crimes, and those who work within the system to achieve its
objectives, to be a system of justice and a system that enables
commanders to maintain good order and discipline.
I am also grateful for the support of this subcommittee and
the organizations represented by the first panel to ensure we
continue to make improvements to our response systems and
prevention efforts. Thank you, again, Madam Chair and Ranking
Member Kelly.
[The prepared statement of Admiral Hannink can be found in
the Appendix on page 119.]
Ms. Speier. Next--thank you--Lieutenant General Rockwell.
STATEMENT OF LT GEN JEFFREY A. ROCKWELL, USAF, JUDGE ADVOCATE
GENERAL, U.S. AIR FORCE
General Rockwell. Chair Speier, Ranking Member Kelly,
distinguished members of the panel, military commands, led by
commanders, are responsible for executing our National Defense
Strategy to defend the Nation and win America's wars.
Throughout our history, we have accomplished this because of
four simple yet key components: the best training, the best
equipment, the best--excuse me--people, and, fourth, the most
important element that binds together the other three,
discipline.
Discipline lies at the heart of command and control.
Commanders command and control airmen, armed with the best
training and equipment, to execute our national defense
missions. Discipline is commanders' business, since they have
the ultimate responsibility to build, maintain, and lead the
disciplined force necessary to succeed in combat across
multiple domains. Discipline makes us ready. Discipline makes
us lethal.
To build this disciplined force to execute these missions,
the military justice system works to strike a careful
constitutional balance between the competing equities and the
justice process. That balance is best struck when, at every
critical junction of the process, a commander is armed with the
relevant facts, including victim input, and advised by a staff
judge advocate before making a decision on the next critical
step in the process.
We also know that good order and discipline is best when
command operates and executes discipline across the entire
continuum of discipline. From prevention efforts and setting
standards, duties, and command climate on the left side of that
continuum, to the response of courts-martial, on the right
side, when standards aren't met, and operating everywhere in
between those two points.
This disciplinary continuum embodies the concepts of unity
of command, unity of effort, and command and control needed to
build a ready, lethal, and disciplined force to execute the
missions the Nation asks of us.
This committee and Congress have been instrumental in our
efforts to improve military justice with regard to sexual
assault. You have focused a system to be more fair and timely,
to appropriately address allegations of misconduct that fosters
progressive discipline designed to deter and rehabilitate
wrongdoing, to respect the dignities--the dignity of victims of
crime, to protect the rights of the accused, and to maintain
the trust of airmen and the American people.
We have increased our commander training to ensure they are
better prepared to exercise all of their authorities. Before
taking command, all commanders receive extensive legal training
so they fully understand their responsibilities under the code
and the manual. Officers receive similar training at all levels
of their professional military education, as do all enlisted
members.
Most importantly, as a matter of process, safeguards have
been incorporated and gaps closed to maximize legal advice
during every key phase or decision point of a case, through
investigation, adjudication, and final disposition. The
existing authority of the Judge Advocates General mandate that
this critical legal advice be independent.
Command decisions are informed and evidentiary standards
are applied at each stage of the process with the advice of a
staff judge advocate, along with input from a prosecutor, a
victim, and the accused.
A critical component to our fight against sexual assault in
the military has been our obligation to build trust and
confidence in victims. We know that victims must be empowered
at every stage of the process. Survivors must believe that
their privacy can be protected and that they can regain a sense
of control in their lives.
Sexual assault is a personal violation and victims must be
heard without having the process itself further making them
feel victimized. Victims must know that they have a say before
any decision is made.
Our special victims' counsel have become a vital teammate
in our sexual assault prevention and response arsenal.
Our work must continue to prevent and respond to criminal
behavior within our ranks. Our next steps, I believe, should
focus on addressing evolving issues of retaliation, collateral
misconduct, timeliness, and education on the general deterrent
effect generated by the cases tried.
While there has been much progress, we as judge advocates
remain committed to survivors of sexual assault. We remain
committed to airmen, and we remain committed to providing
sound, independent, legal advice to our commanders in a
military justice system that has made us the most ready,
lethal, and disciplined force in the world.
Thank you for hearing us today.
[The prepared statement of General Rockwell can be found in
the Appendix on page 132.]
Ms. Speier. Thank you.
General Lecce.
STATEMENT OF MAJGEN DANIEL J. LECCE, USMC, STAFF JUDGE ADVOCATE
TO THE COMMANDANT OF THE MARINE CORPS, U.S. MARINE CORPS
General Lecce. Madam Chair, Ranking Member Kelly, and
distinguished members of the subcommittee, thank you for the
opportunity to testify today. As fit given the title of this
hearing, I would like to focus on commanders.
The ethos of the Marine Corps is every Marine a rifleman,
and this ethos demands that every Marine officer be capable of
leading Marines in combat, including judge advocates. I have
been very privileged to have been selected for command, both as
a lieutenant colonel, as the commanding officer of Marine
Security Guard Company in the Middle East, and as a colonel, as
a commanding officer of Marine Corps Base Camp Lejeune, North
Carolina.
For Marines, and I believe the other service, the pinnacle
of a career is serving as a commander. But with the mantle of
command comes great responsibilities. Commanders are both
responsible and accountable for the morale, welfare, and
discipline of the unit. These are not just words, but the
foundational tenet of life in the military.
At the end of the day, a commander is responsible for
preparing and leading his or her Marines into combat, where the
cohesion and discipline of the unit may literally be the
difference between life and death.
When mothers and fathers of this Nation send their sons and
daughters to become Marines, we make a sacred promise: that we
will train their sons and daughters to the utmost of our
ability, that we will protect their welfare, and if we must go
into harm's way, these young men and women will be ready
mentally, physically, emotionally to fight and win this
Nation's wars.
As a commander, it is your obligation to be fully invested
in the welfare of your Marines, to know each one of them, to
employ them as a team, to treat them as the family that they
are. You must be confident that if you are ordered into combat,
your Marines go as a team, as a family.
In the Marine Corps, you commit your adult life to
preparing to becoming a commander, preparing so that you are
ready to meet the highest of obligations and to ensure that you
uphold the promise you made to the mothers and fathers of your
Marines.
As a commanding officer of Marine Corps Base Camp Lejeune,
I was a general court-martial convening authority responsible
for bringing charges in the most serious criminal cases,
including sexual assault cases. Upon taking command, I trusted
my staff judge advocate and my legal support teams to provide
the advice I required to execute my duties, including my role
as convening authority.
But perhaps just as important to me was my equal
opportunity advisor, because he helped me keep my finger on the
pulse of the command. My equal opportunity advisor provided me
invaluable counsel, keeping me connected to all echelons of the
command, from assisting me in developing, administering, and
interpreting, and debriefing required command climate surveys,
to highlighting areas of concern, to identifying Marines who
required individualized attention. My equal opportunity advisor
helped me fulfill my obligation to know my Marines and look out
for their welfare.
My point is, highlighting these facts, is that although our
judge advocates are highly trained and capable professionals,
they are not commanders. They do not carry the responsibility
and obligation to stay connected to the command, to build a
team, to build a family. Commanders, and commanders alone,
carry this responsibility. Judge advocates provide legal
advice. To remove the commander from the military justice
system robs the commander of a critical tool for ensuring
discipline is enforced, welfare is ensured, and justice is
served.
As the most senior commander in our Marine Corps, the
Commandant has been intensely focused on improving our culture.
Unequivocally, he has stated on countless occasions that one
sexual assault is too many, retaliation is unacceptable, and
that ostracism is antithetical to our warrior culture.
To combat these destructive behaviors, the Commandant
issued a Marine Corps Order on prohibited activities and
conduct. This order, published in June of 2018, criminalizes a
wide spectrum of destructive behaviors, including sexual
harassment, hazing, discrimination, retaliation, bullying,
ostracism, as well as misconduct committed online or via social
media.
While the Commandant's efforts over the last years have
positively reinforced a culture where sexual assault and
retaliation are not tolerated, more remains to be done, and the
Marine Corps is prepared to do it.
In the Marine Corps, we never lose sight of the fact that
our Marines are our greatest assets. We are obligated to ensure
each Marine's welfare and to return our Marines to their loved
ones and back to this great Nation better for having served.
Thank you once again for allowing me to testify. I look
forward to working with you and answering your questions.
[The prepared statement of General Lecce can be found in
the Appendix on page 145.]
Ms. Speier. Thank you all.
Let me first say how grateful we are for the service--for
your long service in the military. You have each, on one level
or another, expressed how you feel that one sexual assault is
too many, but we have 15,000 of them a year. And as you know,
only 5,000 of them report, and of those, maybe 500 go to a
court-martial, and of those, only about 250 are convicted.
You heard the testimony of these three victims. They were
telling the truth, and yet they were treated so poorly that the
process was worse than the rape.
I would like to have each of you comment on what you heard
from each of them. Lieutenant General Pede.
General Pede. Yes, ma'am. Thank you. It is--it is a
difficult thing to listen, and I respect the members of the
first panel. I--it is an unfortunate, worse than that,
experience, that they endured. And I think that is, frankly,
ma'am, what motivates all of us. It has always motivated me as
a professional, as an officer, as someone in law enforcement
and the profession of law, to right the wrongs that we----
Ms. Speier. So what would you do differently, having heard
their stories?
General Pede. Ma'am, exactly. One, I would--and it is what
we try and do every day, which is to, once reported, provide a
level of care to them that provides a restorative process, that
gets them back where they need to be, and then holds the right
person accountable. So it is a robust, well-resourced, well-
trained investigative process.
And then from a prosecution and a defense standpoint,
ma'am, as a very well-educated, resource-trained bar, that
includes an extraordinary bar of special victim counsel now as
well.
So what we are trying to do is bring all of those resources
to bear on the very cases that they bring to our attention.
Ms. Speier. Vice Admiral, is there anything that you would
recommend based on what you heard from those victims?
Admiral Hannink. Madam Chair, from Lieutenant Commander
Elliott, my takeaway was that, as is reflected in the last
military survey on investigations and the justice process,
discretion really matters. And I think we have to be sure that
we have people fully trained. The one commander that she
mentioned that didn't keep discretion, I could see how hurtful
that was in this circumstance.
What we owe Lieutenant Commander Elliott, and everybody
like her, is her story about the previous commanding officer,
though, the one that supported her, as she called it, beyond
the call of duty. And as General Pede indicated, the Victims'
Legal Counsel program that she also indicated was a great
support.
Ms. Speier. Lieutenant General Rockwell.
General Rockwell. Madam Chair, as attorneys, we are process
people, and when--because you are a process person, sometimes
you lose empathy. And as you sit and listen to the victims, as
they go through this process--and this process of reporting
through investigation, through adjudication, that gets you
ultimately to accountability--it is easy to focus on the
process and lose the fact that the empathy that you need to
have for somebody walking through that process.
You ask what we can do better. I think it is an
integration. It is an integration with regard to, as you walk
through that process, we have a lot of people trying to help
along the way. And as we look at how we integrate throughout
that process, from what SARCs do, to what victim advocates do,
to what investigators do, to what prosecutors, defenders, and
special victims' counsel do, there is methodologies to look at
to better integrate that. That better integration gives you
more speed, and I think it gives you empathy for the victim in
a case or, for that matter, a witness in any case, who is
actually the one walking through it.
Ms. Speier. All right. Major General Lecce, we are going to
have to go and vote and then we will return. Do you have a
quick comment you would like to make?
General Lecce. Ma'am, I can't speak as to why this happened
to the survivors that testified----
Ms. Speier. No, but I mean, based on what you heard, I want
to know if you have gleaned anything from it that you would
take back and want to do differently.
General Lecce. Well, first of all, as I stated in my
opening statement, commanders need to be held accountable. They
are accountable for what happened here.
Ms. Speier. What happened to that commander who was
conflicted, who continued to handle the case, and now we have a
West Point grad, who we invested a lot of money in, who is no
longer serving?
General Lecce. Ma'am, I can't speak to that specific case.
But what I can say is, there are systems in place to deal with
these things. As the ranking member said, the IG, the Inspector
General, we have a very robust practice--I am not the IG, but I
work very closely with him--for these retaliation and ostracism
cases. By regulation, only the IG can handle a reprisal or
retaliation case. And that is one step.
Echoing what General Rockwell said, we have
professionalized our victim advocates, our victims' legal
counsel, our Victim Witness Assistance program to be more
robust and more supportive of victims along the way in the
process.
Ms. Speier. All right. Thank you. We are going to return.
[Whereupon, at 4:18 p.m., the subcommittee was adjourned.]
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A P P E N D I X
April 2, 2019
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PREPARED STATEMENTS SUBMITTED FOR THE RECORD
April 2, 2019
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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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DOCUMENTS SUBMITTED FOR THE RECORD
April 2, 2019
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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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QUESTIONS SUBMITTED BY MEMBERS POST HEARING
April 2, 2019
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QUESTIONS SUBMITTED BY MS. SPEIER
Ms. Speier. How feasible is it for your service to develop an
independent prosecution chain, along the lines of the Marines' reform?
General Pede. An independent prosecution chain--as I understand the
question--is not feasible--and I do not view the Marine Corps as having
such a system. If the intent is to have an independent rating scheme,
Army prosecutors are already rated by legal supervisors. While some of
those supervisors are rated by commanders or a chief of staff, the
prosecutors themselves are supervised by lawyers. In accordance with
both Army regulations and The Judge Advocate General's Corps policy,
all trial counsel have at least two, more senior, judge advocates in
their rating chain; exceedingly few trial counsel rating chains also
include a commander. Moreover, the Army's special victim prosecutors
are always rated only by other judge advocates and not by the
commanders they advise. In short, Army trial counsel are already almost
wholly supervised by judge advocates, and not commanders. The Army
organizes to best meet its unique combat responsibilities in support of
the joint force. The Army is also unique among the services--it tries
as many courts-martial as the other Services combined, and it tried
more than 800 cases in a deployed setting from 2003 to 2011. Ensuring
these requirements are met requires the flexible assignment of Army
prosecutors. Finally, it is a requirement of law--both arising from
statute and the code of professional responsibility--as well my own
expectation, that every judge advocate, trial counsel or not, will
offer the best legal advice possible in support of their client,
whether that client be the U.S. government, a Soldier, or a Family
member, independent of the interests of any specific commander or unit.
Ms. Speier. What happens when a prosecutor's ethical and legal
expertise contradict commanders' opinions? What happens when justice
demands that case be brought forward, and the prosecutor is unable to
because the commander refuses to act?
General Pede. In 31 years of active duty service, I have yet to
encounter this situation--and therefore counsel against any policy
change that uses this basis as a cause for change. As judge advocates
and commanders have repeatedly testified before congressional oversight
committees, they cannot think of a case in which a Staff Judge Advocate
recommended referral of charges to courts-martial and the commander
refused, triggering statutorily required review by the service
secretary required by Section 1744 of the Fiscal Year 2014 National
Defense Authorization Act. A commander's decision whether to prosecute
a case is informed by an ongoing dialogue with his or her judge
advocate. When necessary, that dialogue can be extended up the chain of
command and along the judge advocate technical chain. There is almost
never a disagreement that cannot be resolved in this process. If there
is, there is a process for that--Section 541 of the Fiscal Year 2015
National Defense Authorization Act permits a local prosecutor to send a
case to the Army's chief prosecutor for review and, if necessary,
referral to the Secretary of the Army for action.
Ms. Speier. Two weeks ago, the Department of Defense Inspector
General released a report revealing that in 77 of 82 cases reviewed,
DOD officials either did not ask or did not document that they asked
victims of sexual assault whether they want cases prosecuted in
military or civilian courts. Why did this failure occur? Can you each
commit to me that your services will rapidly put in place a system to
ensure victims are asked whether they prefer their cases to be tried in
civilian or military courts?
General Pede. I disagreed with the findings in the Department of
Defense Inspector General (DOD IG) report. The DOD IG equated a failure
to document the victim's preference with the failure to ask about that
preference. The law does not require documentation and therefore the
report's conclusions are misleading. In all but a few cases reviewed,
we demonstrated that we had, indeed, asked the victim their preferences
and those cases were resolved in the forum the victim supported.
Additionally, Special Victim Counsel represented all but a few of the
victims. That said, the Army moved beyond the requirements of Section
534 of the Fiscal Year 2015 National Defense Authorization Act statute
and beginning in 2018, required memorialization of the victim's
preference. It is also worth noting, as the DOD IG report did, that the
statute as drafted raises multiple practical concerns with its
implementation. For instance, when a civilian prosecutor's office with
jurisdiction declines to prosecute a case early in the investigation,
it effectively means there is no option for a civilian prosecution.
Yet, in that circumstance, the statute requires the victim to be asked
to express a preference when there is no real choice. This is not
practical and it is not helpful to a victim. Finally, when a victim
exercises their right to decline to participate in any prosecution,
there will likely be no documentation of the victim's expressed
preference for venue (such was the case for three of the Army cases
without documentation). Anecdotally, the Criminal Law Division of the
Office of The Judge Advocate General conducted a data call in August of
2018 to get a sense of preferences expressed by victims. In that data
call, 79% of victims expressed a preference for military prosecution,
3% of victims expressed a preference for civilian prosecution, and 18%
of victims expressed no preference. This overwhelming support of our
system is consistent with anonymous DOD-wide survey data in which
servicemembers who have reported a sexual assault rated ``civilian law
enforcement'' with the lowest satisfaction rates of all personnel
involved, including commanders, military law enforcement, Victim
Advocates, healthcare personnel, and Special Victim Counsel.
Ms. Speier. Are you aware of penetrative offenses under your
jurisdictions being sent to special and summary courts martial while
statute requires them to be tried at general courts martial? What is
the cause of these failures to comply with the law? Can you commit to
more closely tracking these cases to ensure compliance and eliminating
these instances?
General Pede. I believe the Army is fully compliant with the law
and I have no information to suggest we are not. I understand that the
recent Defense Advisory Committee on Investigation, Prosecution, and
Defense of Sexual Assault in the Armed Forces (DAC-IPAD) report may
have implied that multiple penetrative offenses were referred to
summary or special courts-martial in violation of the NDAA. It is my
understanding, however, that the DAC-IPAD will be sending a letter to
your committee to clarify that report on this specific issue. The Army
will continue to monitor all referrals to ensure compliance with
Section 534 of the Fiscal Year 2015 National Defense Authorization Act.
Ms. Speier. Do you believe recent expansions of the concept of
apparent unlawful command influence hampers commanders and compromises
their ability to set the necessary cultures within their units? How
would your recommend changing the definition of UCI?
General Pede. The concern underlying the judicially created
doctrine of apparent unlawful command influence--namely, that a well-
informed member of the public would believe that the court-martial
process is fair, to the accused, to the victim, and to the community--
is of vital consequence to our system. It is a bedrock principle of
justice that justice must not only be fair, it must also appear to be
fair. As the Supreme Court has recognized, all are entitled to a fair
trial, not necessarily a perfect one. The harmless-error doctrine
reflects this balance. On March 27, 2019, however, the Department of
Defense submitted Legislative Proposal Number 337. Consistent with
Judge Ryan's dissent in United States v. Barry, this proposal, if
enacted, would re-institute the harmless-error analysis into the
apparent unlawful command influence doctrine. It would also provide
clearer guidelines for Commanders in how they can build a culture of
dignity and respect without violating the necessary restrictions on
unlawful command influence. I believe that the proposal merits serious
consideration by the Congress.
Ms. Speier. Are the recent decisions from CAAF jeopardizing
convictions?
General Pede. A conviction that is not consistent with the
requirements of the law is not a conviction that should stand. The
justice systems in the United States, both civilian and military, rest
on the ability of our independent courts to make determinations of
guilt, free from any consideration other than the parties' arguments,
the evidence, and the law. Military justice is also a process, a case-
by-case, appeal-by-appeal adjudication. Over time, that process may
reveal that it is appropriate to amend the underlying law. Any
evaluation to amend the underlying law must be holistic and thorough,
as reform efforts' second- and third-order effects can be
counterproductive or even harmful and those negative effects are not
always identifiable in advance. Any reform must be consistent with the
requirements of fundamental fairness; it must reflect our concern for
the dignity and respect of all persons.
Ms. Speier. One area I am concerned with regarding the SVC program
is the ability of the special victims lawyer to operate independent of
any command, similar to defense counsel. Do you agree that special
victim's counsel should not serve in billets that challenge their duty
to their client? From what I understand, many of the Army's SVC are
also legal assistance attorneys. Does this present a conflict?
General Pede. I agree, special victim's counsel (SVC) should not
serve in billets that challenge their duty to their client. I also do
not believe there is a conflict created by SVCs serving part of their
time as legal assistance attorneys. Every judge advocate who is
authorized to and does enter into an attorney-client relationship with
an individual--whether that judge advocate be a defense counsel, SVC,
or legal assistance attorney--owes that client a duty to zealously
advocate for that client's interests--even when those interests
conflict with the chain of command or the Government. This is a bedrock
principle of the legal profession. While SVCs do provide legal-
assistance services, when a judge advocate provides legal assistance
services, they are working on behalf of their client and not the
government. Legal assistance attorneys are evaluated on how well they
advocate for their clients, not based on their support to the
government, which is not part of their job in legal assistance billets.
More importantly, the priority for a SVC serving in an authorized SVC
position is representation of their special victim clients. In
addition, the SVC program continues to refine its procedures to ensure
that these standards are met. In June 2018, I directed the assignment
of field grade officers to serve as dedicated SVC regional managers.
These regional managers provide technical supervision and guidance to
the SVCs in their region. The SVC program office, which oversees and
sets policy for the SVC program, discusses the importance of SVC
independence at all certification and staff judge advocate courses. I
have also directed the SVC program office to conduct site visits to
continually iterate the importance of SVC independence to all staff
judge advocate offices in the Army. We will continue to assess these
efforts to ensure the independence of our SVCs
Ms. Speier. Would you agree that following the Air Force's model
and providing the SVC program with additional resources like dedicated
paralegals will help strengthen the program's role in the military
justice process? Will you commit to expanding the use of paralegals?
General Pede. I am committed to maximizing the use of paralegals
for SVCs, though there are resource limitations affecting their
availability. Since the SVC program's inception five years ago, we have
trained 113 military and civilian paralegals in the same certification
course we send all SVCs. In addition, in January 2017, we added a
dedicated SVC paralegal-specific break-out training at each SVC
certification course. SVC paralegals also participate fully in annual
regional SVC training to familiarize themselves with key players in the
local support systems, investigative offices, and military justice
arenas. Army paralegals are a highly trained and motivated resource,
and they are, consequently, a much-sought after asset. The Army will
continue to assess the distribution of its paralegal assets to ensure
that every attorney is effectively supported in his or her mission.
Ms. Speier. How feasible is it for your service to develop an
independent prosecution chain, along the lines of the Marines' reform?
Admiral Hannink. The Navy's prosecution chain of command is set up
similarly to the Marine Corps' prosecution chain of command. The Navy
uses nine Region Legal Service Offices (RLSOs), with each managing the
trial counsel for the particular region. Each RLSO has a Trial
Department that is supervised by the Senior Trial Counsel (STC). All
trial counsel receive Fitness Reports from the RLSO Commanding Officer,
who is an O-6 judge advocate reporting to Commander, Naval Legal
Service Command/Deputy Judge Advocate General of the Navy.
Ms. Speier. What happens when a prosecutor's ethical and legal
expertise contradict commanders' opinions? What happens when justice
demands that case be brought forward, and the prosecutor is unable to
because the commander refuses to act?
Admiral Hannink. As described in my written testimony, prosecutors
in the Navy provide Prosecution Merits Review to inform the decision of
disposition authorities. Likewise, Preliminary Hearing Officers and
Staff Judge Advocates inform and make recommendations to convening
authorities. It is uncommon for a commander to deviate from a
prosecutor's recommendation but that authority ultimately lies with the
commander subject to a few constraints imposed by statute. For example,
Article 34, UCMJ states that a convening authority may not refer a
specification under a charge to a general court-martial unless the
staff judge advocate (SJA) advises in writing that there is probable
cause to believe that the accused committed an offense. And under the
provisions of the FY14 National Defense Authorization Act, if the SJA
recommends referral and the general court-martial convening authority
declines to refer such a charge, the Secretary of the military
department must review the case. Finally, all Judge Advocates are bound
by the rules of professional responsibility within the Navy as well as
the state where they are licensed to practice law. The Navy JAG Corps'
professional responsibility rules require any judge advocate who knows
that an official intends to act in a manner that is adverse to the
Department of the Navy's legal obligations must take reasonably
necessary measures to address the situation. These measures may include
asking the official to reconsider, seeking an additional legal opinion,
or raising the matter to higher authority in the chain of command. If
there are further questions about this process and the prosecutor's
role in it, the Chief Prosecutor of the Navy and the Head of the Navy
Trial Counsel Assistance Program are available to provide further
explanation.
Ms. Speier. Two weeks ago, the Department of Defense Inspector
General released a report revealing that in 77 of 82 cases reviewed,
DOD officials either did not ask or did not document that they asked
victims of sexual assault whether they want cases prosecuted in
military or civilian courts. Why did this failure occur? Can you each
commit to me that your services will rapidly put in place a system to
ensure victims are asked whether they prefer their cases to be tried in
civilian or military courts?
Admiral Hannink. In most of the Navy cases reviewed by the DOD IG,
the victim's preference was sought but not effectively documented. In
some cases, preference was not sought because civilian authorities
already turned down the cases. In those circumstances, the statute does
still require the victim to be asked to express a preference, though
there is no real choice involved. There were also instances where we
could not establish whether we asked victims their preference at all,
but it is worth noting that in all but one of the cases reviewed by the
DOD IG, a Victim's Legal Counsel was assigned to assist victims in
understanding and advocating for their rights in the process. The Navy
is committed to ensuring victims are asked about their preference for
civilian or military prosecution. Since the report was released, our
Region Legal Service Offices have adjusted their practice to document
victim preferences in each case, regardless of whether prosecution by
civilian authorities is an option.
Ms. Speier. Are you aware of penetrative offenses under your
jurisdictions being sent to special and summary courts martial while
statute requires them to be tried at general courts martial? What is
the cause of these failures to comply with the law? Can you commit to
more closely tracking these cases to ensure compliance and eliminating
these instances?
Admiral Hannink. There are no known penetrative offenses in the
Navy that have been referred to a summary court-martial or a special
court-martial. The DAC-IPAD identified a few cases in which an Article
120 penetrative offense was charged at the beginning of the process and
the case was later referred to a special court-martial or a summary
court-martial. We have confirmed that in each of the cases identified
by the DAC-IPAD, the penetrative offense(s) was in fact dismissed prior
to referral to a special court-martial or summary court-martial.
Additionally, we conducted a review of all cases in which a penetrative
offense was charged and confirmed there are no instances where a
penetrative offense was referred to a special court-martial or a
summary court-martial.
Ms. Speier. Do you believe recent expansions of the concept of
apparent unlawful command influence hampers commanders and compromises
their ability to set the necessary cultures within their units? How
would your recommend changing the definition of UCI?
Admiral Hannink. Commanders are responsible for good order and
discipline, and must be able to speak candidly about destructive
behaviors while not interfering in individual cases. At a minimum,
court rulings have forced commanders to examine how their actions,
including candid discussions on culture, might adversely impact the due
process of a service member. The issue of unlawful command influence
was researched and discussed by the Joint Service Committee (JSC) on
Military Justice and based upon that research, the DOD and the
Administration submitted a legislative proposal to modify Article 37,
UCMJ. The legislative proposal clarifies the ability of a commander to
address cultural issues within their unit. I support this proposal.
Ms. Speier. Are the recent decisions from CAAF jeopardizing
convictions?
Admiral Hannink. CAAF is an independent court responsible for
performing an independent review of cases arising under the military
justice system. CAAF must ensure that lower court decisions are legally
correct and consistent with due process. It is within their authority
to set aside convictions.
Ms. Speier. One area I am concerned with regarding the SVC program
is the ability of the special victims lawyer to operate independent of
any command, similar to defense counsel. Do you agree that special
victim's counsel should not serve in billets that challenge their duty
to their client?
Admiral Hannink. Navy Victims' Legal Counsel (VLC) are only
assigned duties within the Victims' Legal Counsel Program (VLCP) and
therefore are completely independent. The VLCP has operated as an
entirely separate chain of command since its inception in 2013. The
VLCP has a Chief of Staff who is independent of all Commanding Officers
for the fleet, Region Legal Service Offices and the Defense Service
Offices. The VLCP Chief of Staff reports directly to Commander, Naval
Legal Service Command/Deputy Judge Advocate General of the Navy, and is
directly responsible for and signs all Officer Fitness Reports and
Enlisted Evaluations for the program. Based on the completely separate
chain of command, the VLCP avoids any conflicts of interests with other
interested parties.
Ms. Speier. Would you agree that following the Air Force's model
and providing the SVC program with additional resources like dedicated
paralegals will help strengthen the program's role in the military
justice process? Will you commit to expanding the use of paralegals?
Admiral Hannink. The Navy is committed to properly resourcing the
Victims' Legal Counsel Program (VLCP), including providing the right
number and type of support personnel. The Navy provided administrative
(Yeoman) support personnel to VLCP attorneys from the early phases of
the VLC Program. The Navy JAG Corps commits to periodically
reevaluating the support requirements of VLCP attorneys, including
whether paralegals (Legalman) should replace or add to the Yeomen
currently assigned.
Ms. Speier. How feasible is it for your service to develop an
independent prosecution chain, along the lines of the Marines' reform?
General Rockwell. The Air Force has two separate reporting chains
of lawyers involved in military justice--the functional chain attached
as legal advisors to the command chain and the litigation support chain
that reports to the commander of the Air Force Legal Operations Agency.
Developing another ``prosecution chain'' would be an inadvisable
triplication of effort. Furthermore, the Air Force organizes, trains,
and equips to execute its mission sets. Legal support follows mission,
which results in having individual legal offices at Air Force
installations across the United States and around the world.
Experienced Staff Judge Advocates with military justice experience
provide candid legal advice on the ground to installation commanders,
with reach back to expert trial counsel at our regional Circuit
litigation offices, which fall under an independent chain of command.
Ms. Speier. What happens when a prosecutor's ethical and legal
expertise contradict commanders' opinions? What happens when justice
demands that case be brought forward, and the prosecutor is unable to
because the commander refuses to act?
General Rockwell. In our experience, commanders value the sage
advice of their Staff Judge Advocates (SJAs) and work in concert with
them and the attorneys prosecuting their cases. Legal limitations and
oversight measures built into the military justice system guard against
potential abuses of commander authority. As a matter of law, a
convening authority may not refer any case to a general court-martial
(GCM) if the SJA determines that probable cause does not exist. Art.
18(a), UCMJ. Thus, if an SJA finds a lack of probable cause, the
convening authority is prohibited from referring a case to a GCM.
Conversely, if an SJA believes a penetrative sexual assault case should
be referred to a court-martial, but the general court-martial convening
authority (GCMCA) refuses to refer it, the case must be forwarded to
the Secretary of the Air Force for review. The Secretary will conduct
an independent review of the case file and make a decision on referral.
FY14 NDAA, 1744(d). To date, no GCMCA has gone counter to their SJA and
refused to refer a case. Additionally, the Chief of the Air Force's
Government Trial and Appellate Counsel Division (AFLOA/JAJG) may
request that the Secretary of the Air Force review any decision not to
refer a penetrative sexual assault case to court-martial, regardless of
whether the SJA and convening authority agree or disagree on referral.
FY15 NDAA, 541. See also Air Force Instruction (AFI) 51-201,
Administration of Military Justice, para 9.11. Moreover, per SECDEF
policy, only special court-martial convening authorities in the grade
of O-6 or above have initial disposition authority over penetrative
sexual assault cases. Complementary Air Force policy further requires
that a general officer serving as a general court-martial convening
authority review all initial disposition decisions in penetrative
sexual assault cases. These two policies in tandem ensure that sexual
assault cases get the attention of at least two high-level commanders
with significant command and military justice experience, and prevents
a single commander from disposing of a case without review. It is
critical to recognize that, although an SJA works for their commander,
their obligation to provide independent legal advice is derived from
The Judge Advocate General's statutory authority under 10 U.S.C.
Sec. Sec. 806 and 9037 to provide independent legal advice to the
Secretary of the Air Force and Chief of Staff of the Air Force and is
consistent with their ethical obligations as licensed attorneys. A
subordinate judge advocate who believes his or her commander is acting
unethically has the right and the responsibility to raise that issue
through legal channels to superior judge advocates who can work with
senior commanders to promptly intervene. A subordinate judge advocate
always has the right and responsibility to push critical issues up
through the JA chain, if warranted.
Ms. Speier. Two weeks ago, the Department of Defense Inspector
General released a report revealing that in 77 of 82 cases reviewed,
DOD officials either did not ask or did not document that they asked
victims of sexual assault whether they want cases prosecuted in
military or civilian courts. Why did this failure occur? Can you each
commit to me that your services will rapidly put in place a system to
ensure victims are asked whether they prefer their cases to be tried in
civilian or military courts?
General Rockwell. The FY15 NDAA established the requirement to
solicit a victim's preference on jurisdiction for specific enumerated
offenses alleged to have occurred within the United States. FY15 NDAA,
Sec. 534. Air Force policy implemented this requirement on 30 July 2015
through Air Force Guidance Memorandum 2015-01 to Air Force Instruction
(AFI 51-201), Administration of Military Justice. This guidance
required Air Force authorities to solicit the input of a victim of
sexual assault (or attempt thereof) as to preference on civilian or
military prosecution; however the guidance did not require the
solicitation or the victim's response be in writing or otherwise
documented. Consultation with a victim is required in all cases alleged
to have occurred in the United States. However, the Air Force legal
offices audited by the DOD IG for purposes of the report erroneously
believed that consultation was not required for cases which were under
exclusive federal jurisdiction and victims were not consulted about
their preference for prosecution in those cases. The Air Force has
implemented additional safeguards to ensure that victim preference is
requested. The 18 January 2019 update to AFI 51-201 amended this
requirement to document a victim's preference as to prosecution by a
court-martial or a civilian court in writing and to seek a victim's
preference prior to requesting jurisdiction from a civilian entity. AFI
51-201, para 4.18.2.3 and 4.18.2.4. Additionally, as of June 2019, all
wing legal offices will be inspected under Article 6, UCMJ, to ensure
they are seeking, documenting, and maintaining victim preferences.
Moreover, legal offices must follow case preparation checklists, all of
which require soliciting a qualifying victim's preference. Finally,
standards promulgated pursuant to Article 140a, UCMJ, will require the
Services to collect data showing whether victim preference was
solicited in qualifying cases.
Ms. Speier. Are you aware of penetrative offenses under your
jurisdictions being sent to special and summary courts martial while
statute requires them to be tried at general courts martial? What is
the cause of these failures to comply with the law? Can you commit to
more closely tracking these cases to ensure compliance and eliminating
these instances?
General Rockwell. The Air Force is not aware of any penetrative
offenses being sent to special or summary courts-martial in violation
of the statutory requirement to refer qualifying offenses to a general
court-martial. FY14 NDAA, Sec. 1705, limited jurisdiction over
penetrative sexual assault and forcible sodomy offenses to general
courts-martial. The provision went into effect on 24 June 2014 and
applied to qualifying offenses committed on or after that date. Since 1
January 2013, the Air Force has referred 946 adult and child
penetrative sexual assault offenses to courts-martial. None of those
cases resulted in a penetrative offense being referred to a special or
summary court-martial after Sec. 1705 went into effect. We note the
Third Annual Report of the Defense Advisory Committee on Investigation,
Prosecution, and Defense of Sexual Assault in the Armed Forces
(DACIPAD) found two instances where penetrative offenses were referred
to a special court-martial (one in FY15 and one in FY16). Closer review
of these cases shows that neither instance violated Sec. 1705. One case
was originally referred to a general court-martial, but was reduced to
a special court-martial pursuant to a pretrial agreement (for other
non-sexual offenses) after the victim withdrew her participation. The
other case went to an Article 32 hearing with an eye towards referral
to a general court-martial, but the victim withdrew her participation
prior to referral. The remaining drug charges were subsequently
referred to a special court-martial. This is consistent with the
clarification letter provided by the DACIPAD to the House Armed
Services Committee, dated 23 April 2019, which stated that in almost
all instances across the Services, penetrative sex assault cases are
only referred to a forum other than a general court-martial if the
sexual assault allegation is dismissed or downgraded to a non-
penetrative offense. Moreover, in both cases the sexual assault
offenses occurred prior to 24 Jun 14, so they were not subject to Sec.
1705 despite the fact the convening authorities in both instances
followed the spirit of the law. The military justice system contains
multiple safeguards against referring penetrative cases to summary or
special court-martial. For example, Article 34, UCMJ, requires the
commander to consult with a judge advocate prior to referring charges
to a special or general court-martial. Additionally, Air Force policy
requires a general court-martial convening authority to review initial
disposition decisions on all penetrative offenses. Referral is
considered initial disposition. Thus, if a special court-martial
convening authority referred a penetrative sex offense to a special
court-martial, the special court-martial convening authority would be
required to notify the general court-martial convening authority within
thirty days of referral. At that point, the general court-martial
convening authority and his/her staff judge advocate would have an
opportunity to intervene.
Ms. Speier. Do you believe recent expansions of the concept of
apparent unlawful command influence hampers commanders and compromises
their ability to set the necessary cultures within their units? How
would your recommend changing the definition of UCI?
General Rockwell. Recent cases finding apparent unlawful command
influence (UCI) have not compromised a commander's ability to instill
good order and discipline or ``set the necessary culture'' within their
command by expressing their general philosophy on all levels of
misconduct and establishing overall behavioral expectations nor have
the rulings hampered a commander's ability to take appropriate action
in response to an Airman's misconduct. Judge advocates ensure
commanders are educated on UCI and recent rulings to ensure commanders
understand what is and is not acceptable messaging. UCI is a complex
military legal concept. The outcome of an appellate case, or a motion
at the trial level, is determined by the factual findings unique to
that case, application of a consistent test for UCI, and a weighing of
the totality of circumstances. The underpinnings of the prohibition
against apparent UCI are rooted in the constitutional rights of an
accused to receive due process and a fundamentally fair trial without
the political pressure for a predetermined outcome. Historically, these
appellate decisions have clarified the lines between what is and is not
acceptable messaging by a commander to the unit. It is important to
point out that changing who convenes a Court, prefers charges or refers
a case would not change the dynamics of unlawful command influence.
Judge Advocates can commit unlawful command influence. The case law is
to ensure that political pressure and Command influence does not
interfere with an accused's right to receive due process and a
fundamentally fair trial. We also note a Department of Defense
legislative proposal on unlawful command influence, making amendments
to Article 37, UCMJ, has been transmitted to House and Senate Armed
Services Committees for FY20 NDAA consideration. This proposal would
amend the statutory unlawful command influence provision of the UCMJ to
expressly permit convening authorities and commanding officers to
engage in communications with subordinates that do not endanger the
fairness of any military justice proceeding, thereby facilitating
senior leaders' messaging to their subordinates concerning activities
that harm good order and discipline, enhancing senior leaders' ability
to deter misconduct by personnel subject to their authority. This will
eliminate confusion regarding a senior military leader's ability to
properly communicate with subordinate commanders on military justice
matters.
Ms. Speier. Are the recent decisions from CAAF jeopardizing
convictions?
General Rockwell. CAAF has recently overturned convictions in
several sexual assault cases. Some of the overturned cases were due to
their interpretation of new legislation regarding sexual assault. As
with previous legislation, it takes time for the courts to determine
whether the litigants and trial judges are properly interpreting the
changes to the Uniform Code of Military Justice. Similarly, appellate
courts also must review new legislation to determine whether it
withstands constitutional scrutiny. Oftentimes, appellate courts render
their decisions one, two, or sometimes three years after the trial
occurs or takes place. Appellate courts are tasked with the
responsibility of applying the law to the facts and circumstances of
each individual case, and determining whether a verdict was improperly
obtained due to error in the proceedings. With this responsibility
comes the inherent potential to overturn convictions based on abuses of
discretion by the trial court, changes in the interpretation of the
law, or plain error committed during the court-martial. By ensuring the
law is correct through transparent judicial review we ensure trust,
confidence and reliability in the system.
Ms. Speier. One area I am concerned with regarding the SVC program
is the ability of the special victims lawyer to operate independent of
any command, similar to defense counsel. Do you agree that special
victim's counsel should not serve in billets that challenge their duty
to their client?
General Rockwell. Maintaining an attorney-client relationship that
is free from any conflict of interest is a fundamental mandate of the
Air Force Rules of Professional Conduct. To avoid potential conflicts,
the Air Force has always had independent chain of command for special
victims' counsel (SVCs) which runs through the Air Force Legal
Operations Agency. SVCs do not report to any installation-level
commander. Victims' feedback has been, consistently, that having their
own independent attorney is something they value very much.
Ms. Speier. Why did the Marine Corps reorganize their prosecution
community in 2012? What objectives did it fulfill? What are the
benefits of having prosecutors supervised by other prosecutors and not
commanders?
General Lecce. The Marine Corps reorganized its entire legal
community--not just its prosecutors--to optimize the delivery of legal
services. The reorganization consolidated resources and legal
experience into mutually supporting legal centers within a geographic
area. These changes improved the ability of our senior judge advocates
to train and mentor junior counsel, which in turn brought improvements
not just in military justice practice but also in civil and
administrative law and legal assistance matters. Allowing all legal
counsel to be supervised by a more experienced attorney permits focused
professional mentorship and accountability in order to ensure a fair
military justice system. Even prior to the 2012 reorganization, senior
prosecutors supervised Marine Corps trial counsel. However, it is
important to note that every judge advocate is a member of a chain of
command, though not necessarily the chain of command of the convening
authority in a particular case.
Ms. Speier. What happens when a prosecutor's ethical and legal
expertise contradict commanders' opinions? What happens when justice
demands that case be brought forward, and the prosecutor is unable to
because the commander refuses to act?
General Lecce. The Marine Corps has recorded no case in which a
Commander acted against the advice of a Staff Judge Advocate (SJA) to
refer a charge to court-martial. The law places significant limits on a
Commander's discretion in order to protect victims and those accused of
offenses. For example, a Commander's discretion is limited by Article
34, which prohibits sending a charge to general court-martial unless
the SJA advises a Commander there is probable cause to believe the
accused committed the offense. Where a Commander decides not to send
certain sexual offenses to a court-martial against the advice of the
SJA, the law requires this decision to be reviewed by the Secretary of
the Navy. Similarly, if a prosecutor believes strongly that certain
sexual offenses should be sent to a court-martial, that officer may
request the Chief Prosecutor of the Marine Corps review the Commander's
decision not to send the case to trial. Finally, a senior Commander in
the chain of command, with the advice of legal counsel, may assume
jurisdiction of a case if it becomes clear that a junior Commander is
not acting in the interests of justice.
Ms. Speier. Two weeks ago, the Department of Defense Inspector
General released a report revealing that in 77 of 82 cases reviewed,
DOD officials either did not ask or did not document that they asked
victims of sexual assault whether they want cases prosecuted in
military or civilian courts. Why did this failure occur? Can you each
commit to me that your services will rapidly put in place a system to
ensure victims are asked whether they prefer their cases to be tried in
civilian or military courts?
General Lecce. The Marine Corps consults victims on their
jurisdictional preference for case disposition in every case required
by law. In 18 of the 21 cases reviewed by Department of Defense
Inspector General (DOD IG), the Marine Corps consulted with the victim
to determine their preferences concerning prosecution of the case.
These preferences were recorded in the Case Analysis Memo (CAM), a
detailed analysis of the prosecutorial merit of a case. In three of the
21 cases, victims were not specifically asked about their
jurisdictional preference because the civilian authorities had already
declined to prosecute their cases. The Marine Corps requires
prosecutors to solicit and document victim preference. Prosecutors
document that preference in a CAM to inform SJA advice to the Commander
on whether to proceed with a case, accord proper weight to that
preference, and to enable its analysis in the proper context. My staff
is currently in the process of publishing a major modification to our
regulation on legal services. That modification provides updated
guidance to judge advocates on all aspects of military justice,
including specific independent documentation of victim preference for
military or civilian jurisdiction which may be released to auditors.
Ms. Speier. Are you aware of penetrative offenses under your
jurisdictions being sent to special and summary courts martial while
statute requires them to be tried at general courts martial? What is
the cause of these failures to comply with the law? Can you commit to
more closely tracking these cases to ensure compliance and eliminating
these instances?
General Lecce. The Marine Corps has sent no cases involving a
penetrative sexual assault charge to either a special or summary court-
martial since the implementation of Section 1705 of the National
Defense Authorization Act of Fiscal Year 2014 (NDAA FY 14). The Defense
Advisory Committee on Investigation, Prosecution, and Defense of Sexual
Assault in the Armed Forces (DAC-IPAD) identified several Marine Corps
cases where penetrative offenses were initially charged but later went
to trial at special or summary court-martial. In all but one of these
cases, the penetrative offenses were dismissed prior to the court-
martial as part of a pretrial agreement. The remaining case was tried
at a special court-martial, but involved misconduct which occurred
prior to the change in the law. That case also involved a pretrial
agreement where the accused agreed to plead guilty to non-penetrative
offenses. The Marine Corps is committed to closely tracking sexual
assault cases to ensure our continued compliance with the law. To that
end, the Marine Corps is currently evaluating several options to
implement the standards recently approved by the Secretary of Defense
pursuant to Article 140a.
Ms. Speier. Do you believe recent expansions of the concept of
apparent unlawful command influence hampers commanders and compromises
their ability to set the necessary cultures within their units? How
would your recommend changing the definition of UCI?
General Lecce. A Commander's responsibility to maintain good order,
discipline, and welfare includes the authority to set a healthy culture
and address destructive behaviors in a meaningful way. While judicial
decisions may cause Commanders to consider the impact of their actions
on the fair adjudication of individual cases, that consideration is a
valuable means of protecting the rights of accused service members. At
the direction of the Secretary of Defense, the Joint Service Committee
(JSC) recently drafted a legislative proposal to modify the definition
of UCI contained in Article 37. The legislative proposal clarifies
command authority to address destructive cultural issues and behaviors
within their unit. I support that proposal.
Ms. Speier. Are the recent decisions from CAAF jeopardizing
convictions?
General Lecce. The authority of CAAF to set aside convictions is an
important legal safeguard. As with appellate courts in civilian
jurisdictions, CAAF independently reviews the decisions of lower courts
to ensure those decisions are legally correct.
Ms. Speier. One area I am concerned with regarding the SVC program
is the ability of the special victims lawyer to operate independent of
any command, similar to defense counsel. Do you agree that special
victim's counsel should not serve in billets that challenge their duty
to their client?
General Lecce. The Marine Corps Victims' Legal Counsel Organization
(VLCO) has operated independently since its inception in 2013. Marine
Corps Victims' Legal Counsel (VLC) report to a Regional VLC, who
reports to the Officer in Charge of the VLCO. The Marine Colonel in
charge of the VLCO reports directly to me. The supervisory VLC
attorneys handle all matters related to performance evaluations and
professional responsibility for Marine VLCs.
Ms. Speier. Would you agree that following the Air Force's model
and providing the SVC program with additional resources like dedicated
paralegals will help strengthen the program's role in the military
justice process? Will you commit to expanding the use of paralegals?
General Lecce. The Marine Corps VLCO has long employed civilian
paralegals. The nine civilian paralegals currently serving in the VLCO
are instrumental to representation of VLCO clients. These paralegals
work hand in hand with judge advocates to form a strong office team,
and help provide continuity of operations. The VLCO recently added one
civilian paralegal at Marine Corps Base Hawaii, and has plans to add
another this year at Marine Corps Air Station Cherry Point. The Marine
Corps fully supports the mission of the VLCO and will ensure it has
adequate resources to support the program.
______
QUESTIONS SUBMITTED BY MRS. LURIA
Mrs. Luria. 1. Can you elaborate on the statement, ``I trust
military lawyers to make that decision, meaning that decision about the
cases, more than I trust commanders''?
2. Do you acknowledge that a 30-plus-year commander has had to go
through numerous decisions where they had to take into account the
order and discipline of their command and the UCMJ, and the use of
that?
Colonel Christensen. [No answer was available at the time of
printing.]
Mrs. Luria. Do you agree that there are many remedies available for
these cases within the military chain of command? Can you elaborate on
them?
General Darpino. [No answer was available at the time of printing.]
[all]