Beleaguered military justice process to see overhaul thanks to San Mateo congresswoman

“I just can’t tell you how satisfying it is to see this huge problem being addressed finally within the military,” Speier said, who first attempted a similar rule in 2011.

Currently, sexual assault victims must bring claims to their superiors who are responsible for deciding whether cases go to trial. That puts commanders, who are not lawyers and may not have expertise handling the often sensitive cases, in charge of consequential legal decisions.

Not to mention, as Speier points out, “there’s a direct conflict of interest.”

“The commander could be the actual perpetrator, or the best friend of the perpetrator, or is concerned that if he were to recommend a court martial, that it might reflect poorly on his or her promotion opportunities,” Speier said.

The number of sexual assault cases in the military has been steadily increasing since at least 2012, according to a Department of Justice report issued earlier this year. According to Speier, roughly 20,000 sexual assault cases take place within the military yearly, but only 6,000 are reported. Of those, about 500 cases are sent to a court martial, half of which end in convictions and about 150 of which the perpetrators serve time.

“When you look at those numbers you realize, why would anyone report?” Speier said, adding that to do so often only serves to end one’s career. “Our belief is that if they have confidence in the system, that their cases are going to be properly investigated, there’s going to be greater prosecutions and more accountability.” 

Speier further noted that when perpetrators are not held accountable, they are not only allowed to continue with their careers, but with their behavior, which enables sexual predators.

Training surrounding the issue will also get a reworking, with sexual assault training personnel becoming a dedicated position rather than being responsible for multiple roles. Speier said she figures $2 billion has been spent on training over the past decade but that “obviously it wasn’t working.”

There are also several supporting provisions furthering victims’ rights and improving case handlings. Another has to do specifically with sexual harassment, establishing the crime as a standalone offense and similarly removing it from chain of command reporting.

“We have about 100,000 cases of sexual harassment per year and at our military academies, 50% of the female cadets and midshipmen are sexually harassed. So it’s a big problem,” Speier said.

Military officials and some lawmakers have historically opposed removing sexual assault or other crimes from the chain of command, citing a potential to erode order and discipline. According to Speier, her effort received a major push after a particularly horrific case came to light last year.

Spc. Vanessa Guillen was murdered by a fellow service member last year at Fort Knox, her body found buried in a shallow grave two months later. She reported sexual harassment twice before her death, but the reports never made it up the chain of command.

An independent review committee established to investigate the case produced 70 recommendations, among them removing such allegations from chain of command reporting.

Speier introduced a bill in Guillen’s name in 2020 which did not make it to a vote, and reintroduced the bill this year. The bill’s changes were finally incorporated in the NDAA provisions, following Secretary of Defense Lloyd Austin’s June declaration of his support for allowing independent military lawyers to handle sexual assault cases.

“In the end, it had to come from inside, ironically, for them to finally get the message,” Speier said.

Another provision from Speier takes things further, laying groundwork for moving other serious crimes away from the chain of command. That’s something U.S. Sen. Kirsten Gillibrand, D-N.Y., who has similarly long advocated for sexual assault reform, has pushed for but has received less bipartisan support.

Among Speier’s many other provisions are rules designed to address issues surrounding parental leave and child care for service members, health care coverage, suicide prevention, domestic violence, defense of whistleblowers, and protection for women and girls in Afghanistan.

Moving forward, the Senate will pass its own version of the bill which will be reconciled with the House bill in coming months. From there it will require final approval. Speier’s military justice reforms would allow the DOD two years for full implementation, she said.

corey@smdailyjournal.com

(650) 344-5200, ext. 105