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AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON ARMED FORCES LAW
JUDGE ADVOCATES ASSOCIATION
JUDICIAL DIVISION
STANDING COMMITTEE ON LEGAL ASSISTANCE FOR MILITARY PERSONNEL
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
RESOLVED, That the American Bar Association urges the Department of Defense to strengthen further its efforts to prevent and eliminate sexual assault within the military by continuing to augment and enhance its education and training, its response capability, its victim support services, its reporting procedures, and its continuing efforts to ensure accountability through the military justice process.
FURTHER RESOLVED, That the American Bar Association opposes the enactment of H.R.
3435, 112 th
Congress, the Sexual Assault Training Oversight and Prevention Act or similar legislation.

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REPORT
Introduction and Reasons for the Resolution
General George Washington proclaimed, “Discipline is the soul of an Army.” For centuries, General Washington’s wisdom has been a bedrock principle of the United States
Armed Forces. The backbone of a disciplined force is an effective commander-focused military justice system which appropriately balances the rights of accused military members to a fair process, the interests of victims, and the needs of a commander to preserve good order and discipline within a unit to maintain focus on the mission at hand. The military justice system has proved resilient, evolving in a manner consistent with bedrock principles of American justice, while retaining its commander-focused character.
H.R. 3435, the Sexual Assault Training Oversight and Prevention Act
(the “STOP Act”), currently pending in the U.S. House of Representatives, proposes to alter the military justice system by removing commanders from the process and centralizing prosecution authority in the
Pentagon, thousands of miles from victims, police, witnesses and crime scenes, on the unproven and unstudied assumption that a centralized process would better serve the interests of justice and combat the crime of sexual assault. The STOP Act would undermine ongoing legislative and policy efforts to combat sexual assaults in the military as well as compromise the proven institutions and procedures of American military justice that have been forged through generations of judicial and legislative experience to balance the rights of the accused and the victim, the interests of justice, and the commander’s essential responsibility to maintain the health, welfare, morale, discipline, and readiness to execute missions in support of the National
Security of the United States. The proposed modifications would permanently displace the established Rule of Law military legal system and upset it in a significantly negative manner-without yielding the promised benefits. They will introduce additional confusion in investigative authority, will not reduce the number of sexual assault crimes in the military or enhance the ability to prosecute. It should be noted that where the responsibility has been placed in other institutions for exclusive prosecution of crimes in the federal system, e.g., Native American reservations, the evidence shows lower rates of prosecution than in the military justice system.
Today’s military justice system, including improvements introduced by the armed forces and direct involvement of Congress, is sufficiently robust to achieve the STOP Act’s goals of aggressively confronting sexual assault without the proposed radical change to military justice processes, the fragmenting of command responsibility for a whole category of offenses, and the unprecedented centralization of prosecutorial discretion.
The ABA should therefore urge rejection of the STOP Act. Recent intensive legislative and executive programs and efforts are having a positive and in some cases, dramatic, effect on this inherently difficult problem. The Department of Defense has implemented numerous programs both to assist victims and to enhance the prosecution of sexual assaults in the military as it strives to eliminate sexual assaults. This is a time to indicate strong support for the recent reforms in the military justice process and efforts to combat sexual assault in the military and to recognize the modern military justice system’s well-balanced approach of delivering accountability for the accused and justice for victims.
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The Modern Military Justice System is Fundamentally Strong, Fair, and Flexible
Over the past 62 years, as the application of the UCMJ has evolved with presidential rulemaking, Congressional modification, and judicial oversight, it has developed into a carefully balanced system ideally suited for the military and capable of serving the interests of commanders as well as the troops who serve under them. Furthermore, the modern military justice system has resoundingly withstood judicial scrutiny. The United States Supreme Court has recognized that “the military constitutes a specialized community governed by a separate discipline from that of the civilian.”
Orloff v. Willoughby , 345 U.S. 83, 94 (1953). Further, the
Supreme Court has also recognized the importance of military-unique decision making in the context of the criminal justice system: “[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the … control of a military force are essentially professional military judgments.”
Gilligan v. Morgan , 413 U.S. 1 (1973). In addition, the Supreme Court has more recently rejected a challenge to the independence of military judges. See Weiss v. United States , 510 U.S.
163 (1994).
The Uniform Code of Military Justice (UCMJ), codified in Chapter 47 of Title 10, United
States Code, has been a flexible system of justice aimed at providing commanders the tools to maintain good order and discipline in a world-wide combat environment, while preserving fundamental rights, guarantees of due process, and fairness for the military accused. The UCMJ provides for extraterritorial application of all provisions within the Code to govern the behavior of military members, with established jurisprudence allowing for global prosecution of military offenders. The military justice system provides flexibility and efficiency, global enforcement without being subject to extraterritorial restrictions of other federal statutes, and promotes good order and discipline by delivering punishment appropriate for the offense and offender, sending an appropriate message about obedience to rules to the rest of the offender’s unit, and allowing the offender, unit, and commander to return quickly to focusing on the mission. In short, a commander-run disciplinary system is foundational to military readiness.
A commander-run disciplinary system, however, does not permit interference with the independence of a military judge or jury. A commander makes the initial decision as to level of discipline to address an alleged offense, whether nonjudicial, administrative or in a trial, but once the case has been referred to trial, the trial process is independent of any command influence. 10
U.S.C. § 837.
The UCMJ also provides broad protections for the individual military member and prevents undue command influence throughout the process. For example, the warnings given to military members suspected of committing an offense are broader than (and pre-date) those required by Miranda (10 U.S.C. § 831); unlike a civilian grand jury investigation controlled by a prosecutor, an independent military investigator is appointed to determine whether there is enough evidence to proceed with the most serious of criminal cases (10 U.S.C. § 832); an accused military member has the right to access and be represented by qualified and free military defense counsel regardless of economic status (10 U.S.C. § 827); an independent military judge presides over courts-martial (10 U.S.C. § 826); the rules of evidence are modeled after the
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The net result of the UCMJ is a flexible, fair system tailored to the unique global military operating environment and ensuring that military members will be tried under the U.S. legal code, and ensuring that they will not be subject to the laws of foreign countries, where the rule of law may not hold the same core value and may not ensure rights of an accused which meet the
American legal standards. Furthermore, the UCMJ is designed to resolve matters relatively quickly and in operational environments ordinarily avoiding the delays regularly a part of U.S. subjecting troops to civilian courts, which would create delay and uncertainty for the military member and his command, and undermine the ability of that command to operate effectively.
Finally, the UCMJ has evolved with changing times. The President has the power to make rules implementing the UCMJ ( see 10 U.S.C. § 836), decisions of military courts are subject to appellate judicial review, including the Supreme Court ( see 10 U.S.C. § 866- 867a).
Fundamental Change to the UCMJ Is Not Warranted
The STOP Act proposes a radical reengineering of the military justice system, without precedent, study or any real prospect of improving the administration of justice in cases of sexual assault.
In 2009, the National Institute of Military Justice (NIMJ) sponsored a study of the military justice system, led by Judge Walter T. Cox III, and serving as a follow-up to a 2001 study by a group led by Judge Cox. In its 2009 report, the Cox Commission reflected upon its initial endeavor in 2001:
“Eight years ago, the first Cox Commission assessed the state of military justice in the
United States and urged elected officials, policymakers, civilians, and scholars to pay more attention to the quality and substance of the criminal law and procedure to which
Servicemembers are subjected. That first Cox Commission sought to trigger debate and reform not because the system was broken, but because too few elected officials, attorneys, and policymakers seemed aware of the importance, consequences, and distinctiveness of military justice.”
The follow-up study in 2009 reaffirmed the importance and the fundamentally sound nature of the military justice system, including the central role of the commander in the process:
“The core of American military justice, the Uniform Code of Military Justice (UCMJ), has proven resilient, its viability evident through nearly six decades of operation. Since
Congress adopted the UCMJ in 1950, countless deployments, far-flung theaters of operation, and high-profile courts-martial have demanded flexibility and accountability from military justice. In recent years, the system created and governed by the UCMJ has continued to operate effectively through the increased tempo of operations and distinctive legal challenges of the ongoing wars in Iraq and Afghanistan. The Code has been adapted to new challenges and concerns. Its application to civilians has been broadened, its rules
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After taking a hard look at the UCMJ, we believe it has weathered the test of time in impressive fashion. United States military criminal law and procedure constitutes a body of law of which Americans can be proud. It protects the rights of
Servicemembers, permits robust access to counsel, and grants commanders the latitude to pursue operational objectives, yet promote fairness and justice in military courts.
“The United States departs from the UCMJ, and from its longstanding commitment to just and transparent procedures in military courts, at its peril.”
H.R. 3435 Relies on Inaccurate Statistics to Support Creation of a New Centralized
Bureaucracy to Address One Category of Offenses
Against the backdrop of elevated awareness of the crime of sexual assault both in the military and in society, Congress and the Department of Defense have sought to address this crime comprehensively through a series of legislative initiatives and policy reforms over the past eight years. Such measures have included the creation of a Sexual Assault Prevention and
Response Office (SAPRO) within the DoD to promote prevention, encourage increased reporting of the crime, and improve response capabilities of victims; the creation of “restricted” and
“unrestricted reporting” for sexual offenses, whereby victims can confidentially report a sexual assault to a specially trained victim advocate and obtain medical and emotional support and assistance without triggering an investigation or command involvement (restricted) or report a sexual assault with the intent that it be investigated and prosecuted, while still receiving the support from a victim advocate and medical services (unrestricted); a requirement that the DoD’s activities in combating sexual assault are reported to Congress each year; and revising Article
120 of the UCMJ to redefine the offense of rape and sexual assault in 2006 and more recently, in the FY 2012 National Defense Authorization Act, Pub. L. 112-81 (Dec. 31, 2011) to address concerns about the constitutionality of the sexual assault offenses designed by Congress in 2006.
On balance, these reforms have had a significantly positive effect on the military’s efforts to confront aggressively the crime of sexual assault.
The STOP Act unwisely seeks to combat sexual assault by removing commanders from the process of handling sexual assault cases and instead, leaving it to a single Director of
Military Prosecutions to oversee all military sexual assault prosecutions and determine which cases go to trial (as opposed to commanders). This proposal rests on the twin fallacies that commanders are not fulfilling their duties under the UCMJ and that a centralized bureaucracy in the Pentagon, thousands of miles from the crime, the victim and the investigators will be able to do a consistently better job. Despite the noble intentions of its proponents, the STOP Act, H.R.
3435, would fundamentally alter the military justice system. Such radical reform is particularly unwarranted when the evidence shows that recent reforms and initiatives are having a dramatic positive impact on the incidence of sexual assault and the military response to the problem.
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Unfortunately, the STOP Act’s assumptions about the military’s response to sexual assault are based upon flawed factual assumptions. The numbers which the supporters of the
STOP Act have relied upon must be recognized as extrapolations which have been taken from a much lower report of numbers of sexual assaults. An assumption has been made that, as sexual assault is underreported globally, then it must be underreported in the military. While that is undoubtedly true, the best estimates are not, in fact, statistical representations of known cases of assault, but rather represent numbers derived from actual reports, and adjusted for the degree of underreporting believed to be accurate. Additionally, it is important to note that the 2010 DoD survey regarding sexual assault and sexual harassment concluded “[o]verall the results of this survey indicate the DoD has made progress in its efforts to reduce sexual assault and provide care/support to victims. Additionally, results also indicate the DoD is effectively educating
Service members on resources available to them if they are a victim of sexual assault and training them on ways to reduce experiences of sexual assault.”
This finding in the DoD survey is supported by the trend analysis from the survey showing an overall decrease in the number of sexual assaults in the military between 2006 and
2010—the first four full years after the DoD’s creation of the SAPRO program. In 2006, the
DoD survey indicated that 6.8% of women and 1.8% of men had experienced unwanted sexual contact in the previous year, whereas the 2010 DoD survey asked the same questions and found that 4.4% of women and .9% of men had experienced unwanted sexual contact. That means that in the first four full years of SAPRO’s creation in 2005—the time when DoD started aggressively to address sexual assault—unwanted sexual contact decreased by 35% for women and 50% for men.
H.R. 3435 Relies on Anecdotal Claims to Draw Inaccurate Institutional Inferences
As noted above, the STOP Act makes a variety of unwarranted assumptions about the military justice system and relies on old canards which are manifestly untrue. For example, the bill's preamble claims that military adjudication “lacks independence, as military judges depend on command.” This is inaccurate. Supreme Court has said otherwise. See Weiss . Moreover,
Article 6 of the UCMJ, 10 U.S.C. § 806, protects judge advocates—the lawyers who prosecute and defend cases—from command retaliation during the assignment process. Assignments for judge advocates are determined by the service Judge Advocates General (or, in the case of
Marine Corps judge advocates, by the Commandant of the Marine Corps with advice from the
Staff Judge Advocate to the Commandant). Furthermore, all military judges are assigned to purely legal organizations under each service’s TJAG; their performance reports are not written by commanders.
In addition, the STOP Act unfairly asserts that the “military atmosphere is not conducive to resolving issues of sexual assault and harassment, and sexual violence continues to infect the
Armed Forces.” This claim is without factual foundation. While sexual assault and misconduct is a serious problem, as it is on college campuses (where similar social and demographic conditions exist), the military justice system is effectively addressing the issue and has shown dramatic improvements that put it well ahead of many civilian jurisdictions in addressing the issue. Not only do anonymous survey data indicate that unwanted sexual contact has decreased by 35% for women and 50% for men in the first four years of SAPRO’s creation in 2005, the
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2010 DoD survey indicated that “overall, Service members had a more positive view of progress in the military than in the nation” regarding the issue of combating sexual assault.
The STOP Act also claims that the hallmark of the military justice system—command discretion—“raises serious concerns about conflicts of interest and the potential abuse of power.”
This purported concern underestimates the selfless role commanders play in the military on a daily basis. To assert that a commander has a conflict of interest because he or she could opt to send a case to court-martial and potentially punish the troop ignores the fact that commanders routinely regularly address other situations giving rise to a “conflict of interest” in pursuit of selfless objectives. For example, a commander must routinely require his or her troop to perform unpleasant—and sometimes life-threatening tasks—in the pursuit of military objectives; nobody claims that these commanders have a conflict of interest in this situation--because making such decisions is the essence of their job. Likewise, sending appropriate cases to trial is a responsibility of command, even if it means punishment for a member of his or her unit.
Moreover, this STOP Act claim seems to imply that commanders routinely sweep cases
“under the rug” by not sending them to court-martial. This perception is not reality. According to the FY 11 SAPRO report, since 2007, commanders have steadily increased the rate at which they prefer court-martial charges for sexual assault against their troops and decreased the percentage of cases they dismissed. For example, in FY 07, commanders preferred court-martial charges on 30% of allegations they had the jurisdiction and authority to dispose. By FY 08, that number had increased to 38%. By FY 09, commanders preferred charges in 42% of cases. In
FY 10, the figure had jumped up to 52% of cases, and by FY 11, commanders preferred charges in 62% of cases—more than double the rate from just four years before. Meanwhile, commanders determined that only 2% of cases were “unfounded” in FY 11 and dismissed them without action, as opposed to 7% of cases in FY 09. A commander should not send every allegation to trial; there must be reasonable grounds to believe that an offense triable by courtmartial has been committed by the accused. See United States v. Hardin , 7 M.J. 404 (C.M.A.
1979). As such, the remaining cases resulted in some form of punishment short of court-martial.
It is of some value to weigh this rate of prosecution against the reported low rates of prosecution in cases where indigenous women have been victims of sexual assault, and where the exclusive jurisdiction of non-native perpetrators was assigned to federal prosecution. See
Amnesty International Report Maze of Injustice, May 2007.
Conclusion
In the end, while the STOP Act’s goals are to improve prosecutions, its approach relies on flawed assumptions and a fundamental misunderstanding of the importance of the commander in the military justice system. Through hundreds of years of military justice administration, we have come to appreciate the importance of the commander in the military justice process. The commander’s ability to resolve matters in a military environment should not be discounted, and is vital to maintaining an effective fighting force. As such, we should applaud Congressional and DoD efforts to combat sexual assault, but be wary about any approach that fundamentally alters the military justice system. Quite simply, drastic changes to America’s military justice system would have unintended consequences harmful to military discipline, military readiness,
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Respectfully submitted,
John D. Altenburg, Jr.
Chair, ABA Standing Committee on Armed Forces Law
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GENERAL INFORMATION FORM
Submitting Entity: ABA Standing Committee on Armed Forces Law
Submitted By: John D. Altenburg, Jr., Chair
1.
Summary of Resolution
This Resolution urges the United States Congress to continue ongoing efforts in legislation and policy that combat sexual assaults in the military, but not to pass hastily conceived and misguided legislation that would undermine the authority of military commanders to preserve good order and discipline while focusing on the mission.
2.
Approval by Submitting Entity
The Standing Committee on Armed Forces Law approved the submission of the Resolution on 4 May 2012.
The Judge Advocates Association approved the submission of the Resolution on 7 May 2012.
The Judicial Division approved submission of the Resolution.
The Standing Committee on Law and National Security approved submission of the
Resolution.
3.
Has this or a similar resolution been submitted to the House or Board previously?
No.
4.
What existing Association policies are relevant to this Resolution and how would they be affected by its adoption?
None.
5.
What urgency exists which requires action at this meeting of the House?
Proposed legislation in the U.S. House of Representatives would remove authority from commanders to act under the Uniform Code of Military Justice in cases involving sexual assault.
6.
Status of Legislation
Pending in House Armed Services Committee.
7.
Plans for implementation
Not applicable.
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8.
Cost to the Association
None.
9.
Disclosure of Interest
None. Proponents of the Resolution are acting purely in the public interest.
10.
Referrals
Standing Committee on Gun Violence
Standing Committee on Law and National Security
GP Solo & Small Firm Division
Criminal Justice Section
Commission on Domestic and Sexual Violence
Judicial Division
Section of Litigation
Section of Individual Rights and Responsibilities
11. Contact Name and Address Information
John D. Altenburg, Jr.
8438 Rushing Creek Court
Springfield, VA 22153-2531
202.331.3136 Office
703.915.6152 Mobile altenburgj@gtlaw.com
12. On-Site Name and contact information
John D. Altenburg, Jr.
202.331.3136 Office
703.915.6152 Mobile altenburgj@gtlaw.com
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EXECUTIVE SUMMARY
1. Summary of the Resolution a. Affirms the efforts made by the Department of Defense in addressing the critical societal issue of sexual assault. Reaffirm the critical role that commanders play in maintaining good order and discipline in the Armed Forces under the Uniform Code of Military Justice and express opposition to the passage of any legislation that would diminish that role b. Urges the United States Congress to continue ongoing efforts in legislation and policy that combat sexual assaults in the military, but not to pass well intentioned legislation that would undermine the authority of military commanders to preserve good order and discipline while focusing on the mission.
2. Summary of the Issue that the Resolution Addresses
Proposed legislation in the U.S. House of Representatives that removes authority from commanders to act under the Uniform Code of Military Justice in cases involving sexual assault.
The Act instead vests authority in a three-tiered central structure at the Department of Defense.
The legislation creates a Sexual Assault Oversight and Response Council that would appoint and advise a Sexual Assault Oversight and Response Office to oversee nearly all aspects of sexual assault investigation, training, and victim response. Among the Office's central roles would be to coordinate with appropriate military criminal investigative organizations to carry out investigations of accusations of sexual assault as well as exercise the power to determine whether alleged victims or alleged perpetrators of sexual assault should be temporarily reassigned to ensure separation from each other. The statute also establishes a Director of Military
Prosecutions. This position undermines the critical role commanders and their local prosecutor advisors have in maintaining good order and discipline by eliminating commanders' role in determining whether a case goes to trial. This centralized director would have final authority to oversee the prosecution of all sexual-related offenses under the UCMJ and would serve as the convening authority for these cases. Finally, the Director can request that sexual-related offenses be referred to a military appellate court or to the Department of Justice prior to a judge rendering a verdict in the case. Commanders would be allowed to retain jurisdiction in all other cases.
3. How the Proposed Policy Position Will Address The Issue
Urges all institutions of government to continue to implement responsible reforms, while giving the highest attention to the rights and needs of victims, without compromising the rights of the accused or disrupting the proven institutions and procedures of American military justice that have been forged through generations of judicial and legislative experience to balance the rights of the accused, the interests of justice and the commander’s essential responsibility to maintain the health, welfare, morale, discipline, and readiness to execute missions in support of the National Security of the United States
4. Summary of Minority Views Or Opposition That Have Been Identified
None identified.
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