San Antonio Express-News: Editorial: Military justice reforms a start, more work remains
San Antonio Express-News – December 16, 2021
By Express-News Editorial Board
The prolonged battle against sexual assault in the armed forces has finally led to the most significant reforms of the military justice system in the nation’s history, but it should never have taken so long, and there’s still much more room to improve.
The reforms, which have been needed for years, were spurred in part by the death of Army Spc. Vanessa Guillén last year. Guillén, a Fort Hood soldier and Houston native, reported being sexually harassed to her chain of command, who then largely ignored her claims. Soon after, a fellow soldier murdered her. We’re left to wonder, “what if” these reforms had come sooner.
The 2022 National Defense Authorization Act calls for independent military prosecutors to replace commanders in deciding to prosecute those accused of any of a dozen serious offenses including sexual assault, rape, murder and domestic violence.
Under the current system, military commanders — typically non-lawyers with little legal training — have vast authority, including whether to charge or try the accused. Commanders can also select the jury pool, allow expert witnesses, adjust charges, approve or deny plea deals and appeal adverse decisions by judges.
On ExpressNews.com: Editorial: What if military had responded to Guillén’s complaints
The absurdity of a commander wielding such legal power would be like a professional sports team coach deciding whether to prosecute their star player, a chief executive of a company making decisions about an employee’s case or a mayor selecting the jury in a high-profile trial.
These provisions create a baked-in bias that makes justice elusive for both victims and the accused.
While the new law will transfer some responsibilities to military prosecutors outside the chain of command, advocates for change say the system remains flawed.
“It’s major reform, no doubt about it, but we left some things on the table that should have been included,” said retired Air Force Colonel and lawyer Don Christensen, president of Protect our Defenders, a human rights group that’s leading the call for change. “It left in place the convening authority system controlled by commander, and that’s more than symbolic.”
According to Christensen, the commander’s legal authorities would be judicial or prosecution functions in the civilian world. These include the ability to give immunity, order depositions, grant a discharge in lieu of trial and select jury pools.
The commander’s ability to pick jury pools, “is something that’s been kind of a blemish on military justice throughout its history that the person sending the case to trial also selects the court members,” he said. “And those court members work for that person. It’s always been viewed as a weakness of the process.”
Language to allow random jury member selection didn’t make it into the bill.
The discussion highlights another problem with the military legal system; that many military lawyers don’t get significant experience as litigators due to service-required job and responsibility changes.
Christensen cited service statistics as an example of how the military frequently loses cases. He said, Air Force statistics showed the service lost 37 percent of all its cases and 77 percent of sexual assault cases in 2021.
Across the services in 2020, the military prosecuted 255 adult sex assault cases and convicted 50.
“I’ve heard nothing from any senior JAG of any service express concern about their prosecution or conviction rates, and they’re the ones in charge,” he said.
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Despite the military justice system’s remaining flaws, according to Protect our Defenders the 2022 NDAA also calls for sentencing reform and guidelines, enhanced victims’ rights, criminalizing sexual harassment, independent investigations of sexual harassment complaints, a requirement for DOD to track retaliation, stronger policies for tracking missing service members, military investigative agency reform and an assessment of racial disparities in the military justice system.
It’s naive to think the problem doesn’t hit close to home. Four service members assigned to Joint Base San Antonio will face court-martial for rape, sexual assault or domestic violence through February.
The 2022 NDAA’s military justice reform is a step forward, but no one should view this as the final step.