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Defense Secretary Promises To Examine Military’s Policy For Convicting Rapists

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"Defense Secretary Promises To Examine Military’s Policy For Convicting Rapists"

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Secretary of Defense Chuck Hagel’s response to Congressional inquiries about what, if anything, he can do following an overturned sexual assault conviction in the Air Force lays bare just how far the military has to go in providing justice to victims of sexual violence.

At issue is Air Force Lt. Gen. Craig Franklin’s decision to overturn a jury’s conviction in the case of Lt. Col. James Wilkerson on charges of aggravated sexual assault. Wilkerson’s reinstatement in the Air Force last week, where his only punishment appears to be his removal from the possibility of promotion, and the dismissal of the jury’s ruling sparked outrage.

Sens. Barbara Boxer (D-CA) and Jeanne Shaheen (D-NH) wrote to Secretary Hagel, demanding to know what action could be taken in the case. In his response [PDF], Hagel informed the senators that Lt. Gen. Franklin’s decision as the convening authority — or the officer who initiated a court-martial — “cannot be changed, either by the Secretary of the Air Force or by the Secretary of Defense per title 10 U.S.C. 860.”

However, the Secretary added that a review of the Uniform Code of Military Justice’s statutes on convening authorities had already been launched:

I have directed the Secretary of the Air Force, in coordination with the Acting General Counsel of the Department of Defense, to review this case to assess whether all aspects of the UCMJ were followed, and, after consultation with the Secretaries of the Army and the Navy, to report to me on whether the case points to changes that should be considered in the UCMJ, or in the military services’ implementation of the UCMJ and, if so, what changes should be made.

Senator Boxer appeared to take Hagel’s letter well, issuing a press statement praising the swift response. “I am heartened that Secretary Hagel is taking immediate action to review the facts of this troubling case and acknowledges that it is high time to take a hard look at how the military handles sexual assault cases,” Boxer said.

Despite Boxer’s enthusiasm, it appears that the actions available to Hagel are limited under current legislation. While the 2013 NDAA put into place several reforms to better prevent and respond to sexual assault, none of them deal with the issues at play in the case of Wilkerson. Rep. Jackie Spier (D-CA) in response to the situation, has announced that she’ll introduce legislation on Tuesday to specifically reform the convening authority.

Spier’s legislation could be part of the solution suggested by Eugene Fidell, who teaches military justice at Yale Law, to “abandon the command-centric aspect” of the military’s justice system. Along with removing the authority of commanders to block courts-martial in the first place, Fidell believes that the U.S. military’s justice system could in this way shift away from its 18th century foundations. “The switch should not be in the hands of a non-lawyer,” Fidell said, in an interview with ThinkProgress.

All told, sexual assault remains an under-reported phenomenon within the military, with an estimated 19,000 instances of Military Sexual Trauma (MST) thought to have occurred in 2011 alone. Former Defense Secretary Leon Panetta in a public statement last week acknowledged that officials in the military often “look the other way” in instances of sexual violence.

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