Defense Secretary Pushes Congress To Change Military Tribunal Rules On Sexual Assault

Secretary of Defense Chuck Hagel on Monday announced that he would provide recommended legislation to Congress to change current rules on military tribunals that allow convicted rapists to go free, in response to a high-profile case that has drawn outrage.

The case in question involved Air Force Lt. Col. James Wilkerson’s conviction before a military tribunal of sexual assault, for which he was tossed out of the military and sentenced to a year in prison. Unfortunately, Lt. Gen. Craig Franklin used his ability as the “convening authority” — or the senior officer who called the court-martial — to overturn the jury’s decision less than four months later and reinstate Wilkerson into the Air Force. Franklin’s decision led to widespread condemnation from members of Congress and the general public.

Hagel in March ordered a review of Article 60 of the Uniform Code of Military Justice (USCMJ), to investigate the ways that changes to the policy could prevent cases like Wilkerson’s from occurring again. The review was completed recently, leading to Hagel issuing two recommendations Monday afternoon that will be sent to Congress in the form of draft legislation:

First, eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial. While convening authorities would no longer have the ability to dismiss charges for serious offenses like sexual assault, defendants would continue to have access to a robust system of appeal rights.

Second, requiring the convening authority to explain in writing any changes made to court-martial sentences, as well as any changes to findings involving minor offenses. The intent is to ensure that convening authorities are required to justify — in an open, transparent, and recorded manner — any decision to modify a court martial sentence.

Hagel also acknowledged that the Pentagon has not done enough to curb sexual assault and pledged to do more:

Despite the attention and efforts of senior leaders throughout the Department of Defense, it is clear the department still has much more work to do to fully address the problem of sexual assault in the ranks. This crime is damaging this institution. There are thousands of victims in the department, male and female, whose lives and careers have been upended, and that is unacceptable. The current situation should offend every single service member and civilian who, like me, is proud of their association with the United States military.

The Secretary’s recommendations should face a warm welcome when they reach the Capitol. “When I met with Secretary Hagel before his confirmation hearing he pledged his commitment to taking this issue head on,” Sen. Kirstin Gillibrand (D-NY) said in a statement provided to the press. “I commend him for honoring that commitment and taking this important step. Now Congress must act on legislation I am drafting with several of my colleagues that will remove authority over these cases outside the chain of command to increase reporting and strengthen accountability in the military justice system.”


There remains a long way to go, however, to ensure that military and civilian leaders no longer look the other way when it comes to sexual assault. In a press statement, the Service Women’s Action Network applauded the move from the Pentagon, but determined it to be “insufficient in addressing inherent system bias facing military sexual assault survivors.” Executive Director Anu Bhagwati said in the statement, “Post-trial review is only one component of the command-driven system that currently governs how military crimes are handled. Unless pre-trial decision-making around investigation and prosecution of offenses is also removed from the hands of commanders and given to impartial prosecutors, military criminal justice will remain a lesser form of justice, both for victims and defendants.”

Women serving in the military and intelligence community only recently won the right to keep post-assault counseling sessions private, rather than revealing them in background checks. Sexual assault still remains an under-reported phenomenon within the military, however, with an estimated 19,000 instances of Military Sexual Trauma thought to have occurred in 2011 alone.