Democratic Sen. Kirsten Gillibrand and Republican Sen. Joni Ernst say they have enough votes in the chamber to pass a bill that would reform how the U.S. military handles cases of sexual assault and other crimes.
The legislation, among other things, would take sexual assault cases out of the chain of command and instead hand them to independent military prosecutors.
When a case of sexual assault is reported, by law it is turned over to the investigative authorities within each military branch.
“Once that investigation is complete, they give it to a commander of the subject of the investigation — the suspect,” says Col. Don Christensen, the former chief prosecutor for the U.S. Air Force and the president of Protect Our Defenders, a nonprofit aimed at ending sexual assault in the military.
The commander is the decision maker, he says. They can either start a criminal prosecution or decide not to act.
“They do get advice from a lawyer,” he says, “but ultimately the chain of command is the person who makes the prosecution decisions that, in the civilian world, are made by lawyers.”
Christensen says there’s almost always a clear conflict of interest at play during the process because the commander oversees the suspect.
“That’s going to impact their decision-making,” he says.
In 2019, only 7% of the sexual assault cases the military pursued in court resulted in a conviction, according to the Department of Defense. There are also the cases that do not make it to court and the uncounted cases that go unreported.
Because the decision makers aren’t lawyers or prosecutors and do not have complete training on the law or traumatic impacts of sexual assault, “there is a lack of faith in the survivors who are sexually assaulted that their case will be handled well by the chain of command,” he says, “so they often don’t come forward.”
“When they do come forward, they often suffer retaliation. As a result, they will drop out of the process,” Christensen says.
The military has consistently opposed any reform that would take away the authority of commanders to make prosecution decisions, he notes.
“They have been successful, up to this point, in convincing enough members of Congress that it’s critical that they and they alone have prosecution authority,” Christensen says.
Amy Marsh, the spouse of an active-duty Air Force member, experienced the unilateral power of commanders firsthand. After a function with her husband’s unit at Travis Air Force base near Fairfield, California, Marsh says she was sexually assaulted by a chief master sergeant who was supposed to be her husband’s mentor.
It took her months to report, and Marsh says she only realized it was sexual assault after a conversation with a chaplain on base. When Marsh and her husband did report, Marsh says she didn’t have an understanding of how the military’s separate set of laws operated.
“After the investigation had been completed,” she says, “it was ultimately the commander’s decision on what they were going to do. The commander knew the assailant, who had 28 years of experience in the Air Force and had gained a reputation at that point.”
“The commander had also known me and my husband, who had two, maybe two years in the Air Force,” Marsh says.
Ultimately, that commander decided not to bring Marsh’s case to court, communicating with her through a liason. Marsh and her husband brought the case up the chain of command to the commander of the 18th Air Force at the time, who also declined to prosecute the case and only pursued administrative action against her alleged assailant.
“The issue I have with that is that neither of the commanders themselves took the time to explain to me, the victim, as to why they made these decisions,” she says. “They had someone else explain this to me, and I never had a chance to ask them follow-up questions directly to that commander.”
After both commanders declined to prosecute, the Marsh family uprooted from the base and left California. Marsh says she is now healing through intensive counseling, and her husband is applying to separate from the Air Force, but she says the mental wounds the process has inflicted on her husband are more severe.
“He had really trusted this man with his life,” Marsh says, referring to the chief master sergeant she says sexually assaulted her. “When this man had betrayed that trust, that destroyed any ability that my husband had to trust anybody.”
As senators weigh the reforms that would remove commanders from the process and bring in independent military prosecutors trained in the military’s code of laws, she says she hopes the legislators will listen to the stories like hers.
The pervasive problem in the military isn’t just damaging the lives of active servicemembers and military spouses, Marsh says, but the next generation of soldiers.
“We have a 6-month-old baby right now,” she says. “We don’t want my son to join the Air Force if things don’t change.”
This segment aired on May 10, 2021.