By Rachel Natelson, Service Women’s Action Network Legal Director
Last week, SWAN joined a diverse group of advocates, scholars, and military leaders to address the ongoing problem of military sexual violence before the U.S. Commission on Civil Rights. An advisory body monitoring the development of national civil rights policy and assessing enforcement trends, the Commission serves the public by providing opportunities for discussion of existing and emerging civil rights issues. In addition to engaging in fact-finding and analysis on current laws, it also issues recommendations for updates or changes to the status quo.
When it comes to quelling the epidemic of sexual violence in the military, the fairness and efficiency of the status quo seems at first glance to be a matter of surprising consensus. If advocates for victims and for defendants could agree on little else at the hearing, they voiced a common concern over the types of charging decisions yielded by command discretion over criminal case disposition. Whether recounting instances of unmerited prosecutions or citing improper refusals to prosecute, advocates expressed the same frustration with the practical results of allowing commanders to decide whether or not to invoke the judicial process in criminal cases.
In light of this shared recognition, I never fail to be surprised by the divergence in our perspectives on the need for reform. Surely, the best way to guard against improper prosecutorial motives is to professionalize case disposition by vesting authority in a neutral specialist. If criminal defense attorneys genuinely seek a system that prioritizes evidentiary merit over extra-legal concerns, it only makes sense to remove interested parties from the process of assessing evidence and formulating charges; in fact, it was to protect the rights of defendants that a number of our allies abroad transferred authority over criminal cases from commanders to independent prosecutors.
For victim advocates, the advantages of decoupling criminal justice from mission pursuit are equally obvious. Apart from compromising adjudicative impartiality, command discretion places victims at risk of adverse personnel action by filtering criminal justice through the lens of job performance and career advancement. By approaching criminal justice from a personnel perspective, this policy promotes widespread fear of reprisal, creating a significant barrier to reporting.
Of course, agreeing on the problem is the easy part. A harder step will be to cast aside institutional loyalties in order to do what’s best for the individuals behind the uniform.