As submitted for the record:
“I thank Chairman Levin for convening this important hearing.
“Today, we will address the legal and moral foundation of our nation’s military readiness, the Uniform Code of Military Justice, or “UCMJ”. Under the Constitution, Congress has the unique responsibility to make rules to govern and regulate our military. This responsibility is particularly important as we evaluate the effectiveness of the UCMJ in the context of combatting sexual assault.
“Last year we created the Independent Panel to Review the UCMJ and Judicial Proceedings of Sexual Assault Cases, under Section 576 of the FY2013 National Defense Authorization Act (“NDAA”). This panel was tasked with assessing the response systems used to investigate, prosecute and adjudicate crimes involving sexual assault and related offenses and to develop recommendations on how to improve the effectiveness of those systems. The work of that commission has only just begun and we must allow it the opportunity to do what it was created to do.
“Over the last decade Congress has passed a number of laws to better equip the Services to combat sexual assault, including ten provisions in last year’s NDAA alone. Those changes from the FY2013 NDAA include the following:
- Section 523 eliminates accession waivers for individuals convicted of felony sexual offenses, including “rape, sexual abuse and sexual assault.”
- Section 571 allows continuation of a member of the reserve component who is an alleged victim of sexual assault while on active duty for the purpose of making a line of duty determination.
- Section 572, requires the Secretary of Defense (“SECDEF”) to modify the revised comprehensive policy for the sexual assault prevention and response program to establish additional requirements to retain records of dispositions of allegations of sexual assault; to require Services to establish policies to require administrative discharge processing for individuals who are convicted of rape, sexual assault and forcible sodomy whose final approved punishment does not include a punitive discharge; to conduct command climate assessments within 120 days of assuming command; and at least annually, for the purpose of preventing and responding to sexual assaults, to proactively provide information about resources available to report and respond to sexual assaults; and to establish a general education campaign to notify service members of the authorities available for correction of military records when a member experiences any retaliatory personnel action for making a report of sexual assault or sexual harassment.
- Section 573 requires the SECDEF to prescribe regulations for the Service secretaries to establish special victim support and defense capabilities for sexual offenses and other offenses.
- Section 574 establishes enhanced commanders’ training for sexual assault prevention and response.
- Section 575 modifies annual Department of Defense (“DoD”) reporting requirements regarding sexual assaults, to include requiring case synopses if an individual is administratively separated or allowed to resign in lieu of court-martial; identify whether a member accused of committing a sexual assault was ever previously accused of a substantiated sexual assault or allowed to enter the service under a moral waiver with respect to prior sexual misconduct, and a statement of the nature of the punishment in cases where a sexual assault case results in non-judicial punishment.
- Section 576 established a panel to conduct and in-depth review and assessment of judicial proceedings under the UCMJ, with focus on sexual assault and related offenses.
- Section 577 establishes retention requirements for restricted reports of sexual assault.
- Section 578, requiring general or flag officer review of proposed involuntary separation of any service member who made an unrestricted report of sexual assault, recommended for separation within one year of making the report, and where the member believes the involuntary separation was initiated in retaliation for making the report.
- Section 579 modifies DoD policy and plan for prevention and response to sexual harassment.
“Our commanders haven’t had enough time to implement the most recent changes and now some think we need to change things again. I think that would be a mistake to legislate initial demands on the Department and the Services until they have had an opportunity to assess the effectiveness of these recent legislative requirements.
“As we consider additional changes to the law in this year’s National Defense Authorization Act, we should keep three things in mind: First, and fundamentally, we cannot abolish sexual assault by legislation alone. Eliminating sexual assault requires commanders to drive cultural change and achieve accountability. Secondly, we must allow our commanders an opportunity to address those recent changes in the law and to monitor and assess their effectiveness. And third, while I share Chairman Levin’s concerns that we should not delay considering things that could make immediate, positive changes, I strongly believe we must be deliberate in making fundamental changes to the UCMJ. There is a risk of unintended consequences if we act in haste without thorough and thoughtful review. Rushing to change the law yet again could prove counterproductive to our ultimate objective of providing a sound, effective, efficient and fair military justice system.
“Over the past few weeks, several of my colleagues have introduced bills that propose significant changes to the UCMJ. I thank them for their commitment to combatting sexual assault in the military and look forward to working collaboratively with them on these efforts. But I’m opposed to any provision that would remove commanders from their indispensable role in the military justice process.
“As we take up our responsibility we must not forget that the military is, by necessity, uniquely separate from the civilian society. Military service requires those who serve to give up certain rights and privileges that civilians enjoy. Those who volunteer to serve must, at times, subordinate their will to that of the commanders appointed over them, under the authority in the Constitution and the UCMJ.
“The UCMJ forms the foundation of command authority and military readiness. The Supreme Court observed that the armed forces depend on a command structure that at times must send forces into combat, not only at risk to their lives but ultimately involving the security of the Nation itself. Such a command structure cannot exist and cannot succeed without commanders. Our nation entrusts our commanders to lead our forces to fight and win our Nation’s wars. Those commanders voluntarily take an oath to defend the United States against all enemies, foreign and domestic. Sexual assault is such an enemy to morale and readiness. But it is more than that: it is an affront to the dignity of those who are its victims. The men and women of our military must often tolerate arduous duty, separations from loved ones, and loneliness. But they must not tolerate sexual assault.
“Some have criticized our commanders and the military justice system because of a recent case in which a court-martial was set aside. But if you take time to look at the statistics you will see commanders have only set aside findings of guilt in extraordinarily rare circumstances, about one percent (1%) of cases. Specifically:
- Marine commanders only set aside findings in 7 cases out of 1,768 or zero-point-four percent (0.4%) from 2010 to 2012.
- Air Force commanders only set aside findings in 40 of 3,713 cases over five years. That is one-point-one percent (1.1%).
- Army commanders set aside findings in only 68 of 4,603 cases since 2008, or about one-point-four percent (1.4%)
- Navy says its commanders only set aside findings in four of the 16,056 cases they have tried from 2002 to 2012. That would be point-zero-zero-zero one percent (0.0001%).
“There is a suggestion that commanders haven’t done a good job of preserving good order and discipline or effectively overseeing the conduct of their forces. But the record does not reflect this. The Defense Legal Policy Board released a report on military justice in combat zones just last week. I am encouraged that the main theme of the Defense Legal Policy Boards’ report validates my longstanding position concerning the central role of the joint commander in the administration of justice in deployed theaters of operations. The following excerpt from this report is important as we consider legislation concerning military justice matters:
‘While good order and discipline is important and essential in any military environment, it is especially vital in the deployed environment. The military justice system is the definitive commanders’ tool to preserve good order and discipline, and nowhere is this more important than in a combat zone. A breakdown of good order and discipline while deployed can have a devastating effect on mission effectiveness. The Joint Commander is ultimately responsible for the conduct of his forces. As such the Subcommittee has determined that the Joint Commander must have the authority and apparatus necessary to preserve good order and discipline through the military justice system.’
“Just how critical this military justice system is to our commanders is demonstrated by the frequency of its use. This report states since 2001, the Army alone has conducted over 800 courts-martial in deployed environments. The Navy and Marine Corps conducted 8 courts-martial in Afghanistan and 34 in Iraq. And, the Air Force conducted 3 courts-martial in Iraq and 3 in Afghanistan.
“We must never take this vital readiness tool from our commanders. It is vitally important that we make sexual assault culturally unacceptable in our military. But, no change is possible without commanders as agents of that change.
“I look forward to our witnesses’ testimony today.”