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Juliette Kayyem

Conduct unbecoming the military

The military has a sexual assault problem. Endless effort is being spent trying to figure out why: Stress on the troops? Difficulty integrating women into the ranks? Too little supervision? In the long run, these questions matter little. There is only one certain way to stop sexual abuse: Victims must feel that coming forward will be taken seriously within the military justice system, and assailants must feel that they will face consequences. But the military justice system isn’t equipped to handle this problem, and the Pentagon must reform it for the thousands of women who have suffered under its negligence.

The system grants commanding officers the power to be both prosecutor and judge. Such leaders have both the capacity to initiate a case (or not) and dismiss a verdict (or not). This set-up is far too prone to bias and whim, as male leaders often turn a blind eye to the egregious behavior of subordinates, leading to further abuse and fewer women coming forward.

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But sometimes it just takes one incident to pull down the whole house of cards. The sorry case of Air Force Lieutenant Colonel James Wilkerson is the galvanizing force that should finally move the military to alter its military justice system. And it should do so not only for the victims, but to protect a military legal system that, despite its flaws, is worth preserving.

The Wilkerson case actually begins in 1775 when the Second Continental Congress convened to establish standards for conduct of the Continental Army. The Constitution later memorialized the power of Congress to “regulate the land and naval forces.” After years of trial and error, the Uniform Code of Military Justice was signed into law by President Harry Truman in 1950. It established a set of rules, courts, and evidentiary standards, and a chain of command to address conduct unbecoming a soldier.

At the heart of the UCMJ is Article 60. It was based on a notion that the commanders closest to the troops would be best equipped to handle cases, because they presumably understand the circumstances on the ground, and are free of political pressure from Washington. So, for example, an isolated incident of drunken misconduct might be ignored by a commander if he believed strongly that the soldier was just letting off steam after a hard-fought battle; military leaders deserve such latitude.

But in March 2012, nothing so innocent occurred. Wilkerson assaulted a 49-year-old female physician’s assistant in his home. Tried by a military court, he was found guilty by a jury of his peers. But last week, Wilkerson’s conviction was simply dismissed by Lieutenant General Craig Franklin, his supervisor, pursuant to his convening authority under Article 60. Franklin ignored the advice of his own lawyer, did not set out any reasons, and did not even have the decency to speak with the victim.

In the wake of an outcry, Defense Secretary Chuck Hagel has vowed to review the matter, while the Senate agreed to hold its first hearing on military sex crimes in ten years. Both the Pentagon and Congress have jurisdiction. And if the Pentagon does not move quickly, the Senate has already proposed alterations to the UCMJ that would end the convening authority. That broad stroke would have dramatic and uncertain consequences for the millions of people subject to its jurisdiction, and it is difficult to say whether they would all be good.

The military justice system isn’t equipped to handle the problem of sexual assault.

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But for cases involving sexual assault, the Pentagon has lost the trust of women in its ranks. The UCMJ should be amended to require an independent body to address allegations of assault and rape. It would be required to give a detailed accounting of the reasoning behind a decision not to bring a case, or to overrule a guilty verdict. The creation of such a body would also ensure consistency across the service branches. In cases that don’t involve sexual abuse, commanders would retain their traditional convening authority.

The Pentagon can no longer stand by the status quo. Hagel has asked the military’s lawyers to propose possible reforms of Article 60 by March 27. The best course would be to seize the middle ground: The convening authority should be amended, not ended.

Juliette Kayyem can be reached at jkayyem@globe.com and Twitter @juliettekayyem.
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