Military commanders shouldn’t have prosecution authority

After an almost decade’s long struggle, Congress is on the verge of passing fundamental reform of the military justice system. The reform is designed to modernize the often criticized and archaic commander-controlled system by empowering military lawyers with authority to determine whether a service member is prosecuted for serious offenses like rape, murder and child abuse. 

Despite the fact that an independent Pentagon commission has recommended that the system be reformed, and both current and past senior Pentagon officials are acknowledging the need to reform military justice, vocal defenders still persist that prosecution authority must remain in the hands of commanders, not prosecutors.

Two such defenders, Dave Schlueter and Lisa Schenck, wrote a piece that appeared in The Hill claiming Congress would be making a mistake to remove a commander’s prosecution authority. In doing so, the professors rely on faulty math and make a number of false claims. 

Schlueter and Schenck’s defense of the status quo boils down to their assertion that sexual assaults and rape are worse in civilian society, military members are more likely to be prosecuted than civilians and that commanders make reasonable decisions when determining who should be prosecuted. 

Unpacking the arguments shows a consistent problem with accurately citing data. In supporting their dubious claim that sexual assault is worse in civilian society, Schlueter and Schenck link to a Department of Justice (DOJ) study on sexual assault among college-aged women. The professors claim that “females attending college have the highest rate of victimization of any age or gender.” But the DOJ study used does not, in fact, support this conclusion.

According to the study, “females ages 18 to 24 not enrolled in a post-secondary school were 1.2 times more likely to experience rape and sexual assault victimization (7.6 per 1,000), compared to students in the same age range (6.1 per 1,000).” In other words, according to the very study used by the professors, female non-students were more likely to be sexually assaulted than female students. But this is just the professors’ first error.

They go on to claim “[a] woman in college has a 51 percent greater likelihood of being sexually assaulted than a woman between 18 and 24 years of age serving in the military.” This too is demonstrably false. According to the Pentagon’s own data, 9.1 percent of women in that age group were sexually assaulted in the military in fiscal 2018 compared to the DOJ’s estimate of .61 percent of college women. The data is even worse if you compare it to the rate of sexual assault for women attending service academies where 15.8 percent of female cadets and midshipmen were sexually assaulted in academic year 2018-2019. In other words, according to the very study cited by the professors, things are much worse for women serving in the military.

But what about their claim that service members are more likely to be prosecuted than civilians? This is equally flawed. The professors claim with slim analysis that “an accused service member is about six times more likely to receive a felony level disposition.” The numbers simply don’t support this conclusion. The reality is that in the military, felony level prosecutions are extremely rare. How rare? In fiscal 2019, the military tried only 895 felony level courts known as general courts-martial. That works out to be just 0.07 percent of the active force of 1.34 million. Contrary to their inference, an exceedingly small number of servicemembers face felony prosecutions, and I would question their claim that that rate is six times higher than that of the civilian population.

When it comes to sexual assault in the military, prosecutions and convictions are almost non-existent. In fiscal 2019, there were only 363 military members prosecuted for sexual assault or rape at a court-martial out of an estimated 20,500 such cases. Of those, only 138 were convicted of a sex offense. If a system is convicting less than one percent of sex offenders, it’s past time to stop defending it. 

Finally, Schleuter and Schenck look at a report by a congressional panel in a last attempt to defend the failed commander-controlled system. That report found that 95 percent of command decisions were reasonable when it came to sexual assault prosecutions. But the findings were based on a quick review of 1,900 initial investigation files that were often incomplete. Those conducting the review never talked to a single victim or witness in determining whether a case should have been prosecuted, nor talked to a single prosecutor to see what additional evidence might have been uncovered during their follow-on investigations. Deciding whether a case should be prosecuted without assessing a witness, victim and the other actors and findings involved is a fool’s errand at best.

Perhaps most tellingly on the value of the report is that two-thirds of the Pentagon panel that just recommended removing prosecution authority from commanders were also part of the congressional panel cited by the professors. Clearly, they were unmoved by this “reasonableness” claim. Considering the paltry prosecution rate of suspected sex offenders in the military, it is no surprise.

Contrary to Schlueter and Schenck’s assertions, the statistics are damning when it comes to military sexual assault. This reality is acknowledged by the chairman of the Joint Chiefs when he said, “[w]e the chain of command, we the generals and colonels, the captains and so on, we have lost the trust and confidence of those subordinates in our ability to deal with sexual assault. So we need to make a change.” It is time to finally admit that the power to prosecute serious cases in the military should be in the hands of seasoned prosecutors — a conclusion the majority of Congress has now reached. To try and stop military justice reform that would help address the military’s sexual assault epidemic based on faulty statistics is a disservice to the men and women in uniform.   

Col. Don Christensen is the former chief prosecutor of the US Air Force and president of Protect Our Defenders.