Defense Secretary Chuck Hagel on Monday cracked down on generals who now possess the power to overturn sex assault sentences, ordering the first substantive shift of his tenure in how the military handles rape convictions in the ranks.
But victims’ advocates quickly lashed the move as merely a meager tweak that fails to meet mounting calls to remove all sex-assault investigations from the chain of command and to inject civilian oversight into a controversial system of justice further exposed by the recent Aviano case.
Hagel directed the Pentagon's General Counsel to strip the authority of commanding generals to void military court convictions. The Pentagon must seek fresh Congressional legislation to rewrite a section of the Uniform Code of Military Justice (UCMJ) to make the planned change legal.
The decision follows a firestorm ignited last month when Air Force Lt. General Craig Franklin overturned the sex-assault conviction of Air Force Lt. Col. James Wilkerson, an F-16 combat pilot. Wilkerson was court martialed and convicted by a military jury in the assault of a civilian woman at the U.S. Air Base in Aviano, Italy. He was sentenced to one year in the brig and booted from the Air Force.
But using current UCMJ laws, Franklin reversed that jury's ruling for apparent lack of evidence. Wilkerson was subsequently released from jail, reinstated and assigned to a staff job at an Arizona air base.
The head of the Service Women's Action Network (SWAN), which seeks to help women serve without discrimination, harassment or assault, said she is "encouraged" by Hagel's proposal to reform a portion of the UCMJ, particularly "in light of the perceived travesty of justice in the recent Aviano case." But she added that the modification is not enough.
"The Department of Defense has effectively acknowledged that commanders currently have undue influence on post-trial decision-making," said Anu Bhagwati, executive director of SWAN and a former Marine Corps captain. "However, post-trial review is only one component of the command-driven system that currently governs how military crimes are handled.
"Unless pre-trial decision-making around investigation and prosecution of offenses is also removed from the hands of commanders and given to impartial prosecutors, military criminal justice will remain a lesser form of justice, both for victims and defendants."
Measures 'fall short'
Protect Our Defenders, an advocacy group for military sex-assault victims, called the generals’ current prerogative to toss out sex-assault convictions "only one part of much larger fundamental problems."
"Today’s proposed changes from the Pentagon fall short of the necessary fixes to end the epidemic of sexual assault in the military," said Nancy Parrish, president of Protect Our Defenders. "The military has always contended that incidences like Aviano are extremely rare and we have never disputed that. But, we have always contended that the more insidious problem is that convening authorities can unilaterally lessen sentences, and today’s announcement does not change this.
"Commanders now have the power to reduce any sentence for any reason or no reason," Parrish added. "Under the current proposal ... this will not change. In the Aviano case, rather than setting Lt. Col. Wilkerson’s sexual assault conviction aside, Lt. General Franklin could have simply reduced the sentence to no punishment.
"For the system to be legitimate — the reporting, investigation and adjudication must be taken completely out of the chain of command if we are to avoid another case like Aviano," she added.
Under UCMJ, Hagel and Congress are powerless to change Franklin's decision to overturn the conviction of Lt. Col. Wilkerson.
In a written statement released Monday, Hagel said he is seeking to eliminate the ability of commanders who are the "convening authority" to override convictions for sexual assault or other serious crimes.
Defendants still will retain the right to appeal convictions through the military judicial system, Hagel said. He also wants to require the convening authority to put into writing any changes they may make in sentencing for major offenses.
"From the survivors we talk with," Parrish said, "a written explanation as to why their perp's sentence was lessened unilaterally will be of no comfort to them. This still constitutes an extraordinary power resting in the hands of one person with no equivalent in the civilian criminal justice system."
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