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S. HRG. 113–303 

TESTIMONY ON SEXUAL ASSAULTS IN THE 

MILITARY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON PERSONNEL 

OF THE

COMMITTEE ON ARMED SERVICES 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MARCH 13, 2013 

Printed for the use of the Committee on Armed Services 

( 

Available via the World Wide Web: http://www.fdsys.gov/ 

COMMITTEE ON ARMED SERVICES 

CARL LEVIN, Michigan, Chairman 

JACK REED, Rhode Island 

BILL NELSON, Florida 

CLAIRE MCCASKILL, Missouri 

MARK UDALL, Colorado 

KAY R. HAGAN, North Carolina 

JOE MANCHIN III, West Virginia 

JEANNE SHAHEEN, New Hampshire 

KIRSTEN E. GILLIBRAND, New York 

RICHARD BLUMENTHAL, Connecticut 

JOE DONNELLY, Indiana 

MAZIE K. HIRONO, Hawaii 

TIM KAINE, Virginia 

ANGUS KING, Maine 

JAMES M. INHOFE, Oklahoma 

JOHN MCCAIN, Arizona 

JEFF SESSIONS, Alabama 

SAXBY CHAMBLISS, Georgia 

ROGER F. WICKER, Mississippi 

KELLY AYOTTE, New Hampshire 

DEB FISCHER, Nebraska 

LINDSEY GRAHAM, South Carolina 

DAVID VITTER, Louisiana 

ROY BLUNT, Missouri 

MIKE LEE, Utah 

TED CRUZ, Texas 

PETER K. LEVINE, Staff Director 

JOHN A. BONSELL, Minority Staff Director 

SUBCOMMITTEE ON PERSONNEL

KIRSTEN E. GILLIBRAND, New York, Chairman 

KAY R. HAGAN, North Carolina 

RICHARD BLUMENTHAL, Connecticut 

MAZIE K. HIRONO, Hawaii 

TIM KAINE, Virginia 

ANGUS KING, Maine 

LINDSEY GRAHAM, South Carolina 

KELLY AYOTTE, New Hampshire 

MIKE LEE, Utah 

SAXBY CHAMBLISS, Georgia 

ROY BLUNT, Missouri 

(II) 

C O N T E N T S 

CHRONOLOGICAL LIST OF WITNESSES 

TESTIMONY ON SEXUAL ASSAULTS IN THE MILITARY

MARCH 13, 2013

Page 

Boxer, Senator Barbara, a U.S. Senator from the State of California ................ 5 

Bhagwati, Ms. Anu, Executive Director and Co-Founder, Service Women’s 

Action Network ..................................................................................................... 8 

McCoy, Ms. Brigette, former Specialist, U.S. Army ............................................. 11 

Havrilla, Ms. Rebekah, former Sergeant, U.S. Army ........................................... 15 

Lewis, Mr. Brian K., former Petty Officer Third Class, U.S. Navy, Advocacy 

Board Member, Protect Our Defenders .............................................................. 18 

Kenney, RADM Frederick J., Jr., USCG, Judge Advocate General of the 

U.S. Coast Guard ................................................................................................. 44 

Harding, Lt. Gen. Richard C., JAGC, USAF, Judge Advocate General of 

the U.S. Air Force ................................................................................................ 49 

Chipman, LTG Dana K., JAGC, USA, Judge Advocate General of the U.S. 

Army ...................................................................................................................... 52 

Taylor, Hon. Robert S., Acting General Counsel of the Department of Defense 61 

DeRenzi, VADM Nanette M., JAGC, USN, Judge Advocate General of the 

U.S. Navy .............................................................................................................. 66 

Ary, Maj. Gen. Vaughn A., USMC, Staff Judge Advocate to the Commandant 

of the Marine Corps ............................................................................................. 71 

Patton, MG Gary S., USA, Director, Sexual Assault Prevention and Response 

Office ..................................................................................................................... 86 

ANNEX A: Prepared Statement by Ms. Nancy J. Parrish, President of Protect 

our Defenders ....................................................................................................... 141 

ANNEX B: Prepared Statement by Ms. Lisa Maatz, Director of Public Policy 

and Government Relations of the American Association of University 

Women .................................................................................................................. 154 

ANNEX C: Prepared Statement by Mr. Ben Klay ................................................ 157 

ANNEX D: Prepared Statement by Aviano Air Base Sexual Assault Victim .... 162 

ANNEX E: Prepared Statement by The American Civil Liberties Union .......... 166 

ANNEX F: Prepared Statement by The American Legion Veterans Affairs 

and Rehabilitation Commission .......................................................................... 171 

(III) 

(1) 

TESTIMONY ON SEXUAL ASSAULTS IN THE 

MILITARY 

WEDNESDAY, MARCH 13, 2013 

U.S. SENATE, 

SUBCOMMITTEE ON PERSONNEL, 

COMMITTEE ON ARMED SERVICES, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 10:09 a.m. in room 

SH–216, Hart Senate Office Building, Senator Kirsten Gillibrand 

(chairman of the subcommittee) presiding. 

Committee members present: Senators Gillibrand, Blumenthal, 

Hirono, Kaine, King, Graham, Ayotte, and Blunt. 

Other committee members present: Senators Levin, McCaskill, 

Shaheen, Donnelly, and Inhofe. 

Committee staff members present: Leah C. Brewer, nominations 

and hearings clerk; and Barry C. Walker, security officer. 

Majority staff members present: Jonathan D. Clark, counsel; 

Gabriella E. Fahrer, counsel; Gerald J. Leeling, general counsel; 

and Peter K. Levine, staff director. 

Minority staff members present: Steven M. Barney, minority 

counsel; and John A. Bonsell, minority staff director. 

Staff assistants present: Jennifer R. Knowles, Kathleen A. 

Kulenkampff, John L. Principato, and Bradley S. Watson. 

Committee members’ assistants present: Jason Rauch, assistant 

to Senator McCaskill; Christopher Cannon, assistant to Senator 

Hagan; Chad Kreikemeier, assistant to Senator Shaheen; Elana 

Broitman and Brooke Jamison, assistants to Senator Gillibrand; 

Ethan Saxon, assistant to Senator Blumenthal; Marta McClellan 

Ross, assistant to Senator Donnelly; Nick Ikeda, assistant to Senator Hirono; Karen Courington, assistant to Senator Kaine; Steve 

Smith, assistant to Senator King; Todd Harmer, assistant to Senator Chambliss; Brad Bowman, assistant to Senator Ayotte; Craig 

Abele and Alice James, assistants to Senator Graham; and Charles 

Prosch, assistant to Senator Blunt. 

OPENING STATEMENT OF SENATOR KIRSTEN E. GILLIBRAND, 

CHAIRMAN 

Senator GILLIBRAND. Thank you all for joining us. 

It is an honor and a privilege to chair this hearing of the Personnel Subcommittee this morning. I want to thank the ranking 

member of the subcommittee, Senator Lindsey Grahahm, for his 

support and for working with me to move this hearing forward as 

quickly as possible. 

2 

I know that all of our colleagues on the Armed Services Committee share our deep commitment to improving the quality of life 

of the men and women who serve in our All-Volunteer Force on Active Duty, the National Guard, and Reserves, their families, military retirees, and Department of Defense (DOD) personnel. 

That is why this hearing today is so important to me personally 

and to thousands of servicemembers and their families across this 

country. 

The issue of sexual violence in the military is not new. It has 

been allowed to go in the shadows for far too long. The scourge of 

sexual violence in the military should be intolerable and infuriating 

to all of us. Our best, brightest, and bravest join our Armed Forces 

for all the right reasons: to serve our country, to protect our freedom, and to keep America safe. 

The U.S. military is the best in the world and the overwhelmingly, vast majority of our brave men and women serving in uniform do so honorably and bravely, but there is also no doubt that 

we have men and women in uniform who are committing acts of 

sexual violence and should no longer be allowed to serve. 

Too often, women and men have found themselves in the fight 

of their lives not in the theater of war but in their own ranks, 

among their own brothers and sisters and ranking officers in an 

environment that enables sexual assault. 

After an assault occurs—an estimated 19,000 sexual assaults 

happened in 2011 alone according to DOD’s own estimates—some 

of these victims have to fight all over again with every ounce of 

their being just to have their voice heard, their assailant brought 

to any measure of justice, and then to fight for the disability claims 

they deserve to be fulfilled. 

Congress would be derelict in its duty of oversight if we just 

shrugged our shoulders at these 19,000 sons and daughters, husbands and wives, mothers and fathers and did nothing. We simply 

must do better by them. 

When brave men and women volunteer to serve in our military, 

they know the risks involved, but sexual assault at the hands of 

a fellow servicemember should never be one of them because not 

only does sexual assault cause unconscionable harm to the victim, 

but sexual assault is also reported to be the leading cause of posttraumatic stress disorder (PTSD) among women veterans. Sexual 

assault in the military also destabilizes our military, threatens our 

unit cohesion and national security. Beyond the enormous human 

costs, both psychologically and physically, this crisis is costing us 

significant assets, making us weaker both morally and militarily. 

Already this committee and the Pentagon took some first steps 

on this issue as part of last year’s National Defense Authorization 

Act (NDAA) that President Obama signed. While obviously our 

work is not done, I am hopeful that we can build on some of these 

initial changes which include: one, ensuring that all convicted sex 

offenders in the military are processed for discharge or dismissal 

from the Armed Forces regardless of which branch they serve in. 

Second, we removed case-disposition authority from the immediate commanding officer in sexual assault cases, which is one of 

the issues we will look into today as to whether we need to remove 

3 

such disposition authority entirely from the chain of command and 

place it with a trained prosecutor instead. 

We pushed the Pentagon to lift the combat ban that prevents 

women from officially serving in many of the combat positions that 

can lead to significant promotion opportunities. By opening the 

door for more qualified women to excel in our military, we have increased diversity in top leadership positions, improving response 

from leadership when it comes to preventing and responding to 

sexual assault. 

We passed an amendment that was introduced by Senator 

Jeanne Shaheen and that was based on our legislation, the Military Access to Reproductive Care and Health for Military Women 

(MARCH) Act, which means that troops who do become pregnant 

as a result of a rape no longer have to pay out of pocket for those 

pregnancies to be terminated. 

After we hear from Senator Barbara Boxer who has extraordinary passion and leadership on this issue, our second panel will 

be of men and women who are going to tell their personal stories. 

I want to salute each and every one of you for having the courage 

to tell such painful and personal stories. It is my hope and belief 

that by committing this selfless act, you are encouraging others to 

step forward and are also helping to prevent crimes from going 

unpunished. We have a duty to you and thousands of victims that 

you represent to examine whether military justice is possible and 

what is the most effective and fair system. 

Despite some very dedicated Judge Advocate General (JAG) officers, I do not believe that the current system adequately meets our 

standard. The statistics on prosecution rates for sexual assault in 

the military are devastating. Of 2,439 unrestricted reports filed in 

2011 for sexual violence cases, only 240 proceeded to trial. Nearly 

70 percent of these reports were for rape, aggravated sexual assault, or nonconsensual sodomy. 

A system where less than 1 out of 10 reported perpetrators are 

taken to trial for their alleged crimes is not a system that is working. That is just the reported crimes. DOD itself puts the real number closer to 19,000. A system where in reality closer to 1 out of 

100 alleged perpetrators are faced with any accountability at all is 

entirely inadequate and unacceptable. 

My view is that emphasizing institutional accountability and the 

prosecution of cases is needed to create a real deterrent to criminal 

behavior. The system needs to encourage victims that coming forward and participating in their perpetrator’s prosecution is not detrimental to their safety or their future and that it will result in justice being done because currently, according to DOD, 47 percent of 

servicemembers are too afraid to report their assaults because of 

fear, retaliation, harm, or unjust punishment. Too many victims do 

not feel that justice is likely or even possible. 

We need to take a close look at the military justice system and 

we need to be asking the hard questions with all options on the 

table, including moving this issue outside of the chain of command 

so that we can get closer to a zero tolerance reality in the armed 

services. The case we have all read about, the Aviano Air Base 

case, is shocking and the outcome should compel all of us to take 

4 

the necessary action to ensure that justice is swift and certain, not 

rare and fleeting. 

I had the opportunity to press Secretary Hagel on the issue of 

sexual violence in the military during his confirmation hearing. 

Secretary Hagel responded by saying, ‘‘I agree it is not good enough 

to say zero tolerance. The whole chain of command needs to be accountable for this.’’ I could not agree more. 

I was pleased with the Secretary’s public statement earlier this 

week that he is open to considering changes to the military justice 

system, as well as legislation to ensure effectiveness of our responses to the crime of sexual assault. 

In addition, the Secretary has written two letters to the Services 

requesting a review of Article 60 of the Uniform Code of Military 

Justice (UCMJ) in light of the Aviano decision to be made by 

March 20 and March 27. This is a useful first step. 

After Ranking Member Graham makes his opening remarks, we 

will hear the testimony from Senator Barbara Boxer who has been 

a leading voice on this issue. In last year’s NDAA, she successfully 

including an amendment that prohibits any individual who is convicted of felony sexual assault from being issued a waiver to join 

the military. 

We will then have witnesses who have either been victims of sexual assault while serving in the military or are very knowledgeable 

advocates for addressing the issue of sexual assaults in the military. 

I will now defer to Senator Graham to give his opening remarks. 

STATEMENT OF SENATOR LINDSEY GRAHAM 

Senator GRAHAM. One, I want to thank Senator Gillibrand for 

having this hearing. When 47 or 49 percent—I cannot remember 

the number—feel intimidated to come forward because they think 

they may face reprisal, something is obviously wrong. 

Having said that, the purpose of military justice is to instill good 

order and discipline in the units so that when they are called upon 

to engage the enemy and to train and deploy together, they can do 

so in the most effective fashion possible. 

The military is a unique place. It is not a democracy. It is a place 

where you are asked to do extraordinarily difficult things and you 

have to count on the people to your right and to your left to be 

there when you need them and vice versa. 

In the military we have it as a crime for a commander to have 

a personal relationship, sexual in nature or otherwise, overly familiar relationship that would be consensual. It is called fraternization. We probably should look at that policy as well to make sure 

that we are dealing with fraternization cases in an appropriate 

fashion. 

Why would you be concerned about a consensual relationship 

that you would not be concerned about maybe in the private world? 

If your unit is called into combat, the last thing you want to think 

about is that the person who has a close relationship with the commander may get a pass at your expense. So we want to keep professional relationships between those who order the unit to engage 

the enemy so that those who follow the orders will never believe 

that there is some special relationship between the commander and 

5 

a particular individual in the unit because that will break good 

order and discipline apart. That is one area where human sexuality 

can really deal a blow to a unit that is consensual. 

But I cannot think of a more devastating blow to a unit than to 

have one member assault another. If you want to break a unit 

apart and create a horrible environment to effectively engage the 

enemy, allow this to happen because it shows not only physical violence is the ultimate sign of disrespect. I cannot think of a more 

disrespectful measure than taking advantage of someone or physically violating them. That is just absolutely not only a crime, it is 

an ultimate detrimental demise of a unit to have such conduct 

break out. The reason, Senator Gillibrand, we want to prosecute 

people who do that is they are destroying the unit’s effectiveness. 

They are the bad guy. 

Having said that, I have been a military lawyer for 30 years. Another problem that could hurt a unit is for somebody to be wrongfully accused and feel like they have no voice, that the system is 

going to go from one extreme to the other. So at the end of the day, 

military justice is about rendering justice in an individual case, but 

always the theme of military justice is to make that unit as effective as possible to maintain good morale and discipline. If you are 

a female in a unit and you feel like nobody cares about what happens, you have destroyed morale. Also, if you are in a unit where 

people may misunderstand what you are saying and you feel like 

you cannot defend yourself, we have to find some balance here. 

To the victims, thanks for coming forward. I know it is not an 

easy thing to do. 

The numbers are astounding. If we are going to continue to be 

the most effective fighting force for freedom and good in the world, 

we are going to have to solve this problem. As long as you have 

human beings, you are going to have problems. 

But clearly, the message we are sending to our female members 

of the military is that we are way too indifferent and that your 

complaints are falling on deaf ears. To all of our commanders, how 

in the world can you lead your unit in a responsible manner if people in that unit feel like the system does not care about them? I 

will do everything I can within reason to make sure that that stops 

and that if you are accused of an offense in the military, you still 

get a fair trial. 

Senator GILLIBRAND. Senator Boxer. 

STATEMENT OF SENATOR BARBARA BOXER, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thank you so much, Madam Chairman and 

Ranking Member Graham. Thank you both for holding this critical 

hearing. It is very timely. Thank you so much for this opportunity 

to testify. I am very honored—very honored. 

Today I am here to talk about the violent crime of sexual assault 

in the military, not about fraternization. I am not here to talk 

about disrespect but about vicious crimes. I am not here to talk 

about false charges but about real charges and the way they are 

handled. 

As you well know, Congress to our great credit passed the bipartisan Violence Against Women Act, and I thank everyone on both 

6 

sides of the aisle who worked so hard for that to pass. I was so 

proud that President Obama signed it into law just last week. 

That law recognizes that every human being—every human 

being, male, female—deserves protection from violence. It sends a 

clear and unequivocal message that wherever a sexual assault occurs, whether on a college campus or on an Indian reservation or 

in a religious setting or in our military, yes, the offender must be 

punished. Sexual assault is a heinous and violent crime and it 

must be treated as such. It is not an internal matter. It is a violent 

crime and it must be treated as such. 

I want to thank each and every one of you for supporting the 

Boxer-Cornyn Amendment that said, no, the military cannot take 

offenders, people who have been convicted of sexual assault, into 

the military. That will help us going forward. But we need to do 

much more. 

We know this crisis is staggering and despite some important reforms by DOD—and I thank them for those, they are trying to improve prevention, investigation, prosecution—still too many military sex offenders go unpunished and too many victims do not get 

the justice that they deserve. 

As the chairman said, this is unacceptable and it must stop. We 

are the ones who can stop it, and you particularly are the ones who 

can stop it. 

Well, in response to a letter that Senator Shaheen and I sent 

him last week, Defense Secretary Hagel committed to taking a 

hard look at the military justice system. He agrees that much more 

must be done to combat military sexual assault. 

Now, let me tell you I do not have all the answers. If I had all 

the answers, I would tell you that today. But one thing I do know 

is that immediate steps must be taken to prevent senior commanders from having the ability to unilaterally overturn a decision 

or a sentence by a military court. I want to thank Senator McCaskill, who has introduced legislation to do just that. That is the first 

step and only the first step. 

Two recent events I want to share with you to highlight the urgent need for dramatic change. The first case involves a decision 

by an Air Force lieutenant general to dismiss all charges against 

a lieutenant colonel who had been convicted of aggravated sexual 

assault. Again, all you had to do was listen to Senator McCaskill’s 

comments on that to understand how deep this hits us. Many in 

Congress, our military, and our Nation were stunned to read that 

the general used his discretion as the convening authority to throw 

out a military jury’s guilty verdict, the jury of high-ranking military officers. I want to say who was on this jury. Four colonels and 

a lieutenant colonel had sentenced the lieutenant colonel to a year 

in prison and dismissal from the Air Force. That is a jury of his 

peers for sure. Under the UCMJ, the general’s decision to overturn 

that verdict is final and it cannot be reviewed or changed. 

The second event I want you to hear because you may not know 

of it. It took place in my home State of California. Last month an 

Army veteran shot and killed two Santa Cruz police detectives who 

were attempting to question him over a sexual assault allegation. 

In the aftermath of this shooting, we learned that even though the 

former soldier had faced two separate rape charges while serving 

7 

in the Army, charges against him were dropped and he was discharged without a conviction as part of a plea bargain. 

What is it going to take to convince the military that sexual assault is a violent and vicious crime and that those who perpetuate 

it are capable of other violent crimes, including murder? What is 

it going to take? It is a vicious, violent crime, and those capable 

of that vicious crime are capable of other crimes. Yes, murder. 

These examples speak for themselves, and there are so many 

more. You will hear them today, and your heart will break. 

It is time for us to take swift decisive steps to ensure that decisions in the military justice system do not rest solely in the hands 

of one individual. It is not enough that our military says zero tolerance for sexual assault. You can say anything. I can say anything. 

But the facts speak for themselves. DOD estimates that 19,000 sexual assaults occur in the military. I want to point out to my colleagues here, my friends, that many of these cases involve men. 

Only 17 percent of these cases are ever reported. 

I am so grateful to both of you for this hearing. Senator Gillibrand, I am so happy that you chose to hold this subcommittee 

hearing, your first, on military sexual assault. I look forward to 

working with you on comprehensive solutions to this problem. 

Today’s hearing is the first on this critical issue in nearly a decade. A decade. It is high time not only for this hearing but for 

changes in the way the military handles these cases. I know we, 

all of us, who are touched by this issue, are going to work with our 

colleagues, Republicans, Democrats, Independents, and with the 

military. The military, most of all, wants this to go away, and we 

have to end this terrible tragedy of sexual assault. Just think of 

what an amazing legacy it will be for this Senate if we succeed. 

Even more important, think about how many men and women we 

will rightly protect. 

Thank you so much and I am very excited about this hearing. I 

know with your leadership, the two of you, we can get this done. 

Thank you very much. 

Senator GILLIBRAND. Thank you, Senator Boxer, for your very, 

very strong and valuable testimony. We are so grateful for your 

leadership. 

We are now going to welcome the next panel. You can come up 

and I will read a biography that is very brief of each of you while 

you get settled. 

We have Anu Bhagwati, who is the Executive Director and CoFounder of the Service Women’s Action Network (SWAN). Anu is 

a former captain and company commander. She served as a Marine 

officer from 1999 to 2004. While serving, Anu faced discrimination 

and harassment as a woman in the military and has borne direct 

witness to the military’s handling of sexual violence. 

We have BriGette McCoy, former specialist in the U.S. Army. 

BriGette served in the U.S. Army from 1987 to 1991. She was just 

18 years old when she signed up to serve her country in the first 

Gulf War. While stationed in Germany from 1988 to 1991, she was 

sexually assaulted by a non-commissioned officer. 

We have Rebekah Havrilla, former sergeant in the U.S. Army. 

Rebekah served in the U.S. Army from 2004 to 2008. She was the 

only female member of a bomb squad in eastern Afghanistan and 

8 

was attacked by a colleague at Salerno Forward Operating Base 

near the Pakistani border during her last week in country in 2007. 

We have Brian Lewis, former petty officer third class, U.S. Navy. 

Brian enlisted in the U.S. Navy in June 1997. During his tour 

aboard USS Frank Cable, AS–40, he was raped by a superior noncommissioned officer (NCO) and forced to go back out to sea after 

the assault. 

I encourage each of you to express your views candidly and tell 

us what is working and what is not working. Help us to understand what we can do to address this unacceptable problem of sexual assaults in the military. 

We will hear your opening statements. Your complete prepared 

statements will also be included in the record. Following the opening statements, we will limit our questions to 7 minutes for the 

first round for the Senators. 

Ms. Bhagwati? 

STATEMENT OF MS. ANU BHAGWATI, EXECUTIVE DIRECTOR 

AND CO-FOUNDER, SERVICE WOMEN’s ACTION NETWORK 

Ms. BHAGWATI. Thank you. Good morning, Chairman Gillibrand, 

Ranking Member Graham, and members of the subcommittee. 

My name is Anu Bhagwati. I am the Executive Director of 

SWAN, and a former Marine Corps captain. 

SWAN’s mission is to transform military culture by securing 

equal opportunity and freedom to serve without discrimination, 

harassment, or assault and to reform veterans services to ensure 

high-quality health care and benefits for women veterans and their 

families. 

Military sexual violence is a very personal issue for me. During 

my 5 years as a Marine officer, I experienced daily discrimination 

and sexual harassment. I was exposed to a culture rife with 

sexism, rape jokes, pornography, and widespread commercial sexual exploitation of women and girls both in the United States and 

overseas. 

My experiences came to a head while I was stationed at the 

School of Infantry at Camp Lejeune, NC, from 2002 to 2004, where 

I witnessed reports of rape, sexual assault, and sexual harassment 

swept under the rug by a handful of field grade officers. Perpetrators were promoted or transferred to other units without punishment, while victims were accused of lying or exaggerating their 

claims in order to ruin men’s reputations. 

As a company commander at the School of Infantry, I ultimately 

chose to sacrifice my own career to file an equal opportunity investigation against an offending officer. I was given a gag order by my 

commanding officer, got a military protective order against the officer in question, lived in fear of retaliation and violence from both 

the offender and my own chain of command, and then watched in 

horror as the offender was not only promoted but also given command of my company. 

Many of the women who were impacted by these incidents, including me, are no longer in the military. However, all of the officers who were complicit in covering up these incidence have since 

retired or are still serving on Active Duty. 

I was devastated because I loved and still love the Marine Corps. 

9 

I wish my experience was unique, but in the last few years of 

working on these issues, and in the hundreds of cases we handle 

each year on SWAN’s helpline, I have discovered that rape, sexual 

assault, and sexual harassment are pervasive throughout the military. Sexual violence occurs today in every branch of service in 

both operational and non-operational environments, in both combat 

arms, as well as support units, and affects both men and women. 

DOD itself estimates that 19,300 assaults occurred in 2010, and 

that while 8,600 victims were female, 10,700 were male. 

This is a critical point. Military sexual violence is not a women’s 

issue. Sexual assault is widely understood by military personnel 

who have been overexposed to a culture of victim-blaming and rape 

mythology. 

So let us be clear. Rape and assault are violent, traumatic 

crimes, not mistakes, not lapses of professional judgment, not leadership failures, and not oversights in character. Rape is about 

power, control, and intimidation. 

Thanks to a surge of pressure over the last few years by advocates, the media, and Congress, military leadership has finally 

been forced to reckon with the issue of military sexual violence. 

Some victims protections reforms have been sensible like the creation of special victims units, mandatory transfers for victims, or 

in the Air Force’s case, a pilot program which assigns each victim 

a designated special victims counsel. Yet, while these measures 

help a victim after an assault, they will neither prevent sexual violence nor change a culture that still condones sexual violence. 

Military leadership cannot solve this problem on its own. I urge 

Congress to enact the following reforms going forward. 

First, Congress should grant convening authority over criminal 

cases to trained, professional, disinterested prosecutors. Commanding officers cannot make truly impartial decisions because of 

their professional affiliation with the accused and oftentimes with 

the victim as well. 

In recognition of this fact, a number of common law countries 

have already transferred case disposition away from commanders 

to prosecutors, deeming the policy a violation of the right to a fair 

and impartial trial. 

Second, open the civil courts to military victims. Civilian victims 

of workplace crimes, including civilian DOD employees, have one 

critical avenue for redress currently unavailable to uniformed personnel: access to civil courts. 

To this day, the U.S. Supreme Court and the Federal courts 

below it continue to maintain that servicemembers are barred from 

bringing claims of negligence or intentional discrimination against 

the military, depriving military personnel of remedies for violations 

of their rights. In the face of this judicial doctrine, Congress must 

ensure that men and women in uniform can access the remedies 

available to all other aggrieved individuals under the Federal Tort 

Claims Act and the Civil Rights Act. 

Given the prevalence of retaliation against servicemembers who 

report incidents of sexual assault and harassment, the absence of 

these remedies for military personnel is especially shameful. 

I will close by saying that today we are looking at an institution 

that desperately needs to be shown the next steps forward. SenVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 Z:\DOCS\88340.TXT JUNE
10 

ators, do not let today’s servicemembers become another generation 

of invisible survivors. 

Thank you. 

[The prepared statement of Ms. Bhagwati follows:] 

PREPARED STATEMENT BY MS. ANU BHAGWATI

Good morning, Chairman Gillibrand, Ranking Member Graham, and members of 

the subcommittee. My name is Anu Bhagwati. I am the Executive Director of Service Women’s Action Network (SWAN), and a former Marine captain. 

SWAN’s mission is to transform military culture by securing equal opportunity 

and freedom to serve without discrimination, harassment or assault; and to reform 

veterans’ services to ensure high quality health care and benefits for women veterans and their families. 

Military sexual violence is a personal issue for me. During my 5 years as a Marine officer, I experienced daily discrimination and sexual harassment. I was exposed to a culture rife with sexism, rape jokes, pornography, and widespread commercial sexual exploitation of women and girls in the United States and overseas. 

My experiences came to a head while I was stationed at the School of Infantry 

at Camp LeJeune, NC, from 2002–2004, where I witnessed reports of rape, sexual 

assault, and sexual harassment swept under the rug by a handful of field grade officers. Perpetrators were promoted or transferred to other units without punishment, 

while victims were accused of lying or exaggerating their claims in order to ‘‘ruin 

men’s reputations.’’ 

As a Company Commander at the School of Infantry, I ultimately chose to sacrifice my military career to file an equal opportunity investigation against an offending officer. I was given a gag order by my commanding officer, got a military protection order against the officer in question, lived in fear of retaliation and violence 

from both the offender and my chain of command, and watched in horror as the offender was not only promoted but also given command of my company. 

Many of the women who were impacted by these incidents chose not to re-enlist. 

I left by the skin of my teeth. However, all of the officers who were complicit in 

covering up these incidents have since retired or are still serving on active duty. 

I was devastated, because I loved the Marines. 

I wish my experience was unique, but in the last few years of working on these 

issues, and in the hundreds of cases we handle each year on SWAN’s Helpline, I 

have discovered that rape, sexual assault and sexual harassment are pervasive 

throughout the military. Sexual violence occurs today in every branch of Service, in 

both operational and nonoperational environments, in combat arms as well as support units, and affects both men and women. 

The Department of Defense (DOD) estimates that 19,300 sexual assaults occurred 

in 2010, and that while 8,600 victims were female, 10,700 were male. 

This is a critical point. Military sexual violence is not a ‘‘women’s issue’’. Sexual 

assault is widely misunderstood by military personnel, who have been over-exposed 

to a culture of victim-blaming and rape mythology, where victims are considered responsible for their own assaults, and perpetrators are simply naı ́ve young 

servicemembers who might have had a lapse of professional judgment, at worst. 

So let’s be clear. 

Rape and assault are violent, traumatic crimes, not mistakes, leadership failures 

or oversights in character. 

Rape is about power. Control. Intimidation. 

Thanks to a surge of pressure over the last few years by advocates, the media 

and Congress, military leadership has finally been forced to reckon with the issue 

of military sexual violence. Some victims protections reforms have been sensible, 

like the creation of Special Victims Units, mandatory transfers for victims, or in the 

Air Force’s case, a pilot program which assigns each victim a designated Special Victims Counsel. Yet, while these measures help a victim after an assault, they will 

neither prevent sexual violence, nor change a culture that condones sexual violence. 

Military leadership cannot solve this problem on its own. I urge Congress to enact 

the following reforms going forward: 

1. Professionalize the Military Criminal Justice System 

Congress should grant convening authority over criminal cases to trained, 

professional, disinterested prosecutors. Commanding officers cannot make 

truly impartial decisions because of their professional affiliation with the accused, and often times with the victim as well. 

Last year’s reform to make colonels the convening authorities over sexual 

assault cases was a step in the right direction, but it does not resolve the issue 

11 

of institutional bias. Colonels and Generals may have more rank than junior 

officers, but their rank does not endow them with expertise in the law. 

In recognition of this fact, a number of common law countries have already 

transferred case disposition authority from commanders to prosecutors, deeming the policy a violation of the right to a fair and impartial trial. 

Recent news about an Air Force Lieutenant General reversing the conviction 

of a Lt Colonel—a fellow pilot—in a sexual assault case at Aviano Air Force 

Base emphatically underscores several points. First, senior officers are not infallible, and in fact can be complicit in criminal injustice, and second, today’s 

military criminal justice system is undermined by built-in bias. 

There is no logical reason to let this system remain as it is. I urge you to 

enact legislation to authorize trained, professional prosecutors to handle criminal cases, as they do in the civilian criminal justice system. 

2. Open Civil Courts to Military Victims 

Civilian victims of workplace crimes, including civilian DOD employees, 

have one critical avenue for redress currently unavailable to uniformed personnel: access to civil courts. 

To this day, the U.S. Supreme Court and the Federal courts below it continue to maintain that servicemembers are barred from bringing claims of negligence or intentional discrimination against the military, depriving military 

personnel of remedies for violations of their rights. In the face of this judicial 

doctrine, Congress must ensure that men and women in uniform can access 

the remedies available to all other aggrieved individuals under the Federal 

Tort Claims Act and the Civil Rights Act. 

The civil system is where victims are much more likely to get justice. Civilian employers have historically improved hostile workplace climates because 

when victims win civil cases—which they win much more often than they win 

criminal cases—the courts can grant them relief that deters employers from 

violating the law. 

Under laws like the Federal Tort Claims Act and the Civil Rights Act, employers may be held liable for failing to exercise reasonable care to prevent 

and correct harassment or assault, as well as for retaliating against employees 

who report violations. Given the prevalence of retaliation against 

servicemembers who report incidents of sexual assault and harassment, the 

absence of these remedies for military personnel is especially shameful. 

Allowing military victims to pursue civil claims will act as a real deterrent 

to workplace assault and harassment—a deterrent that does not exist in today’s military. The threat of civil claims and the right to pursue these claims 

will directly transform military culture. 

3. Ensure Survivors’ Department of Veterans Affairs (VA) Claims Get Accepted 

The quickest and easiest thing the Senate can do to help survivors today 

is to pass The Ruth Moore Act, a bill introduced by Senator Jon Tester and 

Congresswoman Chellie Pingree, that fixes the broken VA claims process for 

survivors. Veterans often face a triple betrayal, first by their sexual predator, 

then by members of their own unit who fail to support them, and then finally 

by the VA that unfairly rejects their disability claims for post-traumatic stress 

or other life-threatening conditions related to in-service abuse. The Ruth 

Moore Act already has bi-partisan support. It can and must be passed in 2013. 

I’ll close by saying that today we are looking at an institution that desperately 

needs to be shown the next steps forward. Senators, do not let today’s 

servicemembers become another generation of invisible survivors. 

Thank you. 

Senator GILLIBRAND. Ms. McCoy. 

STATEMENT OF MS. BRIGETTE MCCOY, 

FORMER SPECIALIST, U.S. ARMY 

Ms. MCCOY. Thank you very much for having me here today. I 

have deep gratitude towards those who have worked tirelessly for 

our voices to be heard and to those here listening with compassionate and open hearts poised to make positive changes toward 

these matters at hand, changes that need to come from the root. 

I am a Gulf War-era, service-connected, disabled veteran. 

12 

I was raped during military service and during my first assignment. That was 1988. I was 18 years old. It was 2 weeks before 

my 19th birthday. This happened in a foreign country, away from 

American soil, while I was stationed in Germany. 

I did not report it for reasons which will become clear as I tell 

my story. That would not be the last time I would be assaulted or 

harassed. This is my story, but it is not mine alone. More than 

19,000 men and women every year share similar stories. 

That year, the year that I was raped, that same year I was raped 

again by another soldier in my unit. 

Another year, I was sexually harassed by a commissioned officer 

in my unit. 

Between 1990 and 1991, another NCO in my unit began to harass me through inappropriate touching, words, and behavior. This 

NCO then requested from my command that I be moved to work 

directly for him in a work environment where there was no access, 

closed and window-less, key entry coded vault. Upon receiving my 

new shift schedule, I can only compare the anguish of this entrapment to discovering your child has been constantly molested by a 

person of authority. I was at mental and emotional collapse. 

A senior woman NCO in my unit helped me to write a written 

statement to present to my command and to file a formal complaint, a complaint that my command answered with no official 

hearing, no written response, and it was only answered later with 

a verbal response from my first sergeant who asked me what did 

I want and that I had misunderstood this NCOs’ intentions toward 

me. 

The only thing that I wanted at that time was two basic things. 

One was an apology and for the harassment to stop. That was all. 

I did not know what was happening, and at no time did anyone 

ever move forward with my formal complaint. Nor was anyone willing to discuss the process with me. They did, however, remove me 

from his team and his formal apology consisted of him driving by 

me on base, rolling down his window, and saying to me sorry. 

So after that in the days that followed, I was verbally and socially harassed, put on extra duties that conflicted with my medical 

profile, and socially isolated. Eventually I was given a choice to either get out or to face possible UCMJ action myself. 

Most women who are victims of sexual harassment or abuse are 

threatened and charged with UCMJ action. So I felt I had no 

choice. I was literally terrified, and so in that terrified position, I 

was paralyzed and I just chose to get out because that was the option that was given to me. 

Within a week, I had orders out of Germany and I was escorted 

by two NCO’s to my plane and that was it. My career was over. 

Please note that in unit I was not the only one that was sexually 

assaulted or sexually harassed. Many women came to me and said 

they had had the same situation happen, but they never told me 

who in fact did this. 

Returning to the United States and civilian life was difficult, and 

I had a lot of false starts. I had a lot of negative behaviors that 

carried from the military. I was anxious and overly protective. I became suicidal and attempted suicide. I went through severe depression and had multiple severe medical illnesses and was unable to 

13 

carry on the rigors of work for which I was highly trained. I repeatedly moved from place to place and was homeless and medically 

disabled, but not even the Department of Veterans Affairs (VA) 

would recognize this and help me until some 2 decades later. 

I lost many material things and emotional relationships in my 

lifetime and struggled with my faith. I grieved because I felt I was 

the lucky one. I left my unit alive with an honorable discharge. Although discombobulated and scared for my life and my future, 

many leave with less than honorable discharges and personality 

disorders on their records, further hindering them from applying 

for medical treatment and medical claims. Some, like Private First 

Class (PFC) Lavina Johnson, do not come home to their parents 

alive. 

22 years later almost to the day of my early expriation of term 

of service, I was awarded veteran service compensation and service 

connection for military sexual trauma (MST). Can you tell me why 

did it take so long? Why did I have to go through so much before 

anyone would listen to me? Why did I have to be violated again 

through the process of asking for help and seeking claim status? 

Today I volunteer and this helps to ground me. I volunteer 

through different veterans organizations and outreach foundations. 

I participate in listening sessions to help organizations like the Sierra Club and Warrior Songs better understand the many facets of 

women veterans’ needs for their programmatic purposes. 

My history is chronicled with other women and men veterans in 

the documentary service, ‘‘When Women Come Marching Home.’’ I 

am a social media peer supporter and technology advocate through 

my organization, Women Veterans Social Justice, and I collaborate 

with both community and veteran organizations and dozens of 

other organizations. 

I speak and spoke at the Surgeon General’s Task Force for Suicide Prevention because suicide and homelessness are two huge 

issues in the MST community and with the claims denial and lack 

of purposeful medical treatment exacerbating those issues. Of 

course, PTSD from MST is the main contributing factor. 

I have to say I no longer have any faith or hope that the military 

chain of command will consistently prosecute, convict, sentence, 

and carry out the sentencing of sexual predators in uniform without absconding justice somehow. Only 8 percent of them are prosecuted. How many are relieved of their duties, their pensions, their 

careers? How many of them are placed on the national registry as 

sex offenders before they are returned to civilian life? Even asking 

that, what happens to the 92 percent that were not sentenced or 

prosecuted? 

Let’s not allow sexual predators who happen to wear a uniform 

the opportunity to become highly trained, highly degreed, military 

decorated sexual predators. Let’s make sure they are convicted and 

dishonorably discharged and listed on the national registry. Let’s 

do this before they go on notice in our communities to further harm 

our servicemembers, our community, and our family members. 

Sexual assault and trauma has deep and broad roots in the military. Let’s not just pluck a few leaves and trim the branch. Let’s 

deal with this from the roots. Please make it stop. 

[The prepared statement of Ms. McCoy follows:] 

14 

PREPARED STATEMENT BY MS. BRIGETTE MCCOY

Thank you. I have deep gratitude towards those who have worked tirelessly for 

our voices to be heard and to those here listening with compassionate and open 

hearts poised to make positive changes toward these matters at hand. 

I am a Gulf War era service connected disabled veteran. 

I was raped during military service and during my assignment at my first and 

only duty station. This was 1988 and I was 18 and in country less than 90 days. 

I did not report it. That would not be the last time I would be assaulted or harassed. 

This is my story but its not mine alone more than 19,000 annually share similarities 

in their story too. 

In 1991, I reported sexual harassment. I was to the point of mental and emotional 

fatigue. When I reported to my command in a formal written complaint with help 

from one of the women noncommissioned officers (NCO) in my unit, I was told I 

misunderstood the offending NCO’s intentions and was asked ‘‘what do you want’’— 

I only wanted a an apology and to be removed from working directly with him. No 

one ever officially explained any further process like pressing charges or moving forward with my formal written complaint. It was never spoken about again. They did 

remove me from his team and his formal apology consisted of him driving by me 

on base and saying ‘‘sorry’’ out of his open car door window. 

Afterwards, I was verbally and socially harassed, put on extra duties that conflicted with my medical profiles, and socially isolated. After major verbal and physical conflicts with my first sergeant, I was given a ‘‘choice’’ to either get out, by 

breaking my extension, to maintain my honorable discharge or continue to stay in 

and face Uniform Code of Military Justice (UCMJ) action. By this point the atmosphere in my unit and on post was so hostile I was in fear for my life so I signed 

the papers. Within the week I had orders out of Germany and I was escorted by 

two NCOs to my plane in Frankfurt, Germany. That was it! Within a few days, my 

military career was over. 

Please note that in that unit I had not been the only servicemember sexually harassed I had been told directly by other women soldiers who were afraid to come forward. 

Returning to the United States and civilian life was difficult, I had a lot of false 

starts, I had a lot of negative behaviors that carried over from the military. I was 

anxious and overly protective. I became suicidal and had suicidal attempts. I went 

through severe depression and had multiple severe medical illnesses and was unable to carry on the rigors of work for which I was highly trained for. I repeatedly 

moved from place to place, was homeless and medically disabled but not even the 

Department of Veterans Affairs (VA) would recognize this and help me until some 

2 decades later. 

I lost many material things and emotional relationships in my lifetime and struggle with my faith. I grieve because I feel I was the lucky one. I left my unit alive, 

with an honorable discharge, although discombobulated and scared for my life and 

my future. Many leave with less than honorable discharges and personality disorders on their records further hindering them from applying for medical treatment 

and medical claims. Some like PFC LaVena Johnson don’t make it home to their 

parents alive. 

22 years later, almost to the day of my early expiration of term of service, I was 

awarded veterans service compensation and service connection for military sexual 

trauma (MST). Why did it take so long? Why did I have to go through so much before anyone would listen? Why did I have to be violated again through the process? 

Today I am a volunteer for a veteran therapeutic arts programs. I participate in 

listening sessions to help organizations better understand the many facets of women 

veterans needs for their programmatic purposes. My story is chronicled with other 

women veterans in the documentary ‘‘Service When Women Come Marching Home.’’ 

I am a social media peer supporter and advocate. I collaborate with dozens of organizations working to resolve issues for veterans. Suicide and homelessness are two 

huge issues in the MST community with claims denial and lack of purposeful medical treatment exacerbating those issues. Post-traumatic stress disorder from MST 

is the main contributing factor with regard to women veteran community issues. 

I have to say I no longer have any hope that the military chain of command will 

consistently prosecute, convict, sentence, and carry out the sentencing of sexual 

predators in uniform without absconding justice somehow. Only 8 percent are prosecuted . . . of that 8 percent how many are relieved of their duties, their pensions, 

their careers? How many of them are placed on national registry as sex offenders 

before they are returned to civilian life. What happens to the 92 percent? 

Lets not allow sexual predators in uniform the opportunity to become highlytrained, highly-degreed, military-decorated sexual predators. Lets make sure they 

15 

are convicted and dishonorably discharged and listed on the national registry. Lets 

do this before they go unnoticed into our communities to further harm our 

servicemembers, our community, and family members. 

Sexual assault and trauma has deep and broad roots in the military, lets not just 

pluck a few leaves and trim a branch, lets deal with this from the roots. 

#makeitstop 

Thank you. 

Senator GILLIBRAND. Thank you. 

Ms. Havrilla. 

STATEMENT OF MS. REBEKAH HAVRILLA, FORMER 

SERGEANT, U.S. ARMY 

Ms. HAVRILLA. Good morning. My name is Rebekah Havrilla. I 

am currently the Outreach and Education Coordinator for SWAN. 

I previously managed SWAN’s National Helpline for Legal and Social Services from May 2011 to December 2012. During that time, 

I assisted and provided referrals for over 600 servicemembers, veterans, and their families on issues related to military rape, sexual 

assault, and sexual harassment. These included overcoming barriers to getting VA MST claims accepted, overcoming homelessness 

and accessing housing, and finding quality mental health care. 

I hail from the great State of South Carolina where I grew up 

and lived until I joined the Army in 2004. I was an explosive ordnance disposal (EOD) technician and I achieved the rank of sergeant in 3 years and 3 months. I deployed to Afghanistan from 

September 2006 to September 2007 and spent the majority of my 

time in the eastern provinces where I was assigned to Taskforce 

Paladin, a combined explosives exploitation cell tasked with improvised explosive devices (IED) response and intelligence operations. 

I also spent time running route clearance missions with multiple 

combat engineer companies. I was awarded the Joint Service Commendation Medal for my achievements while deployed and was 

given an Army Achievement Medal and Good Conduct Medal before 

I left Active Duty. 

My deployment brought more than just the stress of occupational 

hazards. During my tour, one of my team leaders continuously sexually harassed me and was sexually abusive towards me. This behavior caused me so much anxiety that I ended up self-referring to 

mental health and on medication to manage not just the stress of 

my deployment, but also the stress of having to live with an abusive leader and coworker. 

One week before my unit was scheduled to return back to the 

United States, I was raped by another servicemember that had 

worked with our team. Initially I chose not to do a report of any 

kind because I had no faith in my chain of command as my first 

sergeant previously had sexual harassment accusations against 

him and the unit climate was extremely sexist and hostile in nature towards women. 

After disclosing my rape to a few close friends, I ended up filing 

a restricted report 60 days before I left Active Duty against both 

my rapist and my team leader, but had no intentions of ever doing 

a formal investigation. 

I began a job as a contractor and entered the Reserves at Fort 

Leonard Wood, MO, and tried to start a different life for myself. 

16 

Reintegration was challenging and I had few support systems to 

rely on. I struggled with depression and the effects of PTSD. 

Approximately a year after separating from Active Duty, I was 

on orders for job training, and during that time I ran into my rapist in a post store. He recognized me and told me that he was stationed on the same installation. I was so retraumatized from the 

unexpectedness of seeing him that I removed myself from training 

and immediately sought out the assistance from an Army chaplain 

who told me, among other things, that the rape was God’s will and 

that God was trying to get my attention so that I would go back 

to church. Again, I did not file an unrestricted report against my 

rapist. 

Six months later, a friend called me and told me they had found 

pictures of me online that my perpetrator had taken during my 

rape. At that point, I felt that my rape was always going to haunt 

me unless I did something about it. So I went to Army Criminal 

Investigation Division (CID) and a full investigation was completed. 

The initial CID interview was the most humiliating thing that I 

have ever experienced. I had to relive the entire event for over 4 

hours with a male CID agent, whom I had never met, and explain 

to him repeatedly exactly what was going on in each of the pictures. After the interview was completed, I heard nothing from the 

investigator until 4 months later when CID requested that I come 

back in to repeat my statement to a new investigator who was taking over my case. I almost refused. 

During the 4 months of waiting without any word on the case except phone calls from my friends who had been interviewed, I lived 

in constant fear that I might run into my rapist again or that he 

might retaliate against me in some way. I decided to continue with 

the case even though I felt that nothing was ever going to be resolved, and 6 months later I was told that even though my rapist 

had admitted to having consensual sex with me while married, his 

chain of command refused to pursue any charges of adultery and 

the case was closed. 

The military criminal justice system is broken. Unfortunately, 

my case is not much different from the many other cases that have 

been reported. I feared retaliation before and after I reported, the 

investigative process severely retraumatized me, many of the institutional systems set up to help failed me miserably, my perpetrator 

went unpunished despite admitting to a crime against the UCMJ, 

and commanders were never held accountable for making the 

choice to do nothing. 

What we need is a military with a fair and impartial criminal 

justice system, one that is run by professional and legal experts, 

not unit commanders. We also need an additional system that allows military victims to access civil courts if the military system 

fails them. Without both military criminal justice reform and access to civil courts, military sexual violence will continue to be 

widespread and a stain on the character of our Armed Forces. 

Thank you for your time. 

[The prepared statement of Ms. Havrilla follows:] 

17 

PREPARED STATEMENT BY MS. REBEKAH HAVRILLA

Good morning. My name is Rebekah Havrilla. I am currently the Outreach and 

Education Coordinator for Service Women’s Action Network (SWAN). I previously 

managed SWAN’s National Helpline for Legal and Social Services from May 2011 

to December 2012. During that time, I assisted and provided referrals for over 600 

servicemembers, veterans, and their families on issues related to military rape, sexual assault and sexual harassment. These included overcoming barriers to getting 

VA Military Sexual Trauma claims accepted, overcoming homelessness and accessing housing, and finding quality mental health care. 

I hail from the great state of South Carolina where I grew up and lived until I 

joined the Army in 2004. I was an Explosive Ordnance Disposal Technician and 

achieved the rank of Sergeant in 3 years and 3 months. I deployed to Afghanistan 

from September 2006 to September 2007 and spent the majority of my time in the 

eastern provinces where I was assigned to Taskforce Paladin, a Combined Explosives Exploitation Cell tasked with Improvised Explosive Device (IED) response and 

intelligence operations. I also spent time running route clearance missions with 

multiple combat engineer companies. I was awarded the Joint Service Commendation Medal for my achievements while deployed and was given an Army Achievement Medal and Good Conduct Medal before I left active duty. 

My deployment brought more than just the stress of occupational hazards. During 

my tour, one of my team leaders continuously sexually harassed me and was sexually abusive towards me. This behavior caused me so much anxiety that I ended up 

self-referring to mental health and on medication to manage not just the stress of 

my deployment, but also the stress of having to live with an abusive leader and coworker. One week before my unit was scheduled to return back to the United 

States, I was raped by another servicemember that had worked with our team. Initially, I chose not to do a report of any kind because I had no faith in my chain 

of command as my first sergeant previously had sexual harassment accusations 

against him and the unit climate was extremely sexist and hostile in nature towards 

women. After disclosing my rape to a few close friends, I ended up filing a restricted 

report 60 days before I left active duty against both my rapist and my team leader, 

but had no intentions of ever doing a formal investigation. 

I began a job as a contractor and entered the Reserves at Fort Leonard Wood, 

MO, and tried to start a different life for myself. Reintegration was challenging and 

I had few support systems to rely on. I struggled with depression and the effects 

of Post-Traumatic Stress. Approximately a year after separating from active duty, 

I was on orders for job training and during that time I ran into my rapist in a post 

store. He recognized me and told me that he was stationed on the same installation. 

I was so re-traumatized from the unexpectedness of seeing him that I removed myself from training and immediately sought out assistance from an Army chaplain 

who told me among other things, that the rape was God’s will and that God was 

trying to get my attention so that I would go back to church. Again, I did not file 

an unrestricted report against my rapist. 

Six months later, a friend called me and told me they had found pictures of me 

online that my perpetrator had taken during my rape. At that point, I felt that my 

rape was always going to haunt me unless I did something about it so I went to 

Army Criminal Investigation Division (CID) and a full investigation was completed. 

The initial CID interview was the most humiliating thing that I have ever experienced. I had to relive the entire event for over 4 hours with a male CID agent whom 

I had never met and explain to him repeatedly exactly what was happening in each 

one of the pictures that were found. After the interview was completed, I heard 

nothing from the investigator until 4 months later when CID requested that I come 

back in to repeat my statement to a new investigator who was taking over my case. 

I almost refused. During the 4 months of waiting without any word on the case except phone calls from my friends who had been interviewed, I lived in constant fear 

that I might run into my rapist again or that he might retaliate against me in some 

way. I decided to continue with the case even though I felt that nothing was ever 

going to be resolved and 6 months later, I was told that even though my rapist had 

admitted to having ‘‘consensual’’ sex with me while married, his chain of command 

refused to pursue any charges of adultery and the case was closed. 

The military criminal justice system is broken. Unfortunately, my case is not 

much different from the many other cases that have been reported. I feared retaliation before and after I reported, the investigative process severely retraumatized 

me, many of the institutional systems set up to help failed me miserably, my perpetrator went unpunished despite admitting to a crime against the UCMJ, and commanders were never held accountable for making the choice to do nothing. What we 

need is a military with a fair and impartial criminal justice system, one that is run 

18 

by professional and legal experts, not unit commanders. We also need an additional 

system that allows military victims to access civil courts if the military system fails 

them. Without both military criminal justice reform and access to civil courts, military sexual violence will continue to be widespread and a stain on the character of 

our Armed Forces. Thank you for your time. 

Senator GILLIBRAND. Thank you. 

Mr. Lewis. 

STATEMENT OF MR. BRIAN K. LEWIS, FORMER PETTY OFFICER THIRD CLASS, U.S. NAVY, ADVOCACY BOARD MEMBER, 

PROTECT OUR DEFENDERS 

Mr. LEWIS. Chairman Gillibrand and Ranking Member Graham, 

members of the subcommittee, thank you for holding this hearing 

today on sexual assault in our military. I am humbled to be sitting 

here today before you as the first male survivor to testify in front 

of Congress on this very important issue, and thank you for allowing that privilege to me. 

I also want to take a minute to thank my partner Andy and all 

the spouses and partners of MST survivors. I would also like to 

thank the parents and caregivers that work so hard to keep us on 

a level playing field. Some days they shoulder a very large load and 

deserve our recognition. 

I enlisted in the Navy in 1997 and advanced to the rank of petty 

officer third class. During my tour on the USS Frank Cable, I was 

raped by a superior NCO. I was ordered by my command not to report this crime. 

After this crime had taken place, I was misdiagnosed with a personality disorder by the current director of the Defense Centers of 

Excellence for Psychological Health and Traumatic Brain Injury. I 

filed retaliation claims to no avail. I was given a general discharge 

for a personality disorder in August 2001. 

My petition to change my discharge from a general discharge for 

a personality disorder to a medical retirement for PTSD was denied 

by the Board for Correction of Naval Records. I carry that discharge as an official and permanent symbol of shame on top of the 

physical attack, the retaliation, and the aftermath. I fear it will be 

discussed when I apply for law school, when I apply to be admitted 

to the bar, even when I apply for a job. I wonder what opportunities it may destroy for me. 

However, I choose not to dwell on what the past has brought my 

way. I will graduate in May with a bachelor of science degree from 

Stevenson University in Maryland, and I will graduate in December with a masters of science degree from the same university. I 

plan to go to Hamline University School of Law, and I choose to 

work towards stopping this crime in our military. Needless to say, 

because of my discharge, I have had to pay for all of these degrees 

on my own. 

I am here today because I am not alone. My story is all too common. Protect our Defenders regularly hears from Active Duty personnel seeking help as they are being denied opportunities to report, generally retaliated against, diagnosed with errant medical 

diagnoses, or being charged with collateral misconduct after reporting the attack. The culture of victim-blaming and retaliation while 

failing to punish the perpetrator must end. 

19 

DOD regularly acknowledges this crisis. They estimate 19,000 

sexual assaults occur each year and 86 percent of victims do not 

report mostly out of fear of retaliation. Of those 19,000 victims, 

about 10,700 are men and 8,300 are women. To translate this into 

percentages, about 56 percent of estimated victims in our military 

are men. This is the part of the crisis that DOD does not acknowledge. 

Now, just what can we do to stop sexual assault in our military? 

First, we must recognize that rape is not just about sex. It is about 

violence, power, and sometimes about abuse of authority. General 

Franklin’s recent action to set aside the guilty verdict against Lieutenant Colonel Wilkerson of aggravated sexual assault is yet another example of an abuse of authority taken by a commander that 

will have a chilling effect on military judges, prosecutors, and juries and inhibit victims from coming forward. A system that elevates a single individual’s authority and discretion over the rule of 

law often precludes justice and hinders it long into the future. 

Colonel Wilkerson’s victim has been in contact with Protect our 

Defenders, and she wants you to know, quote, I endured 8 months 

of public humiliation and investigations. Why bother to put the investigators, prosecutors, judge, jury, and me through this if one 

person can set aside justice with the swipe of a pen? 

I have here a copy of her statement which has already been submitted for the record, Madam Chairman. 

[The information referred to follows:] 

[Please see Annex B at the end of this hearing] 

Mr. LEWIS. Reforms to date, have clearly not successfully addressed this epidemic because they have targeted the symptoms 

without addressing the root cause, which is that the military justice system is fraught with inherent personal bias, conflicts of interest, abuse of authority, and too often a low regard for the victim. 

Whereas civilians have the constitutional protections of an independent judicial system, servicemembers do not. Servicemembers 

must report an assault to their commanders. However, if those 

commanders take action and prove that an assault occurred, they 

also prove a failure of their own leadership. Congress has put commanders in charge of violent sexual crime from victim care, 

through the legal and investigative processes, through adjudication, 

and post-trial. Commanders have too often failed to care for the 

victim or prosecute the perpetrator. They have failed to end this 

longstanding epidemic. 

We also need to ensure that prevention efforts are inclusive of 

male servicemembers. The majority of prevention efforts are targeted toward females. As I demonstrated, men are a majority of the 

victims in our military. We cannot marginalize male survivors and 

send a message that men cannot be raped and therefore are not 

real survivors. 

Survivors of MST also need a fair review of their discharges. The 

military has shoved many survivors out the back door with inaccurate, misleading, and very harmful, almost weaponized medical 

diagnoses like personality disorders that affect their benefits and 

future employment opportunities. We need to establish a system 

separate and apart from the boards for correction of military 

20 

records to examine these discharges and grant survivors the medical retirements they are due from DOD. Currently the correction 

boards only change about 10 percent of their discharges. These discharges make it much harder for veterans to find meaningful employment, often re-victimize the veteran, make it impossible often 

for these veterans to use their earned education benefits. 

In conclusion, this epidemic has not successfully been addressed 

in decades of review and reform by DOD or by Congress. Some of 

the reasons for this include men being invisible and ignored as survivors of MST, inherent bias and conflict of interest present in a 

broken military justice system. The reporting, investigation, prosecution, and adjudication of sexual assault must be taken out of 

the chain of command and into an independent office with professional military and civilian oversight. 

The established discharge review process is a rubber stamp that 

causes lifelong harm and needs overhaul badly. It is another way 

that DOD fails us. 

Congressional legislation created these systems that are inherently biased, unfair, and do not work. It is now Congress’ duty to 

pass legislation so servicemembers can receive justice that is fair, 

impartial, and finally addresses the military’s epidemic of sexual 

assault. It should also be noted that a lot of survivors, as the other 

panelists have said, do not come home. There are people like Harry 

Goodwin and so many others that do not survive from their sexual 

assaults, and we need to do this in memory of them. 

Madam Chairman, this concludes my remarks. I am prepared for 

your questions and those of the subcommittee. 

[The prepared statement of Mr. Lewis follows:] 

PREPARED STATEMENT BY MR. BRIAN K. LEWIS

Chairman Gillibrand and members of the subcommittee, thank you for holding 

this hearing today on sexual assault in our military. I am very humbled to be here 

today. I am the first male survivor to testify in front of Congress on this very important topic. Thank you for making this historic event possible. I also want to thank 

my partner Andy and all the spouses of military sexual trauma survivors. They 

shoulder a heavy load and deserve our recognition. 

I enlisted in the Navy in 1997 and attended numerous schools and advanced to 

the rank of Fire Control Technician Third Class. During my tour on the USS Frank 

Cable (AS–40), in August 2000, I was raped by a superior noncommissioned officer. 

I was ordered by my command not to report this crime to the Naval Criminal Investigative Service. After my command learned of this crime, I was misdiagnosed as 

having a personality disorder by the current director of the Defense Center of Excellence for Psychological Health and Traumatic Brain Injury, and I was discharged 

in August 2001. I received a 100 percent disability rating from the Department of 

Veterans Affairs in June 2002 for post-traumatic stress disorder as a result of the 

rape. In August 2004, my petition to change my discharge from general discharge 

for a personality disorder to a medical retirement for post-traumatic stress disorder 

was denied by the Board for Correction of Naval. Therefore, I carry my discharge 

as an official and permanent symbol of shame, on top of the trauma of the physical 

attack, the retaliation and its aftermath. I fear it will be discussed, when I apply 

for law school, when I apply to take the bar exam, even when I apply for a job, and 

I wonder what opportunities it may destroy for me. No one should be forced to undergo such painful and inappropriate treatment. However, I choose not to dwell on 

what the past has brought my way. I will graduate in May with a Bachelor of 

Science degree in Paralegal Studies and graduate in December with Master of 

Science degree in Forensic Studies. I plan to go to law school, and I choose to work 

toward stopping this crime in our military. 

I am here today because I am not alone. My story is all too common. Protect Our 

Defenders’ regularly hears from active duty personnel seeking help as they are 

being denied opportunities to report, generally retaliated against, diagnosed with erVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
21 

rant medical diagnoses or being charged with collateral misconduct after reporting 

the attack. 

One survivor recently discharged put it this way: 

‘‘I still cannot grasp what happened to me. When mentioned to commanders, nothing is done—your report gets lost, people turn their backs on 

you. For 10 years, I was honored to wear the uniform, but I was treated 

like a second class citizen.’’ 

The culture of victim blaming and retaliation while failing to punish the perpetrator must end. 

The DOD regularly acknowledges the crisis. They estimate that 86.5 percent of 

violent sexual crimes go unreported, of the approximately 19,000 that occur every 

year. 

The military is 85 percent men and 15 percent women. According to the Naval 

Personnel Command, (2012 Sexual Assault Awareness Month Training Guide) of 

those 19,000 victims about 10,700 are men and 8,300 are women. To translate this 

into percentages about 56 percent of estimated sexual assaults in our military are 

men and 44 percent are women. 

Now, what can we do to stop sexual assault in our military? First we must recognize that rape is not just about sex, it’s about violence and power, and sometimes 

about abuse of authority, 

For over 20 years, repeated scandals of sexual violence, cover up, and abuse of 

authority in the military have come to light: including Tailhook, Aberdeen, The Air 

Force Academy, Marine Barracks Washington and the still unfolding scandal at 

Lackland AFB. 

Reforms passed by Congress or announced by the DOD to date have clearly not 

successfully addressed this epidemic. Despite all the rhetoric, things are not getting 

better. Between 2010 and 2011, the number of assaults did not decrease, yet actions 

taken by commanders regarding sexual assault cases decreased 23 percent. The 

number of perpetrators convicted of any charges, even adultery, in a sexual assault 

court martial decreased 22 percent. The number of initiated courts-martial fell 8 

percent. 

The reforms haven’t worked because they have targeted the symptoms of this epidemic. They have not addressed the root cause, which is that the military justice 

system is fraught with inherent personal bias, conflict of interest, abuse of authority 

and too often a low regard for the victim. While civilians have the constitutional 

protections of an independent judicial system, servicemembers do not. 

Servicemembers must report rape to their commanders. However, if their commanders take action and prove that rape occurred, they also prove a failure of their 

own leadership. 

It is only natural for commanders to want to believe that a crime did not happen. 

Making it disappear entails less risk for their careers. Not pursuing prosecution is 

much less disruptive for their units. Commanders know and work with the people 

involved, therefore they have biases. All those within the military hierarchy have 

strong incentives to follow their commanders’ biases. Commanders have tremendous 

power over the lives and future careers of those in their command. It is only natural 

that survivors experience repeated patterns of cover-up and retaliation. No wonder 

Congress’ reforms have not successfully delivered justice within a military justice 

system governed by commanders who have strong incentives not to bring rape to 

justice. 

According to DOD, 51 percent of male victims report that the perpetrator is of 

higher rank and 26 percent report that the perpetrator is actually in their chain 

of command and 62 percent of female victims report that the perpetrator is of higher 

rank and 23 percent report that the perpetrator is actually in their chain of command. 

Congress, through the UCMJ, put commanders in charge of violent sexual crime— 

from victim care, through the legal and investigative processes these cases involve. 

Commanders have too often failed to care for the victim or prosecute the perpetrator. They have failed to end this longstanding epidemic. 

The quest for a quick resolution or an affinity for the defendant sometimes leads 

the command to reduce sentences, grant clemency, or overturn convictions. These 

decisions are some of the reasons why 86 percent of victims do not report. 

Aviano Air Base commander, General Franklin’s recent action to set aside the 

guilty verdict by a court-martial, against Lieutenant Colonel Wilkerson for aggravated sexual assault is yet another example of an action taken by a commander that 

will have a chilling effect on military judges and prosecutors, potentially effect future cases and inhibit victims from coming forward. A system that elevates a single 

22 

individual’s autho1ity and discretion over the rule of law often precludes justice and 

hinders it long into the future. 

It’s time to address the fundamental problem to end this epidemic and eliminate 

the bias and conflict of interest inherent in the military justice system. 

We need to take the reporting, investigation, prosecution, and adjudication outside the chain of command and into an independent office with professional military 

and civilian oversight. This step is vital to ensuring that victims feel safe to come 

forward and report. This will also ensure that victims and the accused receive a fair 

and unbiased look at their cases from a disinterested party. 

We also need to ensure that prevention efforts are inclusive of male servicemembers. The majority of prevention efforts are targeted toward females. 

As I demonstrated, men are a majority of the victims in the military. DOD’s infamous ‘‘Ask her when she’s sober’’ marginalizes to male survivors and sends a message that men cannot be raped and therefore are not real survivors. 

Men need medical and psychological services crafted specifically for them and 

made available in gender specific settings. In 2009, the Defense Task Force on Sexual Assault in the Military Services recommended this specific step and it is not 

known whether this recommendation was implemented. Currently there are no residential treatment facilities specializing in treating only male survivors of military 

sexual trauma. Women can be sent by DOD to any one of a dozen currently run 

by the Department of Veterans Affairs. Often men cannot even receive effective outpatient therapy. This contributes to a suicide problem. Thirty-five veterans commit 

suicide every day and only 15 percent are combat related. 

Another form of victim blaming comes from military doctors. Under pressure from 

commands, doctors often diagnose survivors with personality or similar disorders, 

as a way to discharge survivors from the Service. Survivors of MST need to be treated equally with combat troops suffering from PTSD. This means that the ban on 

personality disorder discharges currently in effect should be extended throughout 

DOD to include survivors of military sexual trauma Personality Disorders, by definition, cannot come about as the result of a rape. Military doctors need to be held 

accountable for these false diagnoses. Such weaponizing diagnoses are unfair and 

unjust to our service men and women who have been victims of sexual assault in 

our military. 

Survivors also need a fair review of their discharges. The military has shoved 

many survivors out the back door with inaccurate, misleading, and very harmful 

discharges that effect their benefits and future employment opportunities. We need 

to establish a system separate and apart from the Boards for Correction of Military 

Records to examine these discharges and grant survivors the medical retirements 

they are due. Currently the Board for Correction of Military Records only changes 

about 10 percent of discharges. These discharges make it much harder for veterans 

to find meaningful employment and often impossible to use their earned education 

benefits. In reviewing the discharges, the Boards, by Federal regulation (32 C.F.R. 

§ 723.3(e)(2) and other analogous provisions concerning the Army, Air Force, and 

Coast Guard), must ‘‘presume regularity in the conduct of governmental affairs.’’ In 

other words, they assume the military does not make mistakes. The military’s own 

sexual assault statistics, though, show it would be far more appropriate to presume 

that, at least where rape is involved, the military’s conduct is predominantly characterized by mistakes. Therefore, today, the system of reviewing discharges is a rubber stamp for a process known to be a deeply flawed. It is broken and unfair to service men and women who have been victims of military sexual trauma. Survivors 

need to be able to have their discharges reviewed by an independent authority and 

not the same organization that unjustly damaged them. There should be no presumption that the organization that hurt them did so correctly. This is why we support H.R. 975, which would allow these erroneous discharges to be reviewed by the 

same Physical Discharge Review Board that is evaluating combat veterans for medical retirement 

In conclusion, even after decades of review and reform by the Department of Defense and by Congress, this epidemic has not been successfully addressed. Men are 

still invisible and ignored as survivors of military sexual trauma. Reform won’t be 

effective until conflict of interest is removed in military justice, and the reporting, 

investigation, prosecution, and adjudication of sexual assault is taken outside the 

chain of command and into an independent office with professional military and civilian oversight. Discharge review is a rubber stamp that causes life-long harm, and 

needs overhaul. Congress’ legislation created these systems that are inherently biased, unfair, and don’t work. It is now Congress’ duty to pass legislation, so servicemembers can receive justice that is fair, impartial, and finally addresses the military’s epidemic of sexual assault. 

23 

Madam Chairman, this concludes my remarks. I am prepared for your questions 

and those of the subcommittee. 

Senator GILLIBRAND. Thanks to each of you for such direct and 

thoughtful testimony. 

Each of you has recommended in your own way that you would 

like the disposition authority removed from the chain of command 

and in fact that there should be an independent legal review and 

a prosecution. 

Ms. Bhagwati, if we are able to institute a prosecution system 

that does not involve having to report to your chain of command, 

do you think that will increase the number of cases that are reported? Do you think it will increase the number of cases that are 

prosecuted? Do you think it will increase the number of cases 

where a conviction is found? 

Ms. BHAGWATI. Thank you, Senator Gillibrand. 

Yes, I do. It is really a two-pronged system, though, that needs 

to be changed. We have the pipeline of accused being prosecuted 

and hopefully convicted, but also the retaliation that so many 

servicemembers face in the process which cannot just be dealt with 

through the criminal justice system within the military. Yes, absolutely, an independent prosecutor being given case disposition authority, given convening authority will dramatically shift the way 

victims approach whether or not to report. Victims’ care is a huge 

piece of that as well. 

I look at it as kind of a cynical way of thinking about sexual assault being inevitable in the military if all we focus on is prosecution and victims’ care. We need to do something on the front end 

to prevent sexual assault from happening at all. Right now, there 

is really no deterrent with the military to prevent these crimes. 

There is no deterrent to cause sweeping culture change. 

Senator GILLIBRAND. Do you think that if we have more convictions and justice is served, that that will signal change within the 

military, that if you do commit these crimes, you will be caught, 

you will be prosecuted, you will be punished? 

Ms. BHAGWATI. Absolutely. It is a huge step we need to take. But 

I would like to encourage the Senate to consider the fact that criminal justice is not a perfect system either in the military or the civilian world, and that victims need more than just a criminal justice 

system to achieve closure to get any sort of full access to justice. 

Civilian victims right now within our United States have much 

more access to redress, and that is why the civil court system 

needs to be open to military victims as well. Right now military victims have less access to justice than the civilian victims whom they 

have sworn to honor and protect and defend. 

Senator GILLIBRAND. How do you think if you could open the civilian court system to victims, that will change the culture in the 

military? 

Ms. BHAGWATI. Civil courts traditionally have been designed to 

serve victims. There is a lower burden of proof and victims are likely to get more justice in that system. It also acts as a deterrent to 

workplace discrimination, harassment, and assault. That is why it 

functions within the civilian context. You cannot go a week without 

reading a case in the news, in the mainstream news, about a civilian victim of discrimination, harassment, or assault actually getVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 Z:\DOCS\88340.TXT JUNE
24 

ting her day in court because even the civilian criminal justice system has not been able to give her justice. 

Senator GILLIBRAND. What are some other ways, do you think, 

that we can change the culture within the military to create less 

of a climate of discrimination and a possibility of assault and 

abuse? 

Ms. BHAGWATI. One very integral piece to this kind of unfortunate puzzle is really the legalized sex discrimination, which still exists in the military, and despite Secretary Panetta’s fantastic news 

last month, only one military occupational specialty has actually 

been open to women as far as we know. We are very much looking 

forward to what the Service Chiefs announce in the way of how the 

lift of combat exclusion will actually be implemented. But sex discrimination within the military goes hand in hand with sexual harassment and sexual assaults. 

Senator GILLIBRAND. Thank you. 

For the other three witnesses, if you were able to have reported 

your case of sexual assault and rape to a prosecutor directly, how 

do you think it would have changed how your case was handled, 

and what differences do you think it would have shown? Ms. 

McCoy, you can go first, if you like. 

Ms. MCCOY. I really have to reach back over 20 years to think 

about it, but I believe I would have moved forward with pursuing 

it. I would not have backed away. In my case, I did present the documentation that was necessary to move forward, and they did not 

do anything. So I would have had something in place or someone 

in place to go to to have that conversation so that we could have 

moved forward with some type of legal process. Ultimately I would 

have still had my career. I would have still been serving. I would 

not have been forced out. I would not have been scared for my life 

because I would have had someone, an intermediary, to go to. 

Senator GILLIBRAND. Ms. Havrilla? 

Ms. HAVRILLA. I am not sure if I would do much differently. I 

was in a unit of 22 people. Even if I had an independent prosecutor, up until last year’s NDAA, there was no potential for base 

transfers. Had I actually gone through with a full investigation 

while serving, I still would have had to live with many of the men 

who were abusive towards me, and that is not anything that I 

would have ever wanted to go through, independent prosecutor 

aside. 

The challenge is partially changing the culture within the military of how women are viewed. Until the leadership is held accountable for the actions of some of their subordinates, when leadership is allowed to push those things under the rug, when leadership is never made to stand for the actions others that they, hands 

down, could have easily said this is unacceptable behavior, it will 

not stop. Until that happens within certain units—not all units 

were like mine. I just happened to get a bad one. But had I been 

in that situation with that unit, I will probably would have not reported at that time. 

Senator GILLIBRAND. Mr. Lewis? 

Mr. LEWIS. Thank you for your question, Madam Chairman. 

I want to be absolutely clear that my perpetrator was not just 

a perpetrator against me. He has perpetrated this crime against 

25 

other victims at that same command while under the command of 

the same commanding officer. So, yes, an independent prosecutor 

would have made a world of difference. It would have gotten the 

reporting outside of the chain of command and not enabled my 

commanding officer to sweep this under the rug. Even if I had had 

to stay on board the ship with my command and perpetrator, I 

would have still been able to access some form of justice, and that 

at the end of the day, would have saved me, I feel, a lot of heartache and a lot of disappointment. Hearing one of my senior members of my chain of command come to me and say you are not going 

to report this, that is devastating to any survivor, male, female, or 

whatever. It feels like your heart breaks when your commanders 

break faith with you in that fashion. An independent prosecutor 

would have made all the difference. 

Thank you, Madam Chairman. 

Senator GILLIBRAND. Thank you. 

Senator Graham. 

Senator GRAHAM. Do all of you believe if you had had somebody 

in your corner, someone assigned to kind of help you through the 

system, an advocate, that that would have helped? 

Ms. HAVRILLA. I initially went to the Sexual Assault Response 

Coordinator (SARC), and I found them to be very helpful and very 

supportive. But they have absolutely no authority with these 

issues. While it was comforting in some respect to know that they 

were supportive and they were there, there is nothing that they 

can really do for you when you are going through the military judicial system. I think having someone who—because I eventually did 

a full investigation, and even then I had no one to guide me 

through that to explain to me what was going on. Again, I did not 

hear from CID for 4 months after my initial report. I think that 

having someone like a special victims individual who is trained in 

the legal aspects of what is happening and what is going on would 

have been extremely beneficial for me when I was going through 

the actual investigation process. 

Senator GRAHAM. Could you give the committee not in public 

here but privately the name of the chaplain who told you that? 

Ms. HAVRILLA. I honestly do not remember his name, but I can 

easily find it out for you. 

Senator GRAHAM. Would you please find that out? 

Ms. HAVRILLA. I can do that for you. 

Senator GRAHAM. About opening to civilian litigation—is it 

Bhagwati? 

Ms. BHAGWATI. It is Bhagwati. 

Senator GRAHAM. Would you suggest that the claim be against 

the Government or the individual member? 

Ms. BHAGWATI. As I understand it, claims against the Government are really the key piece here. It is claims against your employer that Federal tort claims and Civil Rights Act cases have 

been traditionally brought up for the victims. I mean, all of this, 

I think, needs to be closely looked at, but in our system, in our culture, civil courts are aware victims get justice much more frequently than in the criminal courts. We have to look at how we can 

make the military more on par with the civilian system. It makes 

26 

no sense that a young American should put on the uniform and 

then sacrifice their constitutional rights. It makes no sense. 

Senator GRAHAM. Mr. Lewis, you received a general discharge. Is 

that correct? 

Mr. LEWIS. Yes, Senator. 

Senator GRAHAM. Again, maybe we can do this in the committee 

privately. Do you mind if we look at your file? 

Mr. LEWIS. No problem, Senator. 

Senator GRAHAM. From your point of view, do you think having 

a victim advocate would have been helpful if there is somebody 

that you could have went to that would have sort of been in your 

corner to kind of educate you of the things you could do when you 

hit a roadblock? 

Mr. LEWIS. Some survivors have had success with a victim advocate, but I think that in order to be feasible, any person that would 

be in my corner would have to be of rank and able to issue orders 

and able to do things to help me directly. I was fortunate enough 

to see mental health, and I thought that doctor was in my corner 

and he was not. 

Senator GRAHAM. He was not? 

Mr. LEWIS. No, sir. I just cannot imagine a case where someone 

of lesser rank could effectively be in my corner while being subject 

to the chain of command. 

Senator GRAHAM. Ms. McCoy, you were victimized multiple 

times. Is that correct? 

Ms. MCCOY. That is correct. 

Senator GRAHAM. Did you ever go through a CID process? 

Ms. MCCOY. I did not. I did go through the process of filing the 

paperwork with another NCO. They helped me file a sexual assault 

complaint only. At that time, I do not know that there was necessarily a victim’s advocate. I know that we had sexual harassment 

training and we were already given some steps to how to handle 

sexual harassment, but there was no one that could come alongside—— 

Senator GRAHAM. One thing I want to make sure people understand. Rape is not sexual harassment. It is a violent crime subject 

to severe punishment under the UCMJ. 

Do you think a victim advocate may have been helpful to you? 

Ms. MCCOY. I have to say that the victim’s advocate, if they have 

the proper rank and if they are set aside and they supersede 

maybe the unit and they have more authority and more power, because if they just come along and they are just kind of supportive, 

I do not know how that is going to help that individual who is 

going through that day-to-day maybe some backlash for even reporting it and the isolation. I do not know how that is going to help 

that individual while they are still stationed in that unit where 

they are receiving that type of treatment. 

Senator GRAHAM. Maybe all of you could comment on this individually from your own personal experience. Why do you think the 

command, the commanders, the senior NCO leadership—why were 

they so hostile to these claims? 

Ms. BHAGWATI. In my own experience in the Marine Corps, there 

were signs of hope along the way. When I was at the School of Infantry, it was actually the infantrymen on the enlisted side that 

27 

were just as outraged as victims of sexual harassment and assault 

were. However, on the officer side, there was definitely a sense of 

an old boys’ club, colonels protecting lieutenants, colonels protecting staff sergeants. Whether or not that has to do with an inclination to protect one’s own career, looking out for a future star, or 

whether or not there is some sort of misguided attempt to protect 

a good man because you know his family and he has served for 20 

years—I mean, you hear this language all the time. Officers—there 

are fewer of us and we spend time with one another, hanging out 

at the O-Club. It is a completely different culture. 

That is why the Wilkerson case was even more egregious. I 

mean, you have two pilots. There is this appearance of impropriety 

even without looking at the facts of the case. That is typical in 

every unit throughout the armed services. 

Ms. HAVRILLA. One of the things that I really do stress is it is 

about leadership. The hostility is not necessarily even towards 

women. The hostility is towards the feminine, the perception of 

being less than and the perception of being weak. Even though I 

was the only female in my unit, I was not the only one that was 

targeted for abuse. We had two other males in my unit that were 

targeted regularly for sexual harassment and sexual abuse that 

went through a lot of the same stuff that I did. It was not a gender 

issue. It was, we are targeting what we see as less than, and just 

by being a woman, I was automatically less than even though I 

was just as good as they were. 

The mind-set when you have that mentality and then again you 

have the leadership that allows it to continue every day—I cannot 

tell you a single day that did not go by without some type of rape 

joke, sex joke, sex play, simulated sex play between men. 

We had a sexual assault and harassment training that we went 

through, and one of our sergeants got up on the table and stripped 

completely naked and danced and laughed at it. I mean, that is the 

kind of culture that I lived in on a daily basis. Then when you deploy, you are stuck with these people in very small units in very 

small places. Why would I go to a chain of command that I knew 

was going to allow those things? 

It is not even a hostility towards women in general. It is that is 

the kind of culture that some of these units’ commanders allow to 

thrive, and when you have that type of culture, these issues are 

going to continue to be perpetuated. 

Senator GILLIBRAND. Thank you. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Senator Gillibrand. I want to 

thank you and other members of this panel who have been working 

for some time on this issue. I think Senator McCaskill, Senator 

Shaheen, Senator Gillibrand obviously. I have been privileged to be 

involved in some of the work that has preceded this hearing. 

But I think the hearing is critically important because it really 

highlights why we are here today, which is that in the aftermath 

and the wake of 10 years of war, we want to assure that we continue to have in our military the best, the brightest, and the bravest. Obviously, sexual assault is one of the primary and predominant obstacles to attracting and retaining good people to our military. It is not just about the victims, although we deeply respect 

28 

and care for the horrific experience that you have encountered. It 

is the national interest that brings us here today. 

It is the interest of our extraordinary military that also brings 

us here today. They have demonstrated that they are aghast and 

disgusted by this problem and that they are acting to do something 

about it, not just Defense Secretary Hagel but I believe many of 

our leaders in the military and that they will do something about 

it. 

I view today’s hearing as a cooperative effort, cooperative between this panel and our DOD, in seeking to address a problem 

that ought to have zero tolerance, literally zero tolerance. 

As a parent of two sons who are currently serving in the military 

and one who serves on this panel and has spent some of the best 

moments of my 2 years as a Member of the Senate with our military, three times visiting Afghanistan, and having the privilege of 

working with our military, I believe that we have in our military, 

right now the next greatest generation, and that if we can deal 

with this problem, we will assure that we continue to have that 

quality of people in the military. I believe the leaders of our military are determined to make it so. 

But this issue is more complicated than just making a speech or 

saying that we have zero tolerance. Literally deterrence is in the 

details. I say that as a former prosecutor, as U.S. Attorney in Connecticut for 41⁄2 years, as State Attorney General for 20 years. The 

details of evidence, of sentencing, of review, and appeal are what 

will enable us to solve this problem. I really welcome the suggestion, for example, that we have independent prosecutorial authority 

outside the chain of command, which might be welcome by many 

of the officers who have to make these decisions. I think these 

issues ought to be explored. 

The Wilkerson case is extraordinary not just for the reversal of 

the decision and the conviction, but the sentence was only a year, 

as I understand it, and even more troublingly—and I am going to 

quote from the full statement, Mr. Lewis, that was provided by the 

victim. ‘‘I endured 8 months of public humiliation and investigations, interviews by the Office of Special Investigations and the 

prosecution, apparently without an attorney.’’ To continue the 

quote, ‘‘I was interrogated for several hours by Wilkerson’s legal 

counsel without the benefit of legal counsel myself.’’ She was interrogated for hours by the defense counsel without any aid of an attorney herself. 

Let me ask you, Ms. Bhagwati, would you suggest that we ought 

to have not just a victims advocate, but a victims advocate who 

would serve, in effect, as legal representation for the victim so that 

that victim’s rights and perhaps expanded rights would be better 

protected? 

Ms. BHAGWATI. Senator, that is a very sensible recommendation 

or suggestion, and I would refer you to the Air Force’s pilot program. I imagine General Harding will be touching on that in a few 

hours. We have actually referred a couple of clients just for this 

purpose, airmen who have needed that extra buffer, because it is 

an incredibly intimidating process even under the best circumstances because there is so much hierarchy and power and intimidation in the process of coming forward. Yes, that measure, as 

29 

it has been briefed to us, even goes beyond what civilian victims 

have, which is fantastic because military victims do need that extra 

buffer because of the hierarchical nature or environment in which 

they operate every single day, especially junior enlisted troops. 

Senator BLUMENTHAL. We should be very clear. Civilian victims 

who come forward do so in a highly intimidating process, and they 

have needed—I can tell you, as one who has seen this process improve over the years, they have needed the kind of advocacy that 

the military is beginning to provide. I commend the pilot program 

that has been started, and we will be hearing later from folks who 

can tell us more about it. But I ask you as victims or their advocates now whether that kind of separate unit, which I have advocated, ought to be made institutional. 

Ms. BHAGWATI. I believe it should be. 

I would just add I do think there is extra pressure on military 

victims. It is a very different environment. It is a confined environment in which you cannot quit your job or you will be charged. In 

the civilian environment—rape, assault, and harassment are horrendous under any condition in any environment, but within the 

military you just have less freedom of movement, less access, and 

you have this incredibly hierarchical system in which 9 times out 

of 10, you are told to stay silent. That is how we are trained in 

basic training and officer candidate school, not to talk back. 

Senator BLUMENTHAL. Ms. Havrilla, I think you have highlighted 

that point by calling attention to the culture within your unit, the 

practices within your unit which, in essence, were unreviewable because of both the physical and the command structure that you encountered. 

Ms. HAVRILLA. Yes. It is something that I saw outside as well. 

I spent the majority of my time with infantry special forces and 

combat engineers. I spent 99 percent of my time deployed as the 

only female. I have had exposure to other units in other capacities, 

and there were some that were just as bad and there were some 

that were not. There were some that treated me with absolute professional respect and dignity and I never had any problems with 

some. So in my mind, it really does come to what is allowed, what 

does that leadership say goes and does not go and where they draw 

their lines, and that filters down to the lower levels and continues 

to do so. 

Senator BLUMENTHAL. My time, unfortunately, has expired but I 

just want to close by saying that your testimony in particular— 

really all of your testimony—calls attention to the need for prevention. Part of it is deterrence. I say that as a prosecutor. I am a big 

believer in deterrence, firm punishment, excellent prosecution, but 

also education. I know the military has begun using an extraordinary documentary called ‘‘The Invisible War,’’ which I hope will 

be shown to everybody, all of our brave men and women in the 

Armed Forces, so that we can prevent the kind of unit culture that 

you have described so movingly. 

I really want to thank all of you for being here today, for having 

the courage to step forward, but also for your service in our military and thank all of the military and veterans who are present 

here today for your service as well. Thank you. 

Senator GILLIBRAND. Thank you, Senator Blumenthal. 

30 

Senator Ayotte. 

Senator AYOTTE. Thank you, Madam Chairman. I want to thank 

you for having this important hearing today. 

I want to thank the witnesses for their service to our country 

and, in particular, for their courage for being here today. We really 

appreciate what you have to say, and this is an incredibly important issue. 

I wanted to ask about this idea of prevention. What do you think 

we can do more effectively? I do not pretend to have a very good 

understanding. Now, I know that the military has made some steps 

in terms of what kind of education they are doing, whether it is 

showing individuals ‘‘The Invisible War’’ film, but also it seems to 

me that we will not have prevention unless we have at the military 

academies, at basic training this be a core component of readiness, 

a core component of training up the chain of command as a priority. 

What was your experience with that, and any sense of what we 

could do more on that end to make this, as you say, changing the 

culture means this being a core component of every aspect of when 

you receive training and your readiness—awareness and reporting 

and accountability? 

Ms. MCCOY. I have to say that it even starts at recruitment because we have quite a few of our men and women that are being 

raped and sexually harassed during the recruitment process. I 

would say even before you get to the Military Entrance Processing 

Station center where you are having this process of you being examined and all of your background history interrogated, it needs 

to start at the very beginning before you even get into the military 

so that when people come in, they know that there is a no tolerance, that this is not going to occur in this area, this breeding 

ground for you to wreak havoc against other people. It has to start 

at the very beginning. That is just what I believe. 

Mr. LEWIS. Thank you, Senator. 

One of the key components, as I said in my opening statement, 

was that we not marginalize the idea of a male survivor. DOD’s 

campaign last year or so was ‘‘ask her when she is sober.’’ The 

whole idea of that campaign marginalizes the idea of a male survivor being able to come forward, and given the strong societal, almost blind eye that is turned toward the idea of a male survivor, 

we need to empower them to come forward. 

The other things, in terms of prevention, is yes, it must be a core 

part of readiness. It must extend, as Ms. McCoy said, all the way 

back to recruitment. Commanders must actually put the things 

they learn in training into practice. If they receive an expedited request for a transfer, the benefit of the doubt should automatically 

be with the victim, and the transfer should be granted unless there 

is some extenuating circumstances against it. I would be hardpressed to think of any. 

But prevention also has to be a way of thinking and it has to be 

accepted all the way down almost to the very bones of people that 

we do not act this way against each other. We do not hide the 

crime when it comes up, and even if this crime does come up, it 

is not a failure in my leadership to say this has happened and I 

need to report it up the chain of command properly. 

31 

Ms. HAVRILLA. Thank you. This is a question I have thought a 

little bit about. The DOD has direction about how sexual harassment trainings are to be conducted. A few years ago, the Government Accountability Office (GAO) did a report on those trainings, 

and it just does not happen the way it is supposed to happen for 

numerous reasons. We have been at war for over a decade now. 

Time is crunched. It becomes a PowerPoint, check the block here, 

read this, go on, move on. We have to get this done. Let’s get 

through this. One of the things that we always saw is we had an 

E–6 in the unit click through our slides. Everybody sign here and 

move on. 

So I think that by actually implementing the DOD’s recommendations of having outside educators come in and do these 

trainings—that is very important that you have someone, again, 

who is not in the military system who understands the military 

system that can come in and say this is what consent is. They can 

lay out exactly and define it and then say this is what is going to 

happen if you do this and have actual consequences, as we have 

discussed all morning, for those actions if they occur. 

But I think it is very important—the training is there. It is just 

not being implemented properly. There is not enough educators out 

there that are doing this—SARC—sometimes there is only one or 

two to an entire installation. They cannot handle reports and do 

training at the same time. So it is a budget issue, a funding issue 

of how are we going to provide appropriate educators for this topic 

exactly from recruitment on. 

Senator AYOTTE. Thank you. 

Ms. Bhagwati. 

Ms. BHAGWATI. I think Brian’s point is really important. Messaging is critical. Culture change cannot happen without an entire 

rethinking of how this issue is messaged within the military. I 

mean, generally I think the way servicemembers and veterans talk 

about this issue, there is this assumption that you are harassed or 

assaulted because you are weak. Weakness somehow plays into the 

entire makeup of why this does not—this is such a hard problem 

within the military. We are not trained to think of ourselves as 

weak. Victimhood is not something that any veteran wants to kind 

of own. It is completely out of sync with being in the military. But 

when there is messaging that is sort of ‘‘small women who are not 

strong enough are victims’’—and you see variations on that theme 

constantly, which is a complete myth. It has nothing to do with the 

sex of a victim. When there is mixed messaging about alcohol and 

rape, where there is an assumption that there is just a lapse of 

professional judgment on the part of a young man in most cases, 

you see messaging about them. ‘‘Ask her when she is sober’’ posters 

is a perfect example of that. There is an inappropriate mixing of 

messages, which is also just based on mythology. It is not based on 

fact. 

Rapists tend to be serial. They use tools like alcohol to undermine their victim’s credibility. It is not a matter of young people 

partying and the wrong thing happening. Rapists lay out tactics to 

do what they want to do. There is really just a lack of understanding about what rape is, what sexual harassment is. 

32 

The final thing I would say is the culture is so entrenched right 

now when it comes to sexual violence, and because chain of command is really how we learn to operate from day one of basic training or Officer Candidate School, you really need outside systems 

that are available to victims within the military because it is hard 

for your mind to really think outside of that box once it becomes 

your 24-hour norm. It changes you for all the right reasons because 

it is very effective operationally to be trained that way, but when 

it comes to being violated, to being attacked, to losing your dignity 

at the hands of a fellow servicemember, we need outside systems 

because they are obviously perceived as safer and they are definitely more functional. They work better. 

Senator AYOTTE. I want to thank all of you. My time is up. 

Just briefly, first of all, sexual assault and rape is not about the 

weakness of the victim. It is about power and control and the assertion of that. That, obviously, in a military context becomes an 

even greater problem. My background is as a prosecutor too. I want 

you to know, Mr. Lewis, that I very much appreciate that men are 

victims of sexual assault both in the civilian sector but in the military. I can imagine this is an even greater issue that we need to 

address for both men and women and all people’s dignity. 

Two things I wanted to say briefly, which is that in my State on 

the civilian side, we had what is called a victim’s bill of rights. It 

seems to me like there needs to be some kind of bill of rights also 

when you are in the military in terms of you know how you will 

be treated, and that has to also be something that the chain of 

command is held accountable for. 

I appreciate all of you being here today and look forward to hearing what you have to say and listening to what you have to say 

beyond this hearing, as we try to make sure that we address this 

issue and stop what is happening. Thank you. 

Senator GILLIBRAND. Thank you. 

Senator Hirono. 

Senator HIRONO. Thank you, Madam Chairman and Ranking 

Member Graham, and thank all of you for your testimony and the 

information that you provided. 

I realize that this situation is very complicated, and one of the 

hardest things to change, of course, is the culture of an institution 

such as the military. We are very proud of the service of our men 

and women in uniform, but these kinds of assaults—we must move 

in the right direction. Some of the suggestions that you made were, 

I think, steps that we should consider seriously. 

Ms. Havrilla, one of the questions that you were asked was if we 

were to remove the decision to prosecute or even to investigate 

from the chain of command and giving it to an independent authority, would that help. Something you said really struck me. You said 

that while this is all going on, though, are still in the environment. 

You are still feeling very vulnerable. 

What are some things we could do during the process? Basically 

I want to know what kind of privacy is afforded to someone who 

comes forward to report these crimes. What can we do even if we 

were to remove the decision from the chain of command? 

33 

Ms. HAVRILLA. I think when you are in the military, you feel like 

you have absolutely no privacy at all anyway. When it comes to 

medical issues, there really is no privacy. 

As mentioned, I think that implementing the concept of base 

transfers or unit transfers are getting you away from those people 

that were perpetrators against you. I cannot imagine being in my 

unit going through an investigation at any point in time. But had 

I that option, I am saying, hey, for example, say I go to the SARC 

and say this happened to me. I am thinking about reporting it, but 

I am really not sure because I do not want to stay in this unit and 

have to deal with all of the potential backlash that is going to come 

for me. What are my options? Had they given me the option of saying we can transfer you to another unit, another duty station— 

again, EOD is very small. It is not like I can go from one unit to 

another, one platoon to another. I would have to literally permanent change of station or go temporary duty in some capacity to get 

away from—change duty stations. I would have to move to the 

States basically. Then you have the challenges that might come 

with that. I am in another location. I have decided to press 

charges, and I am having to do all of this from a remote location. 

I mean, there are complications as everybody has discussed, but 

I really think that had I the option to say you can go forward with 

a prosecution and not be in the unit that you are in, I might have 

considered that very seriously. But I cannot imagine doing it while 

embedded and entrenched with the same unit that was causing all 

of my difficulties. 

Senator HIRONO. Would the rest of you agree that that should 

have been an option presented to you, to be removed from the environment in which these incidents occurred? Mr. Lewis? 

Mr. LEWIS. Absolutely. Thank you, Senator Hirono, and absolutely. 

One of the current problems with the unit transfer idea is that 

a unit may be in the same geographic location. For instance, if this 

had happened to me aboard a ship stationed out of Pearl Harbor— 

I was stationed on a submarine before I went to the Frank Cable 

out of Pearl Harbor. But if I could have been moved from that submarine to Naval Submarine Support Command right there in the 

same base, almost the same building, that should not be. Speaking 

personally, I would rather deal with the pressures of having to deal 

with the prosecution from half a State away or wherever than to 

be in a situation where I have to look my perpetrator in the face, 

where I have to eat, sleep, breathe, go to the bathroom, or anything 

else with that perpetrator. 

Senator HIRONO. Thank you. 

Would all of you agree that removing the decision to go forward 

with either investigation or prosecution should be removed and 

should go to an independent authority and out of the chain of command? Would all of you agree that that would be a desirable step? 

[No verbal response.] 

Senator HIRONO. Ms. Bhagwati, there are other countries that 

have removed the chain of command from making these decisions. 

I think Great Britain has done so. Are you familiar with the experiences in these countries, whether the incidence of sexual assault 

went down, whether prosecutions went up, whether reports went 

34 

up? Are you familiar enough to talk to us a little bit about what 

your impressions are of these other countries that have made this 

kind of change? 

Ms. BHAGWATI. We have done some research. It is my understanding that the UK and Canadian systems are ones we should 

look at in closer detail. The Australian system is also one you can 

look at, although we have seen less success in that system. I think 

beyond that though, I would refer you to some additional subjectmatter experts. It requires a great deal of further study. But the 

UK has done it successfully, and it is my understanding that the 

prosecutors themselves are military but that the supervisor of 

those prosecutors is civilian. It is a bit of a mix in the UK system. 

Senator HIRONO. There are some things, evidently, that we can 

learn from these other countries. 

I happened to read an article in the Maklachi newspapers, March 

10, 2013, and it is talking about the Aviano case. It notes that because of all of the attention being paid to this terrible situation— 

these assaults—that somehow there is a political climate where 

commanding officers feel pressure to prosecute sexual assault allegations. The article goes on to say that commanding officers sometimes use their prosecutorial discretion to proceed with weak cases. 

They cite some examples of when this happened. So it seems to me 

would this not point to the desirability of removing these kinds of 

decisions from the chain of command so that they would not feel 

political pressure to prosecute weak cases? Would you like to comment? 

Ms. BHAGWATI. Absolutely. It is a really critical point that professionalizing the system, actually putting legal experts in charge of 

the process serves everyone better. It creates a fairer and more impartial trial for the accused as well. 

The classic kind of example of why the current problem is so serious is the Commandant of the Marine Corps doing the right thing 

as the head of the Marine Corps by speaking out strongly against 

sexual assault in the Marine Corps. We were very excited to hear 

that kind of language, but because he is in everyone’s chain of command, it is seen as problematic. But if he were removed from that 

process like all other unit commanders, he could speak strongly 

about this issue, as he should, as everyone within the Armed 

Forces should. But we have this perception that there is undue influence by the Commandant or other military commanders because 

commanders have this discretion over these cases. It does not need 

to be that way. If we professionalize the system and go in the direction of, for example, the UK, we will not see this undue influence. 

Senator HIRONO. Thank you. 

Madam Chairman, my time is up and I thank you. 

Senator GILLIBRAND. Thank you. 

Senator McCaskill. 

Senator MCCASKILL. Thank you, Senator Gillibrand, and thank 

you for being here today. 

Rape is the crime of a coward. Rapists in the ranks are 

masquerading as real members of our military because our military 

is not about cowards. 

Our military does an amazing job of training. I am so proud of 

our military. But, unfortunately, I believe that this is not a crime 

35 

that we are going to train our way out of because the crime of rape 

has nothing to do with sexual gratification. It has nothing to do 

with dirty jokes, and frankly, there are a lot of studies that say it 

is not even connected necessarily with people who like to look at 

dirty pictures. It is a crime of assault, power, domination. I believe, 

based on my years of experience, that the only way that victims of 

sexual assault are going to feel empowered in the military is when 

they finally believe that the focus on the military is to get these 

guys and put them in prison. 

I believe that the focus of our efforts should be on effective prosecution and what do we need to do to make sure that these investigations are done promptly and professionally, that the victims are 

wrapped in good information, solid support, and legal advice, that 

the prosecutors have the wherewithal and the resources to go forward in a timely and aggressive way, and you do not have the ability of some general somewhere who has never heard the testimony 

of factual witnesses in a consent case who can wipe it out with the 

stroke of a pen. 

What I would love from you all—your cases are all compelling, 

they are all moving. I, like Senator Graham, am infuriated at that 

chaplain. I am infuriated that the notion that some of the men who 

put up with what happened to you or even perpetrated what happened to you are still serving in our military. 

I would like to hear from you, especially those whose cases were 

more recent, what happened when you reported in terms of getting 

good legal information about what your rights were and what to expect. 

Ms. HAVRILLA. Thank you, Senator MCCASKILL. As mentioned, I had none. When my friend notified me that he 

had found the pictures of my rape online, again it was actually 

kind of a spur of the moment decision. I was like, okay, enough is 

enough. This has gone on long enough. I am going to do an investigation. This is ridiculous. 

Senator MCCASKILL. If I could go back to your initial decision because we know that there is a huge number of these cases, that 

there is never a restricted or an unrestricted report. Just so we 

make the record clear, a restricted report is kept for 5 years; an 

unrestricted report is kept for 20 years. 

Ms. HAVRILLA. I believe those just changed. I believe that restricted reports now are to be kept for 50, but previously there was 

a much lower cap on that. 

Senator MCCASKILL. Okay. Well, whatever the amount is, the 

difference between a restricted report and an unrestricted report is 

how timely we can get after it because if it is a restricted report, 

it is not going to be investigated. 

Ms. HAVRILLA. Correct. You basically just become a statistic. 

Senator MCCASKILL. So if, in fact, one of the reasons you made 

your report restricted was the unique nature of the victim being 

embedded with her perpetrator in a work environment that is intense and depends on working together, what would have happened when you went in if you were told that if there is probable 

cause found in the next 30 days that this crime was committed, 

your perpetrator would be removed from the unit? What would 

your response have been? 

36 

Ms. HAVRILLA. It probably would have been worth considering. 

At that point, you have a timeline, a light at the end of the tunnel, 

so to speak, with set standards and guidelines of, okay, this will 

happen in the event that this, this, this are found. 

Again, when you are in the middle of it—you look back on it with 

kind of 20/20 or Monday morning quarterback style, and you are 

like, oh, I can look back on this and be like, oh, I might have done 

it differently. But when you are in the middle of it, it is extremely 

difficult to be able to think clearly. It is a huge trauma. It affects 

your mental health. It affects how you see the world, how you see 

yourself. But had I had more information, had there been some 

type of recourse of saying this is not about me, this is about him, 

and had there been probable cause for some type of prosecution— 

and I was actually asked later when I did my full investigation. 

They said if they find enough, are you willing to take this to courtmartial, and I said, yes, absolutely. But in the beginning that was 

not even an option for me. That was not something that was given 

to me. Again, we can do the ‘‘what if’s’’ all we want. 

Looking forward, I am a different person now than I was. If I 

were to be in the same situation now and have that happen to me, 

I would say, yes, absolutely I am willing to take that as this perpetrator is going to be done in 30 days or at least the potential for 

that. Let’s move forward with this. 

Senator MCCASKILL. Do you feel like your SARC, your special advocate that you talked to—do you feel like they were neutral, supportive, tried to talk you out of it, tried to talk you into it? 

Ms. HAVRILLA. Most of them were very supportive and they 

wanted to be helpful, but they all understood that their hands were 

tied to what they could actually do for you as a victim. When I 

went in to do my restricted report against my rapist, I mentioned 

in passing the constant sexual harassment and sexual assault of 

my team leader. They said, oh, do you want to do a report against 

him too. I was like, I had not even thought of that. But sure, why 

not? So they were not pressuring me into anything. It was just 

kind of you have the option of also making a restricted report 

against this individual as well. Is that something that you are willing to do? 

At that time, my end of the tunnel, my light at the end was I 

had 60 days and I was out of the Army, and that is all I wanted. 

I just wanted out. I wanted to be done. I wanted to be away from 

the unit that I was in. 

Senator MCCASKILL. Mr. Lewis, what about you? Did you feel 

like, at the point in time you reported, that there was any legal 

help or any kind of help at all that would have allowed you to move 

forward with some kind of effort to—and is your perpetrator still 

in the Navy? 

Mr. LEWIS. I honestly do not know, and at this point I hope that 

I have moved far enough away from it that I honestly do not care. 

It has to be about me at this point, not what my perpetrator— 

Senator MCCASKILL. I appreciate that, but I care, just so you 

know. 

Mr. LEWIS. I appreciate that, Senator. 

Senator MCCASKILL. I care. 

37 

Mr. LEWIS. Honestly, when the situation came to light, there was 

an eerie silence that emanated from the JAG office. 

Senator MCCASKILL. What year was this? 

Mr. LEWIS. 2000. 

It was like a black hole had all of a sudden surrounded the JAG 

office because the JAG at that command is subordinate to the commanding officer. At some point, it becomes about preservation of 

their own career rather than helping me. No, there was no effective 

legal situation that I could access, Senator. 

Senator MCCASKILL. My time is out. I do want to say I have 

spent a number of hours with amazing professional prosecutors in 

the area of sexual assault at the Pentagon on Monday—decades of 

experience. I do feel that there is some progress being made in 

some branches, some more than others, recognizing that they have 

failed at getting after this and doing what our military usually 

does best and that is focus on a mission and make it happen. What 

you all are doing today allows us to focus on the mission to get the 

coward rapists out of the ranks, and we are going to do everything 

we can to make that happen. 

So thank you all very, very much for being here. 

Senator GILLIBRAND. Thank you, Senator. 

Senator Shaheen. 

Senator SHAHEEN. Thank you, Madam Chairman, and thank you 

for holding this hearing today. 

Thank you all very much for your testimony. We especially appreciate your willingness to come forward and tell your stories in 

a way that allows us to hopefully follow up and take some action 

to try and address with the military what is obviously a continuing 

challenge. 

Mr. Lewis, I especially appreciate your willingness to point out 

that this is a crime that victimizes not just women but men. 

Senator McCaskill said and, Ms. Bhagwati you have said in your 

testimony—and I think it is very important to start with—the fact 

that rape and sexual assault are not about sexual activity. They 

are about power, control, and intimidation. I think that is an issue 

that has taken a long time for the civilian world to appreciate. I 

was on the Commission on the Status of Women in New Hampshire back in 1980 when we were working with law enforcement 

and other advocates to try and get across that point. Clearly, it is 

still an issue and it is still something that not everyone understands, particularly people who have not been in your situation. 

I was amazed to see that in your statistics that SWAN brought 

forward that one in three convicted sex offenders remain in the 

military and that the only branch of the service that says they discharge all sex offenders is the Navy. It seems to me that that is 

a pretty basic bar that we should think about as we are looking at 

people who have been convicted of rape and sexual assault. 

Ms. Bhagwati, we hear that there is a connection between resistance to pursue sexual crimes and careerism among military officers. There is concern for the reputation of the accused and the 

commanding officer. Those concerns have been presented as reasons to frustrate the efforts to bring criminals to justice. 

I wonder if you could talk more. You have made several recommendations in your testimony. But how can we more effectively 

38 

show that covering up sexual crimes is not a way to advance careers? 

Ms. BHAGWATI. I will go back to what I think some of my colleagues here were talking about. When these crimes happen—in 

my case I was a junior officer reporting these crimes to senior officers. Thinking back 20/20, as Rebekah said, on those experiences, 

I had so much more rank and authority than the average servicemember navigating these issues, by far. Much more freedom of 

movement, but there is something that I think happens beyond the 

company grade level with officers who definitely are staying in for 

the full 20 years or more. 

It was suggested to me by an equal opportunity officer that I 

should charge my battalion commander for failure to do the right 

thing in these cases, which was an absolutely overwhelming prospect. It just shut me down completely, and here I was a captain. 

I could not even fathom what it was like for somebody who was 

maybe E–2/E–3 going through the exact same thing. I could not do 

it because the thought of doing it made me dysfunctional. I had 

command. I had to command my company, and to do that, in addition to filing an Equal Opportunity investigation against a lieutenant—I mean, it was just overwhelming. 

The old boys’ club, which I was referring to earlier, is very much 

alive and well within each Service branch. I think the fact that for 

women in the military, there are still significant barriers to career 

progression and that there are not enough women throughout the 

Services at top levels, that there are not enough flag officers who 

are women, all of this is related ultimately. We need a sea change 

in which so many more women are entering the military. Six to 7 

percent of the marines are female, but we are moving toward a 

quarter or a third and maybe even more eventually. We see at that 

rate, beyond 20 percent, where climates start to shift when it 

comes to discrimination, harassment, and assault. That is what we 

need to aim for. You cannot isolate women from all of these positions and expect your institution to treat its servicemembers fairly. 

Everyone suffers as a result. 

Senator SHAHEEN. Does SWAN have metrics that show overall 

career impact to servicemembers who have been subjected to sexual assault? How many of those who report assault choose to remain in the military, and how many get out because of the trauma 

they have experienced? Are those numbers that have been collected? 

Ms. BHAGWATI. Not to my knowledge. We have been in discussion with several congressional offices about discussing the retention issue alone. To my knowledge, the military is not yet, at least, 

suffering a recruitment crisis when it comes to more Americans 

learning about sexual violence in the ranks. But we are all examples of the retention crisis. There are thousands of our colleagues 

every year who are adding to those numbers because they know it 

is not a safe or welcoming environment for them to stay in. 

Senator SHAHEEN. Absolutely. As the percentage of women in the 

military now is close to 15 percent, as you say, it has not reached 

the critical mass where it will begin, hopefully, to have more of an 

impact on how sexual assault is treated. But this could become an 

issue of recruitment, and as we look at how we attract the best and 

39 

the brightest people to our military, obviously this is an issue when 

it comes to both women and men that is going to greatly affect our 

ability to do that. 

So thank you all very much for your testimony. 

Senator GILLIBRAND. Senator King? 

Senator KING. Thank you, Madam Chairman. 

Thanks to all of our witnesses for joining us. 

On the issue of culture, which keeps coming back, I lived through 

a period of change in this country of culture that was very significant and it was the culture of drunk driving. When I was a kid, 

it was sort of a badge of honor. How did you get home from the 

party? I do not remember. Ha, ha, ha, and that really changed. 

I have tried to think through why it changed. One reason was 

the laws changed, and punishment became immediate and certain. 

In Maine, anyway, if you are caught drunk driving, you are going 

to spend the weekend in jail. Period, and you are going to lose your 

license for a period of time. It is very certain and no doubt about 

it. 

I think part of what the message you are sending us is it is the 

length of time and the uncertainty of punishment that has allowed 

this culture to continue to exist in the military. Would you agree 

with that? 

Mr. LEWIS. Yes, Senator, I would absolutely. It is unconscionable 

that punishment is solely up to the discretion of one individual 

who, as has been noted, was not even in the courtroom. It is also 

unconscionable that a sexual assault on a person brings a year in 

prison. It is sending the wrong message that the military does not 

value what happened to the victim. 

Senator KING. What is the typical lapse of time between the time 

a charge is filed and the time the charge is disposed of one way 

or the other within the military system? Is there an average? Is it 

weeks, months, years? 

Mr. LEWIS. That I am not certain of. I imagine that the military 

panel would be able to address that far better than I would. 

Senator KING. Other thoughts? Ms. McCoy? 

Ms. MCCOY. I would like to say that I received more reprimand 

for not passing a physical training test during my time than the 

perpetrator of sexual harassment and sexual assault toward me received with me filing official papers to my command. 

Senator KING. What does that tell you? 

Ms. MCCOY. That is what I am saying. There is no standardized 

if you assault someone, if you sexually harass, these are the things 

that are going to happen to you in an absolute and finite way. It 

absolutely depends on the command. It absolutely depends on the 

individual within the command and what their relationship is with 

the commander and the people who are going to possibly move that 

case forward. 

Senator KING. We have been talking about various solutions 

today involving independent prosecution and those kinds of things, 

but it seems to me one of the other things we ought to talk about 

is the period of time. The charges shall be considered within 30 

days or some period and a schedule of what the penalties are so 

that there is certainty. To me, that is what led to the change in 

the culture of drunk driving, that people understood that there 

40 

were consequences, and then it became socially unacceptable. Now 

drunk driving is way down. A lot of lives are being saved. 

Ms. MCCOY. Again, in my particular case, I was systematically 

exited from the military following my bringing forward this case of 

sexual harassment and just purely asking for something to be 

done. Within 90 days, I was out of the military completely. 

Senator KING. I want to follow up with you on a different question that is not strictly within the purview of this committee, but 

it is being considered here at the Capitol, and that is how long it 

took you to get VA benefits after this because there is a bill, the 

Ruth Moore bill, that is named after a very stalwart, wonderful 

Maine woman. Talk to me about your experience on that, on the 

VA side. 

Ms. MCCOY. When I got out, on my documentation, my medical 

exam, I specifically stated that I was scared, that I was fearful and 

that I had physical injuries, multiple physical injuries. It took probably 2 years for them to finally get me processed and send me a 

document stating that my injuries were service-connected, but 

there was 0 percent compensation. That was in 1992. 

So from 1992, because I did not understand the process—there 

was really no one there to guide me even though there were Veterans Service Organization (VSO)—— 

Senator KING. That is a separate issue. We will talk about that. 

Ms. MCCOY. Yes. Even though there were VSOs there, going to 

the VA—at that time I was in North Carolina. I mean, it was a 

daunting experience to walk in as a young woman amidst nothing 

but older male veterans and try to go through that process. 

Fast forward to 2006–2007, somewhere in there when I went 

again and put in paperwork, again for multiple medical issues—I 

had not even touched on anything MST because I did not even 

know that there was anything like that at that time. They sent me 

paperwork back, process, process, 10 percent again. So it was just 

constant. 

Senator KING. We are talking almost 20 years. 

Ms. MCCOY. It was 22 years before I actually received some response to the MST portion of the case—my benefits—and again, 

another 18 years before the physical injuries that I sustained partially because of the sexual trauma and partially because of patrol, 

being out on patrol. 

But it is amazing to me that 1-in-3 MST cases are awarded. I 

mean, 1 in 3. So you have to go through this long process of filing 

paperwork, explaining to people exactly what happened to you step 

by step, and then get a doctor’s note from the VA. Most veteran 

women are not even in the VA system. They just do not want to 

even touch it, and so you have to go through that process to even 

get them to look at your case to be approved for your benefits for 

compensation. 

Senator KING. So our country is letting you down in three places: 

first by the perpetrator, second by the military while you are there, 

and third by the VA. 

Ms. MCCOY. It is absolutely awful. 

Senator KING. Ms. Bhagwati, comments on the Ruth Moore Act? 

Ms. BHAGWATI. Yes, thank you, Senator King, for mentioning the 

Ruth Moore Act. It is in my testimony as well. I just did not have 

41 

time to add that. It is the easiest thing that the Senate can do at 

this point to alleviate the third betrayal of the three betrayals that 

you just outlined, which is the military may have betrayed 

servicemembers, but the VA can very easily award compensation 

which is well deserved. The standard which the Ruth Moore lays 

out would be comparable to the standard for PTSD that is currently laid out by VA policy for combat-related trauma. This legislation would easily resolve that problem. 

Senator KING. Thank you. 

Thank you, Madam Chairman. 

Senator GILLIBRAND. Thank you, Senator. 

Senator Kaine. 

Senator KAINE. Thank you, Madam Chairman. 

To the witnesses, I very much appreciate your testimony. I apologize for stepping out for another committee meeting in the middle, 

and I hope I do not repeat questions. 

This is a very important hearing, and I thank the chairman for 

putting this first up to draw attention to this very serious issue. 

I was a civil rights lawyer for 17 years before I got into statewide 

politics, and this is a fundamental issue of civil and human rights 

and we need to get it right. 

The experience that you share, painful experience, is going to 

help others, and so let me begin by thanking you and then thanking you additionally for being advocates for others, as I know you 

all are. You present sort of an interesting timeline for us because 

we have the four of you from different Service branches and you 

have served at different points in time from the 1980s through very 

recently. In your capacity as advocates, you are working for people 

who are serving today. So I feel like we can kind of get a little bit 

of the timeline of the military culture. 

I guess where I would like to start is, are things changing? In 

your own experiences or in the work you are doing with victims, 

are things changing? Are things changing for the good? Are things 

changing for the bad? Are people more willing to open up and 

share their experience? I am hearing each of you address that because, to the extent that things are changing for the positive, if 

there are things that are changing for the positive, then we will 

want to do more of them, and to the extent that things are changing for the negative, then we will want to address solutions directly 

at things that are changing for the negative. In your experiences 

during the time you served but especially as advocates, do you see 

changes in the culture, steps being taken that are either moving 

us in the right direction or moving us in the wrong direction? 

Ms. MCCOY. From my perspective, I come to this—I started a social media project that basically I just wanted to connect with other 

people who had been through the same things that I had been 

through. So I perceive that social media and grassroots community 

activism has been the single most important thing that brought 

people together to help solidify the groups of different, varying 

issues and brought all these people together to say, hey, we have 

an issue, let’s work together to get something done in a positive direction. 

Senator KAINE. When did you start the social media activity, Ms. 

McCoy? 

42 

Ms. MCCOY. I had a Ning site called Veteran Social Justice. Initially it was very secret. You could not get on it unless you were 

invited. That was to protect women who had been sexually assaulted. At that time, people did not want to come forward and say 

anything. But then I felt that Facebook would be a better venue 

to move forward to gather more people together, to bring the community together, the community supporters together, the people 

who were starting organizations who were advocating on behalf of 

veterans. It just made sense to me. If everyone was on Facebook, 

then everyone was on Facebook. 

Senator KAINE. Your sense is that that has been a positive 

change because it gives people first a safe way to share their stories and then find out there are others that have their stories. They 

need not suffer in silence. It is a way to better the community. 

Ms. MCCOY. For peer support in suicide prevention, absolutely. 

Absolutely. 

Senator KAINE. How about other thoughts about things that are 

changing either for the positive or the negative in your experience? 

Ms. Havrilla? 

Ms. HAVRILLA. Yes, thank you, sir. 

I managed SWAN’s helpline for 18 months, and I noticed a lot 

of interesting trends and dynamics as I started tracking a lot of the 

demographic data. One of the things that really has made a huge 

impact over the last 2 years is the constant media attention around 

these issues. The more education and awareness that the general 

population gets or even other veterans and survivors get, again it 

kind of goes to the social media aspect, but the concept that we as 

survivors are not alone with our shame, our stigma, whatever label 

we choose to put on our experiences. SWAN did a summit last year 

in Washington, DC, and we had one woman who came and she told 

us—she is like I have never met another survivor before, ever. I did 

not know that other women and other men had even gone through 

this. I was completely by myself and alone with my own experiences. 

Unfortunately, our helpline is set up to help people who have 

been through these things. Obviously, we get a lot of the negatives. 

We get a lot of the people who have experienced these traumas who 

need assistance with mental health, homelessness, VA claims benefits. 

One of the other interesting things that I have noticed too is I 

do get a lot of older clients, a lot of older women who served in 

Vietnam in careers starting to speak out about their experiences. 

There has been a shift in momentum over the last 2 years. There 

has been a shift forward. There have been baby steps made 

through legislation in the NDAA. There has been some positive 

progress. That is what I try to hold onto. 

But at the same time, we are still dealing with a lot of individuals. I get calls from Active Duty women and emails from Active 

Duty men who are still going through these things every day. I get 

calls from Korea, from Germany, from Japan, and from everywhere 

in the United States. The climate is still very much the same in 

a negative capacity. Obviously, we would not be having this hearing if this still was not a problem. 

43 

I think that we need to recognize the problems and we are, and 

then we need to continue to make forward progress, continue to 

educate the public, continue to educate our own military, continue 

to educate ourselves around these issues, and continue to take the 

steps that we have made already and continue on the path that we 

have already started on. We will continue to see more positives. We 

will continue to, hopefully, see less of these instances occur. We 

will continue to see that culture shift that we have been discussing 

so far. 

Senator KAINE. Thank you. 

Please, others? Mr. Lewis? 

Mr. LEWIS. Thank you, Senator. 

The unfortunate reality is that DOD is not leading the charge on 

change that you are mentioning. The change has been coming externally. One Senator mentioned ‘‘The Invisible War’’ by Kirby Dick 

as an agent for change. This summer, another documentary focusing on male survivors will be coming out, ‘‘Justice Denied.’’ They 

have been agents for change. 

There have been veterans as a result of advocacy organizations 

going as far back as World War II to come out and talk about what 

happened to them in terms of MST. So you are right, Senator. We 

do have a timeline here. Just from my own personal knowledge, it 

goes at least all the way back to World War II. 

In change, I think that a greater emphasis should come from the 

DOD Sexual Assault Prevention Response Office. The branches 

themselves need to be reaching out to the MST advocacy organizations and saying you have this expertise, you have the survivors, 

what can you do to help us because, time and again, the military 

has proven themselves incapable of addressing this problem. 

Another avenue of change also has to come, as I said, that men 

need to be validated and lifted up. Survivors in general need to be 

validated and lifted up and say that we believe you. There needs 

to be a system whereby survivors that have been kicked out in the 

last 20, 40, 50 years need to be able to go back to the military and 

get the medical retirements for PTSD that they are due and not 

have to suffer through life with a bad piece of paper saying, in essence, they pushed me out. It is unconscionable, but that change 

is not happening and it really needs to. 

Thank you, Senator. 

Senator KAINE. Finally, Ms. Bhagwati, do you have thoughts on 

that question? 

Ms. BHAGWATI. I would echo what all of my colleagues said. 

I would love to see the DOD come out with a poster that says 

‘‘don’t rape.’’ Don’t rape. Period. End of story. 

Senator GILLIBRAND. Well, thank you to each of you for not only 

your courage but your determination and your unbelievable passion 

and advocacy on behalf of others. It makes a difference. I am sure 

for any survivor, they cannot imagine how such a horrible crime 

committed against them could ever make a difference. But because 

of your experience, you are making a difference. I can tell you we 

as Senators cannot do this job alone without your stories, without 

your courage, without your dedication. We cannot find the right solution. 

44 

I am grateful that many members of the armed services who are 

currently in command sat here for your testimony. They heard everything you said. This is the beginning of a much longer conversation, a conversation that we need to have not just as a committee 

in the Senate, but as a Nation. I want to thank you for your unbelievable strength and courage in leading that conversation. Thank 

you very much. 

[Whereupon, at 12:17 p.m., the subcommittee recessed to reconvene at 1 p.m.] 

Afternoon Session—2:20 p.m. 

Senator GILLIBRAND. Our hearing of the subcommittee will resume. 

Thank you, each of you, for your service, for your dedication, for 

the sacrifices you have made for our country. I am so grateful that 

you are here today for this important hearing. I am also incredibly 

grateful that many of you came this morning and participated and 

listened to the first two panels. That means a great deal, not just 

to our witnesses, but also to their families and to all of our military 

families. We appreciate it very, very much. 

I know that this has become a very debated issue, both within 

the military and in everyday conversation. I also know that many 

of you have seen the film, ‘‘The Invisible War,’’ as sort of a jumping-off point on how important this issue is for our military and 

their families. 

I am very, very eager to hear your testimony, and each of you 

will have 5 minutes to give an oral statement, and you can submit 

for the record any additional material that you want to submit 

today and after your testimony. 

We are going to hear from Robert Taylor, the acting General 

Counsel of DOD; Lieutenant General Dana Chipman, the Judge 

Advocate General of the U.S. Army; Vice Admiral Nanette 

DeRenzi, Judge Advocate General of the U.S. Navy; Lieutenant 

General Richard Harding, Judge Advocate General of the U.S. Air 

Force; Major General Vaughn A. Ary, Staff Judge Advocate to the 

Commandant of the Marine Corps; Major General Gary Patton, 

Sexual Assault Prevention and Response Office; Rear Admiral 

Frederick Kenney, Judge Advocate General of the U.S. Coast 

Guard. 

Thank you all, and I think we can start with Mr. Kenney. 

STATEMENT OF RADM FREDERICK J. KENNEY, JR., USCG, 

JUDGE ADVOCATE GENERAL OF THE U.S. COAST GUARD 

Admiral KENNEY. Good afternoon, Chairman Gillibrand, and distinguished members of the subcommittee. 

Thank you for the opportunity to appear before you to discuss 

the Coast Guard’s efforts to prevent and respond to sexual assault 

in our Service. 

Good afternoon to you, Ranking Member Graham. 

I share the Commandant’s commitment to the safety and wellbeing of each of our servicemembers, ensuring that Coast Guard 

personnel have a collaborative, cohesive work environment that allows them to accomplish their mission, protecting those on the sea, 

protecting America from threats delivered by sea, and protecting 

the sea itself. 

45 

Eliminating incidents of sexual assault within the Coast Guard 

was a significant, central theme of the Commandant’s State of the 

Coast Guard address delivered 3 weeks ago. Sexual assault is intolerable in the Coast Guard. It is devastating to its victims. It has 

broad repercussions throughout the Service. We are committed to 

doing everything we can to prevent sexual assault, to investigating 

every allegation, to holding people accountable through military 

justice and other actions, and to ensuring victims of sexual assault 

are protected, treated with dignity, and provided appropriate ongoing support. 

I would like to now address some of the highlights of our policies 

and programs. More detailed information is contained in my written testimony submitted for the record. 

All allegations of serious sexual misconduct must be reported to 

the Coast Guard Investigative Service for investigation (CGIS), and 

CGIS has formally established a sex crimes investigation program. 

CGIS has also established a cadre of 22 specially trained and 

credentialed agents known as family and sexual violence investigators. 

Coast Guard regulations on sexual assault prevention and response (SAPR) have been updated in the last year to more clearly 

define roles and responsibilities, mandate significant education and 

training, and ensure greater victim support and safety. 

In April 2011, the Vice Commandant chartered a task force to 

holistically examine the Coast Guard’s posture toward SAPR. The 

Vice Commandant approved 39 recommendations from the task 

force in January, including the establishment of the Sexual Assault 

Prevention Council (SAP–C). The SAP–C is a standing body of the 

most senior Coast Guard admirals and subject-matter experts designed to, among other things, oversee the implementation of the 

task force recommendations and order immediate and actionable 

course corrections to the Coast Guard SAPR policy as needed. The 

Vice Commandant held the inaugural meeting on February 27 of 

this year. 

We place great importance on the need to train and empower all 

Coast Guard personnel to recognize and respond appropriately 

when they observe situations that involve disrespectful behavior. 

Last year, the Coast Guard created and rolled out a new Sexual 

Assault Prevention Workshop presented live by CGIS agents, judge 

advocates, and work-life specialists. It includes gender-specific 

breakout sessions to have a frank dialogue about sexual assault, 

how to prevent it, and how to respond. Since its inception, the 

workshop has provided training to 48 units and approximately 

7,500 Coast Guard personnel. This initiative received the Department of Homeland Security’s Office of General Counsel Award for 

Excellence in Training in 2012. Many Coast Guardsmen have reported that this training was the most meaningful and effective 

training they have ever received. 

SAPR training sessions are and have been incorporated into all 

command and leadership courses in the Coast Guard, as well as at 

our recruit training center in Cape May, New Jersey, and the 

Coast Guard Academy in New London, Connecticut. We have also 

significantly expanded the number of trained victim advocates 

46 

across the Coast Guard with nearly 400 new victim advocates 

added in the last few years. 

I am committed to enhancing the expertise of Coast Guard lawyers serving as counsel in sex assault cases. Coast Guard judge advocates serve in Navy and Marine Corps trial shops to gain experience the relatively small Coast Guard trial docket would otherwise 

not allow. Coast Guard judge advocates also attend advanced training to hone their litigation skills in sex assault cases. 

In closing, our goal is to eliminate sexual assault within the 

Coast Guard by building a strong culture of prevention, education 

and training, response capability, victim support, appropriate reporting procedures, and accountability. 

Thank you again for the opportunity to testify today and I am 

pleased to answer any questions that you may have. 

[The prepared statement of Rear Admiral Kenney follows:] 

PREPARED STATEMENT BY RADM FREDERICK J. KENNEY, JR., USCG 

INTRODUCTION

Good afternoon Madame Chair Gillibrand, Ranking Member Graham, and distinguished members of the subcommittee. Thank you for the opportunity to appear before you to discuss the Coast Guard’s efforts to prevent and respond to sexual assault in our Service. 

As Judge Advocate General of the Coast Guard, I share the commandant’s commitment to the safety and well-being of each of our servicemembers and ensuring 

that all members of the Coast Guard have a collaborative, cohesive work environment that allows them to accomplish their mission keeping the Nation safe and secure. This includes eliminating incidents of sexual assault within the Coast Guard. 

Sexual assault is a criminal act that is simply not tolerated in the Coast Guard. 

It is devastating to its victims, and it has broad repercussions throughout the Service. Not only is the Coast Guard committed to doing everything we can to prevent 

sexual assault, we are also committed to investigating every allegation and ensuring 

victims of sexual assault are protected, treated with dignity and respect, and provided appropriate ongoing support. 

The Coast Guard is dedicated to ensuring that in addition to persons accused of 

sexual misconduct, there is accountability across the entire organization, to include 

bystanders, the chain of command, commanders, and senior leadership. Every Coast 

Guardsman is trained in the Coast Guard’s Sexual Assault Prevention and Response (SAPR) policy, and every Coast Guard Command is expected to know how 

to rapidly access the full range of support resources for the victims of sexual assault. 

Every Coast Guardsman is also expected to work tirelessly, individually and personally, to contribute to a work climate where sexual misconduct is never tolerated, and 

where every allegation is swiftly and appropriately addressed. Commanders are obligated to address and respond properly to every allegation of sexual misconduct in 

their unit. Simply put, commanders must be part of the solution. 

POLICY & PROGRAMS

The Coast Guard has had policy in place for several years to address sexual assault. 

As early as 2004, Coast Guard policy required commands to report all allegations 

of serious sexual misconduct to the Coast Guard Investigative Service (CGIS) for investigation, and in 2006, the Coast Guard Investigative Service formally established 

a distinct CGIS Sex Crimes Program and hired a Senior Special Agent to oversee 

the stand-up of the program. Indicative of the maturation of that program, the CGIS 

Sex Assault Investigations Tactics, Techniques, and Procedures manual is currently 

in final clearance with a formal release anticipated within fiscal year 2013. 

In 2007, the Coast Guard SAPR instruction was significantly amended to include 

the addition of the restricted reporting option for victims, which aligned the Coast 

Guard’s reporting options with the two options offered by the Department of Defense (DOD) (restricted and unrestricted). Restricted reporting is the process used 

to disclose to specific individuals on a confidential basis that he or she is the victim 

of a sexual assault. Unrestricted reporting is the process used to disclose a sexual 

47 

assault to the chain of command and law enforcement authorities. The official policy 

and guidance was issued in December of that same year. 

In 2008, a dedicated Sexual Assault Prevention Program Manager was hired to 

implement and oversee the day-to-day administration of the USCG SAPR program. 

In March 2011, CGIS established a cadre of specially trained and credentialed 

CGIS special agents—known as Family and Sexual Violence Investigators (FSVIs). 

In addition to their standard investigatory training, these agents attend advanced 

courses and seminars on sexual assault, domestic violence and child abuse. CGIS 

has credentialed 22 FSVI special agents to date. 

In April 2011, the Vice Commandant of the Coast Guard chartered a Sexual Assault Prevention and Response Task Force to examine holistically the Coast Guard’s 

posture toward sexual assault in five discipline areas: 

• Education /Training; 

• Policy/Doctrine; 

• Investigation/Prosecution; 

• Communications; and 

• Climate/Culture 

Subject matter experts from each of these five disciplines met for over a year to 

provide input to the Vice Commandant on ways to improve our sexual assault prevention and response program. The Vice Commandant approved the 39 recommendations from the Working Groups. One of the most significant recommendations, the establishment of a flag level Sexual Assault Prevention Council (SAP–C), 

has already been fully implemented. Other recommendations from the Task Force 

include providing enough Victim Advocates to cover our widely dispersed population, 

improving annual SAPR mandated training and leadership course training segments, implementing various bystander strategies, and continuing SAPR messaging 

year-round. 

Some of these recommendations are already in the implementation stage (such as 

the bystander intervention initiative titled the ‘‘Sexual Assault Prevention Workshop’’). The other recommendations are in the process of being prioritized and assigned for action to the three standing committees (currently being chartered) of the 

SAPC. 

The SAP–C is a standing body of the most senior Coast Guard admirals and subject matter specialists designed to: 

• Oversee the implementation of the Task Force recommendations; 

• Consider and discuss SAPR policy generally; 

• Direct empirical studies and trends (root cause analyses) based on accurate and reliable data; and 

• Order immediate and actionable course corrections to Coast Guard SAPR 

policy as needed. 

The Vice Commandant held the inaugural meeting on February 27, 2013. 

In April 2012, the Coast Guard issued a new and comprehensive SAPR policy that 

clearly defines roles and responsibility, mandates significant education and training, 

defines reporting processes and response procedures, and ensures greater victim 

safety. The policy also clarifies that commands must immediately notify not only the 

CGIS, but also work-life and victim advocacy specialists, as well as the servicing 

legal office, upon receipt of an unrestricted report of sexual assault. This helps ensure a comprehensive interdisciplinary approach toward managing the victim’s safety and support is in place, and that the investigation begins immediately. 

In June 2012, the Commandant of the Coast Guard, along with the Secretary of 

Defense, issued a Coast Guard wide order to withhold the initial disposition authority for serious sexual misconduct to a Special Court-Martial Convening Authority 

having achieved the grade of O–6 (Captain) with a dedicated Staff Judge Advocate 

assigned. The Commandant included in his withholding order not only the most serious felony-level sexual offenses under the UCMJ (rape, sexual assault, and forcible 

sodomy) but also each of the lesser sexual offenses under Article 120a of the UCMJ 

such as abusive sexual contact. With the exception of several senior Coast Guard 

Base and Training Center Commanders, all serious sexual offenses will be reviewed 

by a flag officer (Admiral) level with a senior and experienced Staff Judge Advocate 

personally advising them. 

LEADERSHIP AND TRAINING

We place great importance on the need to appropriately train and empower all 

Coast Guard personnel to recognize and respond appropriately when they observe 

situations that involve disrespectful behavior. All personnel must develop a strong 

48 

understanding of the definition of sexual assault and act to alert potential offenders 

and victims to what sexual assault is and how to prevent and/or stop it. 

Every commanding officer, officer-in-charge, manager, supervisor, servicemember, 

and civilian employee is responsible for creating and maintaining a culture in which 

we hold those who commit sexual assault accountable; provide confidential avenues 

for reporting; treat all victims of sexual assault with dignity, fairness, and respect; 

and afford all victims timely access to appropriate services whether they choose to 

make a restricted or unrestricted report. 

Within the last year, members of the Coast Guard Judge Advocate General were 

instrumental in the creation and roll-out of the Coast Guard’s successful bystander 

intervention training program known as the ‘‘Sexual Assault Prevention Workshop’’ 

(which is one of the Task Force recommendations). The workshop is presented live 

by CGIS special agents, Judge Advocates and Coast Guard Work-Life specialists, 

who, in addition to providing the necessary information about the SAPR program 

in plenary session, then engage in gender specific break-out sessions to have a frank 

dialogue about sexual assault and SAPR. Since its inception in 2012, the workshop 

has provided training to 48 units and approximately 7,500 personnel. This training 

initiative received the Department of Homeland Security Office of General Counsel 

Award for Excellence in Training on January 11, 2013, and many Coast Guardsman 

have reported that this training is the most meaningful and effective training they 

have ever received. In addition to Sexual Assault Prevention Workshops, SAPR 

training sessions are being incorporated into all command and leadership courses 

in the Coast Guard, and we have significantly expanded the number of trained Victim Advocates across the Coast Guard, resulting in approximately 400 new Victim 

Advocates added in the last few years. 

The Coast Guard Academy (CGA) will continue to offer training to the ‘‘Cadets 

Against Sexual Assault’’ organization to allow trained cadets to maintain confidentiality and accompany a victim to a Victim Advocate in the event another cadet discloses a sexual assault to them. The CGA also has the billet for the one dedicated 

SARC in the Coast Guard, and there is quite a robust training plan in place for 

cadets. Starting in ‘‘swab summer’’ all cadets receive training at various points during their 4 years at the CGA. Recruits at Cape May are provided computer-based 

training as soon as they arrive to ensure they know the reporting options and who 

they can go to for help in the event of sexual assault. SAPR information was also 

added to the pocket handbook the recruits carry on their person at all times, and 

the recruits receive a more extensive SAPR training module prior to their graduation from basic training. 

The Coast Guard has a close working relationship with the Army and Navy Trial 

Counsel Assistance Programs. Through our longstanding Memorandum of Understanding with the Navy, Judge Advocates can gain significantly more trial experience than the small size of the Coast Guard’s trial docket would generate through 

assignment to Navy offices around the country. Over the last 8 years, the Coast 

Guard has also been able to send our Judge Advocates to gain experience as prosecutors with the Marine Corps at Marine Corps Base Quantico, Camp Lejeune, and 

Camp Pendleton. Beginning in fiscal year 2013 Coast Guard Judge Advocates began 

attending, along with their CGIS Special Agent counterparts, the nationally-recognized U.S. Army Special Victim Investigator Unit course. To date, four Coast Guard 

Judge Advocates have completed the course, each stating at the conclusion of the 

course that it was the best training they had ever received as a prosecutor. Thirteen 

additional trial counsel are scheduled to receive training by the conclusion of fiscal 

year 2013. 

CLOSING

The Coast Guard places the highest priority on preventing sexual assault. Sexual 

assault is not tolerated in the Coast Guard—it is incompatible with honorable service in the Coast Guard, and incompatible with our Core Values of Honor, Respect 

and Devotion to Duty. 

Our goal is to eliminate sexual assault within the Coast Guard by providing a 

strong culture of prevention, education and training, response capability, victim support, appropriate reporting procedures, and accountability. 

Thank you again for the opportunity to testify today. I will be pleased to answer 

any questions you may have. 

Senator GILLIBRAND. Thank you. 

Lieutenant General Harding? 

49 

STATEMENT OF LT. GEN. RICHARD C. HARDING, JAGC, USAF, 

JUDGE ADVOCATE GENERAL OF THE U.S. AIR FORCE 

General HARDING. Madam Chairman and members of the committee, I also thank you for the opportunity to speak today about 

SAPR efforts in the Air Force. 

We are committed to supporting victims of sexual assault while 

we do everything humanly possible to eradicate this awful crime 

from our Service. 

Our Secretary, the Honorable Michael Donley and our Chief of 

Staff, General Mark Welsh, are fully committed to eliminating sexual assault within our ranks. They have made their position abundantly clear. The Air Force has zero tolerance for this offense. One 

sexual assault is one too many. 

We believe that our sexual assault challenge, like other challenges we have faced in the past and will face in the future, will 

be overcome by staying rooted to our core values, integrity, service, 

and excellence, and acting on those values. 

We have actively engaged in improving our efforts to prevent and 

respond to sexual assault across many different lines of effort. 

While we have many ongoing efforts to combat sexual assault, time 

constraints will limit my comments to just one at this time. Specifically, I would like to talk to you about our Special Victims Counsel 

(SVC) Program that we initiated in January. I believe it represents 

a positive and profound change in the way we approach sexual assault cases. 

The pilot program provides airmen who report that they are victims of sexual assault with an attorney to represent them. Our 

SVC Program is unique among Federal agencies in providing that 

level of support to victims of sexual assault. This pilot program’s 

primary purpose is to give the very best care to our people. Our 

SVC operate independently of the prosecution’s chain of command. 

They establish an attorney-client relationship with victims, and 

they zealously represent on their client’s behalf, thereby protecting 

victims’ privacy and immeasurably helping victims not feel revictimized by having to endure alone what can be a complex, exhausting and often confusing criminal justice process. 

We are in the early stages of this program, but we are extremely 

excited about what the future holds. In December, we trained our 

first cadre of 60 experienced military attorneys as SVC. To date, 

we are representing about 200 clients in various stages of the investigation and adjudication phases of their cases, and feedback 

from victims to date has been very positive. The SVC program is 

the right thing to do in caring for airmen, and SVCs are already 

making a difference for their clients. 

In closing, the men and the women who raised their right hand 

with great pride and volunteered to serve this great Nation became 

more than just airmen. They became part of our Air Force family. 

Therefore, we strongly believe that we have a sacred obligation to 

provide a work environment that welcomes them, that keeps them 

free from sexual abuse by their fellow airmen, and provides the 

very best care and advocacy on their behalf. 

I look forward to answering your questions. Thank you. 

[The prepared statement of Lieutenant General Harding follows:] 

50 

PREPARED STATEMENT BY LT. GEN. RICHARD C. HARDING, USAF 

OPENING

Madam Chairman and members of the subcommittee, thank you for the opportunity to speak to you today about sexual assault prevention and response within 

the Air Force. This topic is extremely important to us. We are fully committed to 

supporting victims of sexual assault, while we do everything humanly possible to 

eradicate this crime from our service. 

Our Secretary, the Honorable Michael Donley, and our Chief of Staff, General 

Mark Welsh, are fully committed to eliminating sexual assault within our ranks. 

They have made their position clear. They and other senior leaders in the Air Force 

have zero tolerance for this offense. Our goal is to drive the rate of sexual assault 

in the Air Force to zero. One sexual assault is one too many. 

We believe that preventing sexual assault begins at the time of accession for each 

airman, when they join our ranks and become part of our Air Force family. At that 

time, they must enter a mission-focused work environment, one that emphasizes respect, trust, and professionalism and reflects our core values of integrity first, service before self, and excellence in all we do. We believe that our sexual assault challenge, like all challenges we have faced in the past and will face in the future, will 

be overcome by staying rooted to our core values—integrity, service, and excellence—and by acting on those values. 

Employing our core values in combination with the Department of Defense’s guidance, we developed a comprehensive approach to combating sexual assault with five 

lines of effort: Personal Leadership, Climate and Environment, Community Leadership, Victim Response, Holding Offenders Accountable. 

While we are actively engaged in improving our efforts in all five lines of effort, 

I would like to discuss our efforts with regard to work environments, accountability 

and victim services . . . fields of practice where I have been personally involved in 

my role as the Air Force Judge Advocate General. These examples demonstrate our 

senior leaders’ tireless resolve to do everything possible to combat sexual assault in 

the Air Force. 

WORLDWIDE WING COMMANDER MEETING AND INSPECTION

Our core values demand that we maintain and sustain an environment of mutual 

respect. The Air Force succeeds because of the professionalism and discipline of our 

airmen. Every airman is critically important, and everyone deserves to be treated 

with respect. Anything less marginalizes great airmen, degrades mission effectiveness, and hurts unit morale and readiness. 

In November, our Chief of Staff brought together Air Force wing commanders— 

more than 160 senior colonels or one-star generals—for an unprecedented day-long 

face-to-face conversation about leadership. One of the primary topics he discussed 

at length was sexual assault prevention and response. As far as I am aware, this 

is the first time all wing commanders have met in a single place at a single time 

with the Chief of Staff of the Air Force on any topic. It was an extremely candid 

discussion. The Chief stressed to them that as wing commanders—as leaders—they 

must directly and aggressively combat sexual assault in the Air Force. His message 

was clear—we must redouble our efforts, and we need to start by ensuring our work 

environments reflect respect for all airmen. 

As part of this meeting, the Chief announced a Health and Welfare Inspection 

across the Air Force to reinforce expectations for the workplace environment, to correct deficiencies, to remove inappropriate materials, and to deter conditions that 

may be detrimental to good order and discipline. Commanders looked for and removed items that hinder a professional working environment. Stated another way, 

it was a ‘‘reset’’ of sorts to ensure that Air Force workplaces were free of offensive 

materials that might breed a lack of respect among airmen. Commanders inspected 

thousands of units at more than 100 Air Force installations, where almost 600,000 

Air Force military and civilian personnel work and discovered over 32,000 items 

deemed inappropriate or offensive and removed them. 

SENIOR TRIAL AND DEFENSE COUNSEL

Ensuring and maintaining appropriate work environments is only one initiative. 

We also have improved the staffing and training of our prosecutors and defense 

counsel, who litigate sexual assault cases. 

For more than 40 years, the Air Force has staffed and fielded specially trained, 

senior trial counsel, who prosecute our most demanding cases. Sexual assault cases 

fall into this category and traditionally have been tried by Air Force senior trial 

counsel. To improve an already strong and mature program, we recently designated 

51 

eight of these senior trial counsel as special victims’ unit senior trial counsel and 

are focusing their practice on sexual assault prosecutions. These JAGs also received 

specialized training on complex legal issues that arise in prosecuting sexual assault 

cases. 

We have a similar training program for our senior defense counsel. It is important 

that our defense counsel be as experienced and well trained as our prosecutors. We 

must equally arm both the prosecution and defense with talent and training, in 

order to ensure that in our system of criminal justice, truth is never a casualty. 

We are also working closely with the Air Force Office of Special Investigations on 

developing team teaching—developing courses where both special victims’ trial counsel and other senior trial counsel are trained shoulder-to-shoulder with criminal investigators. This will strengthen our sexual assault investigative efforts. As an example, in January three of our senior trial counsel attended the Air Force Office 

of Special Investigation’s Sexual Crimes Investigations Training Program to help 

strengthen our investigations into sexual assault, as well as instruct our special 

prosecutors in how sexual assault investigations often unfold. 

Additionally, we are finalizing a course where we will bring investigators, prosecutors and defense counsel together to focus on the legal issues surrounding investigations and trials. We are also enhancing the training we provide our victim and 

witness liaisons and paralegals to better support special victims’ teams. 

SPECIAL VICTIMS’ COUNSEL

Lastly, we have initiated a program that I believe represents a very positive and 

profound change in the way we approach sexual assault cases. On January 28, we 

began a pilot program to provide airmen, who report they are victims of sexual assault, with a personal attorney at Air Force expense. This new initiative, called the 

Special Victims’ Counsel Program, is unique among Federal agencies in providing 

an unprecedented level of support to victims of sexual assault. It will greatly improve the quality of support we provide victims of sexual assault and help end victims feeling as if they were revictimized by criminal investigative and judicial processes designed to hold offenders, and not the victims, accountable. 

From the fiscal year 2011 sexual assault statistics, we noted that 96 victims, who 

originally agreed to participate in the prosecution of their alleged offender, changed 

their minds before trial and declined to cooperate with law enforcement personnel 

and the prosecution. These 96 victims represented 29 percent of our victims of sexual assault who had filed an unrestricted report of sexual assault. I believe that, 

had these victims been represented by their own attorney, many of them would not 

have declined to cooperate in holding their alleged offender accountable. 

While our pilot program will likely increase prosecutions for sexual assault, make 

no mistake, its primary purpose is to give the best care to our people. Victim care 

is extremely important to the Air Force. Our Special Victims’ Counsel operates independently of the prosecution’s chain of command, establishes attorney-client relationships, and zealously advocates on their clients’ behalf . . . thereby protecting victims’ privacy and immeasurably helping victims not feel revictimized by having to 

endure alone a complex, exhausting and often confusing criminal justice process. 

We are in the early stages of this program, and are excited about what the future 

holds. In December, we trained the first cadre of 60 experienced military attorneys 

as special victims’ counsel. Over the course of 3 days, these attorneys received indepth training from experts in military justice, professional responsibility, legal ethics, and victims’ rights. The training featured a recognized civilian expert on counsel 

for victims, Professor Meg Garvin, the Executive Director, National Crime Victims’ 

Law Institute and Clinical Professor of Law in the Crime Victim Litigation Clinic 

at Lewis and Clark School of Law. Professor Garvin taught our JAGs lessons that 

she has learned in over a decade of experience in representing victims, providing 

valuable insights, recommendations, and practical tips to our new victims’ counsel. 

We also trained other Air Force professionals, who interact with the Special Victims’ Counsel, including our investigators and our Sexual Assault Response Coordinators prior to starting the program. 

To date, we are representing over 170 clients in various stages of the investigatory and adjudicatory phases of their case. These attorneys are zealously representing their clients and providing a very much needed service. The SVC Program 

is already making a difference for the Air Force and for its airmen. The feedback 

from victims that we have received to date is very positive and extremely encouraging. In short, providing attorneys to victims of sexual assault is the right thing 

to do. 

52 

CLOSING

The men and women of the U.S. Air Force raised their right hand with pride and 

volunteered to serve this great Nation. When they did so, they became more than 

just airmen . . . they became part of our Air Force family. We strongly believe that 

we have a sacred obligation to provide a work environment that welcomes and celebrates their diverse backgrounds and contributions, and emphasizes the Air Force 

core values of integrity, service, and excellence, without which respect, trust, and 

professionalism cannot thrive. We also owe them the very best care possible when 

they tell us they have been victims of sexual assault, while at the same time providing the best criminal justice services possible to fairly judge, and appropriately 

hold accountable, the airmen who sexually abuse them. 

While we have a long way to go in eradicating sexual assault from our ranks, we 

remain committed to a zero-tolerance approach and have taken key steps in 

strengthening accountability and victim care. 

I look forward to answering your questions. Thank you. 

Senator GILLIBRAND. The next speaker is Lieutenant General 

Chipman. 

STATEMENT OF LTG DANA K. CHIPMAN, JAGC, USA, JUDGE 

ADVOCATE GENERAL OF THE U.S. ARMY 

General CHIPMAN. Madam Chairman and members of the subcommittee, on behalf of the Honorable John McHugh and General 

Ray Odierno, thank you for the opportunity to testify before you 

here today. 

Listening to survivors who bravely testified this morning about 

breaks firsthand in those bonds of trust that should lie at the core 

of Army values—how do we restore those bonds? How do we retain 

the trust of the very best of America’s daughters and sons, those 

who continue to answer the call to serve our Army because it defends all of us? 

For me the answer lies with a system of justice that gives voice 

and support to victims, maintains good order and discipline for our 

force, and protects due process for any soldier who stands accused 

of a crime. 

Sexual assault crimes destroy the trust that enables mission accomplishment. Because of the harsh reality of these cases, we have 

developed a tailored approach to handle them. In the Army, professional and independent investigators and prosecutors form the vanguard for a special victims’ capability directed by Congress last 

year. We actually began the transformation to a special victims’ 

focus in 2008. 

The capability starts with a report of a sexual assault. Victims 

have various options to report an allegation. Our goal is simple: to 

encourage victims to come forward. We understand that victims are 

often reluctant to report. 

Every unrestricted sexual assault allegation reaches the Army’s 

CID. There, specially trained criminal investigators, independent of 

the command, pursue their investigations without interference or 

agenda. These agents receive extensive training in sexual assault 

investigations. Working hand in hand with these investigators are 

the Army’s special victim prosecutors (SVP). These experienced 

judge advocates are seasoned trial lawyers and are trained specifically to focus on victim care. They complete career prosecutor 

courses offered by the National District Attorneys Association and 

on-the-job training with a civilian special victim unit in a large 

metropolitan city. 

53 

In addition, both CID and the JAG Corps have hired civilian investigators and prosecutors to mentor, train, and assist these special victim teams. These experts bring decades of experience and 

expertise from civilian police agencies, other Federal law enforcement agencies, and State district attorneys offices. 

SVPs serve the interests and rights of the victim, the community’s safety interests, and the good order and discipline of the unit 

by holding offenders accountable. Testimonials from victims and 

their families attest to the dedicated support these attorneys provide, such as that from a victim’s mother who described the SVP 

as a member of her family who made her daughter feel stronger 

and more capable than she knew she could feel. 

Eleven years of war have reaffirmed that commanders have a 

central role in administering military justice in the same way that 

they are accountable for health, training, welfare, safety, morale, 

discipline, and mission readiness. 

A recent court-martial conviction set aside by a commander has 

focused concern over the post-trial role of the commander. Should 

we evaluate needed changes to that post-trial role? Absolutely. We 

collectively evaluate military justice processes and procedures in an 

ongoing forum, the Joint Service Committee (JSC) established by 

DOD. Moreover, we have congressionally mandated panels that 

could responsibly consider changes to the code. These vehicles, like 

this hearing, are signs of a healthy system of justice subject to 

scrutiny, transparency, and accountability. 

Although the focus of your hearing today is the prosecution of 

these offenses, we cannot assume we can prosecute our way out of 

this problem. Accountability remains critical. But real change will 

occur only when both prevention and response measures yield culture change. So we begin with every new recruit focusing on Army 

values and bystander intervention techniques. 

Our system of justice is not perfect. No system is. We have 

worked dramatic changes to our system over six consecutive legislative cycles. Policy, programmatic, and statutory changes over that 

period are comprehensive. We make mistakes. Every day in every 

jurisdiction around this country, prosecutors make difficult decisions on cases. We are no different. But my commitment to you is 

that we will do everything in our power to retain the trust of the 

men and women who serve our Army and to preserve a system of 

justice of which we can be proud. 

Thank you, and I look forward to your questions. 

[The prepared statement of Lieutenant General Chipman follows:] 

PREPARED STATEMENT BY LTG DANA K. CHIPMAN, JAG, USA 

Sexual assault is an issue with which the Army continues to grapple. Its impact 

on readiness and individual survivors can be devastating. The Army takes accountability for sexual crimes very seriously and is committed to reducing and ultimately 

preventing sexual assault in the military. To that end, we believe the modern military justice system, in existence and evolving since the 1950’s and based on the Uniform Code of Military Justice (UCMJ), is well equipped to meet the challenges of 

crime and indiscipline in the Army, and in particular, the terrible crime of sexual 

assault. Indeed, our system is focused, well resourced, intent on doing what is right 

and, cognizant of the necessary scrutiny we receive every day. A modern, comprehensive criminal statute, combined with trained commanders and qualified investigators and prosecutors, with a fully resourced justice system provide all the 

54 

tools necessary to hold offenders accountable, to protect due process rights of accused soldiers and to provide support and justice for victims. In the Army, our professional and independent investigators and prosecutors form the vanguard for our 

modern Special Victims Capability, simultaneously mandated by Congress and initiated by the Department of Defense in 2012. 

The military justice system was established as a separate system because of the 

worldwide deployment of military personnel, the need for a system that can be responsive to the unique nature of military life and the combat environment, and the 

need to maintain discipline in the force. Though instituted with a draft Army in 

1950, the UCMJ remains a key element of our all-volunteer force. 

Ultimate authority in our system is vested in the commander for very important 

reasons. The commander is responsible for all that goes on in a unit—health, welfare, safety, morale, discipline, training, and readiness to execute the mission. The 

commander’s ability to punish quickly, visibly, and locally is essential to maintaining discipline in units. The Uniform Code of Military Justice ensures that commanders can maintain good order and discipline in the force. 

This unique role of the commander has raised questions in two areas: why do we 

allow a non-lawyer to make disposition decisions in a criminal justice system? Can 

a commander improperly influence the military justice process? Our system addresses these concerns through career-long training, the role of the Judge Advocate, and 

other procedural safeguards. First, the commanders who make these disposition decisions do not go into this process blindly, nor execute their authority in a vacuum. 

They are trained in their responsibilities under the Uniform Code of Military Justice 

from the day that they are commissioned and throughout their careers. Second, 

commanders have at their disposal Judge Advocates to provide advice and counsel. 

Judge Advocates are an integral part of the military justice system, and they serve 

as command legal advisors, prosecutors, defense counsel, and military judges. Judge 

advocates are trained to analyze evidence to determine if there are sufficient facts 

to support allegations, and to make recommendations to commanders on disposition. 

Third, there are a variety of procedural safeguards that ensure commanders make 

evidence-based disposition decisions, particularly in regard to sexual assault allegations. These include the ability of senior commanders to withhold disposition of an 

allegation from a subordinate. 

The most fundamental procedural safeguard is written into the UCMJ. Commanders are, before all else, officers whose commission and oath of loyalty is to no 

person—but to the Constitution. Second, judge advocates are officers of the court – 

sworn to the profession of law and to uphold the due process accorded by the Constitution and our laws. These profound tenets of our American Army, conscientious 

commanders and judge advocates, adhering to and enforcing the rule of law and 

doing what is right regardless of costs, are, in my view, the best safeguards for our 

system of justice. Although the individuals operating within the institution are not 

perfect we have a system in place that holds these soldiers accountable. Our Uniform Code speaks loudly to the proper role of the Commander in military justice. 

Article 37 prohibits unlawful command influence—that is, a commander may not influence a subordinate commander’s independent decision making. However, the ultimate procedural safeguards include the oversight authority vested in the civilian 

judges of the Court of Appeals of the Armed Forces, and in Article III courts, as 

well as the authority vested in the Army and DOD Inspectors General. To that end, 

it must be stated expressly—we attempt to track and report every allegation of sexual assault and make every disposition decision available for review. 

What this means is that the military shares the truth in every case reported. In 

those cases where hindsight reveals a failure, we make adjustments. We have been 

in a self-evaluation and reaction mode for six consecutive legislative cycles now, and 

the policy, programmatic, and statutory changes made are comprehensive, progressive, and meaningful. 

DISPOSITION: OPTIONS AND AUTHORITY

Commanders have a wide range of disposition options available to them, from four 

levels of court-martial, nonjudicial punishment, punitive administrative discharge, 

adverse administrative action, imposing nonpunitive measures to taking no action. 

The particular level of disposition is based on the nature and circumstances of each 

offense. This toolbox of disposition options allows Commanders to address the entire 

spectrum of sexual misconduct, from precursor behaviors of verbal harassment up 

to and including a rape. Civilian systems do not provide a corresponding range of 

disposition options. 

Given the unique nature of sexual assault allegations, disposition authority for 

the penetrative offenses (rape, sexual assault, forcible sodomy and attempts to comVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
55 

mit these crimes) has been withheld to Brigade Commanders, Colonels with 20–25 

years of experience in the Army, and significant training and experience in executing their authority and duties under the Uniform Code of Military Justice. These 

senior officers also have dedicated legal advisors. The dynamics of each case are 

evaluated and treated individually, just like any civilian criminal case, and there 

is no doubt that commanders listen carefully to their legal advisors. After 10 years 

of complicated contingency operations, the commander-legal advisor relationship is 

stronger than it ever has been in our military history, in my opinion. The dynamics 

of each case are evaluated and treated individually, just like any civilian criminal 

case, and there is no doubt that commanders listen carefully to their legal advisors. 

Commanders are not afraid to require the prosecutors to try the most difficult cases. 

SEXUAL ASSAULT STATUTES UNDER THE UCMJ

The punitive articles of the Uniform Code of Military Justice, including Articles 

120 and 125, criminalize a broad range of sexual misconduct from an unwanted 

touch over the clothing to forcible rape. Article 120 is a modern, offender-focused 

statute that recognizes constructive force as it exists in the unique hierarchy of the 

military. It is one of the most progressive sexual assault statues in the country. The 

statute also provides the ability to prosecute drug and alcohol facilitated sexual assaults like many other States with progressive statutes. Other Articles of the UCMJ 

criminalize behaviors that have been identified as precursors to sexual assault such 

as sexual harassment and indecent language. This enables commanders to hold potential offenders accountable for what is considered non-criminal behavior in the civilian justice system 

As in every civilian criminal jurisdiction, there are procedural and evidentiary 

rules that protect victims, particularly victims of sexual assault. Military Rule of 

Evidence 412, the ‘‘rape shield’’ rule, nearly identical to Federal Rule of Evidence 

412’s criminal provisions, excludes evidence of a victim’s past sexual history subject 

to limited Constitutionally-required exceptions. Motions and hearings regarding 

Rule 412 evidence are closed to the public and sealed in the record of trial. Confidentiality provisions, found in Military Rule of Evidence 513 and 514, protect disclosure of confidential statements made by victims to their mental health providers 

and their victim advocates. 

The Army has made tremendous progress in providing special training to prosecutors and investigators since 2009. I will talk about our Special Victim Prosecutors 

in a minute, but want to emphasize the importance of victim privacy to our prosecutors and commanders. We know that victims are subject to pressures, direct and indirect, after a sexual assault allegation is made. Commanders, prosecutors, investigators, and especially victim advocates, are extremely sensitive to this reality. 

ACCOUNTABILITY PROCESS FOR SEXUAL ASSAULT ALLEGATIONS

I believe that the investigative and prosecutorial arms of our system provide an 

independent, professional process for accountability. Victims have a variety of options to report an allegation of sexual assault including unit Victim Advocates, unit 

Sexual Assault Response Coordinators, the chain of command, military or civilian 

police, military or civilian hospitals and hotlines. Because victim reporting is a universal problem, the goal of these initiatives is to encourage victims to come forward 

by providing adequate support and services. All unrestricted sexual assault allegations in the Army, from an unwanted touch over the clothing to forcible rape, are 

referred to the Army Criminal Investigation Division (CID). There, specially trained 

criminal investigators, independent of the command, are free to pursue their investigations without interference or agenda. CID agents receive some of the best and 

most extensive training in sexual assault investigations of any investigative agency, 

including their initial training, annual refresher training, and an in-depth 80-hour 

Special Victim Unit (SVU) Investigation Course. Further, CID has hired civilian 

sexual assault investigators (SAIs) to supervise their SVUs and sexual assault investigative teams. The sexual assault investigators bring, on average, 16 years of 

experience and expertise from civilian police agencies and other Federal law enforcement agencies. 

The legal offices that provide advice and counsel to the criminal investigators, as 

well as to commanders, are made up of licensed attorneys who are trained and 

skilled in the practice of criminal law. In the Army, we employ Special Victim Prosecutors (SVP) to advise on and develop these cases. The objective of these collaborative criminal investigations, led by the SAI and the SVP is the same as in any 

criminal investigation—to develop sufficient facts and evidence to allow a decisionmaker to make an appropriate decision. SVPs are notified of and track every allegation of sexual assault. SVPs confer early and often with the investigators to ensure 

56 

a thorough and professional investigation. SVPs are trained to meet with the victim 

as soon as practicable after the report, to establish rapport and begin the relationship that will serve as the foundation of every case. Educating and supporting the 

victim is the primary charter of the prosecutor, who must serve both the interests 

and rights of the victim and the community’s interest in holding offenders accountable and preserving good order and discipline. The SVP utilizes a member of the 

prosecution team known as the Victim Witness Liaison (VWL) to inform and educate a victim of his or her rights and the benefits to which one is entitled. The VWL 

is normally a civilian paralegal within the Staff Judge Advocate’s Office who receives special training to provide victim care and support victim rights. 

If the investigation reveals that there is sufficient evidence to support the allegation, that report is referred to the command for disposition. When a commander of 

any active duty servicemember determines that allegations are supported by the 

evidence, criminal charges are preferred. For a general court-martial to occur, the 

charges must first be referred to an investigation under Article 32 of the Uniform 

Code of Military Justice. The purpose of the Article 32 investigation is to have an 

independent officer review the case and determine if the charges are in the proper 

form, if there is sufficient evidence to support the charges, and whether a general 

court-martial is appropriate. Rules of evidence, including rape shield protections 

under Military Rule of Evidence 412, apply in the Article 32 proceedings. SVPs and 

paralegal Victim Witness Liaisons work with victims from the day of the initial report to prepare victims to testify. The Article 32 investigating officer makes a recommendation that informs the review and action of an intermediate-level Commander, a Colonel with between 20–25 years experience. From there, the case is forwarded to the Staff Judge Advocate who advises the General Court-Martial Convening Authority. Ultimately, the General Court-Martial Convening Authority decides whether the case will be referred to court for trial based on the legal advice 

of the SJA. 

When a case is referred to court-martial, the parties to the trial and the process 

are similar to what one would see in a civilian criminal court. We have an independent military judiciary, made up of military lawyers who have extensive criminal 

law experience. It is their duty to be fair and impartial in overseeing trials, applying 

the law, and if applicable, determining guilt or innocence and imposing an appropriate sentence upon an accused soldier. An accused soldier is represented by a military defense counsel who zealously represents their client’s legal interests. It is important to note that military defense counsel and military judges are assigned to 

separate organizations within the military, with command and performance rating 

chains that are separate from those of the prosecutors and convening authorities. 

Finally, the government is represented by a trial counsel, or prosecutor, whose mission is to present the evidence and argue the case against the accused on behalf 

of the United States. 

After a soldier is convicted, the military justice system has a unique process for 

post-trial clemency and review by the Convening Authority known as the Initial Action under Article 60, UCMJ. The Staff Judge Advocate conducts an initial legal review of the proceedings and advises the Convening Authority on appropriate action. 

Convicted soldiers are permitted to submit materials for review by the Convening 

Authority. A recent court-martial conviction and sentence received significant media 

coverage because the Convening Authority disapproved the panel’s findings of guilt 

and sentence and the convicted Lieutenant Colonel was released from jail. I cannot 

speculate about that matter, but I can say that I have not seen such a result in 

a court-martial in 32 years of service. Should we evaluate the need for the commander authority exercised here and for changes to our post trial system? Absolutely. Our Services already collectively evaluate military justice processes and procedures in an ongoing forum through the DOD constituted Joint Service Committee. 

Any changes to our system must be done with a full appreciation for the secondand third-order effects on our post-trial and appellate processes. 

Moreover, the Uniform Code of Military Justice has been in place since 1950— 

more than 60 years. Before its enactment, Congress took 2 years, conducted numerous hearings, took testimony from lawyers and non-lawyers, and carefully drafted 

the law creating our current military criminal legal system. Since that time, Congress made major changes to the Code on only one occasion, when it enacted the 

Military Justice Act of 1968. That Act, passed during the Vietnam War era, similarly involved months and months of hearings and testimony. This deliberate and 

thoughtful approach has ensured that the UCMJ not only is a first class piece of 

legislation, but also has ensured that unforeseen or unanticipated consequences did 

not adversely affect our military legal system. Consequently, it is my view that any 

changes to our UCMJ—even if we agree that change is required—not be made in 

piecemeal fashion. We must ensure that we adopt the best possible legislative upVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
57 

date and that we avoid the law of unintended consequences. I believe with the congressionally-mandated panels directed in NDAA for Fiscal Year 2013, we have the 

right vehicles in motion to responsibly consider possible changes to our Code. 

SPECIAL VICTIM PROSECUTOR PROGRAM

For sexual assault cases in the Army, we have established a Special Victim Prosecutor program to develop and prosecute sexual assault and special victim cases. In 

2009, the Secretary of the Army authorized 15 Special Victim Prosecutors to assume 

responsibility for sexual assault and domestic abuse cases. As a result of the success 

of this program, in 2012, I increased the number of SVPs to 23. The SVPs have regional responsibilities. These judge advocates are individually selected and assigned 

based on demonstrated court-martial trial experience, ability to work with victims 

and ability to train junior counsel. They complete a specially designed foundation 

and annual training program to elevate their level of expertise in the investigation 

and disposition of allegations of sexual assault and family violence. This training 

includes the career prosecutor courses offered by the National District Attorneys Association and on-the-job training with a civilian special victim unit in a large metropolitan city. The SVP’s primary mission is to investigate and prosecute special victim cases within one’s geographic area of responsibility. Their secondary mission is 

to develop a sexual assault and family violence training program for investigators 

and trial counsel in their area of responsibility. SVPs are involved in every sexual 

assault and special victim case in their assigned region. The SVPs work hand-inglove with the SAI investigators throughout the process. They train together and, 

in some locations, SVPs and SAIs are in the same office. As our program develops, 

we intend to strengthen and formalize the relationship to enhance the Army’s accountability efforts. For example, one of our most senior SVPs will move to a new 

jurisdiction where he will not only prosecute special victim offenses, but also teach 

at the military police school. Finally, in addition to working directly with victims 

in these cases, SVPs provide training, support and guidance to those professionals 

responsible for the physical, emotional and other needs of victims, including Victim 

Advocates (VAs), Sexual Assault Response Coordinators (SARCs) and Victim Witness Liaisons (VWLs). The SVPs also work closely with local police, prosecutors and 

service providers. To provide continuity and develop expertise, we have assigned 

SVPs to 3-year tours and developed a strategy to assign former SVPs to positions 

that will utilize their skills. We are growing and developing a corps of Judge Advocates educated and experienced in the adjudication of these difficult cases. Looking 

to the future, we will expand and formalize the concept adding additional resources 

and personnel to establish a premier Special Victim Capability, consistent with 

NDAA for Fiscal Year 2013 direction. 

What I am most proud of is the rapport these SVPs develop with victims. What 

you don’t read about in the media is the case where the SVP went with the victim 

to the victim’s custody hearing, or where the SVP helped the victim get out of a 

lease so she could move, or where the SVP helped a civilian victim obtain a restraining order in civilian court. Even better is a recent note from a victim’s mother, in 

which she wrote that the SVP is considered a member of her family and that the 

SVP made her daughter feel stronger and more capable than she knew she could 

feel. Along with the reality that we try the harder cases that many civilian prosecutors will not touch, our SVPs work hard to connect with and assist our victims. 

From counterintuitive behavior, to traumatic memory recollection, to an understanding of alcohol-facilitated sexual assaults in general, our primary focus is knowing and supporting our victims. 

HIGHLY QUALIFIED EXPERT ASSISTANCE

At the same time, the Army initiated the SVP program, we hired seven civilian 

Highly Qualified Experts (HQEs) to further enhance our ability to effectively investigate, prosecute and defend sexual assault and special victim cases. The HQEs 

bring a wealth of civilian experience and trial litigation expertise to our program. 

One HQE is assigned to the Criminal Law Department at the JAG school. His primary mission is to develop and train the curriculum on litigating sexual assault and 

special victim cases that we use to train our judge advocates. Two HQEs are assigned to our Trial Counsel Assistance Program to provide direct assistance to our 

Special Victim Prosecutors and other trial counsel in developing and litigating sexual assault and special victim cases. These dedicated professionals meet with victims, advise trial counsel, SVPs and Staff Judge Advocates on individual cases, assist in every phase of the prosecution of complex cases and train at conferences and 

outreaches. Their training includes the entire spectrum of first responders; including Judge Advocates, law enforcement, victim advocates, medical providers, and vicVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
58 

tim services providers for the Army and all other services. Two HQEs are assigned 

to our Defense Counsel Assistance Program to provide direct assistance to military 

defense counsel representing soldiers in sexual assault and special victim cases. 

VICTIM WITNESS LIASION

The final component of the Army’s Special Victim capability, working alongside 

the SAI criminal investigator and the Special Victim Prosecutor, is the Victim Witness Liaison (VWL). The VWL is a paralegal immersed in the military justice system and trained to work with all victims of crime, including sexual assault victims. 

The role of the VWL is to assist the victim in navigating the court-martial process. 

The VWL will educate the victim on her rights and the military justice system. The 

VWL may accompany victims to interviews with defense counsel, sit with the victim 

through Article 32 hearings or motions, coordinate travel or childcare for victims 

and provide referrals for all available resources. We are continuing to improve training for the VWLs to ensure they are equipped to educate victims about the process 

and their rights. We hope the relationship between victims and VWLs reflects the 

same level of care and assistance common between SVPs and victims and believe 

that adding additional highly skilled, highly trained VWLs to our team will facilitate that goal. 

TRIAL COUNSEL/DEFENSE COUNSEL TRAINING—COMPREHENSIVE, INTEGRATED, AND

SYNCHRONIZED

The Army has an extensive training system in military justice for judge advocates 

from 3 months to 25 years in service. All of our judge advocates are trained on their 

role in the military justice system in general, and specifically on the unique aspects 

of prosecuting and defending sexual assault and special victim cases. Prosecutors 

are trained that the Army is their client, rather than any individual commander. 

If there is a conflict between the interests of the individual commander and the interest of the Army, the Army’s interests should prevail. Our prosecutors are trained 

that the Army’s interest in ‘‘doing the right thing’’ is paramount to any interest that 

is contrary to that principle. All of our military justice practitioners are put through 

a synchronized, graduated training program administered by The Judge Advocate 

General’s Legal Center and School, and our Trial Counsel Assistance and Defense 

Counsel Assistance Programs. Sexual assault and special victim cases are complex, 

and difficult to prosecute and defend. However, we strive to provide the training and 

resources to ensure that these cases are appropriately investigated, analyzed, developed, and resolved. In addition, we carefully analyze our training synchronization 

and planning to provide defense-specific training commensurate with the expertise 

required. This requires a delicate balance, and we are careful to allocate our resources appropriately. 

VICTIM SERVICES/POLICY

An essential element to the success of the Army’s accountability efforts is providing victims with ongoing support. Although the prevention and response arms of 

the Army Sexual Harassment/Assault Response Program (SHARP) fall within the 

responsibilities of The Deputy Chief of Staff for Personnel (G–1), it is important to 

provide you with a comprehensive picture of the Army’s efforts. The Army has invested unprecedented resources, over $50 million in each of the past 2 fiscal years, 

into a prevention and response program designed to achieve culture change. The 

I.A.M. STRONG training, emphasizing Army values and teaching bystander intervention techniques, saturates soldier training at every level beginning with our newest recruits. A senior leader priority, this is an ongoing and monumental institutional effort. Advocacy and assistance for the victim are provided from the initial 

report through post-trial proceedings. Alongside the other Services, the Army has 

implemented policy to address the unique needs of soldier-victims, who have concerns about privacy and collateral misconduct. Details of the Army SHARP prevention and response program are attached. 

VICTIM RIGHTS AND REMEDIES

As to victims’ rights in the military justice system, rights afforded to victims in 

the Army are set forth in regulations and generally track the provisions of the Federal Crime Victims Rights Act, 18 U.S.C. 3771. These rights include the right to be 

treated with dignity and fairness, with a respect for privacy; the right to be reasonably protected from the accused offender; the right to be notified of court proceedings; the right to be present at court proceedings related to the offense; the 

right to confer with the attorney for the Government; the right to restitution; and, 

59 

the right to information regarding conviction, sentencing, imprisonment and release 

of the offender from custody. These rights are provided both in written, standard 

forms and in letters to victims after the court-martial process concludes. I note the 

CVRA was amended by Congress in 2004 which added 2 rights: the right to proceedings free from unreasonable delay, and the right to reasonably be heard at any 

public proceeding in the district court involving release, plea, sentencing or any parole proceeding. Current DOD regulations were drafted prior to the 2004 amendment to the Federal law and must be updated to reflect these two additional rights. 

The responsibility to inform victims about these rights and the duty to enforce the 

rights are shared by all of the personnel who assist a victim. An overlapping and 

encompassing team of professionals, this includes the Commander, the Victim Advocate, the Sexual Assault Response Coordinator, the CID investigator, the Victim 

Witness Liaison, a Legal Assistance Attorney, the trial counsel prosecutor, the appellate court Victim Witness Liaison and Army Corrections Command officials. 

Army regulations require these personnel to provide information to the victim 

throughout the investigative and accountability process. In calendar year 2011, 

Army Victim Witness Liaisons and investigators provided 31,898 victim’s rights 

forms to victims and witnesses of all crimes. During the court-martial process, the 

VWL, the trial counsel prosecutor and the SVP work together to keep the victim 

informed and actively participating. An educated victim is the most important asset 

the prosecutor and the Command have in the effort to hold offenders accountable. 

Army legal assistance attorneys represent victims on any legal issues arising from 

the offense, including child custody, child support, landlord-tenant and other personal matters. A 2011 survey of legal assistance attorneys in the field indicates that 

many victims avail themselves of these services and that Army legal assistance attorneys were able to provide meaningful assistance. Legal assistance attorneys can 

also assist victims with requests for expedited transfers or other matters that arise 

in the command. 

Each of the military Services has sought innovative solutions to providing advocacy for victims within the military justice system without sacrificing the ability to 

hold offenders accountable. Recently, the Air Force began a pilot program to provide 

a Special Victim Counsel, generally defined as an attorney detailed to represent victims who can intervene in the court-martial proceedings against the accused. The 

Army will watch this program carefully to learn best practices and potential pitfalls 

in such a change, one not contemplated by current rules and procedures. Our concern is that introducing an adversarial relationship between the government representative, the prosecutor, and the victim, especially during the presentation of evidence at trial, will have an adverse impact on the ability to prosecute and achieve 

accountability for offenders. The relationship between the prosecutor and the victim 

remains the bedrock of every case. If that trust or confidence is eroded, or a wedge 

is forced between them, the offender will reap the benefits. Even lawyers will admit 

that entry of another ‘lawyer-litigant’ to litigation almost by definition does not improve the process. The Army’s specially trained SVPs are taught to work with victims to understand their concerns and address their needs, and we believe this is 

a more effective method of securing sexual assault accountability while also caring 

for the victim’s interests, pursuing the interests of discipline, and enforcing the statutes created by this Congress. The prosecutor’s responsibility to protect victim privacy and rights to the greatest extent possible should not be delegated to another 

party. 

If a victim feels that one of his or her rights has been violated, the victim has 

several avenues of redress. The first avenue is the most direct—through the chain 

of command, the Victim Advocate, the Legal Assistance Attorney, the VWL or the 

SVP. All of these personnel are available to address the victim’s concern and seek 

a remedy. In the event that a victim does not get relief from these personnel or does 

not wish to utilize these personnel, the victim has a set of secondary options. The 

victim can contact the Army or DOD Inspector General’s office, independent investigative agencies. If the victim believes the chain of command is not enforcing the 

victim’s rights, the victim can file a complaint under Art. 138 ‘‘Complaint of 

Wrongs’’ of the Uniform Code of Military Justice, with the assistance of a Legal Assistance Attorney. Finally, a victim can seek assistance and information from hotlines run by the Army SHARP program and the Department of Defense Sexual Assault Prevention and Response Office (SAPRO). But in the end, the first and best 

resource for a victim is the prosecutor and those on the government team (the VA 

for example) who are trained and focused specifically on ensuring the victim succeeds. 

60 

METRICS TO MEASURE PROGRESS

In my view, prosecution and conviction rates do not alone measure a criminal justice system’s ability to address the crime of sexual assault. If we pursue challenging 

cases because we believe that serves victims and our community interests, some defendants will be acquitted. An acquittal in American justice is not failure. Whether 

there is an acquittal or a conviction is a manifestation of our reliance on the presumption of innocence. We cannot lose sight of this enduring bulwark in our foundation. The real measure or metric is the quality of our training, the ardency of our 

counsel in the pursuit of justice, the care we provide victims, and the commitment 

to equally resourcing our defense bar. These are the metrics, the benchmarks of a 

healthy justice system. In each of these categories we strive for excellence. Furthermore, in my experience, the Army JAGC takes on types of sexual assault cases that 

the civilian authorities decline to prosecute. For example, the Army often prosecutes 

sexual assault allegations involving an incapacitated or intoxicated victim. In my experience, civilian authorities often decline to prosecute these types of cases, especially when the accused has no prior criminal record. 

Having said that, the Army’s focus on accountability has produced measurable 

benefits and results. The close coordination between the Judge Advocate General 

Corps SVPs and the Criminal Investigation Command SAIs has improved the investigation, prosecution and victim-care aspects of sexual assault allegations. Commanders are trained to make evidentiary based disposition decisions with the advice 

of experienced, senior judge advocates and SVPs who understand the nuances of 

sexual assault allegations, particularly the unique aspects of behaviors exhibited by 

some victims in the wake of the trauma of sexual assault. The statistics on the number of sexual assault prosecutions in the Army reflect a healthy military justice system focused on these difficult cases. Since the inception of the SVP program in 2009, 

the number of courts-martial for sexual assault and domestic violence has steadily 

increased. 

We know this because of the transparency of the process and our reporting. For 

example, the Annual Report to Congress on Sexual Assault in the Military shows 

a comprehensive breakdown of the numbers of sexual assault reports and their dispositions. However, the report was never intended to serve as a vehicle for calculating prosecution and conviction rates for four primary reasons. First, the report 

is a snapshot in time, taken on the last day of the fiscal year and thus includes 

in the total number of reports cases that are still pending investigation or disposition. Second, the total number of reports includes restricted reports, in which no law 

enforcement investigation is triggered, preventing commanders from taking any disciplinary actions. Third, the total number of reports includes cases involving either 

a soldier victim or a soldier offender and thus includes cases in which a soldier has 

been assaulted by a civilian, foreign national or unknown offender. The military 

does not have jurisdiction over these individuals and cannot take any disciplinary 

actions against them. Fourth, the report covers the entire spectrum of sexual assault as defined by the UCMJ in seven separate offenses that range from an unwanted touch over the clothing to rape. Any collective discussion of disposition data 

ignores the fact that at one end of the spectrum of misconduct, administrative or 

nonjudicial punishments are likely appropriate, while at the other end of the spectrum, courts-martial should be considered. Statistics garnered from the Annual Report that place the number of convictions over the total number of reports are misleading and of no value in measuring our success. However, when one looks at the 

most serious penetrative offenses, rape and aggravated sexual assault, in which 

there is a completed disposition and jurisdiction over the offender, the Army’s rate 

of prosecution is strong and compares favorably with any other jurisdiction – civilian or military. The Army pays equal attention to the non-penetrative, contact offenses that can be just as disturbing and traumatic to victims. 

The military justice system, through the Annual Report to Congress, is simply the 

most transparent and scrutinized system in the country. We welcome the scrutiny 

because we understand our obligation to the American public. Civilian jurisdictions 

are not required to report on the circumstances, demographic data and disposition 

of every report of the full range of sexual assault offenses. 

Some members of the public and media have confused reported ‘‘clearance rates’’ 

for civilian jurisdictions with prosecution rates. Civilian jurisdictions report data to 

the Federal Bureau of Investigation for the Uniform Crime Report (UCR) on clearance rates only for the offense of rape. Only now does the FBI define rape as expansively as the military. Prior to 2012, the UCR definition of rape, unchanged since 

1927, did not include rapes where the victim was incapacitated by drugs or alcohol, 

sleeping victims, male victims or penetration with an object or finger. For purposes 

of the UCR, an allegation is considered cleared when there is an arrest and a presVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
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entation for charging or when there is probable cause to identify an offender, but 

no arrest. Many civilian jurisdictions have policies requiring corroboration of a victim’s complaint, either through DNA evidence, injury or a confession, in order to 

prosecute a case. The Army has no such requirement. In 2009, the Congressional 

Defense Task Force on Sexual Assault in the Military examined the investigation 

and prosecution of sexual assault allegations and reported ‘‘the military services 

prosecute many types of sexual assault cases that civilian prosecutors choose not to 

pursue.’’ 

VICTIM TESTIMONIALS

Much of the criticism of our system comes from experiences of past victims who 

have felt revictimized by the system. The nature of the crime of sexual assault can 

make the process of the system exponentially more difficult to navigate than any 

other crime. In recognizing this additional burden on victims of sexual assault we 

have developed and mandated specialized training for all SVPs and trial counsel 

that addresses the unique needs of these victims from rapport building through 

proper interview and direct examination techniques that employ compassion and 

empathy. As a result of these efforts, we have received feedback from victims and 

their families attesting to the dedicated, compassionate assistance provided by the 

specially-selected and trained Special Victim personnel. In a letter sent to supervisors, the mother of a rape victim described the SVP as ‘‘a member of the family’’ 

who ‘‘fought for her daughter . . . but most of all, showed her that the Army does 

the right thing.’’ A victim in an acquittal wrote ‘‘I want to thank you for what you 

did. Even though we didn’t win I was very comfortable having you on my side and 

help tell my story.’’ Another victim wrote, ‘‘To many people it may not seem like 

much, but you made it easier for me to sleep at night. You helped me to take my 

life back and get the justice I needed.’’ 

Since 1950, we have evolved our military justice system in response to forces both 

internal and external. That evolution continues today, reflected in an extraordinary 

number of changes over the last several years. I am convinced that our focus on the 

Special Victim Capability, and the constant training and education of commanders, 

investigators, and judge advocates, will help create a command climate that will 

allow military victims to feel safe and confident in reporting misconduct. Leadership 

is the solution to the change in culture we seek. Along with senior leaders across 

the Army, we in the JAG Corps will lead the march to accountability that reinforces 

committed leadership efforts to solve this critical problem. 

Senator GILLIBRAND. Mr. Taylor? 

STATEMENT OF HON. ROBERT S. TAYLOR, ACTING GENERAL 

COUNSEL OF THE DEPARTMENT OF DEFENSE 

Mr. TAYLOR. Chairman Gillibrand, Ranking Member Graham, 

and members of the subcommittee, thank you for the opportunity 

to testify here today. 

DOD is determined to combat and prevent sexual assault in the 

military. The men and women who put their lives on the line to 

protect this country must be assured that they have the opportunity to serve without fear of sexual assault. Sexual assault in the 

military is not only an abhorrent crime that does enormous harm 

to the victim, but it is also a virulent attack on the discipline and 

good order on which military cohesion depends. We must combat 

this scourge with all the resources at our disposal. Secretary Hagel 

has made it crystal clear to the senior military and civilian leadership of DOD that combating this blight is a major priority for him 

and that he demands results. 

I watched the hearing this morning and I want to take this opportunity to thank the witnesses for coming forward, and I believe 

that their testimony will contribute to making our military better. 

DOD is in the process of implementing a multifaceted effort to 

address sexual assault in the military. In the legal arena, my office, along with the JAG, and the JSC on Military Justice are working to improve DOD’s legal policies pertaining to sexual assault. 

62 

These efforts are designed to make our judicial, investigative, and 

support structures more efficient, effective, and responsive to the 

rights and needs of victims while preserving the rights of the accused. 

DOD has recently authorized the U.S. Air Force to implement a 

pilot program that assigns SVC to victims who report a sexual assault. SVC are experienced attorneys who may advocate on behalf 

of the victim to commanders, convening authorities, staff judge advocates, trial counsel, and to the extent authorized by the Manual 

for Courts-Martial, military judges. Although the pilot has been 

operational for just 6 weeks, I understand that numerous victims 

have already requested assistance. 

We need to evaluate the program’s effectiveness and to resolve 

questions concerning the proper role of SVC in the military justice 

system, which is critical to ensuring that this expansion of victims’ 

rights does not have unintended consequences that could hinder 

the pursuit of justice. To that end, I have tasked the JSC, military 

justice experts from across DOD and the Coast Guard, with evaluating the program. 

A longstanding issue of concern is the significant role that commanders have in the administration of military justice generally 

and specifically in cases involving allegations of sexual assault. The 

recent action of a convening authority to disapprove the findings 

and sentence and to dismiss the charges of sexual assault after a 

conviction by a court-martial has underscored continuing concerns 

with the role of commanders. Article 60 of the UCMJ authorizes a 

convening authority in his or her sole discretion to modify the findings and sentence of a court-martial. 

Over the years, Congress has preserved the central role of commanders. However, the role of commanders has been narrowed numerous times to provide protections for the accused. So it would be 

a misreading of the long legislative history of the UCMJ to put the 

role of the commander beyond a careful reexamination. 

We must strive for a military justice system that impartially considers evidence, respects the rights of the accused and victim alike, 

punishes the guilty, and reinforces military discipline. To be effective, members of the military must have confidence that the military justice system will treat both accused and victim fairly. 

With that in mind, DOD has initiated a number of reviews to inform Congress and the Secretary of Defense regarding the advisability of additional changes to the administration of military justice. 

Specifically, Secretary Hagel directed me to ensure that the 

panel of independent experts to examine the systems used to investigate, prosecute, and adjudicate crimes involving military assault, 

required by section 576 of last year’s NDAA, considers the role of 

convening authorities in the military justice process, including the 

authority to set aside a court-martial’s findings of guilt. The panel 

presents an excellent opportunity to solicit independent advice on 

the appropriate role of the convening authority in today’s military 

justice system, which includes robust rights of appeal. 

Proceeding with care and listening to all those affected by the 

military justice system and to experts on the administrative justice 

under other systems will ensure that changes to the administration 

63 

of military justice are constructive and avoid any unintended negative repercussions. 

But care and caution must not be allowed to become an excuse 

for inaction where further action is needed. Our men and women 

in uniform serve to protect us every day. They put their lives on 

the line for us, and for this great country of ours. We owe them 

a military in which sexual predators have no part and sexual assault has no place. Until all sexual assault in the military is eradicated, it is our duty to ensure that the victims find support, and 

we lawyers at this table have a special obligation to ensure that 

the military justice system works effectively to provide justice in 

every case and to all involved. 

I look forward to your questions. Thank you. 

[The prepared statement of Mr. Taylor follows:] 

PREPARED STATEMENT BY HON. ROBERT S. TAYLOR

Chairman Gillibrand, Ranking Member Graham, and members of the subcommittee, thank you for the opportunity to testify here today. 

The Department is determined to combat and prevent sexual assault in the military. The men and women who put their lives on the line to protect this country 

must be assured that they have the opportunity to serve without fear of sexual assault. Sexual assault in the military is not only an abhorrent crime that does enormous harm to the victim, but it is also a virulent attack on the discipline and good 

order on which military cohesion depends. We must combat this scourge with all 

the resources at our disposal. Secretary Hagel has made it crystal clear to the senior 

military and civilian leadership of the Department that combatting this blight is a 

major priority for him, and that he demands results. 

The Department is in the process of implementing a multi-faceted effort to address sexual assault in the military. In the legal arena, my office, along with the 

Judge Advocates General (JAGs), the Joint Service Committee on Military Justice 

(JSC) are working to improve the Department’s legal policies pertaining to sexual 

assault. These efforts are designed to make our judicial, investigative, and support 

structures more efficient, effective, and responsive to the rights and needs of victims, while preserving the rights of the accused. 

As an initial matter, the Department has taken decisive steps to ensure that no 

victim must deal with the aftermath of a sexual assault alone. Under the leadership 

of the Sexual Assault Prevention and Response Office (SAPRO), we have established 

a comprehensive system of victim care and support, including sexual assault response coordinators (SARCs), victim advocates, and a victim witness assistance program. This means that every victim has access to a network of professionals who 

can ensure that they receive the treatment they need and assistance in the military 

justice process. Recent policy changes have created a victim-advocate legal privilege 

so that victims can communicate candidly with victim-advocates assisting them 

through the process, without fear that their words could be taken out of context and 

be used against them. 

The military also allows victims of sexual assault to file a ‘‘restricted report,’’ 

which cannot be used to institute a criminal investigation, but which does trigger 

the provision of all the support services intended to help that victim become a survivor. Ensuring the availability of support services to all victims is certainly the 

right thing to do, and, in addition, by providing those services, we hope to empower 

the victim to change the restricted report into an unrestricted report, and thereby 

help bring the perpetrator to justice. In December 2011, we instituted a policy that 

permits victims who file unrestricted reports of sexual assault to request an expedited transfer, removing the victim from proximity to the alleged perpetrator and 

protecting them from potential harassment. 

In the fall of 2011, the Under Secretary of Defense for Personnel and Readiness 

also directed each Service to expand the scope of legal assistance available to the 

victims of crime, including sexual assault. Pursuant to that directive, the Services 

now provide victims of sexual assault with legal advice on military justice issues, 

specifically including: (1) the military justice process, (2) restraining orders, and (3) 

the different reporting options available to victims of sexual assault. 

The Department also recently authorized the United States Air Force to implement a pilot program that assigns Special Victims Counsel (or SVC) to victims who 

report a sexual assault. Special victims’ counsel are experienced attorneys who may 

64 

advocate on behalf of the victim to commanders, convening authorities, staff judge 

advocates, trial counsel, and to the extent authorized by the Manual for Courts-Martial, military judges. Although the pilot has been operational for just 2 months, I 

understand that a number of victims have already sought assistance from such 

counsel. 

We need to evaluate the program’s effectiveness and to resolve questions concerning the proper role of special victims’ counsel in the military justice system. Determining the proper role for special victims’ counsel in the adjudication of sexual 

assault offenses is critical to ensuring that this expansion of victims’ rights does not 

have unintended consequences that could hinder the pursuit of justice. To that end, 

I have tasked the Joint Service Committee—military justice experts from the Judge 

Advocates General of the Navy, Air Force, Army and Coast Guard, and the SJA to 

the Commandant of the Marine Corps—with evaluating the Air Force Pilot Program, including the authorities, procedures, and guidance regarding the detail of 

such counsel. 

Evaluating the various initiatives directed at increasing the level of support to 

victims in the legal process will help us determine which program, or combination 

of programs, works most effectively. Lessons learned can inform additional changes 

to Department and military legal policies, as appropriate. 

In addition to expanding direct assistance to victims, the Department has also implemented changes to how sexual assault and related offenses are prosecuted. For 

example, the Department now limits the initial disposition authority for the most 

serious sexual assault offenses to Special Court-Martial Convening Authorities who 

are officers of the grade O–6 and above (colonels and Navy captains). This ensures 

that only senior experienced commanders, with ready access to the advice of judge 

advocates, have authority over these important cases. It also reduces the likelihood 

that the convening authority will have any pre-existing direct involvement with any 

of the parties. 

Other important initiatives are also in the process of being implemented. The 

Military Departments are aggressively developing special victim capabilities to assist in the investigation and prosecution of sexual assault cases. These capabilities 

include assigning experienced and specially trained prosecutors and investigators to 

sexual assault cases. These cases can be complicated, and can raise difficult issues. 

Handling those cases effectively requires well-trained and well-resourced investigators and counsel. 

The Department also recently assessed the practicability and advisability of extending the protections afforded by the Crime Victims’ Rights Act to victims involved in cases tried by court-martial. Based on that review, DOD Directive 1030.01, 

‘‘Victim and Victim Witness Assistance,’’ which was modeled after the Victim Rights 

and Restitution Act of 1990, will be updated to ensure that victims have the ability 

to be heard during public proceedings and that proceedings are not unreasonably 

delayed. Additionally, the Department continues to study what procedures are used 

to enforce a victim’s rights in different jurisdictions to determine best practices for 

possible implementation within the military justice system. 

I believe that all of these changes will be instrumental in increasing the effectiveness of the military justice system as a venue for the prosecution of sexual assault. 

A longstanding issue of concern is the significant role that commanders have in 

the administration of military justice generally, and specifically in cases involving 

allegations of sexual assault. The elevation of the initial disposition authority was 

one response to this concern, but the recent action of a convening authority to disapprove the findings and sentence, and to dismiss the charges of sexual assault and 

conduct unbecoming of an officer after a conviction by a court martial has underscored continued concern with the role of commanders. Article 60 of the Uniform 

Code of Military Justice (UCMJ) authorizes a convening authority, in his or her 

‘‘sole discretion,’’ to modify the findings and sentence of a court martial. The origin 

and history of the military justice system helps provide context necessary to understand this authority, and is a starting point for a searching and careful consideration of whether there should be adjustments to the existing system, and if so, how 

extensive those adjustments should be. 

As described in the Preamble to the Manual for Courts-Martial, ‘‘the purpose of 

military law is to promote justice, to assist in maintaining good order and discipline 

in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.’’ Unique 

to this system is the authority of the military commander over those under his command and the need for portability in the administration of military justice throughout the world. The commander’s role in the process of military justice has been directly tied to the need for maintaining discipline within the ranks, as commanders 

65 

are accountable for the good order and discipline of the forces under their command 

and are ultimately responsible for what their units do or fail to do. 

Commanders in the U.S. military have been responsible for the good order and 

discipline of their forces since the establishment of the United States. Congress enacted the UCMJ on May 5, 1950, in the aftermath of World War II, with the goal 

of balancing the need for good order and discipline against expanded due process 

rights designed to protect against the potential capricious exercise of authority by 

a commander. Although the UCMJ periodically has been updated to incorporate additional protections of individual rights, Congress has preserved the central role of 

commanders. However, over the long history of the military justice system, the role 

of the commander has been narrowed to provide protections for the accused, making 

clear that the role of the commander is not immune from careful re-examination. 

Ultimately, we must strive for a military justice system that impartially considers 

evidence, respects the rights of accused and victim alike, punishes the guilty, and 

reinforces military discipline. To be effective, members of the military must have 

confidence that the military justice system will treat both accused and victim fairly. 

With that in mind, the Department has initiated a number of reviews to inform 

Congress and the Secretary of Defense regarding the advisability of additional 

changes to the administration of military justice. 

Pursuant to the requirements of section 576 of the National Defense Authorization Act for Fiscal Year 2013, the Department is currently in the process of establishing the Response Systems Panel. The Panel will be tasked with conducting an 

independent review and assessment of the systems used to investigate, prosecute, 

and adjudicate crimes involving sexual assault and related offenses, and to make 

recommendations on how to improve such systems. 

In response to concerns about the broad discretion afforded a convening authority 

under Article 60 of the UCMJ, Secretary Hagel directed me to ensure that the Panel’s charge includes consideration of the role of convening authorities in the military 

justice process, including the authority to set aside a court-martial’s findings of 

guilt. Reexamination of the way in which this authority is exercised is appropriate, 

and the Panel presents an excellent opportunity to solicit independent advice on the 

appropriate role of a convening authority in today’s military justice system, which 

includes robust rights of appeal. 

Pursuant to the direction of Congress, after the Response Systems Panel completes its review, the Department will also establish a Judicial Proceedings Panel 

to conduct an independent review and assessment of judicial proceedings conducted 

under the UCMJ involving sexual assault and related offenses. This Panel will consider, among other things, the introduction by the defense of evidence of the victim’s 

prior sexual conduct, the impact such evidence has on the outcome of cases, and a 

survey of court-martial convictions for sexual assault, including the number and description of instances when punishments were reduced or set aside upon appeal. 

In addition to these efforts, I have directed the Joint Service Committee (JSC), 

as part of its 2013 Annual Review of Military Justice, to conduct a fact-gathering 

review of civilian jurisdictions’ handling of sexual assault cases from the initial complaint to law enforcement through the prosecution process. This factfinding report 

should complement and assist the efforts of both the Response Systems Panel and 

the Judicial Proceedings Panel. 

As you can see, we have implemented a number of major initiatives in this area 

in the last several years, and we are studying a number of other initiatives that 

have been suggested by Members of Congress, the public, and the military. As we 

move forward, it is worth recalling the caution of this committee in 1983: 

‘‘[P]eriodic adjustments to the UCMJ which are justified, desirable and necessary 

[should be made]. . . . But, . . . it can be a ‘continuing and difficult task to balance 

the often competing interest of the maintenance of military discipline . . . and the 

protection of an individual’s rights.’ Therefore, the committee, Congress, and the Defense Department have always proceeded carefully and cautiously before recommending any changes to the rights and procedures embodied in the UCMJ.’’ 

Proceeding with care and listening to all those affected by the military justice system, and to experts on the administration of justice under other systems, will ensure that changes to the administration of military justice are constructive and 

avoid any unintended negative repercussions. 

But care and caution must not be an excuse for inaction, where further action is 

needed. Our men and women in uniform serve to protect us every day; they put 

their lives on the line for us, for this great country of ours. We owe them a military 

in which sexual predators have no part and sexual assault has no place. It is our 

duty to ensure that the victims of sexual assault find support, and we lawyers at 

this table have a special obligation to ensure that the military justice system works 

effectively to provide justice, in every case and to all involved. 

66 

Senator GILLIBRAND. Thank you. 

Vice Admiral DeRenzi. 

STATEMENT OF VADM NANETTE M. DERENZI, JAGC, USN, 

JUDGE ADVOCATE GENERAL OF THE U.S. NAVY 

Admiral DERENZI. Thank you. Good afternoon, Madam Chairman, Ranking Member Graham, members of the subcommittee. 

Thank you for this opportunity to appear before you this afternoon 

to address the Navy’s commitment to fighting sexual assault and 

specifically about the Navy’s accountability initiatives. 

Please let me state upfront this is not just a legal issue. It is a 

leadership issue for every one of us, and in recognition of this, the 

Secretary of the Navy, the Honorable Ray Mabus, and the Chief of 

Naval Operations, Admiral Jonathan Greenert, implemented a 

multifaceted approach to combat sexual assault, including comprehensive training and awareness that emphasizes active, involved leadership and bystander intervention. 

When an incident does occur, the Navy is dedicated to ensuring 

that victims receive full-spectrum and timely support to include 

medical treatment, counseling, and legal assistance. Certainly 

meeting and listening to the members of the earlier panel who put 

a face and a voice to the impact of sexual violence underscores the 

importance of victim care. 

To that end and consistent with the 2012 NDAA, the Navy is hiring 66 civilian credentialed, full-time SARCs and 66 full-time civilian credentialed victim advocates. They will augment the more 

than 3,000 Active Duty command victim advocates, and they will 

work with specially trained Naval Criminal Investigative Service 

(NCIS) investigators and specially trained JAG Corps officers to 

form the core of our special victim capability. 

The JAG Corps is intensely focused on upholding the special 

trust that is placed in us to provide a fair, effective, and efficient 

military justice system. We have implemented several key initiatives to ensure that our clients, both the Government and the accused, receive the highest level of advocacy. 

In 2007, to improve the overall quality of court-martial litigation, 

we established the military justice litigation career track. JAG 

Corps officers apply for the designation as military justice specialists or experts based on their litigation experience and aptitude. 

Those selected for the designation lead trial and defense departments and provide proven experience in the courtroom, personally 

conducting, overseeing, or adjudicating complex cases to include 

sexual assault. This program leverages trial counsel, defense counsel, and judicial experience to enhance the effectiveness of our 

court-martial practice for complex cases. 

In 2010, we established the trial counsel assistance programs 

(TCAP) and defense counsel assistance programs (DCAP), respectively, led by experts in military justice. 

TCAP has delivered trial advocacy training and prosecution process assessments worldwide. They have conducted outreach training 

to improve efforts between prosecutors, investigators, and other 

military justice stakeholders. They served as trial counsel or assistant trial counsel in several complex cases, to include sexual assault 

cases. The TCAP deputy director is a GS–15. She is a former State 

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prosecutor with extensive sexual assault prosecution experience. 

She previously served as the director of the National Center for the 

Prosecution of Violence Against Women, and she is a noted author 

in the field. 

DCAP was established to support and enhance the defense bar, 

provide technical expertise for case collaboration, and standardize 

resources for defense counsel. The office leads training efforts and 

consults with detailed counsel through every phase of the courtmartial process worldwide. 

In 2012, we hired two highly-qualified experts, one to work at 

our headquarters level and another to work in DCAP. They are 

channeling significant sexual assault litigation experience into enhanced litigation skills and practices for prosecution and defense 

teams in the field. We are now in the process of hiring another 

highly-qualified expert to work in our TCAP. 

We provide our litigators with extensive trial advocacy training 

throughout the course of their careers. The Naval Justice School, 

in conjunction with our Criminal Justice Division, our TCAP and 

our DCAP, coordinate specialized training on litigating complex 

sexual assault crimes, and they leverage knowledge from the civilian sector and from our sister services through cross training. We 

send career litigators to civilian post-graduate schools to receive 

master of law degrees in trial advocacy. 

To further refine our complex litigation capabilities, just last 

year, the Navy established an externship program and assigned 

two mid-level career officers to work in the sex crime units in two 

civilian prosecution offices—one in California and one in Florida. 

What I hope is clear from these and other initiatives that are described more fully in my statement is that Secretary Mabus, Admiral Greenert, and the entire Navy leadership team remain steadfastly committed to getting in front of the problem and to eliminating sexual assault from our ranks. 

For our part, the JAG Corps remains actively engaged in sexual 

assault awareness and prevention training, victim response, and 

accountability initiatives. 

Thank you again for this opportunity, and I look forward to taking your questions. 

[The prepared statement of Vice Admiral DeRenzi follows:] 

PREPARED STATEMENT BY VADM NANETTE DERENZI, USN 

Thank you for this opportunity to testify before the committee about the Navy’s 

commitment to eliminate sexual assault and, specifically, about the Navy’s accountability initiatives. 

On behalf of the Honorable Ray Mabus, Secretary of the Navy, and Admiral Jonathan Greenert, the Chief of Naval Operations, I want to assure you that the Navy 

is committed to eliminating the crime of sexual assault in our ranks. In addition 

to the toll on individual victims, sexual assault directly impacts operational readiness and unit cohesion. This is rightfully recognized as a leadership issue, not just 

a legal issue. Exemplifying this commitment, the Navy implemented a multi-faceted 

approach to address awareness and training, prevention, victim response, and investigation and accountability. 

Beginning with awareness and training, in 2009, Secretary Mabus established the 

Department of the Navy Sexual Assault Prevention and Response Office (DON 

SAPRO). Since its inception, DON SAPRO has conducted leadership discussions, 

stakeholder interviews, and focus groups with sailors and marines worldwide. In 

2010, DON SAPRO conducted the first Department-wide educational program for 

Sexual Assault Response Coordinators. This educational program was expanded the 

following year to include shore installation commanding officers and senior regional 

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leaders. Collaboration between DON SAPRO and a Navy training command at 

Great Lakes in 2011 and 2012 resulted in several local initiatives that yielded 

groundbreaking objective evidence of successful sexual assault prevention in a highrisk population of sailor students. 

Recognizing that a majority of the sexual assault cases in the Navy involve a perpetrator who is a co-worker or acquaintance of the victim, and that many involve 

alcohol use, in October 2011, the Navy began teaching Bystander Intervention to 

our enlisted sailors going through initial skills training. Bystander Intervention is 

a strategy to motivate and mobilize people to act when they see, hear, or otherwise 

recognize signs of an inappropriate or unsafe situation in order to prevent harm to 

another person. 

Second, the Navy developed and implemented a dynamic and interactive training 

program for leaders entitled Sexual Assault Prevention and Response Training for 

Leaders (SAPR–L). This training, for naval personnel in pay grades E–7 and above, 

was specifically developed to focus leaders on sexual assault, and to help them better understand the complex dynamics of this crime and the negative behaviors that 

can foster inappropriate conduct. SAPR–L training has been completed across the 

Fleet. 

The third part of this training and awareness campaign involves training the remaining members of the Fleet. Sexual Assault Prevention and Response Training 

for the Fleet (SAPR–F) was developed for all sailors in the grade of E–6 and below 

and focuses on bystander intervention, responsible decisionmaking, core values, and 

de-glamorizing the irresponsible use of alcohol. The unmistakable intent of this 

training is to empower sailors to recognize and assume personal responsibility to 

stop inappropriate behavior. Over 243,000 sailors (88 percent) in pay grades E–6 

and below, active duty and Reserve, have completed SAPR–F training to date. The 

remaining sailors are scheduled to complete the training by March 31, 2013. 

The Department of the Navy Sexual Assault Prevention and Response Office is 

developing a Sexual Assault Prevention and Response Training for Civilians, or 

SAPR–C, that will be implemented this summer. This course is intended to complement SAPR–L and SAPR–F by training Department of the Navy civilian personnel and to fulfill the training requirement set out in the National Defense Authorization Act for Fiscal Year 2012. 

The Navy Judge Advocate General’s Corps (JAG Corps) has been involved at all 

levels of the Navy’s efforts to eliminate sexual assault. Judge advocates are actively 

engaged in the development and delivery of the Navy’s innovative and dynamic 

training programs, focused on educating the Fleet at all levels. Judge advocates also 

ensured all commanders were fully trained on how to properly address and respond 

to allegations of sexual assault. As participants on SAPR–L training teams, judge 

advocates trained commanding officers, executive officers and command master 

chiefs (our senior enlisted leaders) on their roles in sexual assault investigations, 

their responsibilities to support victims and protect the rights of alleged offenders, 

the Uniform Code of Military Justice (UCMJ) Article covering sexual assault (Article 120), as well as the Secretary of Defense policy that elevates the initial disposition authority for cases involving the offenses of rape, sexual assault, forcible sodomy and attempts to commit those offenses. These training efforts are in addition 

to the advice judge advocates provide to their commanders on a routine basis. 

Victim response is critical to enable a victim to begin the healing process. The 

Navy is dedicated to ensuring victims of sexual assault receive proper and timely 

support, to include medical treatment, counseling, and legal assistance. The Navy 

is hiring 66 credentialed sexual assault prevention and response coordinators and 

66 full-time professional, credentialed victim advocates. They will augment the more 

than 3,000 active-duty command victim advocates, and will work with speciallytrained Naval Criminal Investigative Service (NCIS) investigators and JAG Corps 

prosecutors to form the core of our special victim capability. Our trained legal professionals also deliver direct legal assistance to victims. The JAG Corps instituted 

a Legal Assistance for Crime Victims conference and has trained more than 150 

Navy and Marine Corps attorneys, paralegals, and enlisted personnel to ensure victims’ rights are understood and protected. Victims can contact counsel, and victims 

eligible for military legal assistance services also have access to legal assistance attorneys to help with a wide variety of legal issues related to being the victim of a 

crime. Additionally, Navy prosecutors provide victims with explanations of victims’ 

rights; the court-martial process; and available Federal, state, or local victim services and compensation. 

The Navy JAG Corps’ primary mission within sexual assault prevention and response resides with accountability. Offender accountability has both investigative 

and military justice components. All allegations of sexual assault are referred to 

NCIS for investigation; NCIS agents are specially trained to conduct adult sexual 

69 

trauma investigations. Seamless coordination with NCIS is essential. Judge advocates and NCIS special agents who investigate sexual assault allegations coordinate 

directly in a number of ways. Prosecutors frequently serve as visiting instructors for 

NCIS courses at the Federal Law Enforcement Training Center in Georgia, and 

judge advocates participate in Mobile Training Teams to instruct special agents, 

trial counsel, and paralegals on best practices in sexual assault investigation and 

prosecution. This cross-training model will also be employed with the 66 full-time 

civilian victim advocates. 

The JAG Corps is also conducting a pilot program with the NCIS Sexual Assault 

Task Force. The Task Force consists of a small group of special agents assigned to 

sexual assault allegation investigations. The Task Force meets weekly to review specific case progress and monthly with the senior regional prosecutor and installation 

Sexual Assault Response Coordinators. This multi-disciplinary approach allows investigators, prosecutors, and sexual assault prevention and response personnel to 

troubleshoot sexual assault investigations, prosecution, and victim care issues as 

they arise. It also promotes early cooperation between stakeholders to improve quality of practice and provides the model for our special victim capability. On the east 

coast, the Task Force began meeting in November 2012. On the west coast, the Task 

Force began meeting in January 2013. The teams have already identified several 

means of improving coordination between investigators, prosecutors, and victim advocates. As the pilot program develops, leadership will continue to assess best practices for use in other regions. 

Once an NCIS investigation is complete, the case is forwarded to the appropriate 

commander to make an initial disposition decision. Reports of sexual assault must 

be reviewed by Navy captains (pay grade O–6) or above who are designated as Special Court-Martial Convening Authorities. Additionally, Initial Disposition Authorities must consult with a judge advocate prior to making disposition determinations. 

Once an Initial Disposition Authority decides a case should be prosecuted, the 

Navy JAG Corps provides prosecutors, defense attorneys, and military judges to conduct the court-martial, as well as active duty and Reserve judge advocates with fleet 

and litigation experience to serve as Investigating Officers at Article 32 pretrial investigation hearings. The JAG Corps’ mission includes providing a fair, effective, 

and efficient military justice system, and we are intensely focused on upholding the 

special trust placed upon us in the prosecution, defense, and adjudication of sexual 

assault cases. Accordingly, the JAG Corps has implemented a number of initiatives 

to ensure the highest level of advocacy in sexual assault litigation. 

In 2007, to improve the overall quality of Navy court-martial litigation, the JAG 

Corps established the Military Justice Litigation Career Track. JAG Corps officers 

apply for designation as military justice specialists or experts based on their litigation experience. Military Justice Litigation Qualified officers are detailed to lead 

trial and defense departments at Region Legal Service Offices and Defense Service 

Offices, which provide Navy prosecutors and defense counsel, respectively. These officers provide proven experience in the courtroom, personally conducting, adjudicating, or overseeing litigation in sexual assault and other complex cases. The Military Justice Litigation Career Track program increases the experience levels of trial 

and defense counsel and leverages that experience to enhance the effectiveness of 

criminal litigation practice. 

In 2010, the Navy created Trial Counsel and Defense Counsel Assistance Programs. These separate programs are led by experts in military justice who provide 

direct support to prosecution and defense counsel. The Navy’s Trial Counsel Assistance Program (TCAP) provides high-quality advice, assistance, support and resources for trial counsel (the Navy’s court-martial prosecutors) worldwide through 

every phase of the court-martial process. TCAP counsel may be detailed to serve as 

trial counsel or assistant trial counsel and have been so detailed in several high visibility cases, to include five sexual assault cases. The TCAP Director is an O–5 Military Justice Litigation Qualified expert and is a former Naval Legal Service Office 

commanding officer and military judge. The TCAP Deputy Director is a GS–15 expert who specializes in sexual assault prosecution and victims’ rights. A former state 

prosecutor with extensive experience, she previously served as the Director of the 

National Center for the Prosecution of Violence Against Women and is a noted author in the field. TCAP is also staffed with an O–4 Military Justice Litigation Qualified specialist with several years of litigation experience. 

During the past 2 years, TCAP provided onsite assistance visits, delivering trial 

advocacy training and prosecution process assessments to all nine Region Legal 

Service Offices worldwide. Further, TCAP personnel conducted outreach training 

using a multi-disciplinary approach to improve efforts between prosecutors, NCIS 

agents, military investigators and other military justice stake-holders, including 

Sexual Assault Response Program contributors. TCAP staff conducted advanced 

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family and sexual violence training at the Federal Law Enforcement Training Center and training on alcohol-facilitated sexual assault at the Army JAG Legal Center 

and School and Air Force Keystone conference. TCAP personnel are frequent instructors at the Naval Justice School, including the Trial Counsel Orientation, Basic 

Trial Advocacy, Intermediate Trial Advocacy, Senior Trial Counsel, Litigating Complex Cases, Sexual Assault Investigation and Prosecution, and Prosecuting Alcohol 

Facilitated Sexual Assault courses. TCAP coordinates training and advice closely 

with Marine Corps TCAP and leverages expertise from other Services, including 

Army TCAP, highly-qualified experts, sexual assault investigators, and special victim prosecutors. 

The UCMJ requires that qualified military defense counsel be detailed to military 

members facing trial by special or general court-martial. The Defense Counsel Assistance Program (DCAP) was created to support and enhance the proficiency of the 

Navy defense bar; provide experienced reach-back and technical expertise for case 

collaboration; and develop, consolidate and standardize resources for defense counsel. The office primarily supports the Navy trial defense bar with active cases. 

DCAP personnel are authorized to consult with detailed defense counsel through 

every phase of the court-martial process. Although not typically assigned as detailed 

defense counsel, DCAP personnel may be detailed to cases. Like TCAP, the DCAP 

Director is an O–5 Military Justice Litigation Qualified expert and former military 

judge. The Director is supported by an O–4 Military Justice Litigation Qualified specialist and a recently hired highly-qualified expert, discussed further below. 

During the past 2 years, DCAP provided military justice policy advice and routinely coordinated with the defense services of the Army, Air Force, Marine Corps, 

and civilian defense organizations to maximize efficiency and capitalize on expertise. 

DCAP overhauled the Senior Defense Counsel course to focus on supervisory counsel 

responsibilities and continued to develop the Navy and Marine Corps Defending 

Sexual Assault Cases course hosted by the Center for American and International 

Law. DCAP personnel routinely present training during field assist visits, web seminars, and participate as instructors at a number of courses and seminars. DCAP 

works closely with civilian defense organizations to make use of the resources at 

Federal and state public defenders’ offices. 

In 2012, the Navy hired two Highly Qualified Experts (HQEs). One HQE works 

at the headquarters level to enhance sexual assault litigation training, trial practice, 

and policy. She has nearly 20 years of experience prosecuting sex crimes, domestic 

violence, and human trafficking crimes. As part of the JAG Corps’ Criminal Law 

Division, she coordinates with the Naval Justice School and TCAP to ensure prosecutors and defense counsel receive specialized training on prosecuting complex sexual crimes, including the 2012 changes to UCMJ Article 120 and the intricacies of 

the rape shield provision under Military Rule of Evidence 412. The other HQE 

works with DCAP. He is a retired Marine Corps Lieutenant Colonel who completed 

two tours as a military judge while on active duty and has over 15 years of civilian 

experience as an assistant Federal public defender and preeminent civilian military 

criminal defense attorney. We are in the process of hiring a third HQE with significant civilian criminal litigation and training experience to provide litigation assistance within TCAP. 

The Naval Justice School; TCAP or DCAP, as appropriate; and the JAG Corps’ 

Criminal Law Division coordinate specialized training for Navy prosecutors and defense counsel on litigating complex sexual assault crimes. Prosecution of Alcohol-Facilitated Sexual Assaults is a week-long course taught in conjunction with AEquitas, 

the Prosecutor’s Resource on Violence Against Women. It focuses on substantive aspects of prosecuting alcohol-facilitated sexual assaults and includes small-group 

practical exercises to hone skills such as conducting direct and cross examinations 

of sexual assault nurse examiners, toxicologists, victims, and the accused. The 

Naval Justice School also facilitates Sexual Assault Prosecution and Investigation 

Mobile Training Teams for prosecutors and NCIS agents. Defending Sexual Assault 

Cases provides defense counsel training on sexual assault litigation and is taught 

in conjunction with the Center for American and International Law. The Navy also 

sends career litigators to civilian post-graduate schools to receive Master of Laws 

degrees in litigation or trial advocacy. 

To further refine the JAG Corps’ litigation capabilities, in 2012 the Navy established an externship program and assigned two mid-level career officers to work in 

the sex crimes units in the Office of the State Attorney in Jacksonville, FL, and the 

San Diego District Attorney’s Office in San Diego, CA. These 6-week clinical training externships enabled the officers to gain valuable practical experience and insight 

into how civilian prosecutor’s offices manage a high volume of sexual assault cases. 

In summary, the Navy is actively engaged in sexual assault awareness and training, prevention, victim response, and accountability initiatives. The Navy’s leaders 

71 

remain steadfastly committed to getting in front of this problem, eradicating sexual 

assault within our ranks, and ensuring that sexual assault cases are processed 

through a fair, effective, and efficient military justice system. I look forward to taking your questions. 

Senator GILLIBRAND. Thank you. 

General Ary? 

STATEMENT OF MAJ. GEN. VAUGHN A. ARY, USMC, STAFF 

JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE 

CORPS 

General ARY. Thank you. Chairman Gillibrand, Ranking Member 

Graham, and members of the subcommittee, thank you for the opportunity to testify here today. 

I must begin by assuring you that Secretary Mabus and General 

Amos continue to make the elimination of sexual assault a top priority in our Department. 

Within the Marine Corps, our Commandant is personally leading 

this fight not just in words but through actions. In June 2012, the 

Commandant issued his Sexual Assault Prevention and Response 

Campaign Plan. This plan is a blueprint for institutional and cultural change within our Corps and sets us on a course to improve 

our ability to prevent and respond to sexual assaults. 

In July 2012, our Commandant directed every Marine general officer to attend a SAPR symposium. This training event included 

subject-matter experts who spoke about prevention, the use of alcohol as a weapon, inadvertent victim-blaming, and dispelling myths. 

Our Commandant also spent much of 2012 traveling around the 

world speaking to his leaders in a series of heritage briefs, making 

it clear that sexual assault would never be tolerated. As he recently 

stated—and I quote—we are determined to eradicate sexual assault 

in the Marine Corps. It is a personal thing to me. 

I want to address two main areas today. First, I want to highlight the progress of the military’s initiatives to combat sexual assault. 

During the past few years, there have been significant statutory 

and regulatory changes made to the military justice system that affect SAPR. As we implement these changes, we must carefully balance three main interests: the commander’s inherent responsibility 

to maintain good order and discipline, the constitutional rights of 

an accused, and our fundamental obligation to protect and care for 

victims. Military commanders are uniquely positioned to balance 

these three interests and ensure the military justice system serves 

and protects each of them. 

Second, I want to address the improvements to our legal response capability. In 2012, the Commandant directed a complete 

reorganization of our legal community, a reorganization that affected over 49 different commands and over 800 legal billets. This 

new organization established four regional legal service support 

sections designed to ensure that we place the right counsel, both 

trial and defense, with the appropriate expertise, supervision, and 

support staff, on the right case, regardless of location. 

Each region has a regional trial counsel office that gives us a 

special victims capability. The centerpiece of each office is a complex trial team composed of experienced senior prosecutors. These 

72 

regional offices also contain criminal investigators, a legal administrative officer, paralegal support, and highly-qualified experts. Our 

highly-qualified experts are experienced civilian prosecutors who 

provide training, mentoring, and advice on trial strategy and tactics to all military prosecutors in the region. 

All of these improvements protect victim’s interests while ensuring the accused receives the due process rights guaranteed by the 

Constitution. 

In addition to increasing the available expertise to litigate sexual 

assault offenses, the Commandant expanded the scope of the Secretary of Defense policy on the disposition authority for sexual offenses to cover not only penetration offenses, but also all contact 

sex offenses, all child sex offenses, and attempts to commit such offenses. In essence, we now have a smaller group of more senior and 

experienced officers making disposition decisions for all sexual offense allegations and any related misconduct. 

In addition, to gain more visibility and command attention on 

this critical issue, the Commandant directed a new 8 day brief to 

the first general officer in the chain of command from the date of 

the victim’s unrestricted report of sexual assault. This 8 day brief 

serves as a checklist guaranteeing each victim’s care is supervised 

by a senior commander. 

Elimination of sexual assault is a top priority for our Corps, and 

the Commandant’s personal leadership and commitment are making a difference. By using a top-down, comprehensive approach and 

by attacking on all fronts from prevention to prosecution, I truly 

believe we are making a positive change in the culture of our 

Corps. 

As we consider additional action in the area of sexual assault, I 

believe the Response Systems Panel and the Judicial Proceedings 

Panel, established in the NDAA for Fiscal Year 2013 provide an opportunity to analyze any future reforms, and we look forward to 

participating. 

Again, I thank you for the opportunity to testify here today, and 

I welcome your questions. 

[The prepared statement of Major General Ary follows:] 

PREPARED STATEMENT BY MAJ.GEN. VAUGHN ARY, USMC 

Chairman Gillibrand, Ranking Member Graham, and members of the subcommittee, thank you for the opportunity to testify here today. 

The Department of Defense (DOD), and specifically the Marine Corps, has made 

significant changes to the process of litigating sexual assault cases, and continues 

to make tremendous progress in providing services and care vital for victims of sexual assault. We have taken a holistic approach to combating sexual assault in the 

Marine Corps, by implementing a number of initiatives to improve our ability to respond to allegations across the entire spectrum of a case, from initial reporting 

through trial and post-trial matters. We continue to support Congress’s effort to 

study the progress that has been made through the independent reviews and assessments directed by the National Defense Authorization Act (NDAA) for Fiscal Year 

2013. 

My testimony will address two major topics. The first major topic is the progress 

of the military’s initiatives to combat sexual assault. Our military leaders are constructively focused on the important issue of sexual assault. As a result, our provision of victim services has improved and our provision of legal services has undergone significant change. In the Marine Corps, the Commandant’s Sexual Assault 

Campaign Plan, including a complete reorganization of the Marine Corps legal community, highlights the proactive stance we have taken in addressing this matter. 

The independent reviews and assessments directed by the NDAA for Fiscal Year 

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2013 provide an opportunity for us to evaluate these changes and determine where 

additional reform is needed. The second topic of this testimony is an overview of the 

military justice process as it exists today following the many changes that have been 

made over the past few years. This overview will highlight the success we are having in four areas essential to reducing the incidence of sexual assault: prevention, 

investigation, victim services, and prosecution. It will also detail the ongoing efforts 

to make constant improvements in each of these areas. 

THE PROGRESS OF CURRENT SEXUAL ASSAULT INITIATIVES IN THE MILITARY

In the area of sexual assault, the Marine Corps today is significantly different 

than it was just 1 year ago, and 1 year from now it will look significantly different 

simply based on our implementation of current initiatives and legislative requirements. We anticipate that these changes will have positive effects on the prevention 

of and response to sexual assault, to include more professional investigation, prosecution, and defense of sexual assault cases. Initial feedback, whether empirical or 

anecdotal, indicates that we have improved the legal processes related to the prosecution and defense of sexual assault cases, and we are expecting continued improvement. Prior to discussing the specific improvements to the litigation of Marine 

Corps sexual assault cases, it is important to first analyze the recent legislative and 

policy changes affecting this area. 

Legislative changes 

The NDAA for Fiscal Year 2012 made several changes to the area of sexual assault. Most notable are the reform of offenses relating to rape, sexual assault, and 

other sexual misconduct under the Uniform Code of Military Justice; the addition 

of 10 U.S.C. § 1565b providing victims of sexual assault access to legal assistance 

and the services of Sexual Assault Response Coordinators (SARC) and Sexual Assault Victim Advocates (VA); the addition of 10 U.S.C. § 673 providing for the consideration of applications for permanent change of station or unit transfer for members on active duty who are the victim of a sexual assault or related offense; and 

four other sections on sexual assault prevention and response. 

On June 28, 2012, a new version of the Uniform Code of Military Justice (UCMJ) 

sexual assault statute, Article 120, took effect. The statute it replaced was the 2007 

version of Article 120, which completely rewrote the original Article 120 statute to 

model it on the Federal scheme for sexual assault. Among other things, the 2007 

statute made it very difficult to prosecute alcohol-facilitated sexual assaults, one of 

the most common types of sexual assaults found in the military. The 2012 statute 

adopted an ‘‘offender-centric’’ scheme that focuses on offenders’ actions, and not the 

behavior of the victim, to determine culpability. Military trial and appellate courts 

are just beginning to use the new statute, and it will take time to acquire measures 

of effectiveness for the new statute. 

The NDAA for Fiscal Year 2013 contains 12 specific sections related to sexual assault,. The provisions cover all aspects of sexual assault, to include training, prevention, investigation, and prosecution. Most notably, the NDAA for Fiscal Year 2013 

directs the Secretary of Defense to establish two independent panels to review and 

assess the UCMJ and judicial proceedings related to sexual assault cases. 

One of the most important parts of the NDAA for Fiscal Year 2013 is the act’s 

acknowledgement, in creating these two independent panels, that changes to military justice involving just one subset of crimes, or changes that significantly alter 

the role of the commander in military justice, should be carefully studied. I cannot 

overstate my agreement with this principle. I believe a thoughtful and well-researched comparison of military and civilian jurisdictions will provide valuable information for you to make decisions about the efficacy and viability of the military 

justice system and the role of the commander. I believe the role of the commander 

in all aspects of military justice is best addressed through deliberate study by the 

NDAA for Fiscal Year 2013-mandated panels. 

Section 576 of the NDAA for Fiscal Year 2013 creates two panels that will ‘‘conduct an independent review and assessment of the systems used to investigate, 

prosecute, and adjudicate crimes involving adult sexual assault and related offenses.’’ Both panels will specifically address the role of the commander in military 

justice. The first panel, the Response Systems Panel (RSP), may last for up to 18 

months and will contain five members selected by the Secretary of Defense, and two 

members selected by both the Senate and House Armed Services Committees. Specific tasks for the RSP include: an assessment of the strengths and weaknesses of 

the UCMJ in prosecuting sexual assaults; a comparison of military and civilian systems, to include best practices for victim support; the assessment of advisory sentencing guidelines for sexual assaults; a comparison of the training level of military 

prosecutors and defense counsel compared to Federal and State court systems; an 

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assessment of military court-martial conviction rates with Federal and State courts; 

an assessment of the roles and effectiveness of commanders at all levels in preventing and responding to sexual assaults; an assessment of the strengths and 

weaknesses of proposed legislative initiatives to modify the current role of commanders in the administration of military justice; and an assessment of the adequacy of systems to support and protect victims. The second panel, the Judicial Proceedings Panel (JPP) will convene upon completion of the RSP and last for up to 

6 months. It will contain five members, two of whom must have served on the RSP. 

The JPP will use the information collected and analyzed by the RSP to complete 

the following tasks: make recommendations regarding proposed reforms to the 

UCMJ; review and evaluate the adjudication of sexual assault offenses by the military in criminal and administrative fora, including the punishments determined; 

identify trends in punishment by courts-martial compared to Federal and State 

courts; review and evaluate sexual assault court-martial convictions that were reduced or set aside on appeal; review instances when prior sexual conduct of an alleged victim was considered at an Article 32 hearing; review instances when the 

prior sexual conduct of an alleged victim was introduced by the defense at a courtmartial; assess trends in training of military prosecutors and defense counsel; monitor the implementation of the NDAA for Fiscal Year 2013 requirement for a special 

victim prosecution capability; and monitor the recent Secretary of Defense decision 

to withhold initial disposition authority to a higher level of command for certain sexual assault offenses. 

Department of Defense changes 

Independent of congressional action in the area of sexual assault, the Secretary 

of Defense has made numerous changes in the areas of sexual assault reporting, investigation, and disposition. On April 20, 2012, the Secretary of Defense issued a 

memorandum withholding initial disposition authority for certain sexual assault offenses to the O–6 Special Court-Martial Convening Authority (SPCMCA) level (a 

disposition authority that previously could have been exercised by O–5 SPCMCAs). 

On October 1, 2012, the Defense Sexual Assault Incident Database (DSAID) became 

fully operational. DSAID originated from an NDAA for Fiscal Year 2009 requirement for a centralized, case-level database that collected and maintained information regarding sexual assaults involving members of the Armed Forces. On January 

22, 2013, the DOD Inspector General (IG) informed the services’ senior judge advocates that he intended to issue a survey of sexual assault victims to better understand the effectiveness of current support programs and to help guide improvements 

to them. On January 25, 2013, Department of Defense Instruction (DODI) 5505.18 

‘‘Investigation of Adult Sexual Assault in the Department of the Defense’’ was published. DODI 5500.18 specifically requires Military Criminal Investigative Organizations (MCIO) to investigate all adult sexual assaults. On February 28, 2013, the 

DOD IG released its Investigative Oversight Report ‘‘Evaluation of the Military 

Criminal Investigative Organizations’ Sexual Assault Investigation Training.’’ This 

report recommended an MCIO working group to review the continuum of sexual assault investigation training at the entry, refresher, and advanced levels. 

Service-level changes 

Internal to the Marine Corps, there have been four major developments in the last 

year that will improve the administration of military justice. The first development 

began in June 2012, when the Commandant issued his Sexual Assault Prevention 

and Response Campaign Plan, a three-phase strategy developed by an Operational 

Planning Team (OPT) whose members the Commandant personally selected. 

Chaired by a general officer and comprised of highly respected senior officers and 

enlisted marines, the OPT used the same planning techniques and processes we use 

to engage the enemy on the battlefield. The OPT aggressively analyzed the problem 

of sexual assault in our ranks, looking for solutions across the wide spectrum of prevention and response. The resulting Campaign Plan is a commander-led, holistic approach that improves our ability to prevent and respond to sexual assaults. Our goal 

is to change behaviors—the behavior of marines who might commit sexual assault, 

bystanders who can intervene and prevent sexual assault, and commanders, leaders, 

and professionals who respond to sexual assault. In a November 2012 interview, the 

Commandant said, ‘‘Classes are being held, not by a 21-year-old corporal, but the 

General Officer, the Colonel, and the Sergeant Major. So this is a fight. It won’t be 

won this year or next. Will we get there? We’re part of society. But, we are determined to eradicate sexual assault in the Marine Corps. It’s a personal thing with 

me.’’ 

To personally deliver the message of the Campaign Plan and ensure that marines 

truly understand the need to change our culture regarding the prevention of and 

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response to sexual assault, the Commandant traveled around the world speaking to 

his leaders in a series of Heritage Speeches. In these speeches, the Commandant 

discussed the special trust and respect that marines have earned from the Nation, 

and the vast responsibility marines of today have in maintaining that trust and respect. The Commandant emphasized no matter how successful we are on the battlefield against our Nation’s enemies, the Marine Corps could lose all of that respect 

if we as marines did not take care of our fellow marines—America’s brothers and 

sisters, sons and daughters, fathers and mothers. The Commandant made it clear 

that sexual assault is not acceptable and that he would not tolerate it. He directed 

his marines to learn more about the situations that may lead to sexual assault, prevent those situations from occurring, and if a sexual assault did occur, to embrace 

the victim and provide that marine the support they needed. Attachment A contains 

a summary of the Commandant’s Campaign Plan initiatives and requirements. 

The second development was the Commandant’s complete reorganization of the 

Marine Corps legal community. Previously, legal centers were decentralized and operated independently of each other. They were also limited to their own organic capability to address cases in their geographic location, regardless of complexity. 

Based on an analysis of the growing complexity of case types on the court-martial 

docket, to include sexual assaults, the Commandant directed a regionalized model 

that could better leverage training and experience to provide the proper level of expertise on the most complex courts-martial, regardless of location. This reorganization had an immediate and tremendously positive impact on the ability of judge advocates to prosecute complex cases and is discussed in more depth below in the section on courts-martial. 

The third development in the last year involved two statutory modifications of the 

authority of Staff Judge Advocate to the Commandant of the Marine Corps (SJA to 

CMC). The first statutory change involved the supervisory authority of the Staff 

Judge Advocate to the Commandant of the Marine Corps (SJA to CMC). The NDAA 

for Fiscal Year 2013 modified 10 U.S.C. § 5046 to codify the SJA to CMC’s authority 

to provide legal advice to the Commandant and supervise the Marine legal community. Prior to this statutory change, the SJA to CMC exercised this authority as delegated to him by regulation. In the second statutory change, 10 U.S.C. § 806 was 

modified to grant the SJA to CMC inspection and supervisory authority over the administration of military justice within the Marine Corps. These statutory changes 

recognize the unique nature of the Marine Corps as a second service within the Department of the Navy and make the SJA to CMC accountable for ensuring military 

justice services are meted out efficiently, professionally, and effectively. 

The fourth development of the last year involved improvements in the ability to 

provide transparency and visibility of courts-martial cases to all levels of command. 

During fiscal year 2012, the Marine Corps began a Case Management System 

(CMS) pilot program with the U.S. Navy. The Judge Advocate General of the Navy 

(JAG) determined that CMS presented the best way forward in order to meet a congressionally-mandated requirement for the entire department to use a single case 

tracking system. Based on the JAG’s input, the Secretary of the Navy selected CMS 

as the departmental case tracking system. At the close of fiscal year 2012, the Marine Corps and the Navy were working hand-in-hand to ensure that the CMS expansion will be completed by July 2013, the deadline set by Congress. 

OVERVIEW OF THE MARINE CORPS’ MILITARY JUSTICE PROCESS FOR SEXUAL ASSAULTS

An allegation of sexual assault 

When a marine alleges that he or she is a victim of sexual assault, that allegation 

triggers a comprehensive system of required victim and legal responses. Commanders, law enforcement, victim advocates, and judge advocates are all required 

to comply with their statutory and regulatory responsibilities in order to respond 

to victims’ needs and determine appropriate offender accountability. 

Victim Response. In accordance with Marine Corps Order (MCO) 1752.5A, ‘‘Sexual 

Assault Prevention and Response (SAPR) Program,’’ a sexual assault victim has the 

option of filing a restricted or unrestricted report. A restricted report affords military victims of sexual assault the option to make a confidential report to specified 

individuals (SARC, VA, Uniformed Victim Advocate (UVA), counselors, and 

healthcare providers) without requiring those officials to report the matter to law 

enforcement or initiate an official investigation. Individuals making restricted reports can also utilize the full-range of victim services received by victims who make 

unrestricted reports. Filing an unrestricted report requires that all suspected, alleged, or actual sexual assaults made known to command or law enforcement be 

submitted for formal investigation. An unrestricted report is the first ‘‘trigger’’ for 

a variety of victim and legal responses. 

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Following an unrestricted report, a Commander is required by MCO 1752.5A to 

take a number of initial steps. These steps include ensuring the physical safety and 

emotional security of the victim; determining if the victim desires/needs any emergency medical care; notifying the appropriate MCIO, as soon as the victim’s immediate safety is ensured and medical treatment is provided; to the extent practicable, 

strictly limiting knowledge of the facts or details regarding the incident; taking action to safeguard the victim from any formal or informal investigative interviews or 

inquiries, except those conducted by the appropriate MCIO; ensuring the SARC is 

notified immediately; collecting only the necessary information (e.g. victim’s identity, location and time of the incident, name and/or description of offender(s); advising the victim of the need to preserve evidence (by not bathing, showering, washing 

garments, etc.) while waiting for the arrival of representatives of the MCIO; ensuring the victim understands the availability of victim advocacy and the benefits of 

accepting advocacy and support; asking if the victim needs a support person, which 

can be a personal friend or family member, to immediately join him or her; immediately notifying a VA for the victim; asking if the victim would like a Chaplain to 

be notified and notify accordingly; determining if the victim desires/needs a ‘‘no contact’’ order or a Military Protective Order, DD Form 2873, to be issued, particularly 

if the victim and the accused are assigned to the same command, unit, duty location, or living quarters; ensuring the victim understands the availability of other referral organizations staffed with personnel who can explain the medical, investigative, and legal processes and advise the victim of his or her victim support rights; 

and listening/engaging in quiet support of the victim to assure the victim that she/ 

he can rely on the commander’s support. 

After making an unrestricted report, a marine can request an expedited transfer. 

In accordance with the Commandant’s Letter of Instruction on submitting and processing these expedited transfer requests, commanding officers ‘‘shall . . . expeditiously process a request for transfer of a marine who files an unrestricted report 

of sexual assault. Every reasonable effort shall be made to minimize disruption to 

the normal career progression of marines who seek transfer . . . ’’ The letter further 

mandates expedited processing timelines, establishes a presumption in favor of 

transferring the marine requesting transfer, and establishes a process to appeal a 

denial of that request to a general officer. This process allows a victim to request 

assignment to a different unit for his or her physical and/or mental well-being. Since 

February 28, 2012, 57 marines have requested expedited transfer and all but one 

of the requests have been approved. The one marine who was denied an expedited 

transfer was temporarily assigned to a service school when she requested the expedited transfer. The commander was able to return the marine to her parent unit, 

which effectively accomplished the goal of separating her from the alleged offender. 

At this early stage of the process, the Marine Corps also requires commanders of 

victims to submit an ‘‘8-day brief’’ to the first general officer in their chain of command, which provides general officers with valuable data about any trends in sexual 

assaults in their command and ensures all relevant victim services are being provided. 

This past year, the Marine Corps also implemented 10 U.S.C.§ 1565b, which 

makes legal assistance, assistance by a SARC, and assistance by a sexual assault 

victim advocate available to victims of sexual assault. Additionally, 10 U.S.C.§ 1565b 

requires that victims of sexual assault be informed of the availability of such services as soon as practicable after the victim reports the sexual assault. The Marine 

Corps uses legal assistance attorneys to provide victims information about the following areas: (1) the Victim and Witness Assistance Program (VWAP), including the 

rights and benefits afforded the victim, such as the victim advocate privilege; (2) the 

differences between the two types of reporting in sexual assault cases (restricted 

and unrestricted); (3) the military justice system, including the roles and responsibilities of the prosecutor, defense counsel, and investigators; (4) services available 

from appropriate agencies or offices for emotional and mental health counseling and 

other medical services; (5) the availability of and protections offered by civilian and 

military protective orders; and (6) eligibility for and benefits potentially available 

as part of the transitional compensation program. Additionally, prosecutors will explain to victims how their privacy is protected under the military rape shield rule, 

Military Rule of Evidence (M.R.E.) 412. 

In addition to the new counseling provided by legal assistance attorneys, the Marine Corps is also increasing the quality and professionalism of victim advocate services available to victims of sexual assault. Per the NDAA for Fiscal Year 2012, all 

SARCs, VAs, and UVAs are mandated to complete 40 hours of specialized victim 

advocacy training, as part of the new credentialing requirements for Sexual Assault 

Prevention and Response (SAPR) personnel. This initiative reinforces the Marine 

Corps ability to ensure that SAPR personnel remain well equipped to establish a 

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close and supportive relationship with victims, and to help victims understand their 

legal and privacy rights. 

In response to another NDAA for Fiscal Year 2012 requirement, in fiscal year 

2013, the Marine Corps will hire 47 full-time civilian SARC and VA billets (25 

SARCs and 22 VAs). The 25 new SARCs will greatly augment our current staff of 

17, giving us a total of 42 full-time SARCs by the end of fiscal year 2013. The 22 

new VAs will be exclusive to the SAPR branch, and will augment the existing 42 

VAs who are supported by the Family Advocacy Program. In addition, there are currently 67 Command SARCs and 813 UVAs across the Marine Corps. These new 

SARC and VA positions represent a move from part-time collateral duty billet holders to a professionalized cadre of victim service providers. The Marine Corps will 

also establish Sexual Assault Response Teams (SART), which is a collaboration with 

the Naval Criminal Investigative Service (NCIS), legal, medical, and other entities, 

designed to facilitate a multi-disciplinary approach to victim care, reduce re-victimization, and to provide a holistic response that extends beyond the boundaries of any 

one response service. The SARTs will also conduct quarterly reviews of regional 

trends in victim services. 

Determining Offender Accountability. DOD Instruction 5505.18, dated 25 January 

2013, directs MCIOs, including NCIS, to initiate investigations of all offenses of 

adult sexual assault of which they become aware that occur within their jurisdiction, regardless of the severity of the allegation. When NCIS initiates a sexual assault investigation, it will also investigate threats against the sexual assault victim, 

to include minor physical assaults and damage to property. If an adult sexual assault allegation is referred to another agency (e.g., local law enforcement or the Marine Corps Criminal Investigative Division), the reason for the referral must be fully 

documented in an investigative report that identifies the agency and states whether 

the MCIO will be involved in either a joint investigative or monitoring capacity. 

This Instruction also provides minimum training standards for the primary MCIO 

investigator assigned to conduct an investigation of sexual assault and provides 

standards for records maintenance. 

The Marine Corps is working with the Navy to increase Sexual Assault Forensic 

Examination (SAFE) accessibility and the Sexual Assault Nurse Examiner capability. In addition, NCIS is utilizing the Adult Sexual Assault Program (ASAP), a 

surge team response to adult sexual assault cases to increase efficiency and expedite 

the handling of cases. Members of ASAP will receive comprehensive sexual assault 

training. 

Investigation referred to a colonel commander for a disposition decision 

On April 20, 2012 the Secretary of Defense (SecDef) issued a memorandum withholding initial disposition authority (IDA) in certain sexual assault offenses to the 

colonel, O–6, SPCMCA level. The SecDef withheld the authority to make a disposition decision for penetration offenses, forcible sodomy, and attempts to commit those 

crimes. This withholding of IDA to a Sexual Assault Initial Disposition Authority 

(SA–IDA) also applies to all other alleged offenses arising from or relating to the 

same incident, whether committed by the alleged offender or the alleged victim (i.e., 

collateral misconduct). On June 20, 2012, the Commandant expanded this withholding to include not just penetration and forcible sodomy offenses, but all contact 

sex offenses, child sex offenses, and any attempts to commit those offenses. The Marine Corps also made it clear that in no circumstance could the SA–IDA forward 

a case down to a subordinate authority for disposition. For example, if a marine was 

initially accused of a non-consensual sex offense, along with orders violations and 

adultery, but the NCIS investigation did not substantiate the non-consensual sex offense, the SA–IDA would still be required to make the disposition decision on the 

remaining non-sexual assault offenses, even if those types of offenses were of the 

type normally handled at lower levels of command. The result is that the USMC 

now has a smaller group of more senior and experienced officers making disposition 

decisions for all sexual offense allegations and any related misconduct. 

In accordance with Rule for Court-Martial (RCM) 306(c), prior to trial, a convening authority (the SA–IDA for sexual assaults) may dispose of charged or suspected offenses through various means: ‘‘Within the limits of the commander’s authority, a commander may take the actions set forth in this subsection to initially 

dispose of a charge or suspected offense,’’ by taking: (1) no action, (2) administrative 

action, (3) imposing nonjudicial punishment, (4) disposing of charges through dismissal, (5) forwarding charges to a superior authority for disposition, or (6) referring 

charges to a court-martial. 

Before making a decision regarding the initial disposition of charges, the convening authority must confer with his or her staff judge advocate (SJA), whose primary duties are to provide legal advice to commanders. In the Marine Corps model 

78 

for providing legal services, the provision of legal services support (i.e. trial and defense services, review, civil law, legal assistance) is completely divorced from the 

provision of command legal advice. Practically, this means the commander’s SJA is 

not affiliated with the prosecutors who evaluate the evidence in the case and recommend whether to take a case to trial. Effectively, this ensures the commander 

and his SJA receive impartial advice (in addition to information from NCIS) in order 

to make an appropriate and well-informed disposition decision in accordance with 

RCM 306. 

If a commander decides to proceed with charges against an alleged offender, the 

commander will file a request for legal services with the Legal Services Support Section (LSSS) or Legal Services Support Team (LSST) that services his or her command. Before a case can go to a felony-level trial, a general court-martial, the commander must first send the case to an Article 32 investigation. 

According to Article 32, UCMJ, ‘‘[n]o charge or specification may be referred to 

a general court-martial for trial until a thorough and impartial investigation of all 

the matters set forth therein have been made.’’ A general court-martial may not proceed unless an Article 32 investigation has occurred (or the accused has waived it). 

Unlike a grand jury under Federal Rule of Criminal Procedure 6, the proceeding is 

not secret and the military accused has the right to cross-examine witnesses against 

him or her. 

RCM 405 governs the conduct of the Article 32 investigation and states in its discussion that ‘‘the investigating officer should be an officer in the grade of major . . . 

or higher or one with legal training . . . and may seek legal advice concerning the 

investigating officer’s responsibilities from an impartial source.’’ As a matter of regulation in the Marine Corps, for a case alleging a sexual assault, the Article 32 investigating officer (IO) must be a judge advocate who meets specific rank and experience requirements, in accordance with Marine Corps Bulletin (MCBul) 5813, ‘‘Detailing of Trial Counsel, Defense Counsel, and Article 32, UCMJ, Investigating Officers.’’ MCBul 5813 was published on 2 July 2012 and ensures that judge advocates 

who are detailed as trial counsel (TC), defense counsel (DC), and Article 32 IOs possess the appropriate expertise to perform their duties. 

Once the Article 32 investigation is complete, the IO makes a report to the convening authority that addresses matters such as the sufficiency and availability of 

evidence; and that more importantly, contains the IO’s conclusions whether reasonable grounds exist to believe that the accused committed the offenses alleged and 

recommendations, including disposition. Although the rules of evidence generally do 

not apply at an Article 32 investigation, it is important to note that the evidentiary 

rape shield and all rules on privileges do apply, providing a level of protection for 

the victim. 

The convening authority again receives advice from his or her staff judge advocate, and then decides how to dispose of the charges and allegations. Prior to making a disposition decision, convening authorities take the victim’s preference into 

consideration. If the commander decides to move forward, he or she may refer the 

charges to a general court-martial or a lesser forum. 

Court-martial 

Alcohol facilitated acquaintance sexual assaults are one of the most difficult criminal offenses to prosecute, regardless of jurisdiction. Within the military, they are 

also the most common type of sexual assaults that our investigators and prosecutors 

confront. Our analysis of ways to improve sexual assault prosecutions uncovered a 

broader overall trend in military justice. We noticed an increase in complex and contested cases as a percentage of our total trial docket. We realized that our historical 

model of providing trial services needed to be revised to better handle these complex 

cases, many of which involve sexual assault. The Commandant, as an example of 

the importance of the commander in the administration of military justice, therefore 

directed us to reorganize our legal community into a regional model that gives us 

the flexibility to better utilize the skills of our more experienced prosecutors. Practically speaking, our new regional model, which became fully operational on October 

1, 2012, allows us to place the right prosecutor, with the appropriate training, expertise, supervision, and support staff, on the right case, regardless of location. 

The legal reorganization greatly increases the legal expertise (based on experience, education, and innate ability) available for prosecuting complex cases. The reorganization divided the legal community into four geographic regions—National 

Capital Region, East, West, and Pacific. These regions are designated Legal Service 

Support Areas (LSSA) and are aligned with the structure of our regional installation 

commands. Each LSSA contains a LSSS that is supervised by a colonel judge advocate officer-in-charge. Each LSSS contains a Regional Trial Counsel (RTC) office 

that is led by an experienced lieutenant colonel litigator whose extensive experience 

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provides effective regional supervision over the prosecution of courts-martial cases. 

This new construct provides for improved allocation of resources throughout the 

legal community and ensures that complex cases, such as sexual assaults, are assigned to experienced counsel who are better suited to handle them. 

While the Marine Corps does not specifically identify ‘‘special victim prosecutors,’’ 

this capability resides in the RTC offices through the use of Complex Trial Teams 

(CTT). The CTT is assembled for specific cases and may contain any or all of the 

following: a civilian Highly Qualified Expert (HQE), experienced military prosecutors, military criminal investigators, a legal administrative officer, and a paralegal. 

The civilian HQE has an additional role training and mentoring all prosecutors in 

the region. The HQEs are assigned to the RTCs and work directly with prosecutors, 

where they will have the most impact. HQEs report directly to the RTC and provide 

expertise on criminal justice litigation with a focus on the prosecution of complex 

cases. In addition to their principal functions of training and mentoring prosecutors, 

the HQEs also consult on the prosecution of complex cases, develop and implement 

training, and create standard operating procedures for the investigation and prosecution of sexual assault and similarly complex cases. The criminal investigators 

and the legal administrative officer in the RTC office provide a key support role in 

complex prosecutions. Historically, a prosecutor was individually burdened with the 

coordination of witnesses and experts, the gathering of evidence, background investigations, and finding additional evidence for rebuttal, sentencing, or other aspects 

of the trial. These logistical elements of a trial are even more demanding in a complex trial; the presence of criminal investigators and the legal administrative officer 

allow Marine Corps prosecutors to focus on preparing their case. 

To support our prosecutors further, we created a Trial Counsel Assistance Program (TCAP) at our Judge Advocate Division Headquarters. Our TCAP consolidates 

lessons learned from throughout the Marine Corps and provides training and advice 

to our prosecutors in each region. The TCAP provides specialized training through 

regional conferences focused on the prosecution of sexual assaults. These training 

events include speakers on law enforcement techniques, victim and offender typology, expert witnesses, forensics, and the art of persuasion. Our Reserve judge advocates, who are experienced criminal prosecutors, are made available to mentor our 

active duty judge advocates either during trainings or on specific cases.. Our TCAP 

also coordinates on a regular basis with the DOD Sexual Assault and Prevention 

Office to ensure Marine Corps initiatives meet DOD requirements. To ensure an 

adequate level of experience and supervision not only at the headquarters level, but 

also in each LSSS and LSST, we more than doubled the number of field grade prosecutors we are authorized to have on our rolls from 11 to 25. We also specifically 

classified certain key military justice billets to require a Master of Laws degree in 

Criminal Law. 

As I mentioned earlier, any change I recommend to the Marine Corps’ system of 

dealing with sexual assault must carefully balance our ability to prosecute sexual 

assaults with our ability to defend marines accused of sexual assault. As concerned 

as I am that I have well-trained and competent prosecutors, I am equally concerned 

that each marine accused receives a constitutionally fair trial that will withstand 

the scrutiny of appeal. To that end, last year we established the Marine Corps Defense Services Organization (DSO), which placed all trial defense counsel under the 

centralized supervision and operational control of the Chief Defense Counsel (CDC) 

of the Marine Corps. This change was designed to enhance the independence of the 

Marine Corps DSO and the counsel assigned to it, while enhancing the efficiency 

and effectiveness of available services. The DSO also established a Defense Counsel 

Assistance Program (DCAP) to provide assistance and training to the DSO on sexual 

assault and other cases. 

During the court-martial process, special care is taken to ensure that the rights 

and interests of victims continue to be protected. The M.R.E. provides the same protections as our Federal and State courts against the humiliation, degradation and 

intimidation of victims. Under MRE 611, a military judge can control the questioning of a witness to protect a witness from harassment or undue embarrassment. 

More specifically for sexual assault cases, the military’s ‘‘rape shield’’ in MRE 412 

ensures that the sexual predisposition and/or behavior of a victim is not admissible 

absent a small set of well-defined exceptions that have survived extensive appellate 

scrutiny in Federal and military courts (the exceptions listed in MRE 412 are identical to the exceptions listed in Federal Rule of Evidence 412). In addition, victims 

also have the protection of two special rules on privileges. Under MRE 513, a patient (victim) has the privilege to refuse to disclose, and prevent another person 

from disclosing, a confidential communication between the patient and a 

psychotherapist. Under MRE 514, the military has created a ‘‘Victim advocate-victim privilege’’ that allows a victim to refuse to disclose, and prevent another person 

80 

from disclosing, a confidential communication between the victim and a victim advocate in a case arising under the UCMJ. These two evidentiary privilege rules ensure 

that victims have a support network they are comfortable using and that they do 

not have to fear that their efforts to improve their mental well-being will be used 

against them at a court-martial. 

Convening Authority’s Clemency Power 

I am aware that the discretion of a convening authority under Article 60 is an 

issue of extreme importance to you based on the recent Air Force case. In that case, 

the convening authority dismissed a sexual assault offense after setting aside a 

guilty finding that was voted on by a panel of officer members. A commander setting 

aside a finding is atypical, and even rarer in cases involving sexual assault offenses. 

In order to assess the manner in which today’s convening authorities exercise their 

clemency power, a 2007 Naval Law Review article examined 807 Navy and Marine 

Corps special and general courts-martial convened between 1999 and 2004. The author found that Convening Authorities exercised clemency in only about 4 percent 

of the cases, and in only about 2 percent of the cases that were convened in 2003 

and 2004. A review of the Marine Corps cases over the past 2 fiscal years revealed 

similar results. Of the 967 general and special courts-martial cases in fiscal year 

2011 and fiscal year 2012 that resulted in convictions, findings of guilty were disapproved in only 5 cases—less than 1 percent of the total amount of cases. None 

of the findings of guilty were disapproved for sexual assault offenses. More specifically, in fiscal year 2012, for 115 general courts-martial (GCM) and 285 SPCMs, no 

guilty findings were set aside for GCMs and 1 guilty finding was set aside for a 

SPCM. In fiscal year 2011, for 154 GCMs and 413 SPCMs, findings were set aside 

in 3 GCMs and 1 SPCM. 

A key reason for the Article 60 clemency authority involves situations where an 

accused faces multiple offenses at a general court-martial, and the most serious offense results in an acquittal. For example, an accused might face a general courtmartial for the offenses of sexual assault, adultery, and violating an order on underage drinking. If the accused is acquitted of the sexual assault, he is left with a felony conviction for adultery and underage drinking. Standing alone, those two offenses are often handled at a lower misdemeanor forum, a special court-martial, or 

with administrative measures. In this type of situation, the convening authority 

may use his authority under Article 60 to dispose of the lower-level offenses in a 

more appropriate forum. 

The Article 60 clemency authority is also closely linked to the sentencing aspect 

of a court-martial. Article 60 provides the authority to modify the sentence of a 

court-martial, which is a key component of the guilty plea process. In our military 

justice system, an accused can submit a pre-trial agreement asking for sentencing 

protection in exchange for his or her plea of guilty. However, even if the plea agreement is approved, the military judge or members are unaware of the protection contained in the agreement and will sentence the accused in a manner they feel appropriate based on the relevant evidence and facts and circumstances of the case. After 

the sentence is announced in court, the sentencing limitations agreed to by the convening authority will be honored in the post-trial process, pursuant to the convening 

authority’s clemency power under Article 60. If the convening authority lacked this 

power, there would be no incentive for an accused to plead guilty, which would 

greatly hinder judicial economy and slow down the adjudication of the entire courtmartial docket. 

Article 60 interfaces with key aspects of the UCMJ and serves an important role 

in maintaining a commander’s ability to ensure a fair court-martial process. It is 

not a stand-alone section of the UCMJ that can be easily severed without significant 

effects on other key portions of the military justice system. Therefore, modifications 

to Article 60 should involve a thorough analysis by the RSP and JPP. 

CONCLUSION

The Marine Corps’ ability to successfully prosecute and defend sexual assaults has 

never been stronger. We are succeeding in carefully balancing the commander’s responsibility to maintain good order and discipline, the constitutional rights of the 

accused, and our obligation to protect and care for victims. Congress plays an important role in overseeing the proficiency and fairness of our military justice process. 

To this end, we are implementing many of the institutional changes Congress directed in the past 2 years. As you consider potential additional action in the area 

of sexual assault, I believe your establishment of the RSP and the JPP in the NDAA 

for Fiscal Year 2013 provides us the best chance to work together to make well-reasoned assessments and recommendations for any future reforms. 

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Senator GILLIBRAND. Major General Patton? 

STATEMENT OF MG GARY S. PATTON, USA, DIRECTOR, SEXUAL 

ASSAULT PREVENTION AND RESPONSE OFFICE 

General PATTON. Madam Chairman, Ranking Member Graham, 

and members of the subcommittee, thank you for inviting me to appear today. 

First, I would like to thank the sexual assault survivors who testified earlier today. I appreciate their personal courage in standing 

up and speaking out. Their words inspire all of our efforts and 

renew my commitment every day to this cause. 


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It has been my honor to serve our Nation with servicemembers 

just like them over the past 331⁄2 years, and during that time, I am 

no stranger to leading culture change, to include helping de-stigmatize mental health care for our combat veterans, more fully integrating women in the Armed Forces with last year’s Department’s 

Women in Service Report, and also managing the Department’s 

successful repeal of ‘‘Don’t Ask, Don’t Tell’’. The common denominator in all of these complex institutional challenges has been an 

unequivocal commitment to mission success, readiness of the force, 

and the welfare of our men and women in uniform. 

As the Director of DOD’s SAPR Office for the past 9 months, I 

want to say that the Department recognizes that sexual assault is 

a terrible crime and more needs to be done in combating it. It is 

a national problem in our society, but we in the military must hold 

ourselves to a higher standard. Sexual assault has no place in my 

Army and no place in my military. It is an affront to the values 

that we defend, and it erodes the cohesion that our units demand. 

It is unacceptable that 19,000 men and women servicemembers 

in 2010 are estimated to have experienced some form of unwanted 

sexual contact. This estimate is based on feedback from a DOD 

anonymous survey of the Active-Duty Force. That same year, just 

over 2,600 victims of sexual assault took the difficult step of coming 

forward and making an official report of these crimes, ranging from 

rape to abusive sexual contact. This number, when compared to the 

survey estimate, demonstrates the significant under-reporting of 

this crime. This under-reporting prevents victims from receiving 

the care they need and it limits our ability to investigate these 

crimes and hold offenders appropriately accountable. 

As this reporting problem demonstrates, sexual assault is a complex issue. There is no single, ‘‘silver bullet’’ solution. Our DODwide mission is to prevent and respond to this crime in order to 

enable military readiness and to reduce, with a goal to eliminate, 

sexual assault from the military. Reducing and eliminating sexual 

assault requires a multi-pronged approach, one that leverages a 

wide range of initiatives and engages every servicemember to prevent the crime from occurring in the first place. But when one does 

occur, effective processes and expert people are in place to support 

victims and ensure the delivery of justice. 

Underpinning all our efforts is the need for enduring culture 

change, requiring leaders at all levels to foster a command climate 

from top to bottom where sexist behavior, sexual harassment, and 

sexual assault are not tolerated, condoned or ignored; a climate 

where dignity and respect are core values that we must all live by 

and define how we treat one another; where a victim’s report is 

taken seriously, their privacy is protected, and they are treated 

with sensitivity; where bystanders are trained and motivated to intervene and prevent unsafe behaviors; and finally, a command climate where offenders know they will be found and held appropriately accountable for their actions. These climate factors are 

being stressed and taught today at multiple levels of NCO and officer education and training across the force, and we are getting 

positive feedback from this training. 

I often get asked how we will know when this culture change has 

taken hold. My answer relates back to some of my formative expeVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6602 Z:\DOCS\88340.TXT JUNE
88 

riences growing up in the Army spanning the past 5 decades. I believe we will know change has occurred when prevention of sexual 

assault is as closely scrutinized as the prevention of a fratricide or 

friendly fire. We will know change has occurred when sexist behavior and derogatory language produce the same viscerally offensive 

reaction as hearing a racist slur. We are not there yet, but we are 

heading in the right direction and we need to remain persistent in 

moving this forward. 

The Department’s multidisciplinary strategy is organized along 

five lines of effort: prevention, investigation, accountability, victim 

advocacy, and assessment. All five are described in detail in my 

written statement submitted for the record. 

In the interest of time, I will conclude my oral statement at this 

time with a few personal observations. 

I firmly believe we can turn this around, but it will take time. 

It will also take continued emphasis on all five lines of effort and 

at all levels. Culture change starts at the top, and I have seen in 

my 9 months in this job unprecedented senior and mid-level leader 

attention and energy right now focused on SAPR programs across 

all the Services. The key now is transferring this energy and focus 

from top to bottom across the force through quality training and 

strong leadership. 

I began my remarks by stating that sexual assault is a national 

problem. I will conclude by stating that it is my view that DOD can 

and must be a leader in solving this problem for America. 

Thank you for your attention. I look forward to your questions. 

[The prepared statement of Major General Patton follows:] 

PREPARED STATEMENT BY MG GARY S. PATTON, USA 

Chairman Gillibrand, Ranking Member Graham, and members of the subcommittee, thank you for the opportunity to provide a statement on the Department 

of Defense’s (DOD) approach to combating sexual assault and our progress in eliminating this crime in the Armed Forces. This statement will provide an update on 

our strategy, critical policy changes, Service-wide implementation of recent directives and military-wide efforts to improve the response and care for the victims and 

survivors of sexual assault. 

BACKGROUND

Sexual assault is a crime and has no place in the U.S. military. It is a violation 

of everything that we stand for and it is an affront to the values we defend. Our 

DOD-wide mission is to prevent and respond to this crime in order to enable military readiness and to reduce—with a goal to eliminate—sexual assault from the 

military. Secretary of Defense Chuck Hagel is committed to this mission and to 

eradicating this crime from our Armed Forces. 

Sexual assault is a complex problem—in our society, on our college campuses, as 

well as in the military environment. There is no single, ‘‘silver bullet’’ solution. Reducing and eliminating sexual assault requires a multi-pronged approach—one that 

leverages a wide range of initiatives and engages every servicemember to prevent 

the crime from occurring in the first place. But when one does occur, we must have 

effective processes and expert people in place to support victims and ensure the delivery of justice. 

Sexual assault is a crime. Under military law, it encompasses a range of offenses 

from rape to abusive sexual contact. The Uniform Code of Military Justice (UCMJ) 

addresses these crimes by Article 120 (Rape, Sexual Assault, Aggravated Sexual 

Contact, and Abusive Sexual Contact), Article 125 (Forcible Sodomy), and Article 80 

(attempts to commit these crimes). 

As you heard in the prior panel, sexual assault can destroy and disrupt peoples’ 

lives in very personal and very public ways when it is disclosed. Because of this, 

both military and civilian victims are not often willing to make a report of the crime 

to an authority. Since victims are reluctant to officially report, how do we determine 

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how often sexual assault occurs? To answer that question, we must use scientifically 

constructed, anonymous surveys. The Department has been surveying regularly on 

this topic since 2004. The most recent survey for which we have data was the Workplace and Gender Relations Survey of the Active Duty (WGRA) in 2010. In that survey, 4.4 percent of active duty women and nearly 1 percent of active duty men indicated they experienced some form of unwanted sexual contact in the year prior to 

being surveyed. ‘‘Unwanted sexual contact’’ is the survey term for the crimes that 

constitute sexual assault under the UCMJ that I just enumerated. But we wanted 

to know more than just a percentage rate. We wanted to know how many people 

4.4 percent of active duty women and 1 percent of active duty men represent in the 

Department. Consequently, we used those percentage rates for women and men and 

our official population statistics, we call ‘‘end strength,’’ to develop an estimated 

number of victims. Using the 2010 survey rates, we estimated that just over 19,000 

men and women servicemembers may have experienced some form of unwanted sexual contact in 2010. 

You may now want to know how many of those estimated 19,000 servicemembers 

reported the crime to a DOD authority in 2010. The answer is just over 2,600 

servicemembers. Or, put another way, we were able to account for about 14 percent 

of our estimated number of servicemember victims in the sexual assault reports 

made to the Department in 2010. This phenomenon—where reports to law enforcement fall far short of the number of incidents estimated to actually occur—is known 

as ‘‘underreporting.’’ Many experts in sexual assault believe that sexual assault is 

one of the most underreported crimes in U.S. society due to the stigma, fear, and 

shame many victims experience. 

Combating a crime that stays mostly hidden from view despite the terrible toll 

it takes on the victims requires a coordinated, Department-wide approach. Our 

strategy is to apply simultaneous effort in five areas that we call lines of effort: Prevention, Investigation, Accountability, Advocacy, and Assessment. The underpinning 

in all these efforts is the focus on leaders at all levels and their responsibility to 

foster a command climate from top to bottom where sexist behaviors, sexual harassment, and sexual assault are not tolerated, condoned, or ignored: a climate where 

dignity and respect are core values we all live by and define how we treat one another; where a victim’s report is taken seriously and privacy is protected; where bystanders are trained and motivated to intervene and prevent unsafe behaviors; and, 

finally, a climate where offenders know they will be found and held appropriately 

accountable for their actions. 

My office, SAPRO, partners with a broad spectrum of Department entities, exercising authorities given to me by Congress and the Secretary of Defense. As Director 

of SAPRO, I oversee implementation of the comprehensive approach for the DOD 

Sexual Assault Prevention and Response program. My office serves as the single 

point of authority, accountability, and oversight for the sexual assault prevention 

and response (SAPR) program; and provides oversight to ensure that the military 

departments properly carry out SAPR program policy. To facilitate execution of 

these lines of efforts, we collaborate with a variety of stakeholders inside and outside the Department, to include: Department of Defense and senior Service leadership, the military legal community, the DOD Inspector General and investigative organizations, victim advocacy organizations, and other executive branch agencies 

such as the Department of Justice and the Department of Veterans Affairs. The latter is particularly important as we strive to ensure there is a continuous chain of 

support for servicemembers transitioning to civilian life. Given the complexity and 

nature of this problem, both in the military and civilian society, we know there is 

no single solution to eliminate this crime. 

The significant underreporting of sexual assault limits the military’s ability to 

hold offenders appropriately accountable and prevents victims from receiving the 

care they need. Therefore, the Department has put policies in place to bring more 

victims forward to report these crimes. However, victims won’t come forward unless 

we can demonstrate we will treat them with the dignity and respect everyone deserves. Gaining victims’ trust is paramount. We cannot eliminate this crime without 

their committed involvement. We gain their trust by creating a climate where a victim’s report is taken seriously, their privacy is protected, and they are provided the 

resources and attention to manage their care and treatment. 

In 2005, the Department established two reporting options—restricted and unrestricted—recognizing the best way to encourage victims to make a report and get 

the recovery services they need is by encouraging them to report in a way that is 

most comfortable for them. Restricted reports allow sexual assault victims to confidentially disclose the assault to specified individuals [i.e., sexual assault response 

coordinator (SARC), sexual assault prevention and response (SAPR) victim advocate 

(VA), or healthcare personnel], and receive medical treatment, counseling, and asVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
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signment of a SARC and SAPR VA, without triggering an official investigation. 

Maintaining privacy is a prime concern for many victims. The restricted reporting 

option allows victims this level of confidentiality. Since the option was first offered 

in 2005, over 5,000 men and women have made and maintained a Restricted Report. 

We strongly believe that these victims that would never have come forward but for 

the option of restricted reporting. Each year, about a quarter of sexual assault reports made to the Department are restricted. 

An Unrestricted Report allows sexual assault victims to access the same care and 

support services, but the sexual assault is reported to command and law enforcement. By Department policy, only a military criminal investigative organization may 

investigate a sexual assault. Since we introduced the two reporting options in 2005, 

the number of reports made to the Department has increased by 88 percent. That 

is, we had 88 percent more sexual assault reports in fiscal year 2011 than we did 

in 2004. While some may be concerned about a rising number of reports, the underreported nature of this crime makes bringing more victims forward a key objective 

if we are going to assist victims in restoring their lives and hold offenders appropriately accountable. Civilian research shows that more victims participate in care 

when they make a report of the crime. As a result, we see a rising number of reports as beneficial. With more reports, more victims are offered the care and counseling they need. Receiving more reports also means that the Department has a 

greater opportunity to hold offenders appropriately accountable. 

Despite our progress in bringing more victims forward, we have much more work 

to do. We need the committed involvement of every servicemember. Our troops take 

care of each other on the battlefield better than any other military in the world— 

and this same ethos of care must extend to caring for victims and combating sexual 

assault within our ranks. 

RECENT INITIATIVES

Over the past 15 months, the Department has initiated and implemented a variety of initiatives to fundamentally change the way the Department confronts sexual 

assault. 

In December 2011, the Department issued guidance that mandated an increased 

document retention time for sexual assault reports, which includes investigative 

documentation, the sexual assault forensic exam report, and the victim’s Reporting 

Preference Statement. Under this guidance, combined with the requirements of the 

recently enacted National Defense Authorization Act (NDAA) for Fiscal Year 2013 

reports of sexual assault will be kept for 50 years. This is particularly useful for 

veterans as this documentation could be used to support a benefit claim from the 

Department of Veterans Affairs. The Department also issued new policy that provides victims of sexual assault the option to request a transfer from their current 

assignment or to a different location within their assigned installation. This expedited transfer policy requires that victims receive a response from their commander 

within 72 hours of the request. If denied, the victim may appeal to the first general 

or flag officer in their chain, who also has 72 hours to provide a response. From 

policy implementation in December 2011 through December 2012, the Services have 

approved 334 of 336 requests for expedited transfer. 

Also in December 2011, the President signed an executive order adding Military 

Rule of Evidence 514 into military law. This new provision creates a privilege for 

communications between victims and their victim advocates in sexual assault cases. 

Providing this additional layer of confidentiality enhances victim trust by ensuring 

that communications between a victim and his or her victim advocate are protected. 

In January 2012, the Secretary of Defense announced the implementation of the 

Department of Defense Sexual Assault Advocate Certification Program (D–SAACP). 

The Department contracted with a civilian victim advocacy organization to establish 

the DOD certification program in alignment with national standards. This program 

is now underway; to date, nearly 4,000 uniformed and civilian sexual assault response coordinators and victim advocates have met certification standards. The goal 

is for all DOD sexual assault response coordinators and victim advocates to be certified by October 2013. In January 2012, the Department also expanded sexual assault victim support to cover military spouses and adult military dependents, and 

ensured DOD civilians stationed abroad and DOD U.S. citizen contractors in combat 

areas receive emergency care after sexual assault. 

In April 2012, the Secretary of Defense transmitted the Leadership, Education, 

Accountability and Discipline Act to Congress to further codify into law specific reforms to advance sexual assault prevention and response. These six provisions were 

included in the recently signed NDAA for Fiscal Year 2013. The new law includes 

the following provisions, all of which are now under policy development: 

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• Establish a Special Victims Capability within each of the Services, to ensure specially trained investigators, prosecutors, and victim-witness assistance personnel are available to assist with sexual assault cases and that 

each Service has specially trained experts in evidence collection, interviewing, and interacting with sexual assault victims. 

• Require all servicemembers to receive an explanation of all SAPR policies 

within 14 days of entrance into active service as a way to educate our newest members on the resources available if victimized and to immediately 

underscore that the military culture does not tolerate sexual assault. 

• Require records of outcome of disciplinary and administrative proceedings 

related to sexual assault be centrally located and retained for a period of 

not less than 20 years, in order to allow us to better track our progress in 

combating sexual assault and help us identify potential patterns of misconduct and systemic issues. 

• Require commanders to conduct an Organizational Climate assessment 

within 120 days of assuming command and an annual assessment thereafter, enabling leaders to measure whether they are meeting the Department’s goal regarding bystander intervention, command climate, and reducing barriers to reporting. 

• Allow Reserve and National Guard personnel who have alleged to have 

been sexually assaulted while on active duty to request to remain on active 

duty or return to active duty until a determination is made as to whether 

the alleged assault occurred in the line of duty; and 

• Mandate wider dissemination of SAPR resources, including victim resources such as the SafeHelpline. 

In June 2012, the Secretary of Defense elevated the initial disposition decision for 

the most serious sexual assault offenses—rape, sexual assault, forcible sodomy, and 

attempts to commit these offenses—so that, at a minimum, these cases are addressed by a ‘‘Special Court-Martial Convening Authority’’ who is in the grade of 

O–6 grade (an officer at the Colonel or Navy Captain level) or above. This ensures 

that, in consultation with Judge Advocates General, disposition decisions for cases 

of sexual assault are made by experienced commanders. Elevating the initial disposition authority also ensures these cases remain within the chain of command, so 

our leaders retain responsibility and accountability for the problem of sexual assault. 

Also in June 2012, our Safe Helpline was expanded to help transitioning 

servicemembers who have experienced sexual assault. The DOD Safe Helpline is an 

anonymous and confidential crisis support service for adult members of the DOD 

community. It is available 24/7, worldwide by ‘‘click, call, or text.’’ The expanded 

service offered for transitioning servicemembers helps smooth the transition from 

DOD to the Department of Veterans Affairs. As of February 28, 2013, 

www.SafeHelpline.org has received 114,290 unique visits (each computer is counted 

once and the unique visits number does not represent sexual assault victims), and 

the 8,142 visitors have been helped (completed a live session). 

In September 2012, the Secretary of Defense received the findings from the precommand training assessment he ordered in January 2012. My office, along with 

training, curriculum, advocacy, and military education subject matter experts, assessed precommand and senior enlisted leader training conducted by the Marine 

Corps, Navy, and Air Force and reviewed Army’s newly developed Sexual Harassment/Assault Response and Prevention Program training support package for senior 

enlisted leaders. Upon reviewing our report, the Secretary directed the Military 

Services to take the following steps to improve training quality and consistency 

across the Services: 

• Develop and implement standardized core competencies, learning objectives, and methods for objectively assessing the effectiveness of SAPR programs. 

• Provide a dedicated block of SAPR instruction that incorporates best 

practices including interactive instruction with vignettes, exercises, and 

classroom discussion. 

• Provide a quick-reference SAPR ‘‘Commander’s Guide’’ that personnel can 

then use in subsequent leadership roles. 

• Assess commanders’ and senior enlisted leaders’ understanding of the key 

SAPR concepts and skills and develop and implement refresher training to 

sustain skills and knowledge. 

These core competencies and learning objectives for precommand curriculum were 

developed collaboratively with all the Services and were published to the field in 

February 2013. 

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In September 2012, in response to criminal acts and misconduct at Joint Base San 

Antonio-Lackland, the Secretary of Defense ordered a sweeping review and assessment of all initial military training of enlisted personnel and commissioned officers. 

As a result, the Services reviewed a variety of important elements of their training 

enterprises: 

• Selection, training, and oversight of instructors and leaders who directly 

supervise initial military training. This review is specifically considering 

the potential benefits of increasing the number of female training instructors; 

• Manning, including the ratio of instructors to students and the ratio of 

leaders in the chain of command to instructors; 

• Internal controls in place to identify and prevent behavior inconsistent 

with established standards by instructors and leaders throughout all phases 

of initial military training; 

• Student accessibility to SAPR services; • Timing, content, and delivery of SAPR-related training; and • Timing, content, and effectiveness of student feedback mechanisms. 

The Services submitted their findings and recommendations in February 2013 and 

they are currently being reviewed in detail. 

In October 2012, the Defense Sexual Assault Incident Database (DSAID) achieved 

its full deployment to the field, enhancing our ability to collect data on sexual assault reports uniformly across the Department. DSAID has three primary functions: 

standardization of reporting, managing victim care, and providing business management for sexual assault response coordinators. It is a common database that all 

Services are using, allowing the Department and each Service to track every report 

from beginning to end. Additionally, the system interfaces with the Services’ investigative systems, integrating criminal and case management data. Reporting preference forms will be maintained in DSAID for 50 years, which will assist victims 

seeking disability compensation for military sexual trauma through the Department 

of Veterans Affairs. 

SAPR STRATEGY: FIVE LINES OF EFFORT

In May 2012, as an integral part of the Department’s efforts to combat sexual assault, the Joint Chiefs of Staff published the ‘‘Strategic Direction to the Joint Force 

on Sexual Assault Prevention and Response.’’ This strategic direction emphasizes 

senior leaders’ involvement and ownership in addressing sexual assault among the 

ranks. It is an unprecedented ‘‘32–Star’’ guidance written to synchronize Departmental efforts as we combat sexual assault along the previously described five lines 

of effort. With this joint guidance as our foundation, the Department is in the process of revising our DOD-wide SAPR strategy along these five lines of effort: 

• Prevention. Our prevention goal is to standardize and deliver effective 

prevention methods and programs. It is critical that our entire military 

community work together to preclude criminal behavior from occurring. We 

have evaluated and are standardizing every sexual assault prevention and 

response training course our Services offer to our commanders, senior enlisted noncommissioned officers, our newest enlisted troops and to the Sexual Assault Response Coordinators and Victim Advocates. We are standardizing this training with best practices—the best practices within our current training and from the civilian sexual assault training—and making 

them common practices. We are establishing policy to reduce the impact of 

high-risk behaviors. We are reaching out to a variety of sexual assault prevention practitioners and researchers to ascertain which prevention policies 

and programs might work. Each Service has launched enhanced training 

programs; this new interactive training prominently features senior leaders, 

thus underscoring the importance of creating the right culture and bystander intervention. Our desired end state is an environment where the 

cultural imperatives of mutual respect and trust, professional values, and 

team commitment are reinforced to create an environment where sexual assault is not tolerated. 

• Investigation. We continue to expand our efforts to achieve high competence in every investigation of sexual assault, which begins with an unrestricted report. Our investigative resources need to yield timely and accurate results. By DOD Policy, investigations are conducted entirely independent from the military chain of command. When an unrestricted report 

is filed, the case is referred for investigation to a professionally-trained 

Military Criminal Investigative Organization that is independent of the 

chain of command. Each military Department has its own MCIO—the 

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Army’s Criminal Investigative Division, the Navy Criminal Investigative 

Service, and the Air Force Office of Special Investigations. The MCIOs are 

overseen by their Services’ Secretaries and policy oversight is provided by 

the DOD Inspector General (IG). In fiscal year 2012, the DOD IG conducted 

oversight reviews of closed adult sexual assault cases and adequacy of 

training. The Department funded over 400 seats at the U.S. Army Special 

Victim Investigators Course through fiscal year 2017 and funded the U.S. 

Army Criminal Investigative Laboratory through fiscal year 2017 for 5 additional DNA examiners to keep sexual assault case evidence processing 

time under 60 days. We revised the Sexual Assault Forensic Exam Kit to 

align DOD evidence collection with national standards. Finally, we implemented a DOD-wide directive to keep investigative documentation for 50 

years in unrestricted reports. 

• Accountability. Holding offenders appropriately accountable in the military justice system is the objective in the accountability line of effort. Commanders are a critical part of this justice system. They are responsible for 

the readiness of their unit, as well as the health and welfare of their assigned servicemembers. To this end, commanders establish standards of behavior, enforce these standards, and hold people accountable for meeting 

them. Inherent in this responsibility is the authority to address misconduct 

and offenses and impose discipline in accordance with the military justice 

system. Preventing and responding to sexual assault should be no different 

from another crime or offense; offenders must be held appropriately accountable. It is a common misstatement that commanders conduct investigations of sexual assault cases. By DOD policy, sexual assault complaints 

are investigated by military criminal investigative organizations that are 

independent of the chain of command. The results of these investigations 

are provided to commanders, who then are responsible for taking appropriate actions. Removing disciplinary authorities from a commander’s purview would jeopardize the good order and discipline of the unit, and impact 

unit readiness. 

The military justice system provides tools to commanders to appropriately punish 

offenders depending on the facts and circumstances of each case, to include the severity of the misconduct. In developing a Special Victims Capability, which will enable the Services’ ability to deliver enhanced investigation and prosecution of sexual 

offenses, child abuse, and serious domestic violence, we are establishing training 

programs so that investigators, prosecutors, judge advocates, victim witness assistance personnel, and paralegals, are specially trained in the latest technologies, policies, and emerging trends. The Special Victims Capability program will enable sexual assault practitioners to better investigate and prosecute, as appropriate, these 

complex and challenging cases. 

• Advocacy. Victim care has been central to our approach since our office 

was established. Our goal is to standardize and deliver effective victim support, response, and reporting options, so that we instill confidence, restore 

resilience, and inspire victims to report—from the initiation of a report 

through case disposition in the justice system to victim recovery. When our 

victims report a sexual assault, they are provided a safe environment and 

receive medical care, counseling, legal assistance, and victim witness assistance. Because sexual assault is such an underreported crime, it is imperative that our program inspire victim confidence and motivate victim reporting—a necessary bridge to greater victim care and increased offender accountability. To this end, we implemented policy that provides for an expedited transfer for victims and a Certification Program for SARCs and Victim Advocates. We expanded emergency care and support services to DOD 

civilians stationed abroad and DOD U.S. citizen contractors in combat 

areas. We expanded the DOD Safe Helpline to help transitioning 

servicemembers who have experienced sexual assault. To ensure policymaking is informed by the voices of victims, we conducted a recent Survivor 

Summit where victims shared their experiences and insights with policy 

leaders. 

• Assessment. We aim to effectively standardize, measure, analyze, and assess sexual assault prevention and response program progress in our final 

line of effort. Assessment is an enduring process of data collection and analytics designed to improve program effectiveness and is embedded within 

each of the other four lines of effort. This effort includes valuable feedback 

from servicemembers in the form of surveys and also includes feedback 

from commanders, victims, and victim advocates. Our goal is to incorporate 

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responsive, meaningful, and accurate systems of measurement and evaluation into every aspect of our programs in order to determine the impact we 

are having on reducing and eliminating sexual assault. We have initiated 

more frequent Department-wide surveys—now every 2 years, instead of 4— 

and we have placed sexual assault prevention and response questions on 

the climate surveys that are available to commanders. Administered in the 

tens of thousands each month, these climate assessments provide invaluable feedback to commanders on the climate in the unit, servicemember 

propensity to report, and the barriers to reporting that exist within individual units. 

In conclusion, I do not submit this statement or speak before the U.S. Senate 

Committee on Armed Services in an effort to minimize the problem of sexual assault 

in the military. In the Department of Defense, we fully recognize we have a problem 

and we will continue to confront the brutal realities until this problem is solved. 

I am here to report that the Department is firmly committed to this goal and that 

we remain persistent in confronting this crime through prevention, investigation, accountability, advocacy, and assessment so that we can reduce, with a goal of eliminating, sexual assault from the military. 

Senator GILLIBRAND. Thank you all. 

We have a number of statements for the record, including statements from Nancy Parrish, President of Protect our Defenders; 

Lisa Maatz of the American Association of University Women; Mr. 

Ben Klay; and from the victim of the Aviano Air Base sexual assault case. If there is no objection, these and other statements we 

receive will be included in the record of this hearing. 

[The prepared statements follow:] 

[Please see Annexes A through F at the end of the hearing] 

Senator GILLIBRAND. I would now like to turn the proceedings 

over to our chairman, Chairman Levin. 

Senator LEVIN. Madam Chairman, first thank you for your leadership in holding this hearing, and to all of those who have joined 

in this effort, it is a major effort. It is a huge initiative. It is vitally 

important. 

I very much appreciate your recognizing me for a few moments, 

and I want to thank our colleagues as well who have been here 

waiting to ask questions, and this will just take a few moments. 

First of all, Mr. Taylor, I want to thank you. I wrote you a letter 

asking you for the legislative history of Article 60, and as of, I believe, just today, you responded to my letter with your own letter, 

and included in that letter is a fairly lengthy legislative history, 

which I would ask you, Madam Chairman, to incorporate in the 

record. 

Senator GILLIBRAND. Without objection. 

[The information referred to follows:] 

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Senator LEVIN. Then I just have a couple questions for Mr. Taylor. 

The legislative history that you provided indicates that the authority of a convening authority under Article 60 of the UCMJ 

dates back to the Articles of War adopted by the Continental Congress in 1775. 

Now, at the time that that authority was established, did a servicemember convicted by a military court-martial have the ability to 

appeal his conviction to a higher military court? 

Mr. TAYLOR. No, sir. 

Senator LEVIN. Now, given that a servicemember can now appeal 

their conviction to the Air Force Courts of Criminal Appeals, in the 

case we are talking about, and into the U.S. Court of Appeals for 

the Armed Forces, is there any reason now to allow convening authorities to overturn a court-martial conviction on the basis of legal 

errors at trial? 

Mr. TAYLOR. There have been many developments since 1775 to 

get us where we are today. 


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The robust appellate procedures provided by today’s UCMJ do 

raise a very serious question about whether the authority provided 

by Article 60, which was most recently dealt with by Congress in 

1983—whether the unlimited authority of the commander to dispose of a finding of a court-martial is any longer required or continues to serve a vital purpose. We are going to look into that very 

thoroughly with very much of an open mind. But the change in the 

robustness of appellate procedures over time, designed to protect 

the accused makes this a very different question certainly than existed in 1775. 

Senator LEVIN. Thank you very much, Mr. Taylor. 

I want to thank all of our witnesses, and again, thank you, 

Madam Chairman, for your leadership here and for the others who 

have joined with you. Again, I thank my colleagues and you for allowing me just a few minutes upfront. 

Senator GILLIBRAND. Thank you, Mr. Chairman. 

I am now going to allow Senator Graham to ask his questions because he has a time constraint. Senator Graham? 

Senator GRAHAM. Thank you, Madam Chairman. Just indulge 

me a bit here and I will try to be as quick as possible, but I do 

have a Budget Committee markup. 

I want to thank you for holding the hearing. I think it has been 

very informative to all of us. 

Convening authority statistics regarding setting aside findings. 

From the Marine perspective, you gave us data from 2010 to 2012. 

There were 1,768 special and general courts-martial resulting in 

findings of guilty. In 7 cases out of those 1,768, the convening authority took action to disprove findings of guilty. None involved sexual assault. That is .4 percent. Does that sound right, General? 

General ARY. Yes, it does. 

Senator GRAHAM. Okay. The Air Force. In the last 5 years, the 

convening authority disapproved findings of guilt in 1.1 percent of 

cases, 40 out of 3,713. Five of the 40 were sexual assault cases. 

Does that sound right, General? 

General HARDING. Yes, sir. That is correct. 

Senator GRAHAM. The Navy does not have a tracking system for 

Article 60 disposition, but you will get one, will you not? [Laughter.] 

Okay, good. 

But you have been able to go around to your regional commands 

and collect evidence from those who have been involved in reviewing cases, and what we have from the Navy is we found one known 

case where the convening authority took action to disapprove the 

findings. That one case was a sexual assault case. 

In the Army, since 2008, there have been 4,603 cases that went 

to court-martial with some conviction. In 68 cases, the convening 

authority either dismissed all specifications or disapproved the 

findings of guilt, 1.4 percent. No Army convening authority has disapproved the findings and sentence of a soldier who committed a 

sexual assault. Does that sound right for the Army? 

General CHIPMAN. It does, Senator. 

Senator GRAHAM. The reason I bring that up is I want to make 

sure that people understand one case has to be put in terms of the 

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whole system. The convening authority, General Harding, for a 

general court-martial (GCM) is at what rank usually? 

General HARDING. For the Air Force, that would be an O–9, lieutenant general is the usual rank of a GCM convening authority. A 

special court-martial (SCM) convening authority would be normally 

an O–6. 

Senator GRAHAM. What about the Army? 

General CHIPMAN. Sir, our GCM convening authority, typically 

an O–8 or an O–9; special court, O–6. 

Senator GRAHAM. Navy? 

Admiral DERENZI. Typically, sir, for a GCM it is a one- or a twostar, an O–7 or an O–8, and for a SCM, typically an O–6. 

Senator GRAHAM. Marine Corps? 

General ARY. One-, two-, and three-star generals, sir, typically. 

Senator GRAHAM. Army? 

General PATTON. Sir, I think General Chipman gave you the 

Army. 

I am representing the SAPR Office. 

Senator GRAHAM. Okay, I am sorry. I apologize. I should have 

paid better attention. 

Coast Guard? You are always last. That is not fair. 

Senator GILLIBRAND. I called on him first. 

Senator GRAHAM. I know. Good for you, changing tradition here. 

Admiral KENNEY. Well, thank you, Senator. To answer the question, in the Coast Guard, general court-martial convening authority 

are one-, two-, or three-star admirals. Special court-martial convening authorities can range from O–3 lieutenant to O–6 captain. 

Senator GRAHAM. If there is a case generated at a local unit— 

let us say, a squadron or a flight—the person reviewing that case, 

General Harding, is quite a distance away from the instant in 

terms of command. Is that correct? 

General HARDING. That is correct, Senator. 

Senator GRAHAM. This concern that this is a buddy-buddy system, I just want the public to understand that the convening authority, particularly for general courts-martial that would involve 

a case of rape or some serious sexual assault, is a distance away 

from the unit in question, just from the way the system works. 

Now, the history of Article 60—and people in the civilian community may wonder why does a convening authority have the ability 

to set aside a punishment. You do have a robust appeals system. 

So if there is a legal error in a case, the accused has the right to 

appeal all the way to the Supreme Court if necessary to correct 

legal errors. But we still have the convening authority in the decisionmaking role about setting aside findings. 

When you go back to the history of this concept, you do start 

with the Continental Army. 

But General Eisenhower testified to the House Armed Services 

Committee before the Olston Act, which is the predecessor to the 

UCMJ of 1950, that in his opinion, it is necessary that the person 

in the chain of command have the power to take final action on 

courts-martial. He opposed a proposal to move the power to mitigate or remit certain types of sentences from the commanders to 

the JAG. 

109 

You had another general, Collins, who offered similar testimony. 

He was the commander at Guadalcanal. He believed that the commander must have power to initiate and review charges in order 

to effectuate good order and discipline. 

So there are legal error problems that can be corrected by the appellate system, but when it comes to good order and discipline of 

a command, we have generally held the view that the one person 

that has the power to determine good order and discipline and to 

make sure it is present is the military commander. 

Could each of you give me an opinion as to whether or not that 

concept is still viable and relevant in 2013? 

General HARDING. Senator, if I could, I will start. 

I think it is incredibly viable. It is part of the reason why we succeed in the Nation’s armed conflicts. Over the course of 238 years, 

we have largely been successful in armed conflict. It is because we 

bring more things to every fight. We bring the best people. We are 

an All-Volunteer Force. We give them the best training. That is the 

second element. Third is we bring the very best equipment. Congress helps us in that regard. Those are three legs of a four-legged 

table. The table wobbles and falls without the fourth, and that is 

discipline. Command and control is an important element in discipline. It ties all those things together. The convening authority’s 

ability to exercise some accountability on every aspect of an airman’s, soldier’s, sailor’s, marine’s behavior is incredibly important, 

creating a responsive disciplined force. 

It was incredibly important in 1775, and the reason why we 

stayed in the field for 8 years and bested the best army on the 

planet at the time. It is still important today. 

Senator GRAHAM. Could you indulge me? 

Senator GILLIBRAND. Sure. 

Senator GRAHAM. From the Army’s point of view, do you concur? 

General CHIPMAN. Senator, I would add this. In the cases where 

we have set aside findings or the entire case by the convening authority, it has typically been where we have a greater result to 

achieve by doing so. So, for example, a very light sentence on what 

was charged initially as a very severe set of crimes—the light sentence was such that it was equivalent to non-judicial punishment. 

Therefore, we set aside those findings in return, for example, a 

post-trial resignation in lieu of court-martial to get the greater good 

of getting the offender out of our service. 

Senator GRAHAM. I want people to understand the convening authority cannot increase the sentence. 

General CHIPMAN. That is correct, sir, but he can, in fact, take 

an action in a post-trial—— 

Senator GRAHAM. In lieu of it. 

General CHIPMAN. In lieu of. That is correct. 

Senator GRAHAM. In the Navy’s point of view, does this command 

authority resonate in 2013? 

Admiral DERENZI. Yes, sir, I believe it does. Commanders are responsible for life and death decisions, the safety, welfare, wellbeing, and good order and discipline of those under their charge. 

My experience has been that these convening authorities and these 

commanders take these decisions to heart. They strive day-in and 

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day-out to do the right thing. They are people of integrity. They are 

advised by well-qualified and well-trained legal counsel. 

Having said that, the military justice process has matured greatly since the last time Article 60 was reviewed, and there are lawyers at every stage of that process now, trial counsel, defense counsel, staff judge advocates, and it is a good time to look at Article 

60 again in light of those changes but ever mindful of the secondand third-order effects of adjusting or restricting somehow the convening authority’s authority. 

Senator GRAHAM. Is it the Navy’s position that the convening authority should not have this power and it should be placed into 

someone else’s hands? 

Admiral DERENZI. No, sir, that is not our position at all. 

Senator GRAHAM. What about the Marine Corps? 

General ARY. Sir, thank you for the opportunity to talk on this 

issue. 

I think for so long as we hold our commanders accountable for 

everything that a command does or fails to do, then they must 

have these types of authorities. They are responsible for setting 

command climate. They are responsible for the culture, and it is 

their leadership that we have to hold accountable. They need to be 

able to hold everyone in their unit accountable to preserve that 

good order and discipline to accomplish their missions. 

Senator GRAHAM. The Coast Guard? 

Admiral KENNEY. Thank you, Senator. 

As the Coast Guard is the smallest of the Armed Forces, our 

units tend to be smaller as well, and that commander is the embodiment of leadership and discipline within those small units, and to 

maintain that discipline, I concur with my colleagues. 

I would add that we have also reviewed our past court-martial 

practice to determine if a commander has ever overturned, in the 

last 4 years, a charge or specification involving sexual assault, and 

of the over 200 courts-martial convened in the Coast Guard, there 

have been three instances where a specification, a part of a finding, 

was overturned, but that was always on the advice of a judge advocate who had found plain legal error. 

Senator GRAHAM. Now, what I will do, I will just wrap up here 

very quickly. I think that the hearing today shows the need for 

Congress to be involved. I think these programs that you are coming up with have a great possibility to pay dividends. But it is a 

cultural problem and it has to be changed. All I would urge my colleagues to do is if there has been a longstanding tradition in the 

military of allowing the commander this authority for the reasons 

just cited better than I could ever articulate. 

General Harding, I would like in private for you to offer to brief 

the members of the committee about the Aviano case. You briefed 

me. It is quite an interesting case, and I would just ask every 

member of the committee to spend some time, if you could, being 

briefed about the facts of that particular case. 

But as to the climate in the military, the fact that victims feel 

they cannot come forward, clearly this has to be addressed. I want 

to thank you, Madam Chairman, for bringing this up to the Nation’s attention, to the committee’s attention, and I look forward to 

finding a way to continue the progress that seems to be made. 

111 

Senator GILLIBRAND. Thank you, Senator Graham. 

I am extremely disturbed, based on the last round of question 

and answer, that each of you believes that the convening authority 

is what maintains discipline and order within your ranks. If that 

is your view, I do not know how you can say that having 19,000 

sexual assaults and rapes a year is discipline and order. I do not 

understand how you can say that of those 19,000 cases, to only 

have approximately 2,400 even reported because the victims tell us 

that they are afraid to report because of retaliation and the blame 

they will get and the scorn they will get from their colleagues is 

order and discipline. I really cannot understand how 2,400 cases, 

only 240 of which go to trial, can result in you believing that that 

authority is giving you discipline and order. It is the exact opposite 

of discipline and order. 

I am very grateful for all of the changes that have been made. 

Each of you gave opening testimony that was very strong and 

thoughtful about the kinds of changes you are making, and I appreciate it that I heard from each of you that there is zero tolerance. I appreciate that I hear from each of you about the training 

that you are giving your lawyers and the training that you are giving your prosecutors and training that you are giving your advocates. That is all well and good. 

But if the convening authority is the only decisionmaker of 

whether a case goes to trial or proceeds and the only decisionmaker 

about whether to overturn a case, well, then all that training and 

all those excellent lawyers and prosecutors you have do not mean 

a difference. It does not make a difference because the person with 

the authority is not the one who has that years of training in terms 

of legal ability and prosecutorial discretion and the understanding 

of the nature of a rape, that it is a violent crime. It is not ‘‘ask her 

when she is sober.’’ That is not what this issue is about. 

I appreciate the work you are doing. I honestly do. But it is not 

enough, and if you think you are achieving discipline and order 

with your current convening authority framework, I am sorry to 

say you are wrong. Every victim that has come in front of this committee and every story we have heard over the weeks and months 

shows that we have not even begun to address this problem. 

Lieutenant General Harding, let us talk about the Aviano case. 

Do you think justice was done in that case? 

General HARDING. I think that the convening authority reviewed 

the facts and made an independent determination. That was his 

obligation as given to him by this body. Granted, it was 65 years 

ago, but he fulfilled a statutory obligation, and he did so with integrity. 

Senator GILLIBRAND. Do you think the five senior officers that 

were the jury in that trial did not do justice? 

General HARDING. I cannot say that they did not, ma’am. I think 

both the jury and the convening authority did their duty. 

Senator GILLIBRAND. Well, as they reached the opposite decision, 

in one instance justice was not done. Which instance do you believe 

justice was not done? 

General HARDING. I cannot say. I am not going to conclude that 

justice was or was not done. What I will conclude is that all parties 

112 

did their job. From my review, all parties did what they were asked 

to do by the law. 

Senator GILLIBRAND. Well, one of the parties was wrong. If you 

are the victim in that case, to have gone through 8 months of testimony, of providing evidence, I can assure you she does not believe 

justice was done. 

I would like to move towards some questions concerning how we 

can evaluate a stronger system. Mr. Taylor, what do you think of 

the Aviano case? 

Mr. TAYLOR. I am very concerned about the message received as 

a result of that case. 

To back up just a little bit, each of the people at this table gave 

a response to Senator Graham’s question except for me. I believe 

that we have to look very carefully about whether there is a continuing value to the authority provided to the convening authority 

to throw out the findings, to reject findings of a military trial, of 

a court-martial. As Senator Levin indicated, there is a very robust 

system of appellate rights that are available to protect the accused, 

and I think we have to very carefully reconsider whether there 

needs to be changes to Article 60, whether there needs to be further guidance on how Article 60 is to be employed. 

But the Secretary has charged me to take a thorough and open 

and searching look into the continued need for Article 60 as it exists today, and I intend to do so. It will be informed certainly by 

the experience of these very fine lawyers and leaders and by others 

to make sure that we do not do damage to good order and discipline. But there is something that seems odd about the power to 

reject findings that came out of a jury in the absence of some major 

obvious problem. 

I am concerned by the message that is received. I think we have 

to redouble our efforts to make sure that victims are willing to 

come forward and are willing to trust the military justice system. 

I think we need to redouble our efforts to ensure that victims feel 

supported and respected and honored for the service that they are 

doing by coming forward and saying no. 

Senator GILLIBRAND. Thank you. 

I have many other questions that I will submit for the record for 

each of you. 

Our next Senator is Senator Blumenthal. 

Senator BLUMENTHAL. First of all, let me thank Senator Gillibrand not only for the focus on this issue in convening this hearing, 

but also for the passion and commitment that she brings to this 

issue, which I share. 

Let me begin by saying that you have all given very thoughtful 

and informed answers and, if I may say, very lawyer-like answers, 

which is to say cautious and careful. This issue really demands immediate action and not just tinkering around the edges. 

In my first visit to Afghanistan—I have been there three times— 

my mission was to find out what could be done to protect our military men and women against the IEDs that continue to cause more 

than half of all our casualties. We have since dealt with that problem more effectively through a combination of body armor, better 

equipment to detect them, a range of actions. 

113 

When I first visited Camp Leatherneck, I was shown what the 

Marine Corps was doing in the absence of the body armor and all 

the other measures that took time to do. They had rigged up a 10- 

foot long pole with what looked like the end of a coat hanger, which 

they used very effectively to detect roadside bombs because they 

could not wait. 

This problem is the equivalent of an IED in every unit in the 

Armed Forces. It is the equivalent of an immensely destructive 

force which the Aviano case has brought to the public’s attention 

in a very dramatic way, much like the photograph of a roadside 

bomb going off in Iraq or Afghanistan would be. But I think it is 

equally potentially destructive to the good order and discipline and 

most especially to recruitment, to retention of the best and the 

brightest and the bravest that you now have. I could not agree 

more, Lieutenant General Harding, that all of those elements are 

necessary, but people ultimately are our greatest asset in the military. As I said this morning—I do not know how many of you were 

here—I truly believe we have the best and the brightest and the 

bravest now and the next greatest generation in the military, and 

we need to continue to attract and retain them, which is why this 

issue is so important and why the lack of effective action will be 

the equivalent of an IED for our Armed Forces. 

My view is we need to do more than tinkering around the edges 

of the system and we need to do reform right away. 

Chairman Levin asked a very thoughtful question about the convening authority’s power to overturn a conviction. Even if we were 

to remove that power, in my view it would not really deal with 

some of the systematic shortcomings of this system, which are not 

your doing. In part, they are our doing because one of those shortcomings is the lack of sufficient resources. I know as a prosecutor 

to gain a conviction, you need evidence. For sufficient evidence that 

is conviction beyond a reasonable doubt, which is by no means an 

easy standard, you need really expert investigative elements. We 

have an obligation to provide you with those resources, as well as 

to assist you in dealing with this issue by helping to reform that 

system. 

I want to begin by asking you, Mr. Taylor. You have the panel. 

You have various ideas. You have said you are considering them. 

What is your timetable? 

Mr. TAYLOR. The Secretary has directed me to provide a preliminary assessment of the need for change in Article 60 and the nature of any such changes by March 27. 

The panel is necessarily on a much longer timeframe. It is a 

panel that is mandated by the 2013 NDAA. Four members of the 

panel are to be appointed by the chairman and ranking of the Senate Armed Services Committee and the House Armed Services 

Committee. It will be subject to Federal Advisory Committee Act 

I believe. It is on a much more extended timeframe. 

We will do an internal effort, and then there will be this external, independent panel effort. Then, of course, the timeframe ultimately is up to you. 

Senator BLUMENTHAL. Is your assessment something that you 

can share with us at the end of this month? I assume it is March 

27 of this year. 

114 

Mr. TAYLOR. Yes, it is. That, of course, would be up to the Secretary. 

Senator BLUMENTHAL. Well, I would like to make a request on 

my behalf—others may join—in asking that it be made available on 

March 28 or as soon thereafter as possible. I know I do not have 

authority to issue subpoenas the way I did when I was a prosecutor, but I hope that the Secretary of Defense will share the 

sense of urgency that we have in moving forward as quickly as possible. 

You have been asked about the rates convictions are overturned. 

Do you have numbers on the rates of conviction where courts-martial are convened on sexual assault cases? 

Mr. TAYLOR. I believe that each of the Service TJAGs provided 

that during the answer, and I did not write it down. But it is very 

low specifically in cases involving sexual assault. 

Senator BLUMENTHAL. Can you give me an explanation—unfortunately, my time has expired, but I have one last question for you 

and I will have others that I want to submit for the record—as to 

why the rates of conviction are so low? 

Mr. TAYLOR. The rates of conviction—sexual assault can be a difficult charge to prove beyond a reasonable doubt. I think that many 

of the efforts that you heard about in improving the professionalism and the resources available for sexual assault cases, the 

creation of special victims prosecutors and that capability, the increased support to victims may result in an improvement in the 

conviction rate, but it can be hard to prove. 

Senator BLUMENTHAL. My time has expired, and I will submit 

these questions. But I would respectfully suggest that that issue be 

part of your preliminary assessment submitted to the Secretary of 

Defense and then to us. 

I thank you all for your extraordinary service to our Nation. 

None of this is personal to you or to the military, as I hope you 

understand. I firmly believe that you will solve this problem because you have been so effective at solving similar issues, whether 

they are cultural or strictly logistical or otherwise military, in our 

history. Thank you for your service. 

Senator GILLIBRAND. Senator Hirono. 

Senator HIRONO. Thank you, Madam Chairman. 

Thank you to all the witnesses. 

We heard from witnesses this morning, and I am sure you may 

have been in the audience listening to the testimony from them 

where they described going through a very difficult process even reporting their sexual assaults. You have testified this afternoon 

about the various programs, training, education, your efforts to 

change the culture in the military. 

My question is, do you know whether all of this focus to change 

the culture, to provide the kind of support, education, whether that 

is working? Do you ask the victims, the survivors whether these 

programs are working for them? 

General PATTON. Ma’am, I will take that first, if that is okay 

with my colleagues. 

I direct the SAPR Office, and I do talk to survivors on a regular 

basis. We also have other informal mechanisms of hearing from 

them and other people on the issue, such as an anonymous Safe 

115 

Helpline which we have had tens of thousands of calls into over the 

2 years that it has been in effect. 

One of the things that we have been hearing fairly recently in 

those sorts of informal feedback is that they are encouraged by the 

reforms, the initiatives, and the programs that are being put in 

place. But it is something that we need to remain persistent on. 

We have also got very positive feedback on the training that has 

been essentially revamped in the past year. The PowerPoint slides 

and things we heard about this morning are done. They are over. 

There is no training that solely consists of PowerPoint slides. They 

are interactive. They involve, in some cases, victim testimony, scenario-driven discussions, videos that are presented, ethical decision 

scenarios that are presented. I mean, I have been a part of training 

at multiple different levels on different bases, and this is revamped 

training that we are getting good feedback on and it is having some 

effect in terms of pushing this interest, awareness, and education 

not only at the top level, but pushing it down through the ranks 

to the very bottom, to the influence leaders that we really truly 

need to affect if we are going to make this an enduring culture 

change. 

Senator HIRONO. I would say that that is probably a very long 

process. 

In the meantime, we also heard a suggestion today that we 

should take out the decision to prosecute, to investigate from the 

chain of command and go to an impartial kind of an adjudicatory 

system and decisionmaking. I would like to ask you if you can 

briefly comment on—do you foresee major problems with going that 

route? Because countries such as Great Britain and Canada have 

gone that route. 

General PATTON. I will answer it first and if I can pass it down 

the row. I am the only non-lawyer sitting at the table, but I have 

commanded infantry units for 71⁄2 years. So I am speaking from a 

command perspective on this answer. 

My point of view would be that we want commanders involved 

in the process. We want commanders paying attention to victims. 

We want commanders caring for them, taking their report seriously. We want commanders paying attention to crimes and other 

acts of indiscipline and harassment and derogatory language and 

all these things along the continuum of harm. We want commanders paying attention to that. We want commanders setting 

standards for what is acceptable and unacceptable in a unit where 

dignity and respect are the only standard in how we treat one another. We want commanders doing that. 

As a commander, I am responsible for the health and welfare of 

my men and women in my unit. I take that as my ultimate responsibility and take it very seriously. I have led men and women in 

combat with that same responsibility. 

We expect and hold commanders accountable for establishing 

standards in their unit and then holding people accountable that 

do not meet those standards, whether they be standards of performance or standards of behavior. As a commander, I want to 

know who that offender and perpetrator is of this crime because 

that person is degrading the readiness of my unit, and it is also 

116 

committing a crime against another human being in my unit. So 

I feel we need commanders very involved in this. 

Senator HIRONO. I think they should be involved, but on the 

other hand, should they be basically judge and jury? I think that 

is the question that we are confronted with. 

General CHIPMAN. Senator, if I could add at this point. I visited 

my counterparts that run those systems in the UK, in Canada, and 

in Australia. I visited every one of the JAGs from those respective 

Armed Forces. That model that they have is not a model to which 

we should aspire. Moreover, they are not comparable in any way, 

shape, or form to the size, the length, the frequency of our deployments of U.S. military forces. When we have 300,000 soldiers in 

two theaters of operations in Afghanistan and Iraq, we need a system that punishes swiftly, visibly, and locally and not independent 

of the chain of command, not an independent adjudicative authority, but under the direction, control, and focus of that responsible 

commander in the theater. 

Senator HIRONO. Well, that is just it because we have a huge 

number of people who are serving and thousands and thousands of 

them are being assaulted according to information from the Pentagon. So this continues. I would say that we do need to acknowledge and face some facts. I do commend all of you for the work that 

you are doing to address what is a large issue. In fact, one of the 

testifiers mentioned that getting the convictions or pursuing sexual 

assault cases are very difficult because often it becomes ‘she said, 

you said, or he said he said,’ that kind of situation. 

I have some experience in having to actually change a law in Hawaii when I was in the State legislature where the law allowed for 

the victims and the survivors to be revictimized, which is what we 

are hearing time and time again from our testifiers this morning. 

I think that this is a situation, another situation, where the actual 

underlying law and the authority probably needs to be addressed. 

Mr. Taylor, I think I heard you say that this authority of the convening officer to be able to just undo a decision, a court-martial decision, that you think that in the situation where we do have a robust appellate process available to defendants in the military, that 

perhaps this kind of an ultimate authority to overturn a decision 

should not rest in one person’s hands who may not even have any 

kind of legal training because that is what we are talking about. 

These are legal results. These are legal processes. In my view, anybody who is going to overturn a legal process should have a legal 

background, and that is not the case. I am glad that this does not 

happen frequently, which just says to me that perhaps we can 

eliminate this particular authority on the part of the convening authority. 

Do you want to comment? 

Mr. TAYLOR. Yes, ma’am. We will take a very hard look at that. 

We are absolutely committed to doing so and directed by the Secretary to do so, and we will. As I indicated, I have a deadline imposed on me by the Secretary of March 27th to give a preliminary 

assessment. 

Senator HIRONO. Thank you. 

Madam Chairman, my time has expired. Thank you. 

117 

General HARDING. Sorry. If I could add, we also have a deadline 

set by the Secretary of Defense to the Secretary of the Air Force 

of the 20th. We have 1 week to let him know what our thoughts 

are on the very same subject. 

Senator HIRONO. Thank you. 

Senator GILLIBRAND. Senator Ayotte? 

Senator AYOTTE. Thank you, Madam Chairman. 

I want to thank the witnesses for being here today on this very 

important issue which we have to address. It is undermining, as 

you mentioned, our readiness, our military. It is totally unacceptable and it is not consistent with the greatest military on Earth. 

I want to ask about a GAO report that was issued in January. 

Mr. Taylor, the GAO report found that military health care providers do not have a consistent understanding of their responsibilities in caring for sexual assault victims because the Department 

has not established guidance for the treatment of injuries stemming from sexual assault and that there are certainly specific steps 

of care if someone is a victim. Steps that have to be taken to protect their confidentiality, and also in some instances, steps that 

need to be taken to preserve evidence that may be needed if they 

choose to report. We, obviously, hope that they are able to do that, 

report their victimization and the crime that has been committed 

against them. 

So where are we in light of this GAO report? Do you have any 

established guidance from DOD for the treatment of injuries that 

could be transmitted to medical providers so that they properly 

treat victims of sexual assault in the military? 

Mr. TAYLOR. Senator, I believe that General Patton would be in 

a better position to answer this question. 

Senator AYOTTE. General? 

General PATTON. Yes, ma’am. We have a standing Department of 

Defense Instruction (DODI) and it is very close to being reissued 

with the revised instruction. I expect that to be out by the end of 

this month. The revised instruction addresses in detail some of the 

inconsistencies that were found in the GAO report. I personally 

have read the GAO report and then looked at both the two enclosures, number 7 and 8. I have brought them with me here, if you 

are interested in having those. But these are enclosures in the revised instruction, the policy, that will be promulgated and which 

will address some of the very specific points that you were mentioning, specifically how restricted reports, victims, and survivors 

who make restricted reports—how they are to be dealt with confidentiality and with regard to the other procedures that our medical practitioners must afford and the counseling that must be 

available and the examinations that must be given and those sorts 

of things. 

Equally, I think one of the gaps determined by the GAO report 

was the gap between unrestricted care and the gap with the restricted reports. Those points are specifically addressed in the revision of policy which, again, has completed the OMB and interagency coordination. I expect they will be promulgated here within 

the next couple weeks. 

But like any policy, a policy is only as good as the paper it is on. 

It has to be promulgated and it has to be enforced, and there has 

118 

to be training that is based on that policy. Then the medical community—I know our Assistant Secretary for Health Affairs has conferred with the Surgeon Generals in all the Services, and they are 

focused on addressing that point and ensuring that those changes 

to the policy are promulgated and put in action as soon as possible. 

Senator AYOTTE. General, in formulating the policy, before being 

in the Senate, I was an Attorney General. For example, in my 

State there was specific guidance issued from the Attorney General’s office after having brought together stakeholders, including 

physicians, victims, law enforcement, basically all stakeholders and 

formulating these guidelines to make sure that they were appropriate, that they were thorough, and that this was not just something from the top down, but it came from really getting the stakeholders who are involved in it to make sure that they are right. 

How did the process that you undertook to put these together— 

what did that involve? Who did you consult? There are very good 

models for this even in the civilian sector, and I wondered if you 

consulted any of those. 

General PATTON. Ma’am, it was a very collaborative process. All 

the Services were involved, their medical experts were involved in 

this particular portion of the policy. Our Health Affairs staff was 

involved. We do confer with the experts in the field. I know one of 

the women on my staff has been involved in victim advocacy and 

has been working side by side, really on the front lines of victim 

advocacy and care for victims for most of her adult life. Another 

woman involved in the formulation of policy was the SARC of the 

Year for the Air Force and has a lot of hands-on experience in dealing with victims and getting them through not only the difficult 

step of coming forward and going through the reporting step, but 

then also into the medical system as well. So I am pretty comfortable that it has been a broad and collaborative process. 

Like I said, the inconsistencies that were identified in the GAO 

report—I have made a comparative look between the GAO report 

and then what we have in our revised DODI and I believe that it 

does cover all those areas. 

Senator AYOTTE. So when will this be issued, and then also, what 

are the implementation plans? I mean, one of the biggest issues we 

heard this morning from the panel of victims was the culture issue. 

This is only one component of the culture issue, but how do you implement these guidelines to make sure that victims are also receiving the proper treatment and respect within the medical system? 

General PATTON. The first step is the policy. Like I said, we expect to have this back from the Office of Management and Budget 

and promulgated by the end of this month. So that is the first step. 

But then DOD policy has to be taken by the Services and then 

promulgated in some fashion. On this case, being a medical—just 

take the medical component out. I would expect that the Surgeon 

Generals would be issuing guidance and reinforcing guidance on 

those aspects of the policy then within their Service. 

Education programs then have to be based on the changes in the 

policy so people can be educated and they know the new standards 

of performance in terms of medical practice and care for all type 

of survivors. 

119 

Then lastly, there is an assessment step, which is to say we 

should be out there and we need to be out there identifying how 

these policies are being applied by the medical practitioners. I 

know that Dr. Woodson, our Assistant Secretary of Defense for 

Health Affairs, has a plan that he has shared with me. I do not 

know the timeline, but he does have a plan that once this policy 

is promulgated and education in place and so forth, to go out and 

audit various medical communities to ensure that these standards 

are being applied and our victims are being cared for as they demand. 

Of course, we also hear from the survivors, and they tell us 

things. I had a summit of survivors in my office several weeks ago, 

and one of the survivors shared with me a very difficult tale of how 

she was treated in an emergency room in a military hospital. Those 

types of inputs are very important to how we go about this. 

Senator AYOTTE. Thank you, General. I would ask that you provide that policy to the committee, and I would also ask that you 

provide us with the action implementation plan so that we can follow up on this issue. Thank you for being here, I appreciate it. 

[The information referred to follows:] 

In response to your request for: 

1. The policy: 

Attached is the revised Department of Defense Instruction (DODI) 6495.02 ‘‘Sexual Assault Prevention and Response Program Procedures,’’ dated 28 Mar 2013. 

2. The action implementation plan: 

Next is the Assistant Secretary of Defense (Health Affairs) memorandum tasking 

the Services to report annually to Health Affairs on the status of the availability 

of sexual assault medical forensic examiners and to review the new instruction 

(DODI 6495.02) and provide written implementation plans, including target dates 

for implementation of updated program elements. 

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General PATTON. Yes, ma’am. 

Senator GILLIBRAND. Senator McCaskill? 

Senator MCCASKILL. Thank you. 

After meeting with many of you and many of your colleagues, I 

have gotten much more familiar with the UCMJ. In fact, on the advice of one of the Army JAGs, I actually downloaded it on my iPad 

and now have it as an app. 

I keep coming back to the structure that is very strange the more 

I think about it. I have tried every kind of criminal case there is 

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alty case. In the criminal justice system, we build a fence around 

the fact finders, and we make sure that the evidence they hear is 

relevant and judges are in charge of making sure that the evidence 

is relevant and that the rules are followed. Generally in our system, the only people that can overturn the fact finders are people 

who have also heard the witnesses unless there is a legal problem 

with how the trial was actually conducted. 

Now, your system is much different. In your system, a defendant 

can refuse to take the stand, which is certainly their right, and 

therefore their character does not come into evidence because the 

only way someone’s character comes into evidence is if they place 

it in evidence. So the fact finders do not get to hear what a great 

guy someone is. They are listening just to the facts of the case. 

It is bizarre to me that when that is over, you begin a clemency 

process. I am going to read the quote from the victim in Aviano 

about the clemency process. ‘‘The clemency process was a travesty. 

The vast majority of the statements were personal attacks on the 

judge, the prosecutors, and me. A few were actual clemency letters 

stating their relationship with Wilkerson. Please think of his family, et cetera. Many of them, especially the ones from the pilot community and their wives, wrote caustic, vitriolic letters alleging that 

the judicial system is corrupt and that the trial was not legitimate. 

They claimed the prosecutors were bullies and unethical. The panel 

was biased because they weren’t pilots. The judge made bad decisions. I am a slut, a liar, unprofessional.’’ 

This information goes to this general and he is to look at that 

contemporaneously with supplanting his judgment for the fact finders. There is no good reason for that. I cannot think of one, and 

I would love it if one of you would tell me why—in our system, 

after the appeal is finished, then there is an opportunity for clemency by an executive authority to commute a sentence, to pardon 

someone, but not prior to a decision on whether the case was, in 

fact, conducted legally. How can someone’s judgment about the factual determination in a case be clear if they are being bombarded 

with evidence of character of the defendant who had not taken the 

stand for an opportunity of the fact finders for his character to be 

cross examined for bad acts? I would like some explanation from 

you as to how good order and discipline is enhanced by the ability 

of the mixing of those two very different deliberations. 

General CHIPMAN. Senator, I would like to try first on that question. 

I think we have two distinct aspects to this, the convening 

authority’s authorities on findings and those authorities on the sentence, because I can see that clemency, of course, extends also to 

sentence revision. In some cases, for example, a convening authority might delay the imposition of forfeitures that were part of the 

sentence to provide continued support financially to the accused’s 

family, dependent spouse and children. So that is one aspect where 

clemency would be appropriate from the outset. 

In some cases, clemency might be appropriate to address a legal 

error that was identified either by the judge during the course of 

the trial, by the staff judge advocate on his or her review that we 

know will be taken care of by the appellate court, but why not go 

124 

ahead and clean that error up with the action by the convening authority? 

Senator MCCASKILL. I understand the point you made, but I 

think that there will have to be a stronger argument than that for 

me not to come down on the side that clemency belongs at the end 

of a legal determination, not in the middle of it. I am not somebody 

who believes that somebody who has not heard the evidence presented should be making a determination on who was telling the 

truth. A transcript never tells the full story as to who was telling 

the truth. That is why we have trials. To supplant that judgment 

for the people who actually heard the testimony, particularly in 

these cases because these cases are ‘‘he said/she said.’’ These cases 

are all about the believability of the witnesses. Juries are very good 

at sniffing out who is telling the truth. 

I am not sure a general, far removed with no legal training looking at a stack of clemency matters contemporaneously with a dry 

transcript, is given the right information to make the kind of decision that is going to be for the good order and discipline of the 

whole. 

So that is one issue. 

Another issue I have is that if this power, this amazing power 

that is given this one individual, is about the good of the whole— 

and we talked about this, General, in my office with General 

Welsh—it appears to me that the Aviano general has really failed 

because if this decision is because you want them to have the ability of looking at the good of the whole, I do not think anybody is 

going to argue that this decision has been terrible for the whole. 

This decision has turned the military on its ear as it relates to the 

criminal justice system that is contained therein. He was not looking at the good of the whole. He was looking at this individual 

case. 

The irony is the very power he has is because of the good of the 

whole, but yet he is narrowly looking at the facts in evidence in a 

stack of clemency matters, in this case, and making a decision that 

sets the Air Force back. We may be all the way back to Tailhook 

at this point in terms of all the work you have tried to do to move 

the Air Force forward. 

Mr. Taylor, could you comment on that as to whether or not 

these cases are really being decided on an individual basis or 

whether or not this good of the whole is being considered because 

I think Senator Gillibrand’s point is a really good one. If it is about 

the good of the whole, I do not know that we are doing a very good 

job since this problem is as pervasive as it is and is getting worse 

and not necessarily better. 

Mr. TAYLOR. Senator, I think you have a very good point. It is 

entirely possible that there is a disconnect between the rationale 

for this authority, which is the good of the whole, and how it has 

come to be utilized. That is one of the things that I will need to 

consider in making my preliminary assessment, but it is a serious 

issue and it requires a very serious response and hard thinking. I 

commit to you that I will think hard about that. I think it is a very 

good point. 

Senator MCCASKILL. My time is out. Let me first just make sure. 

Has everybody seen ‘‘The Invisible War’’ on the panel? 

125 

[No verbal response.] 

Senator MCCASKILL. General Ary, I would certainly like from you 

later what, if any, action for the good order and discipline of the 

whole unit happened to any command at the military barracks here 

in Washington as a result of the incident. You do not have to tell 

me now. But I am dying to know what commander was relieved, 

what commander was dismissed. Clearly, the facts around that 

case have serious implications beyond the sexual assault that is alleged. I will never look at the Friday night evening parades the 

same way again after seeing that movie. On behalf of the Marines, 

I would think that there would be a deep desire to clean that up 

and show that it is a new day at the Washington barracks. 

General ARY. Yes, ma’am. We will get you that response. 

[The information referred to follows:] 

‘‘The Invisible War’’ is a feature length documentary about sexual assault in the 

U.S. Military. The documentary includes stories from military sexual trauma survivors, including two female Marine officers who were stationed at Marine Barracks 

Washington at two different times between 2006 and 2010. The documentary, however, fails to present the investigative and adjudicative actions that occurred in both 

of those cases, leaving the viewer with the impression that both reports of sexual 

assault went unanswered. That is not the case. Both reports were fully investigated 

by the Naval Criminal Investigative Service and appropriate action was taken on 

the alleged offenders based on the evidence adduced during those investigations, including a general court-martial for one of the alleged offenders. 

The Marine Corps has made significant changes to the process of litigating sexual 

assault cases, and continues to make tremendous progress in providing services and 

care vital for victims of sexual assault. We have taken a holistic approach to combating sexual assault in the Marine Corps, by implementing a number of initiatives 

to improve our ability to respond to allegations across the entire spectrum of a case, 

from initial reporting through trial and post-trial matters. 

In the area of sexual assault, the Marine Corps today is significantly different 

than it was just 1 year ago, and 1 year from now it will look significantly different 

simply based on our implementation of current initiatives and legislative requirements. We anticipate that these changes will have positive effects on the prevention 

of and response to sexual assault, to include more professional investigation, prosecution, and defense of sexual assault cases. Initial feedback, whether empirical or 

anecdotal, indicates that we have improved the legal processes related to the prosecution and defense of sexual assault cases, and we are expecting continued improvement. 

Senator MCCASKILL. Finally, I have a long list of others about investigators and their specialized training. 

Senator GILLIBRAND. We will have another round. 

Senator MCCASKILL. Okay, great. I will wait then. Thank you 

very much. 

Senator GILLIBRAND. Thank you, Senator MCCASKILL. 

We are going to take a second round because there is interest by 

the Senators sitting here. 

Mr. Taylor, we have talked a little bit about how other nations 

have addressed their previous practices of having a convening authority, Britain, Canada, Australia. Have you had an opportunity 

to study what they did in those jurisdictions and whether it had 

any beneficial effect on increasing the amount of reporting, increasing the amount of prosecutions? Did it have any effect on unit cohesion, unit morale, on discipline, on order? Did they see a loss in discipline and order by removing convening authority? 

Mr. TAYLOR. I have done a little reading on the topic. But as I 

understand it, the rationale for the action taken in Canada and in 

Great Britain and some other countries has been focused really on 

126 

protecting the accused, and it is to provide a further layer of insulation for the benefit of the accused. Whether it has had any impact at all on sexual assault cases I do not know. I plan to be talking with counterparts and try to gather some of that information 

over time, not for the 27th. 

Senator GILLIBRAND. I want to talk with each of you about this 

real challenge of under-reporting. Anecdotally listening to the testimony this morning, each of the victims said if I had an advocate 

early on to tell me what my rights were, to stand by them, to have 

some authority, if I knew that I could be transferred immediately 

or the perpetrator could be transferred immediately, that might 

give me the courage to withstand the 30, 60, 90 days it would take 

to have a case reviewed. They said if I knew my allegations would 

be taken seriously and I had a real chance that this perpetrator 

could be convicted and he would be held accountable, I might have 

been willing to report. 

So I would like each of the Services to tell me their view of why 

do you think there is so little under-reporting. If it is literally 

19,000 and more than half are sexual assaults against men and if 

only 2,400 are actually unrestricted reported, that is a terrible reporting rate. What do you think the reasons are? Are the things 

that are being implemented now—will they begin to address it? 

What do you think the most important reform in your mind is 

there to increase the number of reports that are made for the sexual assaults? Lieutenant General Harding, you can start there and 

we will go across. 

General HARDING. Well, that is one of the reasons, ma’am, that 

we structured that SVC program. 

The majority, at least the survey tells us, of our sexual assaults 

are not reported. We believe that if victims believe that there is 

somebody on their side, as they go through this complicated process 

that can be very exhausting, that we will see more of them come 

forward. That is our hope in part. 

Also, when we looked at fiscal year 2011, the last batch of statistics we gave you, we noticed that in the unrestricted reporting side, 

that we had 29 percent of our victims who had said I want to cooperate with law enforcement, walk away, and refuse to cooperate 

before they got to the courthouse door. In the Air Force’s case, 96 

victims. So we believe that that helps us encourage and embolden 

them as well to get through that process and to feel less like they 

have been revictimized by that process when they have somebody 

there to explain why things are happening the way they are. 

I believe there are multiple reasons. Our surveys have shown 

multiple reasons why people do not report. We know that one of 

them is the belief that this is a difficult process to get through. 

That is not the only reason. 

I think I would turn it over to Major General Patton to let you 

know what the survey revealed and told us among the various reasons why people do not report. 

Senator GILLIBRAND. Lieutenant General Chipman? 

General CHIPMAN. Senator, I think to follow on what General 

Harding said, these are the most difficult kinds of allegations to 

share with anyone. These are the intimate details of our personal 

lives, our bodily integrity. I think there is a natural reluctance 

127 

there. I think there is a great desire for privacy on the part of 

these victims to avoid general knowledge among unit members, the 

community of the kinds of things that have been inflicted upon 

them. 

Finally, I think what is different about military service is this 

idea that you take on this member of a team, cohesion, esprit, good 

order, discipline. I think that was shown very well in the documentary that you asked us if we had seen. One of the biggest crimes 

was, first, the assault, but second the attitude of the military when 

it was reported, the lack of support that those victims received, and 

that sort of violation of the fundamental belief that they were part 

of the team that would take care of them that would not allow this 

to happen. So I think that still plays out in the underreporting. 

Senator GILLIBRAND. Vice Admiral? 

Admiral DERENZI. Yes, ma’am. I agree with General Chipman 

and with General Harding as well. 

I think it comes down to victims knowing that they will be responded to, supported, cared for through the process. We are in the 

process of hiring professional, full-time victim advocates, which is 

different than having a lawyer serve as a victim advocate. We are 

striving to form a core relationship between prosecutors, investigators, and the victim advocate to work with the victims who come 

forward in a constructive, cohesive way. We are watching with interest the Air Force pilot on what a SVC role could be within the 

system where we do not have one very well defined, but they would 

not supplant a victim advocate. 

We have all instituted expedited transfer. Last year, the Navy 

approved 79 of them—none were disapproved—within 72 hours. If 

a command declines, the request goes to the next flag in the chain. 

There were no declinations. 

I think the training that we have devised, informed in large part 

by the experiences shared so powerfully in ‘‘The Invisible War,’’ are 

helping at the deck plate fleet level to understand the resources 

that are available, what actually happens when an allegation is 

made. Commanders do not investigate these allegations. That is 

given immediately to NCIS. Commanders support the victims. 

They need to be mindful of the due process rights of the accused. 

They need to initiate an investigation. 

The training has gone to great lengths to dispel myths about this 

crime, to ensure that people understand that it is a crime that involves men, as well as women, to ensure that we protect the most 

vulnerable among us, that we have the proper training for investigators, for lawyers, for first responders. We have hotlines that 

can be reached through text, through phone, through email. 

Restricted reporting is something that I know is difficult for people to completely understand. I think the truth is we are trying to 

give people options to come forward. Ideally we want people to 

come forward to us and make an unrestricted report so that we can 

pursue accountability aggressively. But not everyone will—as we 

heard this morning, it is so difficult to come forward, the courage 

to come forward, the trust to come forward. We are working to earn 

that. Until we do and until an individual finds that courage, supported by the people around them, they have the ability to make 

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seling, and victim support without going through the accountability 

process. It is our hope that with that support, they will find the 

courage to change into an unrestricted report. 

Senator GILLIBRAND. My time has expired. So I am going to turn 

now to Senator Graham. 

Senator GRAHAM. Thank you. 

This is an emotional topic, so I will be pushing back a bit to some 

of the things said. But having said that, please do not mistake the 

push-back for an understanding that sexual assault in the military 

needs to be addressed and we need to improve upon the current 

system because what we have today is not working. 

But in terms of whether or not we have a good ordered and well 

disciplined military, I would say the answer is yes. The answer is 

yes because you see it in the way they conduct themselves in battle. The enemies of this Nation have never faced a finer military 

force than exists today, and we have problems. There are human 

beings involved in our military, and there is no justification when 

people act badly and poorly. But I want America to know that the 

best test of discipline is when the flag or the balloon goes up. We 

are the best in the world. 

Now, this idea that fighter pilots take care of fighter pilots. We 

are going to talk about that a little bit. General Harding, do you 

know the convening authority? 

General HARDING. I do, yes, sir. 

Senator GRAHAM. Is there any suggestion that he set aside the 

findings because of the career field he was in or a personal relationship with the accused? 

General HARDING. Absolutely not. As a matter of fact, he does 

not know the accused. 

Senator GRAHAM. I just want to set this straight. You may not 

agree with what the general did, but I actually know these people. 

They take this job very seriously of sending people into combat. 

They take their job very seriously as a convening authority to make 

sure that in their view for the units in question, justice was rendered. We are talking about a handful of convening authority actions, given thousands of cases. Please do not over-indict the system. 

Mr. Taylor, I want you, if you could, to have people in your office 

to review every convening authority in the military in terms of special court-martial, general court-martial convening authority, and 

see if you can find somebody who is not up to the task because I 

believe, ladies and gentlemen, that our commanders who get to this 

rank have been chosen for a reason. 

[The information referred to follows:] 

In the Air Force, convening authorities are commanders who have been chosen 

for their position based upon their demonstrated leadership abilities, character, and 

judgment as well as professional expertise. These senior leaders are experienced officers with many years of military service. 

Senator GRAHAM. Now, the problem of reporting sexual assault 

in the military. General Patton, is it any greater a problem in the 

military than it is in the civilian community? 

General PATTON. Sir, I believe they are on par in both sectors. 

Senator GRAHAM. I would say that what happens in the civilian 

community in this area is probably duplicated in the military. ‘‘On 

129 

par’’ may be the right word, but I promise you this. There is no 

city, there is no State, there is no county that is going to take it 

more serious than the men and women before you. 

When it comes to defending somebody in the military, I have 

been a defense counsel and I have been a prosecutor in the civilian 

world and in the military world. The one thing I never had to 

worry about defending a military member is cost. I got every witness I ever wanted. I did not have any overhead to pay, and I did 

not have hundreds of cases. As a military prosecutor, I spent an 

inordinate amount of time preparing a case that our civilian colleagues would envy. Are there district attorneys out there not 

bringing cases they should? Absolutely. Sometimes the system 

fails. But I just want people to understand in the military justice 

arena, it is a focused effort to get this right, that the defense counsels are an independent chain. 

I was on 60 Minutes once trying to take the drug labs down that 

the Air Force had created that I thought was producing false 

positives, and we voided 60,000 results because the system worked. 

My boss had my back, and the military judge was a real hero. 

The only thing I can say is that the purpose of this hearing is 

a good purpose. People are not feeling comfortable with telling 

what is going on in that unit regarding sexual assault. But the 

idea, quite frankly, that convening authorities are the problem is 

not what I see here. I see the system broken. 

I do believe that if you are going to give a man or woman the 

power to send someone in battle and to literally go and die, that 

we should trust their judgment when it comes to disciplining that 

unit. Now, that is just my personal bias. 

Having said that, I think there is a tremendous amount to build 

on here. Mr. Taylor, I look forward to working with you and the 

administration to try to find ways to make this system work better. 

Madam Chairman, this is a difficult issue, but let us please not— 

I want you to read, if you can, a summary of the Aviano case. You 

may not come out where the convening authority did, but I just do 

not believe that he did it in a cavalier fashion. I just do not believe 

that. 

[The information referred to follows:] 

Please see the attached letter to Secretary Donley from Lieutenant General 

Franklin, dated March 12, 2013. 

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Senator GRAHAM. So, finally, Mr. Taylor, as we go forward, what 

can we do in terms of sequestration? I mean, we are talking as if 

nothing else is going on out there. Everybody is doing more with 

less. There are less lawyers. There is more responsibility. Please 

tell us what you need in terms of budgets to enhance these programs, and I think everybody on this committee—and, Senator 

McCaskill, you have been terrific about focusing on this. Let us 

find out what we need to resource that is not being resourced and 

make this a priority because I will end with this thought. 

[The information referred to follows:] 


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136 

Standing up the Special Victims’ Counsel (SVC) Program drives a resource bill for the Air Force, estimated at this time to be about 65 positions and $2.2 million a 

year. To the extent we are required to repurpose existing positions at installations 

for the SVC Program, we will have to proportionally reduce legal services to commanders and to our airmen. 

Senator GRAHAM. If women in the military—and men are victims 

too. But if you really believe that there is no place for you to go 

and you are being abused, that has to be the worst possible feeling 

in the world. I would not want one member of my family to ever 

have to live under those conditions. This command climate I think 

is beginning to change. But how did we get here? These cases were 

a nuisance. Nobody wanted to talk about it. Nobody wanted to embarrass the command. They wanted to shove this stuff under the 

rug. There is no other answer for it to get this out of hand. 

I believe a new day is here, and all I ask is that when we find 

this new way forward, that we still preserve the ability of the system to judge every individual case based on the individual facts, 

that we do not paint with a broad brush everybody is guilty. 

Thank you very much. 

Senator GILLIBRAND. Senator McCaskill? 

Senator MCCASKILL. Well, first, I certainly agree with Senator 

Graham, especially the first part of his statement. I am compelled 

to be passionate about this because I agree with him. We are the 

best in the world. 

My comment about the overall health and good order and discipline of the unit is based on what I believe is a military that is 

grappling with a problem that the military knows you do not have 

under control. I do not think I am saying anything that most of you 

do not agree with. I think you know we need to do better. I think 

there are women out there that feel because of the particular facts 

and circumstances of their military service, their ability to get a 

piece of justice is limited. I know you all want them to. I do not 

think there is a significant disagreement between Senator Graham 

and me about that. 

I just think that some of the convening authority’s power does 

not appear to be rational to me, particularly the way it is currently 

set up in terms of the order of things and the ability, which I think 

most of you are uncomfortable with the notion that the rules say 

this can be done for no reason at all. As General Welsh, I think 

said to me, we are not in a time where you are dragging people out 

of prison to put them on the front lines because we need the warm 

body. Some of these rules date from that time when you did not 

have to give any reason at all. I think you explained to me why 

it said no reason at all. It came from the mouth of General Eisenhower in a hearing like this or something to that effect. 

Let me talk about a couple of things that I wanted to get to. It 

is my understanding that if a member of the military needs to update their security clearance, they must self-report counseling 

around their sexual assault, and they do not have to report counseling for combat-related issues, grief, or family matters. Is that 

true, Mr. Taylor? 

Mr. TAYLOR. It generally is true. It is question 21. There are different interpretations, but generally that is accurate. I think there 

are serious issues with question 21, and I would just like to say 

that the issues are not limited to those who are receiving the care 

137 

that we want them to receive. That is true whether the need for 

care is a result of sexual assault or something else. I personally am 

very concerned about question 21 and would like to see some action 

on it. 

Senator MCCASKILL. Well, I think we need to really take a look 

at that because if you are looking at someone’s mental health, what 

you are really saying is if your mental health issues come from 

combat or a problem in your family, that does not impact your security clearance, but if you have been a rape victim, it does. I cannot imagine any of you agree with that outcome. Does anybody 

think that is right or fair? 

Okay. So be sure and let us know if you have a problem with us 

looking at that because I want to get that changed right away. If 

I was a woman in the military and I had been raped and I had a 

security clearance, that sure would impact my willingness to come 

forward. It sure would impact my willingness in terms of giving up 

my career. 

What about the suggestion I made earlier? If we have probable 

cause based on a sound criminal investigation and the JAGs are 

recommending to the convening authority that we go to a general 

court-martial proceeding, why are we so focused about moving the 

victim? Why are we not moving the perpetrator at that point? 

General CHIPMAN. Senator, we do have the authority to move a 

perpetrator to another command, installation, or unit. That is within the discretion of the chain of command, so that is an available 

option. It would make it a little more tedious in the sense of the 

proceedings that have to go forward with the article 32 investigation, any motions hearings. So you might have to move that accused back and forth to the installation that is holding the courtmartial. But certainly it is an option within the chain of command’s 

authority. 

Senator MCCASKILL. As tedious as it would be for the victim in 

terms of potentially having—although, I guess you would say that 

the defense lawyers could go to her wherever she is for interviews? 

General CHIPMAN. That is correct, Senator. 

Senator MCCASKILL. Well, to me once you have crossed the line 

of probable cause, after a competent criminal investigation, the 

least disruption should occur to the victim, not to the alleged perpetrator. That certainly is the way it is in the civil system. We arrest him and they have to bail out and be reporting to an authority, a pretrial, or they are held in jail to stay away from the victim. 

The notion that a victim and an alleged perpetrator are working 

shoulder to shoulder during this particular period of time I think 

is going to impact the quality of your cases and your ability to get 

sound prosecutions. 

How soon in the process for each branch of the military do your 

criminal investigators have contact with the prosecutors that would 

be responsible for trying the case? If you would go down the line 

and just tell me. If you do not know, say that. If you know it is 

within 30 days or within a week or if there is some requirement 

that they check in with them immediately or maybe never, I would 

like some sense from each branch how closely dovetailed are the investigative efforts with the advice and counsel of a prosecutor who 

is going to direct the evidence in trial. 

138 

Admiral KENNEY. Thanks, Senator. 

In the case of the Coast Guard, that contact is almost immediate 

because of the way our reporting system works. It actually will 

come, in many cases, up the same chain that a significant search 

and rescue case, or a major oil spill will. Those communication networks are used, and CGIS, as well as our attorneys and our district 

legal offices or our area legal offices, are notified through that communication network immediately. 

General HARDING. Ma’am, it is about the same for the Air Force. 

It is pretty quick. When I was in that role at base level, we knew 

a report within 24 hours. The lash-up with the investigators is immediate. We provide them a proof analysis, a list of elements that 

they need. We walk hand in hand. They report back to us as the 

investigation is ongoing. Then later, we fold in one of our senior 

trial counsels, our most experienced. We have eight of them that 

are dedicated to prosecuting sexual assault cases. So the lash-up is 

immediate and constant. 

General CHIPMAN. Senator, recall that part of our special victim 

capability is the SVP and the sexual assault investigator. The best 

practice for us is to have our SVP actually located in the CID offices so that there is that immediate lash-up and case coordination 

that is so critical to perfecting these cases from the outset. 

Admiral DERENZI. Yes, ma’am, we have the immediate lash-up 

as well with our agents and our prosecutors. 

Senator MCCASKILL. Marines? 

General ARY. It starts at day one, and then our complex trial 

teams also have investigators embedded with them that continue 

to work the liaison as they develop the theory of the case and the 

evidence, ma’am. 

Senator MCCASKILL. Thank you for your patience, Madam Chairman. 

I have one last question, and that is if any of you have a good 

reason why there should be a different period of time that you 

would keep a restricted report versus a non-restricted report. 

I would like all of you, for the record, to let us know what attempts are made formally—when you get a new report on an alleged perpetrator, what attempts formally are made to go back and 

look at reports and re-contact victims on restricted reports with the 

news that there has been another victim and have they changed 

their mind. You do not need to do that now, but I want that for 

the record because I know that from experience that when a 

woman knows there has been someone else victimized after her, it 

changes her perspective about the importance of stepping forward. 

I want to make sure we have a system in place that is accessing 

those records quickly and getting back to those victims as quickly 

as possible and securing their cooperation and moving forward 

against the defendants. 

[The information referred to follows:] 

General CHIPMAN. When a victim makes a restricted report, the Victim Advocate 

or Sexual Assault Response Coordinator (SARC) does not question the victim about 

the nature or circumstances of the offense and does not enter any personally identifying information about the victim or the offender into the Defense Sexual Assault 

Incident Database (DSAID). The Army’s system of record notice for the Sexual Assault Data Management System, published 18 Mar 10 in the Federal Register, prohibits the collecting of personally identifying information on either the victim or the 

139 

offender, in accordance with DOD policy. Thus, there is no system in place to inform 

investigators or victims in restricted reports if another victim subsequently makes 

an unrestricted report against the same offender. 

The Army is committed to ensuring victims of sexual assault are protected, treated with dignity and respect, and provided support, advocacy and care. Army policy 

strongly supports effective command awareness and prevention programs, and law 

enforcement and criminal justice activities that will maximize accountability and 

prosecution of sexual assault perpetrators. To achieve these dual objectives, the 

Army prefers complete reporting of sexual assaults to activate both victims’ services 

and accountability actions. However, recognizing that a mandate of complete reporting may represent a barrier for victims to access services when the victim desires 

no command or law enforcement involvement, there is a need to provide an option 

for confidential reporting. 

Admiral DERENZI. The primary reason for Restricted Reporting is to protect the 

privacy of the victim while enabling the victim to receive medical and Victim Advocacy services. Under the recently implemented DOD Instruction governing Sexual 

Assault Prevention and Response (SAPR) procedures, Restricted Reports (DD Form 

2910 and DD Form 2911) are kept for a period of 5 years; however, at the request 

of a servicemember who files a Restricted Report, the DD Forms 2910 and 2911 filed 

in connection with the Restricted Report will be retained for 50 years, the same as 

an Unrestricted Report. 

Regarding attempts to re-contact victims who file Restricted Reports when another sexual assault takes place; Restricted Reports of sexual assault, by their very 

nature, are not shared with NCIS or the other military criminal investigative organizations (MCIOs). NCIS thus has no knowledge of the victim’s identity, or of any 

alleged perpetrator. In general, SAPR support services are victim-centric, and 

SARCs and Victim Advocates (VAs) avoid interviewing victims about the details of 

assault circumstances or specific perpetrator identities. With regard to most Restricted Reports, there is simply no record of perpetrator information to compare 

with subsequent cases, and no knowledge beyond the individual SARC of the victim’s identity. The basic concept of Restricted Reporting thus obviates victim ‘‘reach 

back’’ or perpetrator follow-up. 

Victims who file a Restricted Report have the option of changing from a Restricted 

Report to an Unrestricted Report. The Restricted Reporting option gives victims additional time and increased control over the release and management of their personal information and empowers them to seek relevant information and support to 

make more informed decisions about participating in the criminal investigation. A 

victim who receives support, appropriate care and treatment, and is provided an opportunity to make an informed decision about a criminal investigation is more likely 

to develop increased trust that the victim’s needs are of concern to the command. 

As a result, this trust may eventually lead the victim to decide to pursue an investigation and convert the Restricted Report to an Unrestricted Report. The decision 

to convert is left entirely up to the victim. 

In Restricted Report cases where a Sexual Assault Forensic Examination (SAFE) 

Kit was conducted, the SARC will contact the victim 1 year after the report was 

made to inquire whether the victim wishes to change their reporting option to Unrestricted. This is the only instance where the option to change reporting status is initiated by the SARC. 

If the victim does not change to Unrestricted Reporting, the SARC will explain 

to the victim that the SAFE Kit, DD Form 2910, and the DD Form 2911 will be 

retained for 5 years from the time the victim signed the DD Form 2910 (electing 

the Restricted Report) and will then be destroyed. The SARC will emphasize to the 

victim that his or her privacy will be respected and he or she will not be contacted 

again by the SARC. The SARC will stress it is the victim’s responsibility from that 

point forward, if the victim wishes to change from a Restricted to an Unrestricted 

Report, to affirmatively contact a SARC before the 5-year retention period lapses. 

However, at the request of the victim, the DD Forms 2910 and 2911 filed in connection with the Restricted Report shall be retained for 50 years. 

If, before the expiration of the 5-year retention period, a victim changes his or her 

reporting preference to the Unrestricted Reporting option, the SARC shall notify the 

respective MCIO, which shall then assume custody of the evidence pursuant to established chain of custody procedures. 

General HARDING. There is neither a formal requirement nor a prohibition that 

a SARC notify a restricted victim that his or her alleged offender has been named 

in an unrestricted report. In practice, the SARC makes such a notification in certain 

circumstances. For example, if victim 1 makes a restricted report and victim 2 

makes an unrestricted report, then the SARC will let victim 1 know that an independent report against the accused has been made by victim 2. 

140 

General ARY. Restricted Reporting allows servicemembers and military dependents who are adult sexual assault victims to confidentially disclose the assault to 

specified individuals (SARC, Sexual Assault Prevention and Response Victim Advocate (SAPR VA), or healthcare personnel) and receive healthcare treatment and the 

assignment of a SARC and SAPR VA. When a sexual assault is reported through 

Restricted Reporting, the victim still receives support. First, a SARC shall be notified. The SARC will then respond to the victim or assign a SAPR VA. Additionally, 

the victim will be offered healthcare treatment and a SAFE. 

In cases where a victim elects Restricted Reporting, the SARC, SAPR VA, and 

healthcare personnel may not disclose confidential communications or the Sexual 

Assault Forensic Exam and the accompanying Kit to DOD law enforcement or command authorities, either within or outside the DOD, except as provided in the exceptions designated in DOD Instruction 6495.02 (SAPR Program Procedures). 

One such exception is when ‘‘[n]ecessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person; for example, 

multiple reports involving the same alleged suspect (repeat offender) could meet this 

criteria.’’ 

Accordingly, the framework for such a disclosure exists under current regulation. 

However, most victims who elect the Restricted Reporting option have historically 

declined to provide the name of the alleged offender when submitting a Restricted 

Report. Therefore, in order to effect a process whereby victims who file Restricted 

Reports are later notified that the alleged offender in their case has been accused 

of committing a subsequent sexual assault, the reporting requirements to the SARC 

would need to be amended to require entry of the offender’s name into the Defense 

Sexual Assault Incident Database. Additionally, victims should be given the opportunity to elect whether or not they would like to be notified in the future if their 

alleged offender re-offends. 

Admiral KENNEY. If a SARC, Victim Advocate, or the Sexual Assault Prevention 

and Response Program Manager become aware that prior victims have the same offender and restricted reports were filed, the SARC will reach out to the victim(s) 

to let them know that there are other victim(s). This is accomplished in a sensitive 

and empathetic manner intended not to negatively impact the victim(s) or make 

them feel responsible for not filing an unrestricted report, but allows for the opportunity to reflect and decide on a course of action moving forward. Often victims will 

decide to go forward with an unrestricted report if they are aware of other victims 

who were allegedly offended by the same perpetrator. 

Senator MCCASKILL. I know you all are trying hard, and I know 

even the general who made the decision in Aviano, I absolutely do 

not think he did that maliciously or cavalierly. But I think it is 

time to take a hard look at whether or not the rules of the road 

can be adjusted to still give the unique aspect to military justice 

that it deserves. I am not saying it should be like the civil criminal 

system, but there do seem to be some things that make absolutely 

no sense. I hope rather than getting a push-back from the military, 

we will get your cooperation and support in making some of those 

changes. Thank you all very much. 

Thank you, Madam Chairman. 

Senator GILLIBRAND. Thank you all for your testimony today. I 

am very grateful for your determination to solve this problem. I 

think there is no problem the military cannot solve if it puts its 

mind to it. So thank you for your commitments today, and thank 

you for working with this committee going forward. 

The hearing is adjourned. 

141 

[The prepared statement of Ms. Parrish follows:] 

ANNEX A: PREPARED STATEMENT BY MS. NANCY J. PARRISH, 

PRESIDENT OF PROTECT OUR DEFENDERS


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[The prepared statement of Ms. Maatz follows:] 

ANNEX B: PREPARED STATEMENT BY MS. LISA MAATZ, DIRECTOR

OF PUBLIC POLICY AND GOVERNMENT RELATIONS OF THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN


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[The prepared statement of Mr. Klay follows:] 

ANNEX C: PREPARED STATEMENT BY MR. BEN KLAY


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[The prepared statement of a victim from the Aviano Air Base 

follows:] 

ANNEX D: PREPARED STATEMENT BY AVIANO AIR BASE SEXUAL

ASSAULT VICTIM


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[The prepared statement of The American Civil Liberties Union 

follows:] 

ANNEX E: PREPARED STATEMENT BY THE AMERICAN CIVIL

LIBERTIES UNION


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[The prepared statement of The American Legion Veterans Affairs and Rehabilitation Commission follows:] 

ANNEX F: PREPARED STATEMENT BY THE AMERICAN LEGION

VETERANS AFFAIRS AND REHABILITATION COMMISSION


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1 Unwanted sexual contact is the survey term for the contact sexual crimes between adults 

prohibited by military law, ranging from Rape to Abusive Sexual Contact (e.g. crimes such as 

groping). 

[Questions for the record with answers supplied follow:] 

QUESTIONS SUBMITTED BY SENATOR JEANNE SHAHEEN

CAREER IMPACT OF SEXUAL ASSAULT

1. Senator SHAHEEN. General Patton, as testified by the Panel I witnesses from 

this hearing and as captured in the film, The Invisible War, military sexual assault 

influenced the victims’ decision to leave the military. In order to assess the overall 

career impact, do you have metrics that capture the number of sexual assault victims who remain in the military versus those who choose to discontinue service because of military sexual assault? 

General PATTON. No, we do not have any metrics that capture the number of sexual assault victims who remain in the military versus those who choose to discontinue service because of military sexual assault. The discharge process and associated documentation does not identify or code a person’s sexual assault history. In 

addition, since most victims don’t report the sexual assault, the Department would 

not have records on whether separating servicemembers had experienced a sexual 

assault while serving. Therefore, this is not a question that can be easily answered 

with a records review. 

According to the Department’s Workplace and Gender Relations Survey (2012) of 

the active Force, data suggests that the experience of sexual assault may impact a 

person’s plans to stay in the military: 

• In fiscal year 2012, of the female active duty population who did not experience unwanted sexual contact (USC) 1 in the past year, 61 percent indicated they were likely to stay in the military. This is a higher percentage 

than those women who had experienced USC (52 percent). 

• In addition, 36 percent of female active duty members who had experienced USC reported they were unlikely to stay in the military. This is a 

higher percentage than those women who had not experienced USC in the 

last 12 months (26 percent). 

• No such differences were noted between men who experienced USC in the 

past year and men who had not experienced USC. 

This survey item is provided to all respondents to answer, without identifying 

‘‘why’’ they are or are not likely to stay in the military. Please note that this survey 

item does not specifically ask respondents if their experience of USC impacts their 

plans to make a career. The survey also does not measure whether the person actually stays in the military or not. 

2. Senator SHAHEEN. General Patton, victims of sexual assault can request an expedited transfer, which allows them to be moved from the command they were assigned at the time of the incident. It is my understanding that the victim’s decision 

to move is at his/her own risk because the military makes no guarantee about the 

possible career impact that move might have. Therefore; if someone elects to move 

from an assignment, especially if it happened to be one critical for career progression, then this victim could lose out on future career opportunities. Is this your understanding? If so, are there plans in place to ensure that the careers of sexual assault victims are protected should the request for expedited transfer cause a disruption to their normal career pipeline? 

General PATTON. The expedited transfer policy is in place for sexual assault victims/survivors who file an unrestricted report. These victims/survivors may request 

a transfer if they no longer feel comfortable in their unit or environment. The Department of Defense Instruction (DODI) 6495.02 (dated March 28, 2013) mandates 

that every military department shall make every reasonable effort to minimize disruption to the normal career progression of a victim of sexual assault. The DODI 

also requires commanders to directly counsel the servicemember to ensure he or she 

is fully informed regarding reasonable foreseeable career impact. We see this counseling as an important step in the process which is why it is spelled out in the 

DODI. 

3. Senator SHAHEEN. General Patton, as noted in your testimony, the Sexual Assault Response Coordinator (SARC) and Sexual Assault Prevention Response Victim 

Advocate (SAPR VA) are readily available to assist victims of sexual assault to ensure the member’s health, well-being, and privacy once the assault occurs; but it is 

175 

less clear as to what happens if the member requires long-term care or is unable 

to continue in the performance of his/her current duties due to military sexual trauma. Is the member given the opportunity to change career paths to one that he/she 

can perform given the new set of circumstances brought on by this traumatic experience? 

General PATTON. Military sexual trauma is a term used by the Department of 

Veterans Affairs that covers both sexual harassment and sexual assault. Within the 

Department of Defense (DOD), we do not use the inclusive term and issues of sexual 

harassment are addressed through the Equal Opportunity Program with sexual assault program falling under my authority. Each is a separate and unique program; 

I can address the Department’s sexual assault program. 

Long-term care is addressed for any wound, injury or illness under the DOD’s Recovery Coordination Program (RCP). This program is governed by DODI 1300.24, 

dated December 1, 2009. Victims/Survivors of sexual assault who experience PostTraumatic Stress Disorder may self-refer to RCP or be referred by their command, 

medical care provider, Military Department Wounded Warrior program, or the 

Wounded Warrior Resource Center. 

Whether a servicemember is provided the opportunity to change career paths depends on a number of factors to include the abilities, limitations and aptitudes of 

the servicemember, taken together with the needs of the Service and specific job and 

occupational specialty requirements. Accordingly, retraining and reclassification 

may be an option and remains an individual Service function done in concert with 

individual servicemembers. 

SEXUAL ASSAULT TRAINING

4. Senator SHAHEEN. General Patton, your testimony highlights the numerous 

training initiatives undertaken in recent years. How do you evaluate the overall effectiveness of this training to determine if what is being done is truly the best 

course of action in changing military culture? 

General PATTON. DOD uses two surveys to measure the effectiveness of Sexual 

Assault Prevention and Response training. The Defense Manpower Data Center surveys the active duty workforce utilizing the Workplace and Gender Relations Survey 

of Active Duty Members and the Defense Equal Opportunity Management Institute 

surveys the active duty work force utilizing the Defense Equal Opportunity Climate 

Survey (DEOCS). The Air Force utilizes its specific Unit Climate Assessment survey. 

The results of the surveys are assessed to help determine the effectiveness of 

training and prevention programs. For example, the recent DEOCS and Air Force 

Unit Climate Assessment surveys indicate growing servicemember propensity to intervene in situations at risk for sexual assault, which we attribute, in part, to focused sexual assault prevention training programs. 

Additionally, DOD has initiated a variety of measures to standardize and enhance 

the training provided to prevent and respond to sexual assault across the Services. 

The Department has assessed the existing training and collaborated with the Services to establish standardized learning objectives to ensure consistent training outcomes. The focus of training enhancement has been to improve its effectiveness 

through greater emphasis on small group discussion and interaction, analysis of scenarios, and role-playing exercises. Each Service has established methods to gather 

data on the effectiveness of this training, and ongoing collaboration with the Department’s SAPR Office will ensure best practices become common practices across the 

Services. 

On September 25, 2012, the Secretary of Defense mandated standardized Sexual 

Assault Prevention and Response training for all Pre-Command and Senior Enlisted 

Leaders, as well as a standardized assessment of the effectiveness of the training. 

Over the last 6 months DOD SAPRO, in conjunction with the Services, developed 

standardized core competencies, learning objectives and methods for assessing the 

training. As of April 1, 2013, all of the Services have implemented these improved 

and standardized learning objectives for all Pre-Command and Senior Enlisted 

Leader training courses. 

Of note, the Department has focused significant effort in the assessment, standardization and enhancement of the training provided to sexual assault responders 

who provide care to victims. With the passage of Public Law 112–81, the National 

Defense Authorization Act (NDAA) for Fiscal Year 2012, SARCs are required to 

complete a certification program, including a pre-requisite 40-hour training course, 

32 hours of continuing education, and establishment and adherence to an ethical 

charter, the DOD Standards for Victim Assistance Services. The Department has 

176 

partnered with National Organization for Victim Assistance to certify our advocates 

while also assisting in ensuring the training provided meets national standards. 

DISCHARGING SEX OFFENDERS

5. Senator SHAHEEN. General Chipman, General Harding, General Ary, and Admiral Kenney, Service Women’s Action Network, noted that 1 in 3 convicted sex offenders remain in the military and that of the Services only the Navy discharges 

all convicted sex offenders. What is your plan to prevent the continued service of 

those who commit these violent crimes? 

General CHIPMAN. The statistic cited by SWAN is incorrect and is not supported 

by Army data. In calendar year 2012, there were 192 soldiers convicted of an offense 

that required registration as a sex offender. Those offenses include all penetrative 

and contact offenses under Article 120, possession of child pornography, and indecent assault. Of those 192 soldiers convicted, 174 (91 percent) received a punitive 

discharge as part of their approved sentence. The remaining 18 soldiers were subject 

to Army Regulation 635–200 that requires commanders to process soldiers for separation who were convicted of a sexually violent offense but did not receive a punitive 

discharge as part of their sentence. This regulation, in place since 2005, provides 

for a more comprehensive requirement than the NDAA for Fiscal Year 2013, which 

required initiation of separation after conviction on the penetrative offenses (rape, 

sexual assault, sodomy) only. An Army officer, working as an interagency fellow at 

the U.S. Marshal Service National Sex Offender Targeting Center, is responsible for 

ensuring that soldiers released from military confinement facilities or administratively separated from the Army comply with state registration requirements. The 

Army is committed to identifying, tracking, and separating sex offenders from active 

duty. 

General HARDING. Section 572(a)(2) of the NDAA for Fiscal Year 2013, signed into 

law on 2 January 2013, required the Secretary of each military department to establish policies to require administrative separation processing for servicemembers who 

are convicted of a sexual assault offense but do not receive a punitive discharge. The 

Air Force is currently staffing a proposed interim change to its administrative separation instructions to implement this provision of the NDAA for Fiscal Year 2013. 

General ARY. The Marine Corps and the Navy follow the same policy. A Secretary 

of the Navy memorandum published in 2008 states: ‘‘Navy or Marine Corps members who are convicted of a sex offense while on active duty or in a Reserve status 

and who are not punitively discharged shall be processed for administrative separation.’’ ‘‘Processed for administrative separation’’ does not mean an automatic discharge; no service has such a policy. 

Admiral KENNEY. Members convicted of a sexual assault at court-martial and sentenced to a punitive discharge will be separated from the service by operation of law 

upon completion of the member’s term of confinement and the appellate review process. 

By policy, the Coast Guard will initiate administrative discharge proceedings 

against members convicted of a serious offense at a civilian criminal trial or courtmartial where no punitive discharge is imposed (Military Separations, COMDTINST 

M1000.4). Moreover, discharge from the Coast Guard for a serious offense does not 

require adjudication by judicial proceedings. An acquittal or finding of not guilty at 

a judicial proceeding does not prohibit discharge proceedings for serious misconduct. 

However, the offense must be established by a preponderance of the evidence. Police 

reports and reports of investigation may be used to make the determination that 

a member committed a serious offense. 

In addition, Coast Guard policy mandates that any applicant convicted of a felony 

or a domestic violence offense is ineligible for enlistment or commission (Coast 

Guard Recruiting Manual, Commandant Instruction M1000.2E). 

6. Senator SHAHEEN. Mr. Taylor and General Patton, what role will you play in 

aligning the Services discharge policy for sex offenders? 

Mr. TAYLOR. In DOD, administrative discharge policy is established by the acting 

Under Secretary of Defense for Personnel and Readiness. I and my staff will support 

and provide legal advice to the acting Under Secretary and her staff on discharge 

policy for sex offenders. 

General PATTON. Servicemembers who have been convicted of a sexual assault are 

not allowed to continue to serve. Existing Service policies require that an individual 

convicted at courts-martial for a qualifying sexual offense who did not receive a punitive discharge (Bad Conduct Discharge or Dishonorable Discharge) be processed 

for administrative separation. Now, in addition to our policy requirements manVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00180 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
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dating separation, the NDAA for Fiscal Year 2013 requires all servicemembers convicted of a sexual assault offense at courts-martial be processed for separation. 

The oversight of discharge policy for sexual offenders is within the authority of 

the Under Secretary of Defense for Personnel and Readiness and my office continues 

to monitor progress in implementing policies to comply with this provision of the 

NDAA for Fiscal Year 2013. 

QUESTIONS SUBMITTED BY SENATOR JAMES M. INHOFE

ADJUDICATION OF MILITARY SEXUAL ASSAULT

7. Senator INHOFE. Mr. Taylor, General Chipman, Admiral DeRenzi, General Ary, 

General Harding, General Patton, and Admiral Kenney, is the military justice system, as established by Title 10, U.S. Code, the Uniform Code of Military Justice 

(UCMJ), adequate for the mission of providing efficient, effective, and fair adjudication of sexual assaults? 

Mr. TAYLOR. I believe that it is. That said, no system is perfect and the military 

justice system should remain subject to continuing review, and amended as necessary to make it better. The Joint Service Committee (JSC) on Military Justice in 

DOD conducts annual reviews of the military justice system, and when appropriate 

proposes changes to the UCMJ and the Manual for Courts-Martial. In addition, 

Congress directed the Secretary in section 576 of the NDAA for Fiscal Year 2013 

to establish an independent panel to take a comprehensive look at the military justice system and the crime of sexual assault. That review will be thorough and 

searching, and it will be informed by experience within and outside the existing 

military justice system. 

General CHIPMAN. The UCMJ, established under title 10, U.S.C., is more than 

adequate for the mission of providing efficient, effective and fair adjudication of sexual assaults. The system, in existence and evolving since the 1950s is focused and 

well resourced. All involved in the system are intent on doing what is right and cognizant of the necessary scrutiny we receive every day. 

We have a modern, comprehensive offender-focused sexual assault statute that 

recognizes constructive force as it exists in the military hierarchy and provides for 

the prosecution of drug or alcohol-facilitated assaults. The UCMJ criminalizes a 

broad range of misconduct, including the precursor behaviors to sexual assault such 

as sexual harassment and indecent language, allowing commanders to hold offenders accountable for what is considered non-criminal behavior in the civilian community. The UCMJ also provides a wide range of disposition options, allowing commanders to address the entire spectrum of sexual misconduct and to hold offenders 

accountable in administrative proceedings when the evidence does not merit a courtmartial. 

Military commanders, responsible for good order and discipline, form the core of 

our system and have the authority necessary to punish misconduct locally, visibly 

and quickly. These commanders are trained in their responsibilities from commissioning through senior commands. Prior to assuming brigade command, officers attend Senior Officer Legal Orientation courses at The Judge Advocate General’s 

Legal Center and School (TJAGLCS) with a focus on sexual assault cases. General 

officers receive individual instruction at the TJAGLCS on the same topics. 

Army Judge Advocates are provided with an integrated, synchronized training 

model that takes them from initial entry through senior military justice assignments. Many of the courses focus on sexual assault as those often complex factual 

scenarios raise the entire spectrum of evidentiary issues while presenting advocacy 

challenges. The core of our prosecution program for sexual assault offenses are the 

Special Victim Prosecutors. Hand-selected at the Department of the Army level for 

their courtroom skill and experience and their proven ability to work with victims, 

these counsel are involved in every allegation of sexual assault. Special Victim Prosecutors complete an intense and comprehensive training program prior to assuming 

their duties including nationally-recognized career prosecutor courses and on-the-job 

training with a civilian special victim unit in a major metropolitan city. Special Victim Prosecutors confer early and often with specially trained investigators from the 

U.S. Army Criminal Investigation Command to ensure a thorough and professional 

investigation while providing compassionate support to victims. Full-resourcing requires that the Army provide commensurate funding and resources to the defense 

bar that represents accused soldiers. 

The military justice system is well equipped to meet the challenges of crime and 

indiscipline in the Army, especially the crime of sexual assault, and will hold offendVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00181 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
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ers appropriately accountable, protect the due process rights of accused soldiers, and 

provide justice and support for victims. 

Admiral DERENZI. Yes, the UCMJ and accompanying Manual for Courts-Martial 

provide a military justice system with guarantees for an efficient, effective, and fair 

adjudication of any criminal allegation, including those involving sexual assault. 

Offender accountability has both investigative and military justice components. 

An unrestricted report of sexual assault triggers a full investigation. The Naval 

Criminal Investigative Service (NCIS) investigates all allegations of sexual assault 

and has agents who are specially trained to conduct adult sexual assault investigations. 

Once an NCIS investigation is complete, the case is forwarded to the appropriate 

commander to make an initial disposition decision. Reports of the most serious sexual assaults must be reviewed by Navy captains (pay grade O–6) or above who are 

designated as Special Court-Martial Convening Authorities. Those Initial Disposition Authorities must consult with a judge advocate prior to making disposition determinations. Lesser forms of sexual assaults, including sexual contact offenses, are 

also independently investigated by NCIS and provided to command for appropriate 

disposition, to include advice from a judge advocate prior to final operational reporting on all sexual assault allegations. 

Once the appropriate commander decides a case should be prosecuted, the Navy 

JAG Corps supports the commanders and provides prosecutors, defense attorneys, 

and military judges to conduct the court-martial, as well as Active Duty and Reserve judge advocates with fleet and litigation experience to serve as Investigating 

Officers at Article 32 pretrial investigation hearings. The JAG Corps’ mission includes providing a fair, effective, and efficient military justice system, and we are 

intensely focused on upholding the special trust placed upon us in the prosecution, 

defense, and adjudication of sexual assault cases. 

The commander’s role in military justice is vital to maintaining good order and 

discipline, including holding offenders accountable. The support provided by judge 

advocates to commanders in exercising that vital role ensures the fair, efficient and 

effective administration of justice for the accused as well as the victim. 

General ARY. The military justice system, as established by the UCMJ, is adequate for this mission. We are constantly looking at ways to improve the UCMJ and 

the practice of law. Consequently, the Marine Corps has members on the JSC for 

Military Justice, which is a standing committee that is charged (through DOD Directive) with conducting an annual review of the Manual for Courts-Martial (MCM) 

in light of judicial and legislative developments in civilian and military practice. The 

JSC reviews proposed amendments with a few basic goals in mind: (1) conformity 

with Federal practice to the extent possible, except where the UCMJ requires otherwise or where specific military requirements render such conformity impracticable; 

(2) usefulness to military law practitioners (military and civilian) and non-lawyers; 

and (3) workability across the spectrum of circumstances in which courts-martial 

are conducted, including combat conditions. By continuously reviewing the MCM, 

the JSC regularly looks for ways to improve its efficiency, effectiveness, and fairness. 

General HARDING. Yes, with one caveat. The Air Force fully supports Secretary 

Hagel’s direction to prepare a legislative proposal to amend Article 60. 

General PATTON. Yes, it is. As it does for all offenses in the UCMJ, the military 

justice system ensures that sexual assault cases are appropriately and fairly adjudicated. Further, the military justice system recognizes the distinct role of commanders. Commanders are responsible for the readiness of their unit and the health 

and welfare of their assigned servicemembers. To this end, they establish standards 

of behavior enforce these standards and hold people accountable for meeting them. 

Inherent in this responsibility is the authority to address misconduct and offenses 

and impose discipline in accordance with the military justice system. Finally, in 

June 2012, the Secretary of Defense withheld the initial disposition authority from 

all commanders who are not at least special court-martial convening authorities and 

in the grade of O–6 (colonel or Navy captain) for the most serious sexual assault 

offenses (rape, sexual assault, forcible sodomy and attempts to commit theses offenses). This policy ensures cases of sexual assault receive a high level of command 

attention and scrutiny from more seasoned, experienced commanders. 

Admiral KENNEY. The military justice system apparatus—with specific rules of 

procedure, evidentiary court rules, professionalized practitioners, and independent 

judicial bodies—has more in common with the Federal civilian courts than differences. The U.S. military justice system today is one of the best, most fair and 

just systems in the world. However, we should not take the status quo for granted. 

While the system works well, it is not perfect. There should be, and there is, a 

never-ending quest to improve it. 

179 

IMPROVEMENTS FOR PROCESSING SEXUAL ASSAULTS

8. Senator INHOFE. Mr. Taylor, General Chipman, Admiral DeRenzi, General Ary, 

General Harding, General Patton, and Admiral Kenney, what legislative changes, 

if any, do you recommend to improve the military justice system to improve processing of sexual assault cases? 

Mr. TAYLOR. Although I have no specific recommendations to make at this time, 

I believe that a review of the military justice system is appropriate, because every 

system can be improved. That review should not be limited to cases regarding allegations of sexual assault, however, but should include all alleged criminal acts. In 

the Department, the JSC on Military Justice conducts annual reviews of the military justice system, and proposes changes to the UCMJ and the Manual for CourtsMartial. In addition, the Independent Panel directed in the NDAA for Fiscal Year 

2013 will begin this summer, and will review the military justice system in detail. 

Together, these efforts should provide us with important recommendations to improve military justice. 

General CHIPMAN. For the past 6 years, the NDAA has legislated important and 

comprehensive changes to the military justice system and improvements to the 

Services’ efforts to prevent and combat sexual assault crimes. The Services have 

also implemented innovative and profound changes to regulations, policies and the 

way we investigate and prosecute these offenses to affect a change in culture. The 

Army needs time to fully explore and evaluate the effectiveness of all of these 

changes and the second- and third-order effects on our system. 

The JSC with Judge Advocate representatives from each Service is tasked by the 

President to provide an annual assessment of the UCMJ. The JSC is responsible 

for studying, drafting, and submitting any amendments to the UCMJ, the Rules for 

Court-Martial, and the Military Rules of Evidence. Issues for study are tasked by 

the Office of the General Counsel, the public, or the individual Services. This enduring collective mechanism for evaluating and improving the military justice system 

provides an ongoing joint forum to review potential issues and challenges and make 

appropriate recommendations. 

The Army is convinced that our focus on the Special Victim Capability and the 

constant training and education of soldiers, commanders, investigators, and judge 

advocates will help create a command climate that will allow military victims to feel 

safe and confident in reporting misconduct, the critical first step in effectively processing sexual assault cases. 

Admiral DERENZI. The Services are currently reviewing possible modifications to 

a Convening Authority’s (CA) authority to change the findings and sentence of a 

court-martial under Article 60 of the UCMJ. 

The Navy is receptive to appropriate changes in this authority, and DOD is taking 

a deliberate approach to reviewing proposals to ensure there are no unintended negative consequences to the UCMJ or the military justice process. 

Other changes to the military justice system, to include legislative changes, are 

regularly proposed, studied by the JSC on Military Justice, and submitted to Congress when appropriate. We have had a number of legislative changes over the past 

several years, and it is important to provide run time for these initiatives and then 

assess them before making continuous change in this area. The Navy believes study 

by the newly passed Systems Response Panel is a good avenue to assess recent 

changes and provide recommendations for improvement. 

General ARY. The Marine Corps supports the legislative changes proposed by the 

Secretary of Defense. Specifically, the Secretary has directed the acting General 

Counsel of the DOD, in coordination with the Secretaries of the Military Departments, to prepare a legislative proposal that would amend Article 60 to eliminate 

the discretion of the convening authority to change the findings of a court-martial 

except for certain minor offenses. Additionally, the legislative proposal will require 

the convening authority to explain in writing any modifications made to court-martial sentences, as well as any changes to findings involving minor offenses. 

General HARDING. The JSC on Military Justice has been tasked to study several 

initiatives that have been proposed to improve processing of sexual assault cases. 

The Air Force also fully supports Secretary Hagel’s direction to prepare a legislative 

proposal to amend Article 60 of the UCMJ. I also support legislation stating that 

in court-martial proceedings, when a victim has a right to be heard, the victim also 

has a right to be heard through counsel; the victim may seek to enforce this right 

to be heard through seeking a writ of mandamus through military appellate courts 

and military courts have authority to issue a mandamus order to the trial court. 

General PATTON. The NDAA for Fiscal Year 2013 established two independent 

panels to review and assess the systems to investigate, prosecute, and adjudicate 

cases involving adult sexual assault offenses. The first panel will review and assess 

180 

the UCMJ response systems used to investigate adult sexual crimes under Article 

120 for the purpose of providing recommendations on how to improve the effectiveness of such systems. The second panel will review and assess judicial proceedings 

under the UCMJ involving adult sexual offenses since the amendments passed in 

the NDAA for Fiscal Year 2012. 

I believe it prudent to allow the panels to perform their duties, as prescribed in 

law, to inform new legislation. 

Admiral KENNEY. This nation can be proud of its military justice system. The 

modern system embraces the appropriate balance between maintaining good order 

and discipline within the ranks and protecting the civil liberties of those individuals 

accused of a crime. Since its inception, the UCMJ has been modified and amended, 

and it will continue to change in order to adapt to our evolving democratic and diverse nation. The modern military justice system has achieved legitimacy as a fair 

judicial process measured by its treatment in Supreme Court decisions and opinions 

of servicemembers. Nevertheless, current aspects of military justice are worthy of 

robust examination and debate. However, it is important that serious thought goes 

to how the UCMJ should be changed, as to what should be changed. 

With this aim in mind, the NDAA of 2013 creates two independent panels—the 

Response System Panel and the Judicial Proceedings Panel—that will provide an 

empirical data-driven study to assess criminal justice systems used to investigate, 

prosecute, and adjudicate crimes involving adult sexual assault and related offenses. 

This deliberate and thoughtful study is an appropriate method to consider possible 

changes to the UCMJ. 

The Coast Guard supports the Secretary of Defense’s recent decision to seek legislative changes to Article 60 by eliminating a convening authority’s ability to grant 

clemency on a courts-martial findings, except for certain minor offenses that would 

not ordinarily warrant trial by court-martial; and by requiring a convening authority to explain in writing any changes made to a court-martial sentence, as well as 

any changes to findings involving minor offenses. 

RESOURCING FOR MILITARY JUSTICE

9. Senator INHOFE. General Chipman, Admiral DeRenzi, General Ary, General 

Harding, and Admiral Kenney, do you have an adequate number of judge advocates, 

enlisted legal clerks and technicians, and civilian staff to meet requirements for 

military justice? 

General CHIPMAN. The Army has an adequate number of Judge Advocates, enlisted legal clerks and technicians and civilian staff to meet the requirements for 

military justice. The Personnel, Plans, and Training Office is responsible for ensuring adequate numbers of Judge Advocates and appropriate assignments to meet all 

of the missions of the Judge Advocate General’s Corps. 

Continued, predictable resourcing of our robust training program will ensure that 

practitioners, both prosecution and defense, are prepared to execute their duties professionally and with well-honed advocacy skills. 

Admiral DERENZI. The JAG Corps community is adequately manned to meet military justice requirements. We continue to carefully monitor manning and evaluate 

requirements to meet current and future missions. Additional JAG Corps mission 

requirements or changes in funding for billets would require reevaluation of manning requirements. 

General ARY. Yes. Before reorganizing our legal community last year, we conducted an in-depth, wholesale, requirements-based analysis of each legal billet and 

each unit with legal personnel in the Marine Corps. This analysis included gathering statistics of legal support requirements and operational planning teams made 

up of senior judge advocates, enlisted personnel, and legal administrative officers. 

After months of planning, the Commandant of the Marine Corps directed this reorganization, which became operationally capable on 1 October 2012. Therefore, the 

Marine Corps has recently validated its legal personnel requirements within this 

new model for the provision of legal services. 

General HARDING. Yes. However, standing up the Special Victims’ Counsel (SVC) 

Program will drive a resource bill. Because military justice is required by statute 

and is integral to good order and discipline, we will continue to devote the resources 

needed to meet all military justice requirements. To the extent, though, that we are 

required to re-purpose existing resources for the SVC Program, we will have to reduce legal services in other practice areas. See the answer to question . 

Admiral KENNEY. With the current criminal caseload levels, the Coast Guard 

maintains an adequate number of judge advocates and legal support staff to fulfill 

its military justice requirements. 

181 

To meet its legal service requirements, the Coast Guard has approximately 195 

officers designated as judge advocates serving on active duty, of whom 150 are serving in legal billets and 45 are serving in ‘‘out-of-specialty’’ billets. Fourteen Staff 

Judge Advocates advise seventeen officers exercising general court-martial jurisdiction. Those fourteen SJAs as well as three additional independent duty SJAs at 

training centers advise approximately 350 officers exercising special court-martial 

jurisdiction. Responsibility for detailing trial and defense counsel to general and 

special courts-martial rests with the Chief, Office of Legal and Defense Services, a 

staff office reporting to the Deputy Judge Advocate General charged with providing 

defense and personal legal services to Coast Guard members. Pursuant to an interservice memorandum of understanding, the U.S. Navy provides trial defense counsel 

for all Coast Guard courts-martial. In return, at least four Coast Guard attorneys 

are assigned to full time duty, typically for 1-year or 2-year assignments, at one or 

more Navy Defense Service Offices or Regional Legal Service Offices. 

The Coast Guard has one general courts-martial judge and eight collateral-duty 

special courts-martial judges. The Coast Guard plans to reduce the number of collateral-duty special courts-martial judges to six by July 2013. 

The Office of Military Justice at Coast Guard Headquarters is responsible for representing the United States in all courts-martial appeals and providing support to 

staff judge advocates and trial counsel (prosecutors) throughout the Coast Guard. 

The office is also responsible for developing military justice policy for the Coast 

Guard, including participation on the JSC on Military Justice. The Office of Legal 

and Defense Services is responsible for defense appellate representation. 

END STRENGTH

10. Senator INHOFE. General Chipman, Admiral DeRenzi, General Ary, General 

Harding, and Admiral Kenney, what is your projected fiscal year 2013 end strength 

of officers, enlisted, and civilians? 

General CHIPMAN. The Army Judge Advocate General’s Corps is projected to have 

1,975 officers, 104 warrant officers, and 1,708 enlisted personnel on active duty at 

the end of fiscal year 2013. Under the qualifying authority of The Judge Advocate 

General of the Army, we anticipate a fiscal year 2013 end strength of approximately 

575 civilian attorneys, which is a subset of the approximately 1,390 civilian attorneys employed throughout the Department of the Army. These attorneys provide 

support to all legal practice areas, but are generally concentrated within the civil 

law practice. In legal offices under TJAG’s technical control, the non-attorney civilian employees belong to local commanders and are not centrally-managed. We estimate a fiscal year 2013 end strength of approximately 625 non-attorney civilian 

paraprofessionals in legal offices under TJAG’s technical control. This is a total of 

4,987 personnel. 

Admiral DERENZI. 

Active Duty 

The fiscal year 2013 projected end strength is 825 officers, 416 legalmen, and 437 

civilians. 

The legalman end-strength is below the number of authorized billets, but the JAG 

Corps will close this gap by the end of fiscal year 2014. 

Reserve 

The fiscal year 2013 projected end strength is 451 officers and 174 legalmen. 

General ARY. The estimated fiscal year 2013 end strength for legal personnel (including patients, prisoners, trainees, and transients or ‘‘P2T2’’) is 635 judge advocates, 18 legal administrative officers, 542 enlisted legal services support specialists, 

and 71 civilians (does not include Departmental attorneys who do not provide direct 

support to the Marine Corps). 

General HARDING. Projected as of the end of this fiscal year, the authorized funded positions for active (versus Air Reserve component) forces in The Judge Advocate 

General’s Corps are: 1,234 officers, 899 enlisted, and 885 civilians (GS, or equivalent, and SES). Projected as of the end of the fiscal year, authorized funded positions for the Air Reserve component are 930 officers and 414 enlisted. 

Admiral KENNEY. Officers - 6,803; Chief Warrant Officers - 1,668; Enlisted Members - 32,635; and Civilians - 8,305. 

182 

ROLE OF RESERVE COMPONENT FOR MILITARY JUSTICE

11. Senator INHOFE. General Chipman, Admiral DeRenzi, General Ary, General 

Harding, and Admiral Kenney, what is the role of the Reserve component in the 

military justice system? 

General CHIPMAN. The Army Judge Advocate General’s Corps is projected to have 

1,975 officers, 104 warrant officers, and 1,708 enlisted personnel on active duty at 

the end of fiscal year 2013. Under the qualifying authority of The Judge Advocate 

General of the Army, we anticipate a fiscal year 2013 end strength of approximately 

575 civilian attorneys, which is a subset of the approximately 1,390 civilian attorneys employed throughout the Department of the Army. These attorneys provide 

support to all legal practice areas, but are generally concentrated within the civil 

law practice. In legal offices under TJAG’s technical control, the non-attorney civilian employees belong to local commanders and are not centrally-managed. We estimate a fiscal year 2013 end-strength of approximately 625 non-attorney civilian 

paraprofessionals in legal offices under TJAG’s technical control. This is a total of 

4,987 personnel. 

Admiral DERENZI. Navy Reserve component judge advocates are involved in all 

phases of the military justice process. Many Reserve judge advocates have extensive 

State and Federal criminal law expertise developed through civilian employment as 

prosecutors, defense attorneys, and judges, and that expertise is utilized when performing active duty service. 

The Reserve Law Program includes nine Navy Reserve Region Legal Service Office units (NR RLSOs) and two Navy Reserve Defense Service Office units (NR 

DSOs). Judge advocates assigned to NR RLSOs typically provide prosecution assistance and command services to sea and shore commands. Reserve judge advocates 

also serve as UCMJ Article 32 pretrial investigation officers. Judge advocates assigned to NR DSOs provide defense services relating to courts-martial and administrative separations. In addition to NR RLSOs and DSOs, the Reserve community 

has five units which provide specialized military justice support: 

• The NR Navy-Marine Corps Appellate Review Activity (NAMARA)/Military Justice unit supports the Office of the Judge Advocate General (OJAG) 

Criminal Law Division oversight of military justice in the Department of 

the Navy, including policy, administration, and support to practitioners in 

the field and also supports the Deputy Assistant Judge Advocate General 

for Military Law and Assistant Judge Advocate General for Military Justice 

in reviewing courts-martial and petitions for new trials. 

• The NR NAMARA Defense Unit supports the OJAG Appellate Defense 

Division in the representation of servicemembers before the Navy and Marine Corps Court of Criminal Appeals, U.S. Court of Appeals for the Armed 

Forces, and the U.S. Supreme Court. 

• The NR NAMARA Government Unit supports the OJAG Appellate Government Division in representing the Government in all criminal appeals. 

• The NR Appellate Judiciary Activity supports the OJAG Appellate Judiciary. Reserve Appellate Military Judges receive the same training as their 

active duty counterparts, in addition to any training they receive as civilian 

attorneys. 

• The NR Trial Judiciary Activity supports the OJAG Trial Judiciary. Reserve Trial Military Judges receive the same training as their active duty 

counterparts, in addition to the training they receive as civilian attorneys. 

Approximately one third of the mission of the trial judiciary is met by the 

Reserves. 

General ARY. The role of the Reserve component is to provide Reserve legal services to the total force to support active and Reserve requirements. reservists provide 

continuous, effective Reserve legal support, across all core functional areas, including military justice, in support of Headquarters Marine Corps, the operating forces, 

and the supporting establishment, in garrison and deployed. The Reserve component 

does so in order to facilitate and ensure mission accomplishment, unit readiness, 

maintenance of good order and discipline, and protection of the rights of the accused 

and the interests of victims. 

The Marine Corps Reserve legal community is currently undergoing a reorganization to closely mirror the active duty legal reorganization. The guiding principle for 

this reorganization is placing the right counsel, at the right place, at the right time, 

with the right support and supervision. This Reserve legal reorganization will ensure that the SJA to CMC has control of assignments of all legal support providers. 

Such support includes force augmentation that provides Reserve leadership to the 

legal services support sections and teams and ensures that the active component 

183 

has sufficient assets to provide general support to all Marine Corps units and organizations. 

Many Marine Corps Reserve judge advocates are assistant U.S. attorneys, district 

attorneys, or criminal defense attorneys in their civilian careers. Consequently, the 

Marine Corps draws on their experience to supplement the active component when 

necessary. These Reserve judge advocates supervise and train less experienced judge 

advocates, and also try cases. 

General HARDING. Our legal professionals in the Air Force Reserve and Air National Guard play a significant role in our military justice system. In addition to 

fulfilling their roles, where appropriate, as staff judge advocates under the UCMJ, 

our Air Reserve component members also participate in non-judicial punishment 

and court-martial actions in both the active duty and Reserve contexts as part of 

their regular training. Air Reserve component judge advocates frequently serve as 

Article 32 investigating officers, and reservists serve as military judges at both the 

trial and appellate levels. In addition to utilizing their excellent substantive legal 

work, our Corps takes advantage of the significant litigation experience found in our 

Air Reserve component members—reservists and Guardsmen alike—by facilitating 

their training of our more junior active duty judge advocates. This training is accomplished through instruction sponsored by The Judge Advocate General’s School, 

through a traveling advocacy instruction program called the ‘‘TRIALS team’’ (Training by Reservists in Advocacy and Litigation Skills), and through on-the-job training 

and mentorship. 

Admiral KENNEY. Coast Guard Reserve Legal Program is a key provider of legal 

services, particularly during contingency operations such as the Deepwater Horizon 

Incident or the aftermath of Hurricane Katrina. The role individual Reserve judge 

advocates play in the military justice system often depends on their prior training 

and experience, as well as their civilian legal specialty. 

Last year, Coast Guard Director of Reserve and Military Personnel approved a reorganization plan of the Coast Guard Reserve Legal Program by creating deployable 

Reserve legal teams that would maximize the delivering of quantifiable and quality 

legal services during incidents of national significance, as well as allowing Reserve 

judge advocates and enlisted personnel to provide augmentation support to Coast 

Guard servicing legal offices. The reorganization plan offers structured training to 

Reserve judge advocates to provide command advice in the military justice context. 

While the training, itself, does not provide them with the requisite knowledge to act 

as government or defense counsel in a court-martial, it does provide the legal skills 

necessary to provide military justice advice to Incident Commanders during a contingency operation and also to assist in initiating low-level disciplinary action for 

uniquely military-type offenses or minor misdemeanor type-crimes that are typically 

resolved at summary court-martial and non-judicial punishment. However, some Reserve attorneys possess significant military justice experience gained from active 

duty service. 

12. Senator INHOFE. General Chipman, Admiral DeRenzi, General Ary, General 

Harding, and Admiral Kenney, what is the role of the Reserve component in the 

prosecution and defense of sexual assault cases? 

General CHIPMAN. Army Reserve Judge Advocates advise commanders and criminal investigators, and they consult with Special Victim Prosecutors regarding the 

prosecution and defense of sexual assault cases. Currently, all cases involving an 

allegation that a Reserve component soldier has attempted or committed an unlawful sexual act or sexual contact must be reported to the Commanding General of 

the U.S. Army Reserve Command (CG, USARC) prior to disposition. 

If court-martial is appropriate, the case will normally be referred to an Active 

Component General Court-Martial Convening Authority. However, Army Reserve 

Judge Advocates will continue to assist their Active component counterparts, as necessary, by helping to finalize the investigation, drafting the charge sheet and prosecution brief, participating in the Article 32 investigation, and participating in the 

actual court-martial. 

If court-martial is not appropriate, the CG, USARC, may take appropriate administrative or disciplinary action against the accused soldier himself, or he may release 

the authority to dispose of the allegation to an O–6 commander at the brigade level 

or higher, who is required to obtain advice from his servicing Judge Advocate before 

taking action. 

Admiral DERENZI. Due to the time required for criminal litigation and the typically limited duration of Reserve orders, Reserve judge advocates do not often serve 

as lead prosecutors or defense counsel in sexual assault cases. Drawing upon their 

civilian expertise, Reserve judge advocates frequently assist their active duty counterparts by providing substantive advice when particular issues arise in the context 

184 

of these cases. This reachback capability is not limited to drill weekends but is 

available on demand through flexible and incremental drilling programs established 

by the Chief of Navy Reserve. It is quite common for Reserve judge advocates with 

criminal law experience, and especially those with experience in sexual assault 

cases, to assist on particular cases outside of the normal drill weekend. 

General ARY. As stated in Question 11, the Reserve component plays an important role in the prosecution and defense of many complex cases, including sexual 

assault cases. Reserve prosecutors provide expert advice, assistance, and training on 

military justice matters, including trial and appellate advocacy, strategy, and ethics, 

and they also try cases when the complexity of the case so demands. On the defense 

side, senior Reserve defense counsel assist the active duty regional defense counsel, 

provide mentoring advice and assistance, and provide professional guidance and 

support to assigned Active Duty and Reserve defense counsel. Other Reserve defense counsel represent marines and sailors in the appellate courts. Therefore, the 

Marine Corps leverages the experience that the Reserve community provides and 

uses Reserve component trial and defense counsel to lead, mentor, and train Active 

component judge advocates, which increases the level of competence and professionalism of counsel who prosecute and defend clients in sexual assault cases. 

General HARDING. Air Reserve component judge advocates play an active and visible role in our Corps’ handling of sexual assault cases. At Joint Base San AntonioLackland, for example, our Military Training Instructor Prosecution Task Force has 

been led by two judge advocate colonels in the past year, both of whom are Reserve 

colonels. Other personnel on that task force included three Reserve judge advocates 

and two Reserve paralegals, all of whom have volunteered to serve on long-term orders in support of this effort. The duties of these individuals include, among other 

things, case evaluation, drafting of charges and specifications, and trial. More generally, Air Reserve component judge advocates participate actively as Article 32 investigating officers and as trial counsel. reservists are also assigned as appellate 

government and appellate defense counsel. 

Admiral KENNEY. Coast Guard Reserve Legal Program is a key provider of legal 

services, particularly during contingency operations such as the Deepwater Horizon 

Incident or the aftermath of Hurricane Katrina. The role individual Reserve judge 

advocates play in the military justice system often depends on their prior training 

and experience, as well as their civilian legal specialty. For the most part, however, 

Reserve judge advocates do not play a role in the prosecution or defense of criminal 

cases. 

Last year, Coast Guard Director of Reserve and Military Personnel approved a reorganization plan of the Coast Guard Reserve Legal Program by creating deployable 

Reserve legal teams that would maximize the delivering of quantifiable and quality 

legal services during incidents of national significance, as well as allowing Reserve 

judge advocates and enlisted personnel to provide augmentation support to Coast 

Guard servicing legal offices. The reorganization plan offers structured training to 

Reserve judge advocates to provide command advice in the military justice context. 

While the training, itself, does not provide them with the requisite knowledge to act 

as government or defense counsel in a court-martial, it does provide the legal skills 

necessary to provide military justice advice to Incident Commanders during a contingency operation and also to assist in initiating low-level disciplinary action for 

uniquely military-type offenses or minor misdemeanor type-crimes that are typically 

resolved at summary court-martial and non-judicial punishment. However, some Reserve attorneys possess significant military justice experience gained from active 

duty service. 

IMPACT OF REDEPLOYMENT ON MILITARY JUSTICE CASELOAD

13. Senator INHOFE. Mr. Taylor, General Chipman, Admiral DeRenzi, General 

Ary, General Harding, General Patton, and Admiral Kenney, as troops are redeployed to garrison as a result of the administration’s announced plan to reduce U.S. 

forces in Afghanistan, do you anticipate an increase in the overall rate of military 

justice cases and what plans are you taking in anticipation of any such increase? 

Mr. TAYLOR. We redeployed a significant number of troops from Iraq, and are now 

redeploying troops from Afghanistan. I believe in the men and women in our armed 

forces and do not anticipate a significant increase in the military justice caseload 

based solely on redeployments. The Military Services plan, program, and budget to 

meet expected requirements including requirements for implementation of an effective military justice system. 

General CHIPMAN. As troops are redeployed to garrison as a result of the administration’s announced plan to reduce U.S. forces in Afghanistan and as the Army exVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00188 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
185 

pects to draw down the number of troops, we do not expect an appreciable change 

in the overall rate of military justice cases. The Army Judge Advocate General’s 

Corps (JAGC) is well-prepared for any potential increases or decreases in the numbers of courts-martial. The Personnel, Plans, and Training Office is responsible for 

ensuring adequate numbers of Judge Advocates and appropriate assignments to 

meet all mission requirements of the JAGC. At each installation, the local Staff 

Judge Advocate has the ability to assign individual Judge Advocates to each division 

within the office to ensure all the missions are adequately resourced. 

Admiral DERENZI. No. Given the nature of Navy forces and assignments, we do 

not anticipate an increase in the overall rate of Navy military justice cases as a result of planned reductions in Afghanistan. 

General ARY. Overall the number of courts-martial has decreased over the last 

decade, but there is little empirical data to suggest that caseloads might increase 

as deployed forces return to garrison. Regardless, the Marine Corps maintains a 

cadre of trained and experienced litigators, supervisory counsel, and judges to effectively and efficiently meet the demands of the military justice system, including the 

prosecution and defense of complex cases. The 2012 legal reorganization has positioned the Marine Corps legal community to successfully meet these demands. 

General HARDING. While it is true that the rate of UCMJ offenses historically increases during peacetime, the Air Force does not anticipate an increase significant 

enough to warrant changing the current infrastructure to deal with criminal misconduct. 

General PATTON. Each of the Services maintains a cadre of trained and experienced litigators, supervisory counsel, and judges to effectively and efficiently meet 

the demands of the military justice system, to include the prosecution and defense 

of complex cases. 

Additionally, consistent with NDAA for Fiscal Year 2012 and Department policy, 

the staffing of full-time SARCs and Victim Advocates is being expanded across the 

Services at the brigade or equivalent level. This expansion will provide more awareness and ensure dedicated support and case management for victims of sexual assault. Additionally, the DOD Safe Helpline has been established as the sole DOD 

hotline for crisis support services. The Safe Helpline is available 24/7 worldwide for 

anonymous and confidential support and can be accessed by visiting 

www.safehelpline.org or by calling 1–877–995–5247. 

Admiral KENNEY. While Coast Guard military men and women have deployed 

abroad to support Operating Enduring Freedom, because of the small number of expected redeploying members, the Coast Guard does not anticipate an increase in the 

overall rate of military justice cases. 

STATUTORY AUTHORITY FOR VICTIM INPUT

14. Senator INHOFE. General Chipman, Admiral DeRenzi, General Ary, General 

Harding, and Admiral Kenney, does any Article of the UCMJ codify the ability of 

the victims of crime to provide information for consideration by the convening authority, prior to action on the results of courts-martial under Article 60? 

General CHIPMAN. There is no statutory authority for victims of crime to provide 

information for consideration by the convening authority, prior to taking action on 

the results of courts-martial under Article 60, UCMJ. 

Under Rule for Court-Martial (RCM) 1107(3)(B), the convening authority may review the record of trial. The record of trial would typically contain the victim’s testimony on findings and sentencing. Under RCM 1107, the convening authority may 

also review any other matters as the convening authority deems appropriate. However, if the convening authority considers matters adverse to the accused from outside the record, without the accused’s knowledge, the accused shall be notified and 

given an opportunity to rebut. 

The JSC with Judge Advocate representatives from each Service is responsible for 

studying, drafting, and submitting any RCM amendments to the President. The JSC 

is currently considering amendments to the post-trial processing rules, including 

RCM 1007, to provide the victim the right to be heard without jeopardizing the due 

process rights of the accused. 

Finally, the nine civilian members appointed to the Response Systems Panel, 

mandated by the NDAA for Fiscal Year 2013 are already tasked with comparing 

military and civilian justice systems for sexual assault offenses, including the adequacy of systems and procedures to support victims. The Response Systems Panel 

will provide another source of expertise to examine current rules and recommend 

appropriate amendments. 

186 

Admiral DERENZI. Article 36 of the UCMJ delegates to the President the power 

to prescribe pretrial, trial, and post-trial procedures. Article 60(d) of the UCMJ enables the President to prescribe those matters that shall be included in the Staff 

Judge Advocate’s recommendation, which a convening authority (CA) must consider 

prior to taking post-trial action in a case. 

Rules for Courts-Martial 1106, ‘‘Recommendation of the Staff Judge Advocate,’’ 

and 1107, ‘‘Action by the Convening Authority,’’ permit consideration of additional 

matters deemed appropriate and 1107 states, ‘‘[b]efore taking action the convening 

authority may consider . . . such other matters as the convening authority deems appropriate.’’ Although the rule does not state with specificity that a victim can provide information for consideration by the CA, the rule does allow the CA to consider 

any such information. However, any adverse matter presented to the CA outside the 

record of trial would require additional opportunity for review and rebuttal by the 

accused prior to the CA taking action. 

General ARY. There is currently no statutory authority for a victim of a crime to 

provide information for consideration by the convening authority prior to action on 

the results of courts-martial under Article 60. However, pursuant to DODD 1030.1 

(Victim and Witness Assistance), ‘‘court-martial convening authorities and clemency 

and parole boards may consider victim statements on the impact of crime.’’ 

General HARDING. No. However, while the ability of victims of crime to provide 

victim impact statements to the convening authority is not currently codified in the 

UCMJ, nothing prevents a victim from providing such information for the convening 

authority’s consideration and many victims choose to do so. It is not uncommon in 

the Air Force for the victim to be given the opportunity to submit a written statement to the CA as part of the SJA’s recommendation to the CA on action. The Air 

Force is currently revising AFI 51–201, the military justice instruction, to formalize 

the opportunity for victims to provide victim impact statements as part of our posttrial process. 

Admiral KENNEY. There are no provisions in the UCMJ that specify that a victim 

of a crime may provide information to a convening authority after trial and prior 

to action. There is also no provision in the UCMJ that precludes a victim from submitting documentation to the convening authority. However, if the convening authority considers potentially adverse matters regarding the accused from outside the 

record of trial, the accused must be notified and provided an opportunity to respond. 

At a contested trial, a victim may testify during the presentation of the government’s case on the merits, and again during the sentencing phase to present evidence of aggravation directly relating to or resulting from the offenses of which the 

accuses has been found guilty. Matters of aggravation include providing testimony 

on the impact of the crime, such as financial, social, psychological, and medical 

harm experienced by the victim. This testimony is captured in the verbatim transcript and may be provided to convening authority as a matter to consider in clemency decisions. 

AUTHORITY FOR VICTIM INPUT; POST-TRIAL

15. Senator INHOFE. Mr. Taylor, General Chipman, Admiral DeRenzi, General 

Ary, General Harding, General Patton, and Admiral Kenney, should the UCMJ include authority for victims of crime to provide information for consideration by the 

convening authority, prior to action on the results of courts-martial under Article 

60? Or would a change to the Manual for Courts-Martial, perhaps to modify Rule 

1107 be the more appropriate method to provide victims this opportunity to be 

heard? 

Mr. TAYLOR. I personally believe that a very strong argument can be made that 

victims of all crimes should be afforded the opportunity to present information to 

the convening authority after a court-martial. The convening authority could then 

consider that information in deciding what action to take on the court-martial. I do 

not believe that a change to either the UCMJ or the Manual for Courts-Martial 

would be required legal1y to effect such a policy; the Secretary of Defense could do 

so. Whether it would be best to do so in law, in Executive Order, or in Department 

policy is an issue worthy of additional review. 

General CHIPMAN. The preferable method for providing authority for victims of 

crime to provide information for consideration by the convening authority prior to 

action is to amend the Rules for Court-Martial (RCM), rather than amendment of 

Article 60 UCMJ. 

The JSC with Judge Advocate representatives from each Service is responsible for 

studying, drafting and submitting any RCM amendments to the President. The JSC 

is currently considering amendments to the post-trial processing rules, including 

187 

RCM 1007 to provide the victim the right to be heard without jeopardizing the due 

process rights of the accused. The JSC members are the subject matter experts on 

the military justice system and will appropriately consider the second- and thirdorder effects any change to the post-trial rules will have on the due process rights 

of the accused and the efficient administration of military justice. 

Finally, the nine civilian members appointed to the Response Systems Panel, 

mandated by the NDAA for Fiscal Year 2013 are already tasked with comparing 

military and civilian justice systems for sexual assault offenses, including the adequacy of systems and procedures to support victims. The Response Systems Panel 

will provide another source of expertise to examine current rules and recommend 

appropriate amendments. 

Admiral DERENZI. The Navy is receptive to appropriate changes to provide this 

right to victims, and DOD is taking a deliberate approach to reviewing proposals 

to ensure there are no unintended negative consequences to the military justice 

process. The JSC on Military Justice has recently undertaken review of recommended revisions to the DOD Directive on victims’ rights as well as whether victims should be able to provide information to the Convening Authority. Therefore, 

the Navy does not believe there is a need to legislate this authority; it can be addressed through Departmental and Service policies and instructions or Rule 1107. 

General ARY. The JSC for Military Justice is currently working on a proposal to 

incorporate language into Article 60 and Rule 1107 that would allow victims of 

crime to provide information for consideration by the convening authority, prior to 

action on the results of courts-martial. The Marine Corps supports such an amendment to Article 60. The statute would include general language and the rule would 

provide further guidance on the timeline and content for a victim’s written submission. 

General HARDING. The Air Force supports providing the victims the opportunity 

to be heard throughout the military justice process. We believe either method could 

be appropriate. 

General PATTON. The NDAA for Fiscal Year 2013 established two independent 

panels to review and assess the systems to investigate, prosecute, and adjudicate 

cases involving adult sexual assault offenses. The first panel will review and assess 

the UCMJ response systems used to investigate adult sexual crimes under Article 

120 for the purpose of providing recommendations on how to improve the effectiveness of such systems. The second panel will review and assess judicial proceedings 

under the UCMJ involving adult sexual offenses since the amendments passed in 

the NDAA for Fiscal Year 2012. 

I believe it prudent to allow the panels to perform their duties, as prescribed in 

law, to inform any potential changes to the UCMJ. 

Admiral KENNEY. The military justice process should provide an affirmative legal 

process affording victims an opportunity to submit written materials to the convening authority before they take final action on a court-martial case. Either an 

amendment to Article 60 or a change to the Manual for Courts-Martial would have 

the force of law. However, due process considerations should be studied to ensure 

than any changes in the rules do not adversely affect the due process rights of the 

accused. 

The JSC on Military Justice is currently studying the authorities and rules regarding post-trial processes, including drafting procedural rules to provide an opportunity for victims to submit post-trial matters to convening authorities without exposing cases to appellate relief. In addition, the Response Systems Panel, which is 

statutorily mandated under the NDAA for Fiscal Year 2013 to conduct a comparison 

study of military and civilian justice systems, will review the issue regarding the 

capacity of the military justice system to provide an appropriate voice to victims of 

sexual assault. 

MANUAL FOR COURTS-MARTIAL AUTHORITY FOR VICTIM INPUT; POST-TRIAL

16. Senator INHOFE. Mr. Taylor, General Chipman, Admiral DeRenzi, General 

Ary, General Harding, General Patton, and Admiral Kenney, should the Manual for 

Courts-Martial be modified to provide authority for victims of crime to provide information for consideration by the convening authority, prior to action on the results 

of courts-martial? 

Mr. TAYLOR. I personally believe that a very strong argument can be made that 

victims of all crimes should be afforded the opportunity to present information to 

the convening authority after a court-martial. The convening authority could then 

consider that information in deciding what action to take on the court-martial. I do 

not believe that a change to either the UCMJ or the Manual for Courts-Martial 

188 

would be required legally to effect such a policy; the Secretary of Defense could do 

so. Whether it would be best to do so in law, in Executive order, or in Department 

policy is an issue worthy of additional review. 

General CHIPMAN. The preferable method for providing authority for victims of 

crime to provide information for consideration by the convening authority prior to 

action is to amend the Rules for Court-Martial (RCM), rather than amendment of 

Article 60 UCMJ. 

The JSC with Judge Advocate representatives from each Service is responsible for 

studying, drafting and submitting any RCM amendments to the President. The JSC 

is currently considering amendments to the post-trial processing rules, including 

RCM 1007 to provide the victim the right to be heard without jeopardizing the due 

process rights of the accused. The JSC members are the subject matter experts on 

the military justice system and will appropriately consider the second- and thirdorder effects any change to the post-trial rules will have on the due process rights 

of the accused and the efficient administration of military justice. 

Finally, the nine civilian members appointed to the Response Systems Panel, 

mandated by the NDAA for Fiscal Year 2013 are already tasked with comparing 

military and civilian justice systems for sexual assault offenses, including the adequacy of systems and procedures to support victims. The Response Systems Panel 

will provide another source of expertise to examine current rules and recommend 

appropriate amendments. 

Admiral DERENZI. The JSC on Military Justice has recently undertaken review 

of recommended revisions to the DOD Directive on victims’ rights as well as whether victims should be able to provide information to the Convening Authority. Therefore, the Navy does not believe there is a need to legislate this authority; it can be 

addressed through Departmental and Service policies and instructions or Rule 1107. 

General ARY. The JSC for Military Justice is currently working on a proposal to 

incorporate language into Article 60 and Rule 1107 that would allow victims of 

crime to provide information for consideration by the convening authority, prior to 

action on the results of courts-martial. The Marine Corps supports such an amendment to Article 60. The statute would include general language and the rule would 

provide further guidance on the timeline and content for a victim’s written submission. 

General HARDING. The Air Force supports providing the victims the opportunity 

to be heard throughout the military justice process. 

General PATTON. The NDAA for Fiscal Year 2013 established two independent 

panels to review and assess the systems to investigate, prosecute, and adjudicate 

cases involving adult sexual assault offenses. The first panel will review and assess 

the UCMJ response systems used to investigate adult sexual crimes under Article 

120 for the purpose of providing recommendations on how to improve the effectiveness of such systems. The second panel will review and assess judicial proceedings 

under the UCMJ involving adult sexual offenses since the amendments passed in 

the NDAA for Fiscal Year 2012. 

I believe it prudent to allow the panels to perform their duties, as prescribed in 

law, to inform any potential changes to the UCMJ. 

Admiral KENNEY. The military justice process should provide an affirmative legal 

process affording victims an opportunity to submit written materials to the convening authority before they take final action on a court-martial case. Either an 

amendment to Article 60 or a change to the Manual for Courts-Martial would have 

the force of law. However, due process considerations should be studied to ensure 

that any changes in the rules do not adversely affect the due process rights of the 

accused. 

The JSC on Military Justice is currently studying the authorities and rules regarding post-trial processes, including drafting procedural rules to provide an opportunity for victims to submit post-trial matters to convening authorities without exposing cases to appellate relief. In addition, the Response Systems Panel, which is 

statutorily mandated under the NDAA for Fiscal Year 2013 to conduct a comparison 

study of military and civilian justice systems, will review the issue regarding the 

capacity of the military justice system to provide an appropriate voice to victims of 

sexual assault. 

AIR FORCE SPECIAL VICTIMS COUNSEL PILOT PROGRAM

17. Senator INHOFE. General Harding, the Air Force recently created a unique 

pilot program to establish Special Victims Counsel for victims of sexual assault. In 

your statement you cited fiscal year 2011 sexual assault statistics, and noted that 

96 victims, who originally agreed to participate in the prosecution of their alleged 

189 

offender, changed their minds before trial and declined to cooperate with law enforcement personnel and the prosecution. These 96 victims represented 29 percent 

of the Air Force victims of sexual assault who had filed an unrestricted report of 

sexual assault. What measures of effectiveness will the Air Force use to evaluate 

this pilot program? 

General HARDING. The SVC Program is conducting an impact evaluation (IE) of 

the program over the course of the 1-year pilot phase. The IE will study two prongs 

to assess the program: (1) victim impact to assess the experiences of victims in the 

military justice process, and (2) Air Force impact to assess the effectiveness of the 

program from the perspectives of Commanders, SARCs, and their Family Advocacy 

Program counterparts, and Air Force Office of Special Investigation agents. The results of the IE will be included in a broader report delivered at the 1-year mark 

of SVC Program implementation (28 Jan 2014). In addition to the results of the IE, 

the SVC Program Report will also include: (1) an overview of the SVC Program, including training, outreach, workload, program successes, and lessons learned; (2) a 

summary of case law developed based on SVC litigation and a survey of the military 

justice landscape; (3) recommended policy changes to the SVC Program; (4) any recommended changes to Air Force and DOD policies and the Manual for Courts-Martial; and (5) any recommended legislative changes. 

RESOURCING IMPLICATIONS OF SPECIAL VICTIMS COUNSEL PROGRAM

18. Senator INHOFE. General Chipman, Admiral DeRenzi, General Ary, General 

Harding, and Admiral Kenney, if the Air Force Special Victims Counsel pilot demonstrates its effectiveness, what resourcing would be required to implement it, within current and projected end strength, in each branch of the armed services? 

General CHIPMAN. Implementation of additional victim advocacy services akin to 

the Air Force Special Victims Counsel pilot program would significantly strain current Army legal assistance resources. Representation of sexual assault victims is 

going to be very labor intensive, especially if services are expanded to include participation during interviews and any Article 32 or court-martial hearing. Additional 

resources will be needed. 

The Air Force pilot program is staffed with 60 Judge Advocates. The Army, as 

the largest Service, has a significantly higher case load. A comparison of court-martial data indicates that the number of Air Force Special Victim cases is approximately one third of the Army’s total. Using the Air Force pilot as a model and the 

ratio of Air Force to Army special victim cases, the Army would require an additional 180 Judge Advocates (or a combination of Judge Advocates and civilian attorneys). 

Army Legal Assistance Offices provide a wide range of services to our clients. 

These include estate planning, family law, consumer law, landlord-tenant issues, 

immigration/citizenship and taxes. Army Legal Assistance Attorneys also provides 

representation in a number of adverse military actions, to include rebuttals to determinations of financial liability and appeals of adverse fitness evaluations. The other 

Services provide these services through their Defense Counsel. Our largest Legal 

Assistance practice area has been the legal readiness of deploying soldiers, followed 

closely by family law matters. Unfortunately, we have also had to provide legal assistance to surviving families in casualty support cases. Many of our Legal Assistance Offices are already forced to turn clients away due to lack of resources. For 

example, in fiscal year 2012, 1 office reported seeing 5,466 clients, while turning 

away another 1,086 clients due to lack of available resources. 

Army Legal Assistance Attorneys already provide the full scope of services set 

forth in the 17 October 2011 Under Secretary of Defense for Personnel and Readiness Memorandum ‘‘Legal Assistance for Victims of Crime.’’ In addition to traditional legal assistance services, these include consultation regarding: the Victim 

Witness Assistance Program; the difference between restricted/unrestricted reporting in sexual assault cases; explanation of the Military Justice system; the availability of health and mental health services; the availability of and protections offered by restraining orders; and eligibility for transitional compensation and other 

benefits. They will also assist sexual assault victims in applying for protections/benefits, to include expedited transfer. 

Admiral DERENZI. The Air Force pilot is just one of the approaches being taken 

by the Services to support sexual assault victims. Like any pilot, it will serve to 

identify issues and alternatives. 

The Navy continues to develop and implement initiatives to focus on sexual assault prevention, response, and accountability with particular attention paid to the 

rights of victims. While the Navy does not intend to implement a similar pilot proVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00193 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
190 

gram, we are closely monitoring the Air Force pilot and will study the results of 

the pilot with the other Services. 

The Navy JAG Corps could not implement a program similar to the Air Force 

pilot without a significant increase in manpower and resources. As the Air Force 

pilot program is still in its early stages, any estimate of requirements would be 

speculative. The Air Force—a Service of similar size to the Navy—is currently using 

60 attorneys, plus support staff, on a part-time basis. The Air Force plans to move 

to 25 full-time attorneys and 10 paralegals this summer, with the option of increasing full-time attorney manning to 45 if there is sufficient demand (e.g., 450 clients). 

The Navy JAG Corps would need to evaluate the Air Force pilot to determine the 

manning model most appropriate for the Navy. 

General ARY. The use of victim’s counsel warrants study by the JSC on Military 

Justice before service-wide or DOD-wide implementation. The Marine Corps does 

not plan on instituting a victim’s counsel at this time. The comprehensive system 

of victim services currently provided by SARCs, Victim Advocates, legal assistance 

attorneys, and trial counsel in the Marine Corps meets the needs of all crime victims. The recent changes and improvements to our program of victim’s services 

needs to be observed and evaluated before incorporating a dramatic change on the 

level of a victim’s counsel program. If a SVC program was mandated in all the Services, we would also need to evaluate how to integrate the SVC program into the existing military justice system as well as look at resourcing issues. 

General HARDING. As mentioned in the answer to question #9, standing up the 

Special Victims’ Counsel Program will drive a resource bill for the Air Force, estimated at this time to be about 65 positions. To the extent we are required to repurpose existing resources at installations for the SVC Program, we may have to 

reduce legal services in other legal practice areas, such as administrative law, 

claims, contract law, environmental law, labor law, operations and international 

law, and legal assistance. For example, it is possible we will need to scale back our 

Legal Assistance Program, eliminating types of services we currently provide Airmen and their families (e.g., tax assistance), as well as categories of clients (retirees 

and/or family members). 

Admiral KENNEY. Implementation of a special victim counsel modeled after the 

Air Forces pilot program would significantly stretch the Coast Guard’s current legal 

resources. In fiscal year 2013, the Coast Guard had 141 unrestricted reports of sexual assault. In fiscal year 2011, there were 83 unrestricted reports. The Office of 

the Judge Advocate General is closely monitoring the Air Force program and considering its options to implement a Coast Guard Special Victim’s Course/Program with 

available resources. 

19. Senator INHOFE. General Chipman, Admiral DeRenzi, General Ary, General 

Harding, and Admiral Kenney, is there a requirement that the capability similar 

to the Air Force Special Victims Counsel must be a lawyer or could this capability, 

if it moves from pilot program, be effective with appropriately trained non-lawyers? 

General CHIPMAN. There is no requirement that the capability similar to the Air 

Force Special Victims Counsel pilot program must be a lawyer and the capability 

could be effective with appropriately trained paralegals serving as Victim Witness 

Assistance Personnel/Victim Witness Liaison (VWL). 

The impetus behind the Air Force’s program is to ensure that victims are educated about their rights and the military justice process and are, therefore, less likely to drop out of the process and refuse to cooperate with an investigation and prosecution. These concerns do not require a separate victim’s attorney to be addressed. 

First and foremost, the responsibility to protect the rights of the victim and to 

keep the victim informed and actively participating in the accountability process is 

the charter of the prosecutor. The relationship between the prosecutor and the victim is the foundation of every sexual assault prosecution, and the success or failure 

of each case rests on the strength of this relationship. The Air Force Special Victim 

Counsel could in fact create an adversarial relationship between the prosecutor and 

the victim. This will probably have the unintended and unfortunate effect of decreasing the Army’s ability to hold offenders accountable. 

Army VWLs are currently educating and assisting the victim in navigating some 

of the more difficult aspects of the adjudication process. Army VWLs, typically civilian paralegals assigned to the Staff Judge Advocate office, receive annual specialized training in working with victims of crime. As civilian paralegals, they are less 

likely to move on to a new position or installation than active duty Judge Advocates, 

providing valuable stability and continuity. Army VWLs educate victims about their 

rights and the military justice process, provide referrals and support throughout the 

process, will accompany victims to interviews if requested, arrange child care or 

transportation for court appearances, and sit with the victim during trial to answer 

191 

questions about the proceedings. Army VWLs work with victims after the court-martial to ensure notification of changes in confinement status or parole of an incarcerated soldier and assist victims with preparing victim impact statements for future 

parole hearings. The Army VWL at the Army Court of Criminal Appeals notifies victims when the case is considered on appeal and provides victims with opportunities 

to attend hearings or arguments. Feedback from victims and their families regarding the services of the Army VWLs is overwhelmingly positive. 

The Army is looking to further integrate the VWLs into the Special Victim Capability mandated by the NDAA for Fiscal Year 2013 and to improve and increase the 

amount of training VWLs attend. The Army believes that a cooperative, team approach to assisting the victim, with the prosecutor and the VWL working together, 

is the best approach to balancing the needs and interest of the victims with the 

Army’s interest in holding offenders accountable. 

Admiral DERENZI. The Navy believes it can be effective with non-lawyers. While 

the Navy is dedicated to ensuring victims of sexual assault are provided their full 

rights, an expansion of standing to a counsel representing a victim’s interest in a 

criminal proceeding needs careful thought and review prior to implementation. It is 

the Navy’s understanding that the Air Force pilot program is designed to help the 

Air Force determine the optimal way to assist sexual assault victims throughout the 

investigation and prosecution process. The Air Force pilot is just one of the approaches being taken by the Services. 

The Navy is dedicated to ensuring victims of sexual assault receive proper and 

timely support, to include medical treatment, counseling, and legal assistance. The 

Navy is hiring 66 credentialed sexual assault prevention and response coordinators 

and 66 full-time professional, credentialed victim advocates. They will augment the 

more than 3,000 active-duty command victim advocates, and will work with specially-trained NCIS investigators and JAG Corps prosecutors to form the core of our 

special victim capability. Our trained legal professionals also deliver direct legal assistance to victims. The JAG Corps instituted a Legal Assistance for Crime Victims 

conference and has trained more than 150 Navy and Marine Corps attorneys, paralegals, and enlisted personnel to ensure victims’ rights are understood and protected. Victims can contact counsel, and victims eligible for military legal assistance 

services also have access to legal assistance attorneys to help with a wide variety 

of legal issues related to being the victim of a crime. Additionally, Navy prosecutors 

provide victims with explanations of victims’ rights; the court-martial process; and 

available Federal, State, or local victim services and compensation. 

General ARY. The Marine Corps believes appropriate victim services and support, 

for all crime victims, can be provided by SARCs, Victim Advocates, legal assistance 

attorneys, and trial counsel. The Marine Corps is currently utilizing this comprehensive approach and will observe and evaluate the effectiveness of recent 

changes and improvements to our program of victim’s services before considering a 

dramatic change on the level of a victim’s counsel program. At a minimum, the use 

of victim’s counsel warrants study by the JSC on Military Justice before DOD-wide 

implementation. 

General HARDING. In the Air Force program, Special Victims’ Counsel must be an 

attorney. SVCs enter into an attorney-client relationship with victims protected by 

a confidentiality privilege in the same way that Area Defense Counsels enter into 

an attorney-client relationship with the accused. SVCs provide legal advice to victims of sexual assault and advise them of their legal rights under Federal law, particularly the UCMJ and the Military Rules of Evidence. Due to their familiarity 

with, and expertise in, military justice, SVCs also help victims understand the 

court-martial process and facilitate resolution of problems with prosecutors, defense 

counsel, judges, and law enforcement. Non-lawyers would not be able to provide the 

same level of support, nor could they offer protected/privileged confidential communication with a victim. 

Admiral KENNEY. As presently devised, the Air Force Special Victims Counsel enters into an attorney-client relationship, makes legal representation on the victim’s 

behalf, and promotes the individual interests of the victim without regard to how 

their legal actions affect the institutional interest of the military. Under this model, 

the Air Force’s program requires a lawyer. However, if the purpose behind the program is to educate the victim on the military justice process, facilitate access to victim services, and build resiliency of the victim to endure the criminal process, then 

a trained non-lawyer could be used. 

192 

SPECIAL VICTIMS COUNSEL; BALANCING GOVERNMENT AND DEFENSE

20. Senator INHOFE. Mr. Taylor, General Chipman, Admiral DeRenzi, General 

Ary, General Harding, and Admiral Kenney, what concern, if any, do you have that 

establishing Special Victims Counsel could be perceived as improperly undermining 

the necessary balance between the government and defense in the military justice 

system? 

Mr. TAYLOR. As a pilot program, the Air Force’s Special Victims Counsel program 

needs time to operate before any fair and thorough evaluation can be accomplished. 

The evaluation criteria will include the effect of the program on the rights of the 

accused, the trial counsel, the criminal investigators, and the convening authority. 

Ensuring that the program does not undermine the necessary balance between the 

government and defense in the military justice system is critical, both to ensure 

that that balance is maintained and to ensure that the program does not have the 

unintended effect of undercutting the prosecution of those who should be held to account. 

General CHIPMAN. The Services currently provided to sexual assault victims by 

Victim Advocates, SARCs, Victim-Witness Liaisons, Legal Assistance Attorneys, and 

Special Victim Prosecutors, among others, are comprehensive and readily accessible. 

These services are well-resourced and fully capable of meeting all of the legitimate 

needs of victims. The Army defense bar believes that any proposal to establish the 

Air Force Special Victims Counsel pilot program, although well-intentioned, is unnecessary and could have a detrimental impact on the administration of military 

justice. The participation in the court-martial process by Special Victim Counsel 

could be disruptive, complicate proceedings, and undermine a servicemember’s right 

to a fair trial. It would produce uncertainty on matters of discovery, inevitably delay 

cases, and inject confusion into the court-martial process. 

Admiral DERENZI. In the absence of clearly defined roles, responsibilities, and procedures, establishing special victims counsel could result in disparities in services 

provided to victims, procedural errors in courts-martial, encroachment on the rights 

of the accused, and possible adverse impact on prosecutions. 

Such an initiative must address how a victim’s statutory rights conflict with the 

constitutional rights of the accused. The relative priorities of the victim’s and the 

accused’s rights need to be delineated so that courts-martial are not forced to make 

ad hoc determinations. 

A victim’s counsel’s zealous representation could interfere with the necessarily direct relationship between the government counsel and the victim and/or cause the 

victim to perceive government counsel as a party-opponent who is not protecting his 

or her interests. Victim’s counsel may complicate prosecution efforts; at worst, victim’s counsel may impede prosecution efforts and run counter to initiatives intended 

to be more sensitive to a victim’s rights. 

Professional responsibility rules could also be implicated by such an initiative. 

Prosecutors and victim’s counsel need to have clear guidance to ensure compliance 

with applicable ethical rules. 

General ARY. There are three main components to the military justice system that 

must be carefully balanced in order to achieve a fair and just system: the commanders’ inherent responsibility to maintain good order and discipline, the constitutional rights of an accused, and the moral obligation to protect and care for victims. 

The Marine Corps is committed to caring for victims of sexual assault, yet is also 

responsible for ensuring that all marines accused of crimes receive a constitutionally 

fair trial that will withstand the scrutiny of appeal. The maintenance of this balance 

is another factor for the JSC to consider when studying the efficacy of the Special 

Victims Counsel program. If not carefully balanced, there is a potential concern that 

accused will be facing what could be perceived as two sets of Government counsel 

during a sexual assault prosecution. 

General HARDING. The SVC Program is a critical element of the Air Force’s ‘‘response’’ piece of the Sexual Assault Prevention and Response program. The SVC 

Program is a robust, and we believe necessary, expansion of legal assistance provided to victims of crime by statute in the NDAA for Fiscal Year 2012. The SVC 

Program does not expand the rights of victims in the military justice process, but 

rather gives a greater voice to and explanation of those rights. Victims have always 

been free to hire civilian counsel to represent them in the military justice process. 

An important note is that victims are not parties to a court-martial and do not have 

the same entitlements as parties under the UCMJ. If I believed there was no way 

that we could guarantee due process and other constitutional rights to accuseds in 

courts-martial and also provide attorneys to victims, I would not have recommended 

implementing an SVC program, and instead, I would have opposed standing up an 

SVC program. However, after great study and almost 3 months of experience in exeVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00196 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
193 

cuting our SVC program, I am even more convinced that we can guarantee an 

accused’s constitutional rights and provide counsel to victims in our UCMJ practice. 

Admiral KENNEY. The Air Force Pilot Program has been in effect for less than 

3 months. During this short period, the nascent program continues to evolve and 

adjust. To ensure that the program has the intended effect of assisting victims 

through the military justice process and facilitating prosecution of cases, further 

evaluation is required. Once sufficient information is received with regard to the 

program’s efficacy, the Coast Guard will determine the best course of action on how 

to proceed. 

In addition, the statutorily mandated Response Systems Panel is charged with 

comparing civilian and military jurisdictions, including best practices for providing 

support services to victims of sexual assault. Evaluation of this in-depth and 

thoughtful study will be helpful in proposing further implementation and avoiding 

unintended appellate law consequences. In the meantime, the Coast Guard is committed to providing the victims with professional support and services where victims 

and witnesses feel safe to come forward and report sexual assault. 

A significant potential issue is whether Special Victim Counsel can or ought to 

have any role in court. Adding a Special Victims Counsel to the personnel of a courtmartial (see Rule for Court-Martial 501(d)), could pose a variety of potential challenges, including suitability of existing trial procedures, confusion of court-martial 

members, and perceived or actual unfairness to the accused. The Coast Guard has 

reviewed the case of LRM v. Kastenberg, Misc. Dkt. No. 2013–05 (A.F. Ct. Crim. 

App. Apr. 2, 2013), where the Air Force Court of Criminal Appeals ruled that victim’s Special Victims Counsel had no standing to compel production of evidence. We 

are monitoring this case closely to determine its potential impact on a Coast Guard 

Special Victim Course program. 

VICTIM SUPPORT AND ADVOCACY PROGRAMS

21. Senator INHOFE. General Patton, how does the Special Victims Counsel pilot 

work to complement other victim support and advocacy programs throughout DOD? 

General PATTON. Implemented on January 28, 2013, the Air Force Special Victims 

Counsel program is well underway with 60 specially trained attorneys providing 

legal representation. As of April 9, 2013, approximately 235 clients have been served 

by this program. 

Under this program, legal assistance attorneys represent victims in a confidential, 

attorney-client relationship, throughout the investigation and prosecution processes. 

In addition to the case management and victim support functions provided by 

SARCs and Victim Advocates, these attorneys provide legal assistance to their clients with respect to the military justice process. The Air Force is closely reviewing 

all aspects of the program implementation, studying what guidelines may be needed, assessing the feedback from victims and studying the program impact on the 

outcome of cases. 

The Air Force Special Victims Counsel program is currently a pilot program that 

will help inform the way ahead for DOD in this critical area of sexual assault victim 

advocacy. 

ABOLISHING ARTICLE 60

22. Senator INHOFE. Mr. Taylor, General Chipman, Admiral DeRenzi, General 

Ary, General Harding, and Admiral Kenney, some have suggested that the authority 

of convening authorities under Article 60, UCMJ should be abolished. Is there a continued basis in military due process for the unfettered authority of convening authorities in Article 60? 

Mr. TAYLOR. The commander plays a vital role in ensuring his or her command 

is ready to accomplish all assigned missions. An essential part of a command’s readiness is maintaining a high degree of good order and discipline. Good order and discipline are present when members of the command follow the law, comply immediately with lawful orders, and treat one another with dignity and respect. When 

a member of the command does something wrong, the commander is responsible for 

holding the member accountable. Thus, I believe that there is a continuing need for 

a commander-centric military justice system. However, I am open to evaluating 

whether the current role that the commander plays in each part of the military justice system should be modified. Regarding Article 60, I am open to evaluating 

whether the commander, as convening authority, should continue to have the broad 

discretion that he or she currently exercises. Much has changed in military justice 

since Article 60 was enacted, the convening authority’s role under Article 60 has 

194 

been modified and limited in the past, and I am open to assessing whether it should 

be modified again. 

General CHIPMAN. The authority of the convening authority under Article 60, 

UCMJ should not be abolished. Any changes to Article 60 must carefully balance 

the role of the commander with the need to protect the rights of victims and accused 

soldiers. There is a continuing basis in military due process for the central role of 

the commander. The commander is responsible for all that goes on in a unit— 

health, welfare, safety, morale, discipline, training, and readiness to execute the 

mission. The commander’s ability to punish, including the post-trial authority to 

grant clemency, is essential to maintaining discipline in units. The commander’s authority under Article 60 also has practical applications including the ability to reduce sentences in compliance with pre-trial agreements for guilty pleas, to correct 

legal error prior to appeal, to modify outlier sentences between co-accused and to 

set aside convictions of minor offenses when the charged major offenses have resulted in acquittals. 

The ‘‘unfettered authority of convening authorities’’ to take post-trial action in 

favor of accused soldiers has been part of the military tribunal system since before 

the birth of the Nation. It is clearly an element of military due process enunciated 

in U.S. v. Clay, 1 C.M.R. 74 (1951) and the importance of post-trial clemency was 

confirmed by the Court of Military Appeals in U.S. v. Wise, 20 C.M.R. 188 (1955) 

and U.S. v. Boatner, 43 C.M.R. 216 (1971). The Rules for Courts-Martial (RCM), 

first adopted in 1985, detail the responsibilities of the convening authority to consider defense submissions before taking action in a case (RCM 1107). This is a crucial check on any potential unfairness in the findings or sentence, including unlawful command influence. The clemency authority of convening authorities in Article 

60, UCMJ, is part of the careful balancing of interests enshrined in the UCMJ that 

ensures the overall integrity and fairness of our military justice system. 

Admiral DERENZI. Unfettered, no. However, continued basis for the authority still 

exists. Commanders must have authority commensurate with their responsibility to 

maintain good order and discipline. To achieve this end, Congress ‘‘intended to grant 

to the convening authority an exceedingly broad power to disapprove a finding or 

a sentence.’’ United States v. Prince, 36 C.M.R. 470, 472 (C.M.A. 1966). 

The rationale underlying continued basis for a CA’s authority to take action on 

findings and sentence is that commanders need the flexibility to deal with any exigencies that may arise in the unique military environment, including during combat operations. 

General ARY. A key reason commanders need this authority is to be able to disapprove ‘‘minor offenses,’’ which comes into play when an accused faces multiple offenses at a GCM and is found not guilty of the serious offenses. For example, an 

accused might face a GCM for the offenses of sexual assault and adultery. If the 

accused is found not guilty of sexual assault, he is left with a GCM conviction for 

adultery. In this situation, the convening authority should have the authority to dispose of the lower-level offenses (e.g., adultery) in a more appropriate forum. Additionally, Article 60 provides the authority for a convening authority to enforce the 

terms of a pre-trial agreement (PTA) that was approved by the convening authority 

prior to trial (e.g., if a convening authority agrees to disapprove all confinement in 

excess of 2 years, and the adjudged sentence was 2 years and 6 months, the convening authority needs Article 60 authority to disapprove the additional 6 months 

of confinement in accordance with the PTA). 

General HARDING. The Air Force fully supports Secretary Hagel’s direction to prepare a legislative proposal to amend Article 60 pursuant to his letter dated Apr 8, 

2013. 

Admiral KENNEY. Convening authorities have had the authority to approve or disapprove guilty findings, as well as to grant clemency on sentences, of military members convicted by courts-martial since the Revolutionary War. Ostensibly, the power 

was provided to commanders because there were no appellate courts to review courtmartial cases, and thus the review and action by the convening authority provided 

some post-trial substantive protection to a convicted servicemember. Although the 

modern UCMJ introduced appellate review, it preserved the historical function of 

the convening authority to review a case as well as consider clemency. 

On April 8, 2013, Secretary of Defense directed that new legislation be prepared 

for Congress to amend Article 60 in two ways; first, by eliminating the discretion 

for a convening authority to change the findings of court-martial, except for certain 

minor offenses that would not ordinarily warrant trial by court-martial; and second, 

by requiring the convening authority to explain in writing any changes made to 

court-martial sentences, as well as any changes to findings involving minor offense. 

As indicated by the Secretary, the Service Secretaries, the Joint Chiefs of Staff, and 

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the Service Judge Advocates General, including the Judge Advocate General of the 

Coast Guard, support these changes. 

The JSC on Military Justice is further evaluating the underlying assumptions of 

the convening authority’s post-trial powers and options for modifying Article 60 

power, and the Coast Guard has been actively involved in these discussions. In addition, the congressionally-mandated panels directed under the NDAA of 2013 provides a process for a holistic review of the military justice system. These review 

processes will generate well-informed and evidenced-based policy reforms regarding 

the UCMJ. 

23. Senator INHOFE. General Chipman, Admiral DeRenzi, General Ary, General 

Harding, and Admiral Kenney, if Article 60, UCMJ, were abolished, eliminating the 

convening authority’s power to review and take action on the results of trial, what 

would be the impact to the right of an accused to seek clemency in a timely manner? 

General CHIPMAN. Article 60, UCMJ, is not an isolated statutory provision. It is 

a component of an overall system to provide justice to servicemembers who have 

been charged with offenses triable by court-martial. In the opinion of the Army defense bar, abolition of Article 60, UCMJ, would seriously compromise the right of 

a servicemember to seek clemency in a timely manner. In addition, it would call into 

question the authority of the convening authority to enter into pretrial agreements. 

It would also impact the ability of convening authorities to disapprove, reduce, suspend, or defer automatic or adjudged forfeitures for the benefit of the servicemembers’ dependents. The abolishment of Article 60 would also prevent the local 

and more immediate correction of legal errors in trials by summary courts-martial 

(that never receive review in Courts of Criminal Appeals), and those special courtsmartial not reviewed by the Courts of Criminal Appeals under Article 66. 

Admiral DERENZI. The authority to modify a sentence as a matter of clemency is 

a traditional and important exercise of command discretion by the convening authority. It serves as a means by which the convening authority maintains good order 

and discipline in the ranks and ensures that our fighting force maintains essential 

capabilities. This authority is also critical for purposes of giving effect to plea bargains, and the second- and third-order effects, were the authority abolished, would 

be very damaging. 

Were the authority abolished, clemency would be delayed, and the ability to effect 

pretrial agreements would be affected and eliminated in its current form. In all 

courts-martial, the convening authority must take action under Article 60 within 

120 days of the completion of trial or justify exceeding that timeline requirement. 

Should the opportunity for clemency under Article 60 be eliminated, an accused 

would have to wait for review under Article 66 or Article 69 or review by the Naval 

Clemency and Parole Board. For cases which require Article 66 review by the Navy 

and Marine Corps Court of Criminal Appeals, a decision is to be rendered within 

18 months of docketing the case. The Naval Clemency and Parole Board conducts 

an initial clemency review of the cases of all eligible servicemembers within approximately 11 months from the first day of confinement. 

General ARY. An accused currently has the ability to seek clemency through the 

post-trial process before the convening authority acts on the findings and sentence. 

However, if Article 60 were abolished, an accused would not have the ability to seek 

clemency before the convening authority’s action. Therefore, the first level of posttrial review would be through the Courts of Criminal Appeals through Article 66, 

UCMJ. Only cases in which the accused has an approved sentence of a punitive discharge or confinement for 1 year or more are eligible for automatic appellate review. 

Also, marines are eligible for clemency consideration through the Navy Clemency 

and Parole Board (NC&PB); however, the initial clemency review by NC&PB could 

be up to 60 days after the offender’s clemency review eligibility date (the ‘‘clemency 

review eligibility date’’ is 10 days after CA’s action for those whose approved sentence includes less than 12 months confinement or 9 months from the day confinement began for those whose approved sentence includes 12 or more months of confinement). 

General HARDING. If Article 60 were abolished, other aspects of the UCMJ and 

MCM would have to be amended to retain non-clemency components of the posttrial process, to include PTAs, and deferment of components of a sentence like forfeitures and confinement. However, there is no Constitutional right to CA clemency. 

If Article 60 were abolished, the accused would still be able to seek relief through 

the judicial process (CCAs, CAAF, S.Ct.), Article 69, and Article 74. The Air Force 

fully supports Secretary Hagel’s direction to prepare a legislative proposal to amend 

Article 60 pursuant to his letter dated Apr 8, 2013, and we do not recommend abolishing Article 60. 

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Admiral KENNEY. The Court of Appeals for the Armed Forces has frequently noted 

that an accused’s best chance of relief rests with the convening authority’ power to 

grant clemency. See e.g. United v. Davis, 58 M.J. 100, 102 (C.A.A.F. 2003). Despite 

the recent attention to Article 60 power, convening authorities rarely exercise this 

authority as applied to findings. The Coast Guard Court of Criminal Appeals can, 

however, adjust sentences sua sponte on a finding of legal error. 

Military appeal courts, whether it is the Coast Guard Court of Criminal Appeals 

or Court of Appeals for the Armed Forces, are not statutorily authorized to engage 

in exercises of clemency. 

Once appellate review is complete, Article 74(a) grants the Secretary the authority 

to remit or suspend the unexecuted portions of any sentence. This authority has 

been delegated to the Coast Guard Commandant. Under Article 74(b), the Secretary 

may, for good cause, substitute an administrative form of discharge for a punitive 

discharge or dismissal executed in accordance with the sentence of a court-martial. 

Without the authority vested in Article 60, the accused would have no viable opportunity to clemency with regard to findings, and the power to grant clemency to 

an adjudged sentence would be narrowed to those unexecuted portions by the Commandant, and as well as authorizing only discharge upgrades by the Secretary for 

good cause. 

IMPACT OF PROSECUTION INITIATIVES ON MILITARY JUSTICE DEFENSE

24. Senator INHOFE. General Chipman, Admiral DeRenzi, General Ary, General 

Harding, and Admiral Kenney, each branch of the armed services has taken steps 

to improve the professional training and oversight of the prosecution function. Has 

the pendulum swung too far in favor of the prosecution and what concerns, if any, 

do you have about the impact of these initiatives on the rights of accused in the 

military justice system? 

General CHIPMAN. Improvements to the Army’s professional training and oversight of the prosecution function have been accompanied by improvements to the 

professional training and oversight of the defense function. Combined, these initiatives have improved the overall quality of military justice practice and been a very 

welcome development. Historically, the UCMJ has represented a careful balancing 

of the individual servicemember’s rights and interests of the command in good order 

and discipline, augmented by its investigative and prosecutorial resources. Any 

amendments to the UCMJ must be carefully considered to preserve the protections 

provided to accused soldiers or we risk losing the confidence of our ranks in the integrity and fundamental fairness of our military justice system. 

Admiral DERENZI. The Navy’s leaders remain steadfastly committed to ensuring 

that cases are processed through a fair, effective, and efficient military justice system. This commitment is exemplified in Navy JAG Corps training and reach-back 

capabilities. The Navy is committed to ensuring victims’ rights are protected, as well 

as an accused’s right to a fair trial. To ensure that both the government and the 

defense are adequately resourced and have the best training, we have implemented 

changes to improve our litigation capability, but have always done so with equal emphasis on the prosecution and defense capabilities. 

In 2007, to improve the overall quality of Navy court-martial litigation, the JAG 

Corps established the Military Justice Litigation Career Track. JAG Corps officers 

apply for designation as military justice specialists or experts based on their litigation experience. Military Justice Litigation Qualified officers are detailed to lead 

trial and defense departments at Region Legal Service Offices and Defense Service 

Offices, which provide Navy prosecutors and defense counsel, respectively. These officers provide proven experience in the courtroom, personally conducting, adjudicating, or overseeing litigation in sexual assault and other complex cases. The Military Justice Litigation Career Track program increases the experience levels of trial 

and defense counsel and leverages that experience to enhance the effectiveness of 

criminal litigation practice. 

In 2010, the Navy created Trial Counsel and Defense Counsel Assistance Programs. These separate programs are led by experts in military justice who provide 

direct support to prosecution and defense counsel. The Navy’s Trial Counsel Assistance Program (TCAP) provides high-quality advice, assistance, support and resources for trial counsel (the Navy’s court-martial prosecutors) worldwide through 

every phase of the court-martial process. TCAP counsel may be detailed to serve as 

trial counsel or assistant trial counsel and have been so detailed in several high visibility cases, to include five sexual assault cases. The TCAP Director is an O–5 Military Justice Litigation Qualified expert and is a former Naval Legal Service Office 

commanding officer and military judge. The TCAP Deputy Director is a GS–15 exVerDate Nov 24 2008 09:13 Jun 19, 2014 Jkt 000000 PO 00000 Frm 00200 Fmt 6633 Sfmt 6621 Z:\DOCS\88340.TXT JUNE
197 

pert who specializes in sexual assault prosecution and victims’ rights. A former state 

prosecutor with extensive experience, she previously served as the Director of the 

National Center for the Prosecution of Violence Against Women and is a noted author in the field. TCAP is also staffed with an O–4 Military Justice Litigation Qualified specialist with several years of litigation experience. During the past 2 years, 

TCAP provided on-site assistance visits, delivering trial advocacy training and prosecution process assessments to all nine Region Legal Service Offices worldwide. Further, TCAP personnel conducted outreach training using a multi-disciplinary approach to improve efforts between prosecutors, NCIS agents, military investigators 

and other military justice stake-holders, including Sexual Assault Response Program contributors. TCAP staff conducted advanced family and sexual violence training at the Federal Law Enforcement Training Center and training on alcohol-facilitated sexual assault at the Army JAG Legal Center and School and Air Force Keystone conference. TCAP personnel are frequent instructors at the Naval Justice 

School, including the Trial Counsel Orientation, Basic Trial Advocacy, Intermediate 

Trial Advocacy, Senior Trial Counsel, Litigating Complex Cases, Sexual Assault Investigation and Prosecution, and Prosecuting Alcohol Facilitated Sexual Assault 

courses. TCAP coordinates training and advice closely with Marine Corps TCAP and 

leverages expertise from other Services, including Army TCAP, highly-qualified experts, sexual assault investigators, and special victim prosecutors. 

The UCMJ requires that qualified military defense counsel be detailed to military 

members facing trial by special or general court-martial. The Defense Counsel Assistance Program (DCAP) was created to support and enhance the proficiency of the 

Navy defense bar; provide experienced reach-back and technical expertise for case 

collaboration; and develop, consolidate and standardize resources for defense counsel. The office primarily supports the Navy trial defense bar with active cases. 

DCAP personnel are authorized to consult with detailed defense counsel through 

every phase of the court-martial process. Although not typically assigned as detailed 

defense counsel, DCAP personnel may be detailed to cases. Like TCAP, the DCAP 

Director is an O–5 Military Justice Litigation Qualified expert and former military 

judge. The Director is supported by an O–4 Military Justice Litigation Qualified specialist and a recently hired Highly Qualified Expert, discussed further below. 

During the past 2 years, DCAP provided military justice policy advice and routinely coordinated with the defense services of the Army, Air Force, Marine Corps, 

and civilian defense organizations to maximize efficiency and capitalize on expertise. 

DCAP overhauled the Senior Defense Counsel course to focus on supervisory counsel 

responsibilities and continued to develop the Navy and Marine Corps Defending 

Sexual Assault Cases course hosted by the Center for American and International 

Law. DCAP personnel routinely present training during field assist visits, web seminars, and participate as instructors at a number of courses and seminars. DCAP 

works closely with civilian defense organizations to make use of the resources at 

Federal and state public defenders’ offices. 

In 2012, the Navy hired two Highly Qualified Experts (HQEs). One HQE works 

at the headquarters level to enhance sexual assault litigation training, trial practice, 

and policy. She has nearly 20 years of experience prosecuting sex crimes, domestic 

violence, and human trafficking crimes. As part of the JAG Corps’ Criminal Law 

Division, she coordinates with the Naval Justice School and TCAP to ensure prosecutors and defense counsel receive specialized training on prosecuting complex sexual crimes, including the 2012 changes to UCMJ Article 120 and the intricacies of 

the rape shield provision under Military Rule of Evidence 412. The other HQE 

works with DCAP. He is a retired Marine Corps Lieutenant Colonel who completed 

two tours as a military judge while on active duty and has over 15 years of civilian 

experience as an assistant Federal public defender and preeminent civilian military 

criminal defense attorney. We are in the process of hiring a third HQE with significant civilian criminal litigation and training experience to provide litigation assistance within TCAP. 

The Naval Justice School; TCAP or DCAP, as appropriate; and the JAG Corps’ 

Criminal Law Division coordinate specialized training for Navy prosecutors and defense counsel on litigating complex sexual assault crimes. Prosecution of Alcohol-Facilitated Sexual Assaults is a week-long course taught in conjunction with Aequitas, 

the Prosecutor’s Resource on Violence Against Women. It focuses on substantive aspects of prosecuting alcohol-facilitated sexual assaults and includes small-group 

practical exercises to hone skills such as conducting direct and cross examinations 

of sexual assault nurse examiners, toxicologists, victims, and the accused. The 

Naval Justice School also facilitates Sexual Assault Prosecution and Investigation 

Mobile Training Teams for prosecutors and NCIS agents. Defending Sexual Assault 

Cases provides defense counsel training on sexual assault litigation and is taught 

in conjunction with the Center for American and International Law. The Navy also 

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sends career litigators to civilian post-graduate schools to receive Master of Laws 

degrees in litigation or trial advocacy. 

General ARY. There are three main components to the military justice system that 

must be carefully balanced in order to achieve a fair and just system: the commanders’ inherent responsibility to maintain good order and discipline, the constitutional rights of an accused, and the moral obligation to protect and care for victims. 

The Marine Corps is committed to caring for victims of sexual assault, yet is also 

responsible for ensuring that all marines accused of crimes receive a constitutionally 

fair trial that will withstand the scrutiny of appeal. New military justice initiatives 

should first be evaluated for their constitutionality and whether or not they promote 

a fair and just process. When the primary stated goal of a new initiative is to 

achieve more convictions, that initiative should be critically evaluated to ensure it 

does not upset the careful balance built into the military justice process. 

General HARDING. We must always remain mindful of maintaining a military justice system in which the rights of the accused are zealously protected. While the 

Air Force has made great strides in improving the methods by which we ensure a 

victim’s rights are protected, these efforts have not disadvantaged Air Force accused. While criminal litigation in the military is rightfully an intensely adversarial 

process, our prosecutors are encouraged to focus on justice as opposed to blind advocacy. Furthermore, aspects of our military justice system such as, more protective 

rights advisement, early access to government provided defense counsel, open discovery, opportunities to attend Article 32 pretrial investigations and cross-examine 

witnesses and offer evidence, an opportunity to request clemency from the convening 

authority, and automatic appeal to the Air Force Court of Criminal Appeals for certain sentences, ensure that the recent enhancements to our ability to prosecute 

cases and protect victims’ rights do not come at the expense of compromising an 

accused’s right to a fair trial. 

Admiral KENNEY. The UCMJ establishes the foundation of expected standards of 

conduct for all servicemembers, and creates the legal options by which commanders 

enforce those standards. Thus, the steps taken to enhance training and oversight 

of the prosecutorial function were not only appropriate, they were absolutely necessary. Rape and sexual assault are not compatible with a disciplined military service, and cannot be tolerated in the Coast Guard. The sexual assault programs and 

military justice reforms reinforce the Coast Guard’s core values that each person in 

the military must be treated with respect and dignity and each servicemember will 

be held responsible for their actions. 

The recent initiatives were important for increasing awareness of rape and sexual 

assault, providing greater response services to victims, requiring trained law enforcement agents to investigate such crimes, and providing trial counsel greater advocacy knowledge to prosecute sex crimes. However, these initiatives do not suggest 

that discipline should be summarily dispensed because commanders refer cases to 

court-martial. Courts-martial are, and continue to be, instruments of justice. The 

military justice system empowers independent judicial entities to safeguard constitutionally protected individual rights. The military justice system presumes the 

accused innocent and guilt must be proved beyond a reasonable doubt. The military 

justice system provides the necessary procedural checks and balances to prevent 

abuse of punitive powers. Maintaining the balance between the protection of fundamental Constitutional rights and the maintenance of military discipline is a challenging one. Therefore, any critical review of the UCMJ must ensure that the military justice system continues to render justice fairly and impartially and guard 

against the erosion of individual rights and due process of all servicemembers who 

wear the uniform. 

[Whereupon, at 4:30 p.m., the subcommittee adjourned.] 

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