Army Gen. Martin Dempsey – chairman of the Joint Chiefs of Staff – testifies before the Senate Armed Services Committee on military sexual assault.

MSA: Senate pushes, Pentagon pushes back

June 4 was a full, eight-hour workday for members of the Senate Armed Services Committee (SASC) as well as for a battery of military brass, as the two factions tussled over the thorny issue of military sexual assault (MSA) and how to battle it.

Not only was the duration of the committee’s Capitol Hill hearing on MSA lengthy, the number of participants was, too. The Senate committee numbers 26 with most in attendance. The roster of witnesses listed 20 names, including nine generals, three admirals, four colonels, a major a Navy captain and two civilians. At the end of the day, all in the hearing room agreed that unwanted sexual contact in the services is abhorrent and perpetrators must be vigorously pursued, but disagreed on who should be involved in the prosecution of such cases.

The purpose of the hearing, as its title billboarded, was to discuss the implications of "Pending Legislation regarding Sexual Assaults in the Military", with an emphasis on the newly introduced "Military Justice Improvement Act of 2013."

The lead witness, Army Gen. Martin Dempsey – chairman of the Joint Chiefs of Staff – articulated the Pentagon’s stand, saying, "The risks inherent to military service should never include the risk of sexual assault…a crime that demands accountability and consequences. It betrays the very trust on which our profession is founded.

"The Joint Chiefs and our senior enlisted leaders are committed to correcting this crisis. We are acting swiftly and deliberately to change a culture that has become too complacent…and we must be open to every idea and option to accelerate meaningful, institutional change."

One section of the aforementioned Military Justice Improvement Act as advanced by SASC member Sen. Kirsten Gillibrand, D-NY, proposes that the military chain of command be removed from the prosecution of most crimes, including sex crimes, punishable by imprisonment for one year or more. It became clear throughout the day that this is one idea or option that the military leaders in the hearing room opposed viorously.

"I urge that military commanders remain central to the legal process," Dempsey said. "The commander’s ability to preserve good order and discipline remains essential to accomplishing any change within our profession. Reducing command responsibility could adversely affect the ability of the commander to enforce professional standards and, ultimately, to accomplish the mission."

The Army’s chief of staff, Gen. Raymond Odierno, amplified Dempsey’s argument, urging "increased commander involvement and responsibility." However, while reiterating the service leaders’ wish to keep commanders in the legal loop, Odierno did call for commanders to be held accountable for their actions in prosecuting sex crime cases. He related that the Army is "considering whether to create a new system to formally track all commanders’ actions after a report of sexual assault has been received" and said he supported Defense Secretary Chuck Hagel’s position on placing a limitation "on a commander’s ability to disapprove a finding of guilt and…(requiring) a commander to justify any sentence reduction in writing."

Witness after witness among the military leaders, both in their statements and responses to senators’ questions, repeated the assertion that commanders must remain intimately involved in the process of finding justice for victims of military sexual crimes. The last witness of the day, retired Army Col. Lawrence Morris, now General Counsel at Catholic University, echoed military sentiment. "The commander is indispensable to the military justice system because the only reason for a military justice system is the maintenance of good order and discipline," he said. "Removing this tool, or entrusting it to lawyers with no leadership responsibility, would diminish the authority of command and the quality of the force."

Countering this point of view were several members of the Armed Services Committee, most especially Sen. Claire McCaskill of Missouri and Gillibrand, sponsor of the Military Justice Improvement Act. Two female civilian witnesses also stood firm against the Pentagon. One was Nancy Parrish, president of Protect Our Defenders, a human rights organization advocating on behalf of victims of military sexual trauma. She related several victim stories demonstrating commander bias in favor of the perpetrator, then said, "The military leadership has long insisted that absolute command discretion is required in order to maintain good order and discipline and to ensure mission readiness and unit cohesion. Yet, when victims are punished and perpetrators go free and everyone knows it to be the case, trust, the essential ingredient to an effective, functioning military, is undermined.

"Congress must face reality. For justice to prevail, you must end commanders’ unfettered authority over the legal aspects of military justice. Nothing less will end the damaging cycle of scandal and continued incidence."

The American Legion has addressed the issue of unwanted sexual contact in the military most recently by adopting Resolution No. 9, the "Secretary of Defense Directive for a Zero Tolerance Policy on Sexual Assault."