Culture, Gender, and Women in the Military

11/2/2021

Emily Eslinger writes on Robert U. Nagel et al., Culture, Gender, and Women in the Military: Implications for International Humanitarian Law Compliance, 15 (Georgetown Institute for Women, Peace and Security 2021).

A recent report published by the Georgetown Institute for Women, Peace and Security presents an updated look at women’s experience in the military and the harms caused by the military’s male-dominated culture. However, the findings come as no surprise. For example, one section of the report focused on the continuing culture of an enabling environment for sexual assault and harassment, citing that one in ten female enlisted soldiers experienced sexual assault in the past year. [1] Congress has given the military over $2 billion over the last ten years, in addition to countless laws, panels, committees, and reports, to address sexual assault. Yet, as the Georgetown report confirms, none of these measures have truly moved the ball forward in addressing the military’s epidemic of sexual misconduct.

The Georgetown report highlights that women in the military have experienced “long-standing disadvantages regarding promotions because of limited experience in a combat arms specialty.” [2] And while efforts are being made to recruit, retain, and integrate more women into the forces, “influence and decision-making continue to be gendered because men still make up the majority of officers.” [3]

The high occurrence of sexual harassment and assault, paired with a perceived “broken system that fails survivors and shatters their trust”, further discourages women from staying in the military or joining in the first place. [4] The Georgetown report noted that in 2018, more than 20,000 service members were victims of sexual assault, yet fewer than 8,000 reported it. [5] A 2021 RAND report found that the services lose “at least 16,000 manpower years prematurely subsequent to sexual assault and sexual harassment in a single year.” [6] Finally, female civilians and their families aware of this culture of rampant sexual harassment and assault in the military do not want to join or have their loved ones join and put themselves at risk.

The report calls on ending impunity for sexual misconduct as essential to achieving equitable military forces and adequate representation of women in senior leadership positions. In particular, the report identifies removing prosecutorial discretion from military commanders and into the hands of independent Judge Advocates, highly trained in military justice, as a necessary step.

This consensus exists across organizations advocating for women in the military and has garnered bipartisan support in Congress. They have seen that commanders are not getting better at choosing the cases to go to court-martial despite all the studies, policies, and training. Some opponents of the change argue that commanders already have a JA advising them in military justice cases, and the majority of commanders do listen to this advice. However, the unreviewable choice to prosecute still lies within the commander’s sole discretion under the current system.

In opposition to the view that commanders almost always follow the advice of the JA, a recent article by Law360 found:

Commanders often don’t prosecute cases over criminal offenses because they know the accused and don’t believe the victims’ allegations, according to ex-military attorneys and sexual assault victim advocates. Other reasons they pointed to include racial bias or a conflict of interest — commanders don’t want their reputations to be hurt or to lose a good soldier. [7]

This article called on readers to liken the situations to a civilian’s boss deciding whether they should be charged for rape, murder, or kidnapping. The “jury” is made up of their coworkers. [8] With that perspective, it is hard to see how a commander could avoid bias in making such a decision. The 2022 NDAA would instead place this responsibility in the hands of experienced lawyers, O-6 and above, in a military justice billet, whose sole responsibility would be to decide whether cases involving sexual assault and other felony-level crimes should go court-martial.

The DoD and some members of Congress believe prosecutorial discretion should be removed from commanders only in sexual misconduct cases. However, Senator Kirsten Gillibrand and some military justice experts argue singling out these types of cases would only further marginalize women and illicit the perception that women are receiving special treatment. Additionally, this change is the least biased option for both victims and defendants of any serious crime. The United Kingdom, for example, implemented this change to protect the defendant’s rights after a murder case in which the commander was convinced the defendant was guilty. The United States is now the last of our allies to remove prosecutorial discretion from the chain of command. No other nation has found the change to affect good order and discipline adversely.

--------------
[1] Robert U. Nagel et al., Culture, Gender, and Women in the Military: Implications for International Humanitarian Law Compliance, 15 (Georgetown Institute for Women, Peace and Security 2021).

[2] Id. at 10.

[3] Id. at 12.

[4] Id. at 16.

[5] Id.

[6] Andrew R. Morral et al., Effects of Sexual Assault and Sexual Harassment on Separation from the U.S. Military, 24 (RAND Corporation, 2021).

[7] Sarah Martinson, Military Justice System Problems Go Beyond Sexual Assaults, Law360 (Oct. 17, 2021).

[8] Id.

Emily Eslinger.

Concerned Citizen

11/2/2021 09:25:58 am

That law360 article cited as footnote 7 for the proposition that commanders routinely choose not to prosecute cases seems to be an anecdote (notably without the underlying investigation available for a disinterested party to form an opinion) and some conclusory statements from interested parties

Emily Eslinger

11/2/2021 11:19:45 am

You're right, and suggesting that commanders explicitly allow their bias to affect their decision-making more often than not is almost certainly an overstatement. However, I think it is equally difficult to claim that a supervisor, who knows the accused well, would be able to shut out their previously-established ideas of the accused and make an entirely unbiased determination.

Brian L. Cox link

11/2/2021 12:08:57 pm

With all respect, Ms. Eslinger, if we're assessing the merits of a suggested major policy overhaul, perhaps we should base the assessment on more than personal opinions. Do you have any evidence to doubt that a military "supervisor, who knows the accused well, would be able to shut out their previously-established ideas of the accused and make an entirely unbiased decision," or is this just your perception of the issue?

This is a topic that has been studied in quite some depth over the course of several years by a panel of experts. Their findings were published in the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces Report On Investigative Case File Reviews For Military Adult Penetrative Sexual Offense Cases Closed In Fiscal Year 2017, which is available here: https://dacipad.whs.mil/images/Public/08-Reports/08_DACIPAD_CaseReview_Report_20201019_Final_Web.pdf

After dividing casefiles involving allegations of sexual assault that were considered for disposition by commanders into two separate collections and studying both extensively, the Defense Advisory Committee determined, "There is not a systemic problem with the initial disposition authority’s decision either to prefer a penetrative sexual offense charge or to take no action against the subject for that offense. In 94.0% and 98.5% of cases reviewed, respectively, those decisions were reasonable."

Would you expect that if commanders are systemically incapable of shutting out their previously-established ideas of the accused and making an entirely unbiased determination that this phenomenon would be detected in a study of actual casefile considered for disposition by commanders? If you do think such a deficiency in judgement would be detectable by a study of casefiles, do you have any suggestion for why this deficiency wasn't detected by the Defense Advisory Committee when they studied the casefiles?

Excellent summary of the standard case in favor of divesting commanders of court-martial disposition authority. I hope to take more of a point-by-point approach here in the comments a bit later, but for now I thought I would post this question as a response to your reply to Concerned. Thanks!!

Brian

11/2/2021 01:47:01 pm

Brian, thank you for sharing the study. The findings are certainly a strong argument against the broad statements made in the Law360 article, as well as my reply to Concerned. We still seem to be left with the question of how to address the other concerns of the Georgetown report, namely the lack of trust and fear of retaliation felt by victims which hold them back from reporting. From my quick reading of the study, it does not appear that they reviewed cases in which the commander chose to not even initiate an investigation. I am curious if the Committee would find that the commander made a reasonable decision in the vast majority of those cases as well.

With regards to the other major finding of the Committee, that “there is a systemic problem with the referral of penetrative sexual offense charges to trial by general court-martial when there is not sufficient admissible evidence to obtain and sustain a conviction”, would you agree that placing prosecutorial discretion with an independent JA specialized in military justice would mitigate this issue?

I will keep reading the report more closely and would be interested to hear your point-by-point approach. I’d also be curious to see the results of a similar study going beyond cases involving “penetrative sexual offenses” against adult victims. Thanks again for sharing the report and your questions.

11/2/2021 01:52:13 pm

Thank you to Emily Eslinger for providing this explanation and assessment of the Georgetown IWPS report. Also, thank you kindly to the CAAFlog team for posting. I’ll endeavor to directly address the central assertions made in the Georgetown IWPS report in a separate venue soon, but for now I wanted to offer some points in response to Ms. Eslinger’s post. Given the format, I’ll adopt an abbreviated, bulletpoint style to be as succinct as possible.

1.Sexual assault prevalence data:

1a. “The Georgetown report noted that in 2018, more than 20,000 service members were victims of sexual assault, yet fewer than 8,000 reported it.”

1b. “One in ten female enlisted soldiers experienced sexual assault in the past year.”

- This is the foundation of the case to remove court-martial disposition authority from commanders that has emerged over the years. All of these assertions are founded upon a misapplication of quantifiable data presented in the OPA FY18 WGRA survey report. 1a. above cites to the DoD IRC report, which in turn cites the WGRA survey. 1b. above cites a subsequent OPA study, which further analyzes available FY18 WGRA data. For a number of reasons, the WGRA data do not present an accurate and reliable top-line estimate of sexual assault prevalence, and in any event the WGRA report confirms that references to sexual assault “throughout the report do not imply legal definitions.” As such, this data is of limited utility in the discussion of MJ reform.

This is a topic I examine in greater detail in a blog post on Lawfire available here: https://sites.duke.edu/lawfire/2021/07/20/brian-cox-on-summarizing-the-detailed-assessment-of-the-sexual-assault-prevalence-statistics-at-the-center-of-the-military-justice-reform-movement;

and in a full essay, available here: https://scholarship.law.cornell.edu/clsops_papers/127.

2. Commander inherent bias: “Commanders often don’t prosecute cases over criminal offenses because they know the accused and don’t believe the victims’ allegations, according to ex-military attorneys and sexual assault victim advocates.”

- This is a topic I address in an earlier comment. Here, I will simply renew my reference to the DAC-IPAD Report On Investigative Case File Reviews For Military Adult Penetrative Sexual Offense Cases Closed In Fiscal Year 2017.

3. Analogizing military context to civilian workforce: The Georgetown IWPS article “called on readers to liken the situations to a civilian’s boss deciding whether they should be charged for rape, murder, or kidnapping. The ‘jury’ is made up of their coworkers.”

- A military “boss” certainly has more authority over the personal and professional lives of her “employees,” but this is a function of the task the “employer” expects of the “business” – to train and prepare to fight in wars and armed conflicts on behalf of America and, if called upon to go to war, to win. Suggesting that readers should directly analogize the two contexts is disingenuous at best. If the commander is responsible for everything the unit does or fails to do, why should she *not* be conferred with the authority to decide whether to refer a case to trial? If the concern is bias, see response to Point 2 above. If the concern is that commanders have failed to move the ball forward on improving sexual assault prevention and response, see response to Point 1 above since this has emerged as the central metric for “progress.”

4. Our friends are doing it: “The United States is now the last of our allies to remove prosecutorial discretion from the chain of command. No other nation has found the change to affect good order and discipline adversely.”

- This last sentence is a conclusory statement. As to the first sentence, how are these allies that have removed disposition authority from commanders doing on the sexual assault response and prevention front? For a comparative, quantitative assessment, see my essay that is available here: https://scholarship.law.cornell.edu/clsops_papers/126.

That about covers it – as succinctly as possible, given the format. Thanks again for writing (and to the CAAFlog team for posting) the summary. I would of course welcome further discussion among the CAAFlog community on any of the points made above. Cheers!

Brian

11/2/2021 02:27:05 pm

Sorry for not capturing Ms. Eslinger's (Emily, if I may?) response to my previous note in the comments above - I clicked "submit" before I saw that response or else I would've incorporated this note there.

Just briefly, if future discussions continue in the manner they have up until now, I don't think shifting prosecution decisions to commanders would improve the problem of overprosecution. Rather, doing so would just shift the "blame" from commanders to judge advocates. My assessment is based primarily on two factors:

1) WGRA (and related survey) data has become the primary gauge for "progress." If we are going to engage in productive discussions involving the scope of the problem and what has or hasn't worked in the past, this must end. If that's the needle that's guiding us, we're staring at a broken gauge. Based on the methodology, the top-line estimates are going to remain fairly constant (though with unpredictable and seemingly unexplainable occasional fluctuations like we saw from FY14-FY16-FY18). If whoever holds the proverbial prosecutorial ball continues to take the blame for not moving that needle, the holder of the ball is going to take misplaced heat - whether that's commanders or JAs.

This is a topic I address in more detail in a Lawfire post that is separate from the one I linked above. The more recent blog post is available here: https://sites.duke.edu/lawfire/2021/09/08/brian-cox-on-congress-must-learn-that-military-justice-reform-and-changing-military-culture-are-two-separate-issues.

2) The Law360 report cited in the Georgetown IWPS article is a perfect example of the second factor for why I believe shifting the decision to JAs will just shift the heat to the legal community. It fits into a mold that has been utilized to great effect for a number of years now. Telling one side of a story in as incendiary a manner as possible with a design to manipulate the audience into believing a grave injustice was done - all while doing so without a holistic approach to considering all the factors that informed a commander's decision or a panel's acquittal - has become a central feature of MJ discourse over the past several years. It has been incredibly effective, but all this playbook has done is create misinformed public perceptions and unfairly erode trust in the MJ system.

With the specter of Senator Kirsten Gillibrand waiving the WGRA report around and yelling at a general officer about failing the troops by not "fixing" sexual assault in the military (thinking here of the current CSA, GEN James McConville) and with the proclivity of the press to write incendiary but one-sided accounts of how MJ failed this or that servicemember, one should expect commanders to err on the side of prosecution - even if the evidence doesn't warrant initiation of charges. If this continues, so will our overprosecution problem - regardless of who makes the decision.

In short, I think the solution to our problem of trust in MJ and the related problem of overprosecution is to change the nature of the dialogue. If we do that, we can actually develop an accurate understanding of what needs to be improved - and then we can figure out how to achieve the identified deficiencies.

Thanks again, and cheers!

Brian

Philip D. Cave link

11/3/2021 07:15:38 am

1. The allies began changes to their system in the 90's largely due to appellate decisions. Lane v. Morrison (Aust.) In Re Genereaux (Canada) and Findlay v. UK. They did not make changes to combat the more recent major issues of sexual assault and DV.

2. As Emily wrote some time ago, there is no evidence of a general decline in good order and discipline in our allies forces since any of their changes. For many other countries, what gets prosecuted at court-martial is more likely to be turned over to the civilian authorities.

IHTLW!

rob klant

11/3/2021 09:20:21 am

As Mr. Cave notes, the trend towards "civilianization" of the military justice is not new and has been occurring globally for quite some time. See here, e.g. --

https://safe.menlosecurity.com/doc/docview/viewer/docN7EB320AB74F0315f0d8ba93b30337e9b14ddadca5e9288b5d0935b0c035bc472bac878e03ede

It appears to me that the most common changes involve limiting/eliminating the role of military commanders and even military prosecutors.

I wonder if there are data from these other countries that reflect any impact on good order/discipline, including the perceived legitimacy of the system and its disposition of cases?

11/3/2021 09:59:15 am

Phil, there is no question that many of our allies embarked on this trend of gradual erosion of command authority decades ago. We don't have quantifiable evidence of whether the trend has or has not been detrimental because it hasn't been properly studied. For what it's worth since it's purely anecdotal, I have seen what I perceive to be a detrimental effect in the Canadian military since my wife is a CAF LEGAD and her assignment prior to this one was as a DJA (their equivalent of an Army BJA for us, but a lawyer for the whole base rather than just for a brigade). Any time a DJA has to notify a commander that a soldier in her formation won't be prosecuted for an offense because DMP doesn't think it's serious enough to warrant a court-martial even though the evidence is there to prosecute, from my perspective that is detrimental to good order and discipline. Again, purely anecdotal, so take that for whatever little you might think it is worth.

To be quite frank, though, I don't think we should care all that much about whether we assess that the trend has been detrimental to GOaD for our partners. I think we should be more inclined to listen to our own servicemembers there. Here's General Mark Milley back in May: "It is my professional opinion that removing commanders from prosecution decisions…may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead." Recent remarks from all of our senior leadership are available here: https://www.inhofe.senate.gov/newsroom/press-releases/inhofe-releases-letters-from-top-military-officials-citing-serious-concerns-with-mjiipa. In all of our extensive experience leading troops, what evidence do we have to challenge their perspectives?

As to your point #2: you seem to be answering the wrong question. Yes, our friends made various changes decades ago and did not do so for the purpose of improving sexual assault prevention and response. Great. The questions are, "How are they doing *now* in their institutional sexual assault prevention and response since they’ve already implemented the measures we are contemplating? Is there any indication that eroding command authority is going to make a difference based on their current experiences?" The answers I derived from my quantitative comparison are a resounding "no". Are you aware of any evidence suggesting that these contemplated changes *will* have the desired effects?

Cheers!

RLTW

Allan Berger

11/2/2021 02:53:18 pm

Here is what I don't understand. Why are we laying the entire blame on the MJ system? How about we also address other potential paths these people have. For example, any CONUS crime can be prosecuted by the either the federal or local prosecutors and many CONUS crimes can be prosecuted by federal prosecutors. I would guess dual jurisdiction is available for 95% of the armed forces.

For the alleged crimes that require criminal prosecution to ensure good order and discipline, the military should take the lead. If the commander decides that prosecution would not enhance good order and discipline, the victim can go to a civilian prosecutor.

When I was a JAG officer, there were, it seemed that every base had a JAG officer had assigned as a criminal AUSA (although mostly for "misdemeanor" offenses"). That role could be expanded. Further, DOJ could establish a process for addressing cases. In the meantime, commanders could be doing what they should be doing and using the MJ system to ensure good order and discipline.

11/2/2021 03:59:09 pm

This is a point that comes up a lot when I discuss MJ with my friends who have never been in the military, too. The ol' existential MJ question - why do we even need to put the military in military justice? Can't civilian prosecutors handle all or most of this work?

I don't suppose there is a way to definitively answer this question since it's really just a matter of perspective. My tendency is to prefer disposition/prosecution in MJ rather than in the civilian sector. Rather than being too abstract, let me just describe one of the cases I prosecuted as a TC for a BCT as an example.

We had a guy who was accused of credit card fraud. Pretty low level stuff - he opened a few cards using the identities of other soldiers, made a few purchases, got busted, and the identity theft victims weren't on the hook for the charges.

In the civilian sector, this is no big deal - and given the relatively minimal damages, it may not have been worth it to prosecute at all. As a TC, I didn't want to prosecute it - the juice most certainly wasn't worth the squeeze to me.

My commander, though, wanted to prefer charges - so he did. I prosecuted the case, got a conviction, and the sentence was basically equivalent to what we could've secured with a FG Art. 15. There were two reasons my commander decided to push this to trial: 1) the accused stole the identities of soldiers *in his platoon*, and 2) he took advantage of his access to personnel files by virtue of his position as a company clerk in order to pull together the PII he needed to open the fraudulent cards.

Why not let a civilian decide whether to prosecute stuff like this, or a JA, for that matter? Because that commander is the one person who is responsible for everything (in this case) his unit does or fails to do. The commander is in the best position to decide the community impact of that offense and of the manner s/he decides to dispose of the allegation.

If it were up to me, NJP all day. If it were up to a civilian ADA, probably pre-trial diversion or something. The commander listened to my advice on the technical aspect of the case (reasonable prospect of conviction), but he assessed the community impact and exercised the command authority to initiate charges. From my perspective, I don't think this authority is something that should be taken away unless there is a convincing policy reason to do so...and so far, I ain't seen a convincing reason.

My two (and a half, probably) cents, for what they're worth.

Nathan Freeburg

11/2/2021 09:26:05 pm

Emily,

A major issue is the commonly asserted claim that the commander making preferral decisions personally knows the accused service member. That's simply false. (it happens maybe .1 percent of the time, if that.). 99.9% of service members accused of sexual assault are simply too junior to personally know the convening authority.

Caveat: personally I believe that Solorio was wrongly decided and in addition I don't believe non-lawyers should be making legal decisions. but not because the commander purportedly knows the accused in sexual assault cases.

Old Guy

11/2/2021 09:54:22 pm

In the Navy for decades the Navy has relied upon Regional commanders as GCMCAs. These Admirals almost certainly never know the accused, aren’t in the accused operational or administrative chains. They are about as disinterested as you could get from a personal and personnel standpoint. The argument that a commander doesn’t want to negatively impact a good sailor’s career just doesn’t occur in the Navy. By the time the GCMCA gets a referral package it is a paperwork drill.

Donald G Rehkopf, Jr.

11/4/2021 01:25:18 pm

A couple of historical observations:

1) The so-called "civilization" of military justice is really a misnomer. More accurately, it is the return to civilization of military justice. As most know, our military justice system, from the very first Articles of War, were plagiarized from the British system - one where courts-martial were limited to military offenses, and serious crimes, e.g., murder, rape, etc., prosecuted in civilian courts [the Navy at sea being an exception]. The most famous, pre-Founding example of this is the trials of the British Soldiers in the alleged "Boston Massacre" cases, tried in the Crown Colonial courts, famously defended by John Adams.

With the exception of a short period of time during the Civil war, where Congress authorized trial by courts-martial for any criminal offense where the civilian courts were not open and functioning, the "British" system remained the U.S. system - serious felonies committed by servicemembers in the US were prosecuted in State or Federal courts - until 1916, when Congress totally rewrote the Article of War. See, 39 Stat. 619, 650 et seq. (1916). For the first time, any and all criminal offenses [more-or-less] now fell under the AW jurisdiction and thus, the "modern" military justice system came into existence - roughly 100 years ago.

2. With respect to looking at our Allies processes vis-a-vis, i.e., which judicial system [civilian or military] will prosecute serious "common law" crimes, the comparison is again somewhat akin to the "apples and oranges" approach, as they historically kept civilian jurisdiction for most serious crimes and still do. The cases cited by Brother Phil, primarily involve questions regarding the impartiality (and appearances thereof) by Convening Authorities and military judges. Furthermore, the European Court of Human Rights, has frequently weighed in on the independence of military judges, "jurors," etc., See, e.g.,
https://www.asil.org/ILIB/ecthr-rules-bulgarian-military-court-not-sufficiently-independent-try-civilian-involved-case

As someone above alluded to, Solorio, from a historical perspective, was arguably wrong, but whether rightly or wrongfully decided, under the "service connection" approach, Brian's credit card fraud example, under the Commander's rationale, would have passed the service connection test.

Gene Fidell link

11/6/2021 08:37:48 am

ECtHR decision in Mustafa v. Bulgaria (2019) (en français):

https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-198691%22]}

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