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.  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.”  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.” 
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.  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.  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.”  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. 
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.  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.
 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).
 Id. at 10.
 Id. at 12.
 Id. at 16.
 Andrew R. Morral et al., Effects of Sexual Assault and Sexual Harassment on Separation from the U.S. Military, 24 (RAND Corporation, 2021).
 Sarah Martinson, Military Justice System Problems Go Beyond Sexual Assaults, Law360 (Oct. 17, 2021).
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