I recommend also Emily Hazen, RESTRUCTURING U.S. MILITARY JUSTICE THROUGH A COMPARATIVE ANALYSIS OF ISRAEL DEFENSE FORCES. 34 WISC. J. L., GENDER & SOCIETY 179 (2019).
"To reiterate, there is no empirical evidence that shows taking away a commander's discretion related to sexual assault prosecutions would in any way undermine good order and discipline. In fact, since Israel and other countries began prosecuting sexual assault cases outside the chain of command, the commanders have not reported any issues related to decreased military reaffiness and unit cohesion.Indeed, military commanders have consistently failed to
specifically explain why removing the "oversight of the criminal process in serious crimes from the commander and placing it in capable and trained prosecutors hands" would eliminate good order and discipline within the ranks."
This is an impressive piece of scholarship. I look forward to addressing many of these points in my ongoing MJ scholarship. For the fairly limited forum a comment to a blog post provides, here are two brief reflections:
1. This point truly is at the center of the ongoing debate involving the role of the commander in administering military justice: what is the "military effect of the conduct" for any given offense? At one end of the spectrum, nearly *every* offense allegedly committed by a servicemember involves a "military effect" because of the potential effect on GOaD. At the other end, almost *no* offense so qualifies if it can't be tied to an outcome involving armed conflict since that is the primary role of the armed forces. In the realm of scholarship, most of our perspectives can be plotted somewhere along this spectrum - and it seems that this is the primary source of disagreement in the scholarship involving the role of the commander in administering military justice.
2. To pose a question to the esteemed editors of this most respected site: did we not just question whether there is anything of value left to say on this issue? It would seem that the role of the commander in administering military justice - including offenses involving sexual assault allegations - remains quite a lively debate. Are you quite sure that continued discourse - on this esteemed platform, among others - truly is the figurative equivalent of beating a dead horse?
Any Felony-type offense (i.e. punishable with a year or more confinement) that is not purely military should be prosecuted in the civilian system, plain a simple.
If you want to keep the military jury, or jury with military experience, fine.
The discharge scheme needs updating as well. Why keep a service member on active rolls? Surely his discharge can be revoked if there is an issue.
Week In Review