June 4, 2013 -- CSA testimony before the Senate Armed Services Committee
June 12, 2013
Thank you, Chairman Levin, Ranking Member Inhofe, and other distinguished members of the Committee for allowing us to testify today.
As we all know, today the Army has a problem. We are failing in our efforts to fully protect our people from sexual assault and sexual harassment. As the Chief of Staff of the Army, as a former commander of forces at every level, and as the parent of two sons and a daughter, the crimes of sexual assault and sexual harassment cut to the core of what I care most about -- the health and welfare of America's sons and daughters. These crimes violate everything our Army stands for and they simply cannot be tolerated.
Our military profession is built on the bedrock of trust -- the trust that must inherently exist among Soldiers and between Soldiers and their leaders in order to accomplish the difficult mission in the chaos of war. Recent incidents of sexual assault and harassment demonstrate that we have violated that trust because we have failed to address these crimes in a compassionate, just, and comprehensive way.
Two weeks ago, I told my commanders that combating sexual assault and sexual harassment within our ranks is our #1 priority. I said that because as Chief, my mission is to train and prepare our Soldiers for war. These crimes cut to the heart of the Army's readiness for war. They destroy the very fabric of our force - Soldier and unit morale.
We will fix this problem. Our actions now and in the future will be guided by five imperatives.
First, we must prevent potential offenders from committing sexual crimes but when a crime has been committed, we must provide compassionate care and protect the rights of survivors.
Second, every allegation of sexual assault and harassment must be professionally investigated and appropriate action taken.
Third, we must create a climate and an environment in which every person is able to thrive and achieve their full potential without concern of retaliation or stigma if they report a crime.
Fourth, it is imperative that all entities understand their responsibilities: individuals, units and organizations, and specifically commanders and leaders. We expect them to create an environment and uphold standards consistent with our Army's and our Nation's values. If not, they will be held accountable.
Fifth, it is imperative that the chain of command is fully engaged and at the center of any solution to combat sexual assault and sexual harassment. Command authority is the most critical mechanism for ensuring discipline, accountability and unit cohesion. Our military justice system was deliberately designed to give commanders the tools to reinforce good order by prosecuting misconduct with a variety of judicial and non-judicial punishments, so that commanders can not only prosecute crimes, but also punish minor infractions that contribute to indiscipline. The UCMJ allows us to punish misconduct on any scale quickly, visibly, and locally anywhere in the world. But it's clear, we must implement a system of checks and balances to ensure our commanders and their legal advisors reinforce one another's mutual responsibilities to administer the Uniformed Code of Military Justice.
Military commanders have a far wider range of options available to them than civilian law enforcement - from four levels of court martial, non-judicial punishment, administrative discharge, and non-punitive measures. These options allow commanders to address the entire spectrum of sexual misconduct, from verbal harassment up to and including rape. It allows commanders to prosecute multiple crimes at the same time -- sexual or otherwise -- which is essential to the commander's effort to build the right climate within a unit. And it allows commanders to prosecute crimes with the full backing of the U.S. Army.
Take the recent example of a victim who was sexually assaulted by a soldier off-post in Colorado. Civilian law enforcement conducted an initial investigation, but determined that they did not have enough sufficient resources to investigate or prosecute the case. The local commander directed Army CID to further investigate the dormant case and during their investigation, they uncovered three additional victims that were sexually assaulted or battered by the accused in several locations across Colorado and Texas. The Soldier's chain of command referred the case to court-martial where the accused was convicted of numerous sexual assault offenses and sentenced to 35 years and a dishonorable discharge. This case illustrates the flexibility of the UCMJ to prosecute multiple crimes committed across multiple civilian jurisdictions. If the commander had been removed from his or her central role in administering justice for a sexual assault case, it could have prevented justice in this particular case.
If I believed that removing commanders from their central role of responsibility in addressing sexual assault would solve these crimes within our ranks, I would be your strongest proponent. But removing commanders - making commanders less responsible and less accountable - will not work. It will undermine the readiness of the force. It will inhibit our commanders' ability to shape the climate and discipline of our units. And most importantly, it will hamper the timely delivery of justice to the very people we wish to help -- the victims and survivors of these horrific crimes.
Let me take a few moments to explain how the Army responds to a sexual assault. Our process consists of five basic elements.
First, the Army offers victims two options for reporting - a restricted report which allows a victim to access counselors, medical support, and legal services, and an unrestricted report which triggers an independent, law enforcement investigation. There are nine ways a victim can make an unrestricted report outside the chain of command: uniformed or civilian Victims Advocates; uniformed or civilian Sexual Assault Response Coordinators; military or civilian law enforcement to include 911 calls; military or civilian hospital staff; chaplains; the Office of the Inspector General; judge advocates; hotlines managed by DoD and local installations; and several websites for online reporting. Following a report, victims are assigned a Victim Advocate and are offered legal services.
Commanders are also required to protect and care for victims. They must transfer a victim to another unit if requested; keep the victim informed monthly on the status of the investigation; offer support services; and ensure both victim and unit safety.
Second, every sexual assault allegation must be subject to a thorough investigation. Every allegation must be investigated by the Criminal Investigation Division (CID), the Army's felony-level detectives. Our CID agents do not work for the commander and commanders cannot shape or advise an investigation.
Third, judge advocates, including Special Victim Prosecutors (SVPs), which was implemented in 2009, provide legal advice to the investigators and the commanders. They must track every allegation and are responsible for protecting the rights of victims. When an investigation is complete, a judge advocate provides a legal opinion on whether an allegation should be "founded" or "unfounded" based on upon the evidence presented. An "unfounded" allegation becomes part of the permanent record, while an allegation that is "founded," is brought to the commander to consider the options available.
Fourth, every allegation must be tracked on the daily crime blotter, through the installation's monthly Sexual Assault Review Board, and is provided to Congress in the Annual Report on Sexual Assault in the Military.
Fifth, the disposition of these cases is reserved for senior commanders with the advice of the judge advocate. The relationship between the commander and legal advisor is unique - the commander has the authority to decide the case disposition while Article 34, UCMJ, requires that the judge advocate provide written advice before charges may be referred to a court-martial. If a judge advocate encounters a commander unwilling to follow his or her advice to take an allegation to trial, the judge advocate may elevate the case through judge advocate channels and/or to a superior commander.
Although the Army's process for reporting, disposition and victim care provide a sound base -- and although the UCMJ provides the commander a powerful tool to shape climate and to impose discipline -- it is obvious that it hasn't been working correctly to prevent and prosecute sexual crimes in the Army. I am aware of a number of legislative proposals that contemplate changes to the role of the commander and to the UCMJ. I welcome candid and vigorous discussion about how we can improve our military justice system. And in my written testimony, I offer a number of suggestions on how we can improve the UCMJ and DoD policy.
My experience leads me to believe that the majority of the problems we are seeing are not the result of failures within our military justice system but rather the failure of some commanders and leaders to administer that system correctly, to act in compliance with the UCMJ or current DoD policies. So we must take a hard look at our system from start to finish to ensure that commanders and judge advocates are subject to appropriate checks and balances, all while protecting the interests of the victim and the due process rights of accused Soldiers. I have proposed a number of such checks and balances in my written statement.
If we find those checks and balances to be insufficient, and determine that changes to UCMJ are required, we must move in a very deliberate fashion to preserve what is good with the system while correcting inadequacies. I am in full support of the Response Systems Panel (RSP) to determine what changes should be made to law and policy.
I understand that the credibility of the Armed Forces and the credibility of the Army are at stake. But we cannot simply legislate our way out of this problem. Without equivocation, I believe maintaining the central role of the commander in our military justice system is absolutely critical to any solution.
The Army and the military working with Congress have contributed to positive social change throughout our Nation's history, from racial integration, to the repeal of Don't Ask Don't Tell. Although we have struggled in our efforts to get these issues right in the beginning, we always worked through them until we got it right. And commanders were central to that success. Sexual assault and sexual harassment are no different.
We can and will do better. We must take deliberate steps to change the environment and we must restore our people's confidence by improving our system of accountability. It is up to every one of us, civilian and Soldier, general officer to private, to solve this problem within our ranks. Over the last twelve years of war, our Army has demonstrated exceptional competence, courage, and resiliency in adapting the force to the demands of war. We will take on this problem and adapt as well and with the same resolve, we will fix it.
Thank you Mr. Chairman and other distinguished members of the committee for the opportunity to speak with you today.