Anu Bhagwati of the Service Women's Action Network told a Senate subcommittee Wednesday that commanders are unable to make impartial decisions because they usually have a professional relationship with the accused and, often times, with the victim as well. She said court-martial cases should be left in the hands of "trained, professional, disinterested prosecutors."
Under military law, a commander who convenes a court-martial is known as the convening authority and has the sole discretion to reduce or set aside guilty verdicts and sentences or to reverse a jury's verdict.
The hearing by the Senate Armed Services personnel subcommittee comes just days after Defense Secretary Chuck Hagel ordered a review of the Air Force case after lawmakers expressed outrage over Lt. Gen. Craig Franklin's decision to overturn the sexual assault conviction against Lt. Col. James Wilkerson, a former inspector general at Aviano Air Base in Italy.
The subcommittee also is scrutinizing the military's handling of sexual assault cases. Rebekah Havrilla, a former Army sergeant, told the panel that she encountered a "broken" military criminal justice system after she was raped by another service member while serving in Afghanistan. Havrilla described suffering from post-traumatic stress disorder and how her case was eventually closed after senior commanders decided not to pursue charges.
"What we need is a military with a fair and impartial criminal justice system, one that is run by professional and legal experts, not unit commanders," Havrilla said.
Sen. Kirsten Gillibrand, the chairwoman of the military personnel subcommittee, called the Wilkerson case "shocking" and promised to take a hard look at the military justice system. Nearly 2,500 sexual violence cases in the military services were reported in 2011, but only 240 made it to trial, Gillibrand said.
Wilkerson, a former inspector general at Aviano Air Base in Italy, was found guilty on Nov. 2 by a jury of military officers on charges of abusive sexual contact, aggravated sexual assault and three instances of conduct unbecoming of an officer and a gentleman. The victim was a civilian employee. Wilkerson was sentenced to a year in prison and dismissal from the service.
Wilkerson was at the U.S. Naval Consolidated Brig in Charleston, S.C., until Feb. 26 when Franklin exercised his discretion as the convening authority. Franklin, reviewed the case over a three-week period and concluded "that the entire body of evidence was insufficient to meet the burden of proof beyond a reasonable doubt," Hagel wrote in a March 7 letter to Sen. Barbara Boxer, D-Calif.
But Hagel told Boxer neither he nor the Air Force secretary is empowered to overrule Franklin, who is the commander of the 3rd Air Force at Ramstein Air Base in Germany.
Boxer said during testimony before the subcommittee that "immediate steps must be taken to prevent senior commanders from having the ability to unilaterally overturn a decision or sentence by a military court."
In the wake of Franklin's decision, Reps. Jackie Speier, D-Calif., Bruce Braley, D-Iowa, and Patrick Meehan, R-Pa., introduced legislation Tuesday in the House of Representatives that would strip military commanders of the power to overturn legal decisions or lessen sentences. Their bill would amend the Uniform Code of Military Justice to take away the power of a convening authority to dismiss, commute, lessen, or order a rehearing after a panel or judge has found the accused guilty and rendered a punishment.
Sen. Claire McCaskill, D-Mo., a member of the Senate Armed Services Committee, plans to introduce legislation soon that would change the Uniform Code of Military Justice by preventing a convening authority from overturning a decision reached by a jury. The legislation also would require the convening authority to issue a written justification for any action.
Copyright 2013 The Associated Press.