ENID, Okla. — Don Christensen is on a mission.
The retired Air Force colonel is president of Protect Our Defenders, an organization dedicated to “ending sexual violence, victim retaliation, misogyny, sexual prejudice, and racism in the military and combating a culture that has allowed it to persist,” according to its website.
One way to reach that goal is to see the Military Justice Improvement And Increasing Prevention Act approved by Congress. Among other things, the legislation would remove commanders from decisions on sexual assault and possible other major crimes and shift those prosecution decisions to independent judge advocates.
Currently, though, the legislation is held up in the U.S. Senate. Sen. Kirsten Gillibrand, a New York Democrat, has bipartisan, filibuster-proof support for the bill, but Sen. Jack Reed, a Rhode Island Democrat and chair of the Senate Armed Services Committee, blocked a procedural move by Gillibrand to put her bill to a floor vote. Reed said then her bill must be folded into the broader 2022 defense authorization bill that his committee will take up this summer and fall.
According to NPR, in a May 31 article, Reed said he supports taking sex-related crimes away from commanders, but isn’t ready to support applying the same change to other crimes such as murder, manslaughter and child pornography. Reed also said the bill should go through the regular committee process.
Supporters said the move by Reed is an effort to water down language in the bill. Reed, though, has said he expects the broader defense bill to include “a robust change in the role of the commander in sexual assault cases.”
In an emailed statement Thursday, Oklahoma Republican Sen. James Inhofe, ranking member of the Senate Armed Services Committee, said he does not agree with the proposed changes to the system.
“I do not support removing the chain of command from the decision-making process on these crimes, but I do support having a debate about how to address and fix these issues at our NDAA markup,” Inhofe said. “Congress has actually done a great deal over the last couple of decades, especially in the last few years — to address sexual assault, some of which has only taken full force in the last year or two, so we’re still seeing the initial effects of it. As a result of our past legislation, DOD (Department of Defense) has the best response measures in the world — in fact, colleges and universities come to DOD asking for advice about how to respond to sexual assaults on campus.
“But the majority of what we’ve done has focused on what happens after a sexual assault has occurred. I am eager for the department to do more research on the kinds of things we can implement to actually prevent sexual assault from happening in the first place.”
The issue of sexual assault in the military is a troubling one, Inhofe said.
“Like my colleagues, I am concerned about the incidence of sexual assault in our military — so we need to do the very best we can for our troops, not rush through an imperfect, overly broad bill, namely the MJIIPA,” he said. “And within the Department — with the people who will live with its effects — there is absolutely not consensus that the Gillibrand bill is the best course of action, and it may even make things worse for our troops.
“I have a real concern about the second- and third-degree effects to doing this that could be detrimental to military readiness and good order and discipline — which are also critical to keeping our service members safe. Our military leaders across all services share these concerns as well, and like me, they want to put the service members first. Furthermore, there is no evidence that the Gillibrand bill will do anything to prevent sexual assaults, nor will it improve the prosecution of them. I for one think prosecutions will decline since lawyers will take to court only the cases that can be won — just like civilian prosecutors do. On the other hand, data show that commanders take cases to court more often, even when conviction is not assured — in many cases because the good order and discipline of the unit requires turning the case over to a judge or military jury to let them decide. But I will say that under Senator Gillibrand’s bill, conviction rates will improve because fewer tough cases will be prosecuted — is that the outcome we want?”
Inhofe also said Gilibrand’s bill “has a lot of other deficiencies that will make it difficult and time-consuming to implement — which will create an unstable justice system, even creating the potential that convictions made during this transition could be overturned.”
The MJIIPA does not touch all of the parts of the Uniform Code of Military Justice that are needed to implement the new system and only gives the Defense Department six months to implement, which is essentially impossible for such a major overhaul, a Senate aide said. Implementing an incomplete reform and when all the resources and training are not in place creates an unstable justice system that is ripe for appeals, the aide said.
Christensen said the bill has more than 60 cosponsors, ranging from liberal Sen. Elizabeth Warren, D-Mass., to conservative Sen. Ted Cruz, R-Texas, and Sen. Chuck Grassley, R-Iowa.
“This is one of the rarities where we have agreement across the sides,” Christensen said.
At the direction of President Joe Biden, Defense Secretary Lloyd Austin, a former Army commander, established an Independent Review Commission on Sexual Assault to study ways to attack the problem. In April, the commission recommended taking prosecution powers out of the chain of command. It said that for certain special victims crimes, designated independent judge advocates reporting to a civilian-led Office of the Chief Special Victim Prosecutor should decide two key legal questions: whether to charge someone and, ultimately, whether that charge should go to a court martial. The crimes would include sexual assault, sexual harassment and, potentially, certain hate crimes.
Christensen, who served 23 years in the Air Force as a judge advocate general. He said he served as a prosecutor and trial judge during that time. He said the changes advocated would be “minor in structural change” and would “professionalize the justice system.”
The military “has historically opposed this” change, he said.
The Associated Press has reported that military leaders are privately expressing reservations about removing sexual assault cases from the chain of command.
In memos to Defense Secretary Lloyd Austin, the service leaders laid out their concerns about the growing push to shift prosecution decisions on sexual assault and possibly other major crimes to independent judge advocates. They said the shift could decrease the number of prosecutions, delay cases and potentially provide less help for victims.
While they indicated they are open to changes and improvements in the justice system, most were worried about how that would be done while ensuring no unintended harm is done to unit leadership or readiness. Several said it would create additional burdensome bureaucracy, according to officials familiar with the memos.
Several officials described the memos to the AP on the condition of anonymity because they have not been made public. The memos submitted to Austin were from the civilian secretaries of the Army, Navy and Air Force and from the National Guard.
Acting Air Force Secretary John Roth said the Air Force was open to new approaches, including removing cases from the chain of command, officials said. But he cautioned that the change inadvertently could have a negative impact on commanders’ leadership or accountability. The Air Force said commanders play a critical role in prevention, victim support and creating a respectful command climate, and any changes must not erode that.
Most U.S. allies, Christensen said, take the same approach, with cases removed from the chain of command, and there is “no evidence it has eroded discipline.”
Until action is taken by Congress, Christensen will continue to speak out, hoping to see the changes he supports put into place.