In a stinging rebuke of the military's efforts to curb sexual assault, members of a Senate panel hammered Defense Department officials on Wednesday for making too little progress in combating the crimes and failing to improve a military justice system that victims described as slow and uncaring.
During a two-part hearing, the panel heard harrowing testimony from several victims, who said military justice is broken and pushed for Congress to take action to stem the rape, sexual assault and sexual harassment that they said are pervasive in all the service branches.
Pentagon officials said they are taking the problem seriously. "Sexual assault in the military is not only an abhorrent crime that does enormous harm to the victim, but it is also a virulent attack on the discipline and good order on which military cohesion depends," said Robert Taylor, the Pentagon's acting general counsel.
"The Air Force has zero tolerance for this offense," added Lt. Gen. Richard Harding, the judge advocate general of the Air Force.
But lawmakers pointed to a decision by Air Force Lt. Gen. Craig Franklin to reverse a guilty verdict in a sexual assault case as evidence of how the military fails the victims who come forward to report the crimes. 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.
Her voice rising, Sen. Kirsten Gillibrand, D-N.Y., said all the promises of "zero tolerance" from the witnesses amount to nothing if a convening authority is the only individual who can decide whether to overturn a case. Gillibrand is the chairwoman of the Senate Armed Services Personnel Subcommittee.
"I appreciate the work you're doing, but it's not enough," she told the military officers arrayed at a long witness table.
Gillibrand then directed her frustration at Harding, demanding to know whether justice was done when Franklin overturned a military jury's conviction. Harding responded that Franklin reviewed the facts and made an independent decision with integrity. Gillibrand then asked whether justice was erved when the five senior officers who made up the jury rendered a guilty verdict. Harding said he could not say.
"The jury and the convening authority did their duty," he said.
Pointing out that they came to opposite decisions, Gillibrand pressed Harding on whether justice was done.
"I'm not going to conclude that justice was or was not done. All parties did what they were asked to do," he said.
"One of the parties was wrong," Gillibrand told him, adding that the female victim in the case does not believe justice was done.
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 described 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.
BriGette McCoy, a former Army specialist and a Persian Gulf war veteran, said she was raped when she was 18 and at her first duty station. But she did not report it. Three years later, she reported being sexually harassed and asked for an apology and to be removed from working directly with the offender.
"They did remove me from his team and his formal apology consisted of him driving by me on base and saying `sorry' out of his open car door window," McCoy told the subcommittee.
Defense Secretary Chuck Hagel has ordered a review of Franklin's decision to reverse the sexual assault conviction against Lt. Col. James Wilkerson, a former inspector general at Aviano Air Base in Italy. But Hagel has told members of Congress that 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.
The case is generating support for legislation that would prevent commanding officers from overturning rulings made by judges and juries at courts-martial proceedings.
"It appears to me that the Aviano general has really failed," said Sen. Claire McCaskill, D-Mo., referring to Franklin.
"This decision has turned the military on its ear," said McCaskill, who added that Franklin's decision sets the Air Force "all the way back to Tailhook." The 1991 Tailhook scandal rocked the military as Navy pilots were accused of sexually abusing female officers at a Las Vegas convention.
Anu Bhagwati of the Service Women's Action Network told the panel 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. Bhagwati, a former Marine Corps captain, said court-martial cases should be left in the hands of "trained, professional, disinterested prosecutors."
Gillibrand 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. About 70 percent of the reports were for rape, aggravated sexual assault or nonconsensual sodomy.
But most cases of unwanted sexual contact go unreported. If more victims came forward, the Defense Department estimates the actual number of cases would have been closer to 19,000, Gillibrand said.
Wilkerson 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.
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."
Taylor, the acting general counsel, said the Defense Department is examining the role the convening authority plays, including a commander's power to set aside a court-martial's findings. But Taylor also stressed that commanders have long held this authority and it is directly tied to the need for the "portability" of military justice throughout the world and the need for senior officers to maintain discipline in the ranks.
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 that would strip military commanders of the power to overturn legal decisions or lessen sentences.
McCaskill also plans to introduce legislation 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.
Brian Lewis, a former Navy petty officer, told the subcommittee not to forget that many victims of sexual assault and harassment in the military are male. Lewis said he was raped in 2000 by a noncommissioned officer who outranked him. His commanders ordered him not to report the crime to Naval Criminal Investigative Service. Lewis said he was later misdiagnosed with having a personality disorder, and he was discharged from the service in 2001.
"I carry my discharge as an official and permanent symbol of shame, on top of the trauma of the physical attack, the retaliation and its aftermath," Lewis said.
Sen. Angus King, I-Maine, asked whether the culture would change if the laws were overhauled. Lewis described the limitations of military law, arguing that it was unconscionable that punishment is solely at the discretion of a single individual and the offense of sexual assault is merely a year in prison.
"The military does not value what happened to the victim," Lewis said.