Brian Cox on “Congress Must Learn That Military Justice Reform and Changing Military Culture Are Two Separate Issues”
In today’s guest post Professor Brian Cox provides us with more insight into the issues related to proposals now in Congress to eviscerate commanders’ authority in military justice matters. Brian is one of the nation’s foremost experts on this issue, and his views are uniquely informed by his own experience as a military sexual assault victim.
In this post Brian unpacks the serious misapprehensions about military sexual assault data that have captured much of the popular narrative, and also makes the oft-overlooked observation that “military culture can constantly improve and change, but this is not synonymous with divesting court-martial disposition authority from commanders.”
Brian further argues, contrary to that too many people seem think, that “the way ahead for identifying and implementing measures that will truly improve sexual assault prevention and response begins by realizing that court-martial disposition authority is not a significant factor in changing military culture – whether that authority is wielded by commanders or military lawyers.”
My own view much coincides with that of retired Marine Corps general and former Secretary of Defense Jim Mattis. As relayed in the post here, General Mattis put it this way:
Well, maintaining the military justice system as a commander-centric system is critical if you’re going to hold commanders responsible for the good order and discipline of the only organization…[that] really that has the authority to employ enormous violence in the name of the American people overseas. And if you start diluting that authority, then the responsibility dilutes too. And I can pretty much assure you that at that point, you will weaken the military’s cohesion and the sense of ownership by the commander, from the platoon commander, lieutenant, and company commander, all the way on up, over discipline (Emphasis added.)
I urge you to read Brian’s essay because I formally believe that if Congress doesn’t appreciate the points he – and, for that matter, general Mattis – are making, legislative tinkering with the military justice system will undermine America’s warfighting capabilities, at the very time when those capabilities are urgently needed to deter threats around the globe.
Congress Must Learn That Military Justice Reform and ‘Changing Military Culture Are Two Separate Issues
By Brian L. Cox
With the twin issues of sexual assault in the military and military justice reform on center stage yet again in the American political landscape, members of Congress are sure to face many difficult decisions this fall. While there is a general sense that something must be done to change the military justice system, deciding on the specific details will be a central challenge of the coming legislative efforts.
As a retired Army judge advocate, former military prosecutor, and current law professor, debates involving military justice reform and implementing measures to improve military sexual assault prevention and response are matters of deep professional interest. As a soldier who has experienced sexual assault in the military, this issue is intensely personal to me.
Because it is such a personal issue, I have until very recently steered clear of the long-running debates involving military justice reform and sexual assault in the military. Due to what I assess to be widespread misunderstandings in public and political discourse on the topic, I have recently decided to enter the fray because the issue is so deeply personal.
By sharing perspectives that are based on my personal and professional experiences, I hope to clarify some of the most pervasive misunderstandings that I believe have thus far been central to the debate. Even if these perspectives turn out to be wildly unpopular, elected officials and the constituents they represent must have a clear understanding of the problems any pending legislation is designed to address in order for the solutions to be effective.
Although there are many specific misunderstandings that could be examined, in this article I focus on two issues at the very core of the debate: sexual assault prevalence statistics and the role of military justice in shaping the culture of the military.
Putting Sexual Assault Prevalence Statistics in the Proper Context
The assertion that an estimated 20,000 service members are sexually assaulted each year despite all prior efforts to curb the “epidemic of sexual assault” in the military is at the very core of the case in favor of divesting military commanders of court-martial convening authority. This “estimate” has become so pervasive that collecting all the sources that have made this claim over the past decade would be a difficult task.
Representative Jackie Speier and Senator Kirsten Gillibrand, the two chief proponents of systemic military justice reform in Congress, observed in a recent USA Today opinion piece, for example, “Last year, 20,500 service members were sexually assaulted.” Of these, “only 1% conclude with a conviction at a military trial.” The authors cite these statistics to support the assertion that the “current military justice system has proven incapable of handling serious crimes or addressing the epidemic of sexual assault among the ranks.”
If these statistics were accurate, an annual sexual assault rate of about 20,000 would undoubtedly qualify as an epidemic of sexual assault. Likewise, if only 1% of these offenses ended in a conviction, surely the conclusion that the military justice system has proven incapable of handling serious crimes would be warranted.
In reality, this “estimate” of 20,500 does not represent actual annual sexual assault prevalence – not even close. It is drawn from a biennial survey that was last administered by the Department of Defense in 2018.
I examine in detail why this survey report does not represent actual sexual assault prevalence in recent scholarship, and a summary of the full analysis is available here Lawfire. These analyses explore the many reasons why the survey report notes, on the very first page, that “references to ‘sexual assault’…throughout the report do not imply legal definitions.”
Likewise, I describe in the analyses why this survey in no way presents an accurate estimate of actual sexual assault prevalence. In short, I demonstrate in these analyses that the biennial survey reports “are of extremely limited probative value as a measure of the effectiveness of the military justice system.”
This misinterpretation of sexual assault prevalence can be traced to The Invisible War, a documentary that premiered in 2013. As the film description notes, the documentary asserts that the DoD estimated “there were a staggering 22,800 violent sex crimes in the military in 2011.” This statistic forms the basis of the characterization that the “epidemic of rape” in the military is “one of America’s most shameful and best kept secrets.”
Just like similar assertions that are still made today, this characterization is founded upon a misinterpretation of a report that analyzes survey results. Among many reasons, the assertion that only 1% of sexual assault cases “conclude with a conviction” is fundamentally flawed because it treats the denominator in the conviction ratio – 20,500 – as an estimate of actual sexual assault cases.
This is, of course, not to suggest that rape and sexual assault do not occur in the military. However, if lawmakers have become convinced that there is an “epidemic of sexual assault” in the military and that divesting commanders of court-martial convening authority is part of the solution, they are misinformed on both accounts. The actual underlying data doesn’t support these conclusions – it never has.
Changing Military Culture Is Not Synonymous with Military Justice Reform
Along with misinterpreting sexual assault prevalence data, another flawed assertion that can be traced to The Invisible War is that divesting military commanders of court-martial disposition authority is fundamentally required in order to change a dysfunctional culture in the military. While it is certainly true that measures can be taken to improve the culture of the military, the exercise of court-martial disposition authority by commanders has never been demonstrated to be one of those measures.
Rep. Speier has been convinced that the two are synonymous for several years since this is a central assertion of The Invisible War, and Sen. Gillibrand has had the same mistaken impression for several years for the same reason.
Because the two lawmakers have been convinced for nearly a decade that divesting commanders of court-martial disposition authority is necessary, they appear to genuinely believe that a failure to mandate systemic changes to the military justice system through legislation equates to a failure to bring justice to the military. As Sen. Gillibrand recently observed, there “is no persuasive argument for the need to allow more time to consider this legislation in” the Senate Armed Services Committee since the members have “had nearly a decade to consider it.” This sentiment seems to motivate Rep. Speier and Sen. Gillibrand to reject the suggestion, in their joint op-ed, that now is the time to “conduct another study or create another panel.”
It is certainly possible that an unfair bias plays a systemic and fundamental role in court-martial disposition decisions made by commanders, but this hypothesis would need to be demonstrated by a study of actual data rather than by a powerful and seemingly convincing claim made in a documentary. Fortunately, Congress has directed such assessments – and the most recent study report concluded that “there is not a systemic problem with the initial disposition authority’s [who is a military commander] decision either to prefer [initiate] an adult penetrative sexual offense charge or to take no action against the subject for that offense.”
Rep. Speier and Sen. Gillibrand are correct, then, that there is no need to conduct another study or create another panel. The exercise of court-martial disposition authority by commanders has been studied, and it has been demonstrated not to be deficient.
The findings of these studies are consistent with what I have learned from the time I spent as a military lawyer: most commanders care deeply about taking care of their troops and they take their military justice authority very seriously. They tend to take a balanced approach to their military justice responsibilities because they alone “are responsible for everything their command does or fails to do.”
As the current Manual for Courts-Martial notes, the “purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” Failing to perform responsibilities related to military justice in a fair, impartial, and informed manner tends to erode the ability of the commander to maintain good order and discipline and to promote the efficiency and effectiveness of her echelon of command. This phenomenon presents an inherent incentive for commanders to “get it right” when it comes to military justice, even if this incentive is not particularly perceptible from outside the military.
While it is true that a recent report, from the DoD Independent Review Commission (IRC), recommends that prosecution decisions should “be in the sole discretion of lawyers” rather than commanders, this recommendation seeks to address perceptions of bias rather than attempting to correct any quantifiable deficiencies. As the IRC report observes, “shifting legal functions from commanders” is perceived to be necessary because victims indicated to the Commission that “they do not trust commanders to do justice in sexual harassment and sexual assault cases for a variety of reasons.”
I am currently completing a full critical assessment of the findings and recommendations reflected in the DoD IRC report, but for now it is sufficient to point out that unlike previous similar studies, the IRC report centers recommendations on “a perceived conflict of interest” involving military commanders rather than attempting to evaluate whether a conflict actually exists. Basing sweeping policy reform on perceptions of injustice rather than on demonstrated deficiencies risks implementing changes that are not properly scoped to achieve a desired end state, which in this context should be to improve the culture of the U.S. military and the institutional capability to prevent and respond to sexual assault.
Improving Military Culture by Ending the Focus on Disposition Authority
The military culture can constantly improve and change, but this is not synonymous with divesting court-martial disposition authority from commanders.
To relate my own personal experience with sexual assault as an example, within days of arriving at my first duty station in 1996, I was assaulted in what used to be commonly referred to as a “cherry party” – a sort of unofficial initiation for soldiers who report to their unit from initial entry training. Several soldiers in my unit physically assaulted me in my barracks room, and one attempted to force an empty beer bottle into my rectum while other soldiers held me down. That soldier later said he wanted to make sure I’m not homosexual, under the supposed theory that if I were gay, I wouldn’t fight back as hard as I did.
I never reported my assault because I understood at the time that this was just part of military culture – at least, in the airborne infantry. The offenders probably would have been prosecuted and convicted if I had filed a report, but I didn’t because that’s just the way it was back then.
Nearly twenty years later while I was advising commanders as they exercised their court-martial disposition authority based on my advice, I spent a lot of time reflecting on how much military culture had changed since then. That change happened in part because American culture has evolved, and in part because commanders have made it clear that such misconduct has no place in the military.
Without a doubt, this issue is deeply personal for me. Just like Rep. Speier and Sen. Gillibrand, I am committed to identifying and implementing ways to improve military culture. Unlike these two legislators, though, I understand that removing court-martial disposition authority from commanders will not actually contribute to that goal.
The way ahead for identifying and implementing measures that will truly improve sexual assault prevention and response begins by realizing that court-martial disposition authority is not a significant factor in changing military culture – whether that authority is wielded by commanders or military lawyers. If Rep. Speier and Sen. Gillibrand refuse to acknowledge this reality, it is up to their colleagues in Congress – and the constituents they represent – to understand it in spite of the insistence to the contrary by the two chief proponents of systemic military justice reform.
About the author:
Brian L. Cox is an adjunct professor of law at Cornell Law School and a visiting scholar at Queen’s Law in Ontario. Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.
Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, and Joint Firepower Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.
The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!