Since the Roman poet Juvenal asked the question, “Who will guard the guards themselves?,” societies across the globe have grappled with how to reply to it.
When it comes to the United States Armed Forces, the answer came loud and clear just weeks ago, from a panel decided claims of sexual assaults from military members shouldn’t be investigated by the chain of command.
The recommendation is just that: a suggestion whose implementation will come only after Secretary of Defense Lloyd Austin reviews it. Austin should approve this new method of oversight, if not just for the military, then to create a model for paramilitary organizations like the police, who never seem to get this accountability set-up right.
With sexual violence in the military ranks, the enemy is within.the author writes
In 2019, over 6200 military members reported sexual assaults. Often they report it to someone in their unit, within their chain of command. The military justice system has a unique quirk in that it understands this weakness in its system; the Uniform Code of Military Justice (UCMJ) criminalizes using one’s position to influence the outcome of a criminal investigation or court martial. The way the system’s designed makes this influence – it’s called unlawful command influence – hard to avoid. The armed forces police themselves, a practice that’s problematic to begin with and only gets worse when troops report sexual victimization – though it’s pervasive throughout military justice.
Take the case of the Marine whose Tik Tok video went viral in February. The Marine who we know only as Dalina complained that her harasser admitted his wrongdoing and was still allowed to come to work; it’s not clear what happened, but news reports suggest that superiors supported him and may have intervened on his behalf. And in March a report surfaced showing rates of sexual assault in military members within the National Guard have tripled over the past decade – mostly because they’re allowed to police themselves.
Even though it’s a crime, no one has ever been prosecuted for Unlawful Command Influence. The way that these reports are handled internally hampers military readiness and ends up compromising national security. That’s why Sen. Kirsten Gillibrand, a Democrat from New York, has introduced bills to change the investigation and possible prosecution for sexual violence claims outside of the control of what’s called “convening authorities” since 2013. None have passed.
But the panel’s recommendation can vindicate Gillibrand’s fight if it’s implemented in the right way.
Police review boards, often known as “civilian review boards,” can teach the Department of Defense a good lesson on what to avoid while creating a once-removed investigatory body.
The first civilian oversight board for police was formed in 1948 in Washington, DC. Only when civil unrest over the way police treated Black Americans erupted in the 1960s did the public start to push for more accountability. New York City established one under Mayor Lindsay in 1966.
But because police authority is really close to being absolute – just as that of Convening Authorities (the generals who decide if criminal charges will be brought against anyone in their command) is in the armed forces – those demands have gone essentially unheard. Only about 200 cities have a civilian review board – out of about 18000 law enforcement jurisdictions. And only six of the 50 largest police organizations in the country have a civilian review board with any disciplinary authority. The boards usually don’t have investigatory powers, either.
These outside oversight boards are usually defanged from the start. That is, civilian review boards tend not to check the power of the police because they’re designed that way. Not being able to investigate or intervene or impose disciplinary sanctions saps the potential of these boards right away.
Even when they do get that power, it’s usually short-lived. In Newark, N.J., the Civilian Review Board had authority to discipline cops, but the union sued, and a court took that power away from it.
Even though it’s a crime, no one has ever been prosecuted for Unlawful Command Influence. The way that these reports are handled internally hampers military readiness and ends up compromising national security.the author writes
Removing investigation of sexual assault claims from those very systems might work in the Department of Defense more than it does with police. For one, the military has no organized labor organization that would draw swords in court against such supervision, so there may be more hope for this model of accountability in the military than elsewhere.
Also, the growth of civilian review boards in the 1960s was motivated by a veritable war on people of color by police, a war that continues today mostly because police want to keep waging it and operate under the delusion that Black people pose some unique threat to them. But with sexual violence in the military ranks, the enemy is within.
And that’s why Secretary Austin should not only start this board but create it in an ideal fashion; just adding civilian leadership to criminal investigations as the Army announced it will do, after an investigation into how Vanessa Guillen’s harassment and murder were handled, won’t suffice.
Simply put, if prosecution of military sexual assaults are conducted by a new body, Department of Defense insiders can’t be running it. Members should come from a field of experts in sexual violence and trauma; they should be empowered to do what civilian review boards have been stopped from doing for decades. The history of civilian review boards shows that such a body has to be truly independent, endowed with subpoena power and have the ability to institute charges under the UCMJ.
Demonstrating that institutions can establish investigatory boards that are effective without decimating the working parts of a system is a lesson that civilian police forces can borrow during this renewed cry for police accountability.
Right now Secretary Austin has solicited input from leaders to help him decide whether he should create this board. He’s already received some go-ahead; the Chairman of the Joint Chiefs of Staff, Gen. Mark Milley, said recently his mindset had shifted, and he’s no longer opposed to removing decisions regarding sexual assault away from generals.
If Secretary Austin doesn’t take the panel’s recommendation, that’s a shift away from what he said right after the Senate confirmed his nomination: That he wanted to root out military sexual violence assaults against service members. But if he does take the recommendation, then this can’t be another fig leaf, another toothless version of oversight like most civilian review boards. The history of civilian review boards shows the Department of Defense why independent, empowered oversight is the best way to reform this system.