Military Justice and Sexual Assault: An International Response to Undue Influence in the Chain of Command

Sexual assault within state military forces is an issue globally. In response, nations have begun to address the problem by changing how cases are prosecuted.[1] State military forces typically employ their own internal judicial systems to handle misconduct by servicemembers, creating ample opportunity for abuse[2] and opening victims up to retaliation. The power disparity between superiors and subordinates in any military’s chain of command lends itself to sexual assault as a form of abuse of power.[3] And in this chain, commanders generally have complete prosecutorial discretion to decide whether to pursue charges[4], creating conflicts of interest where commanders have personal relationships with the accused.[5]

Removing sexual assault cases to civilian courts ensures that decisions on whether to prosecute be based on evidence, rather than on the risk of disruption to the unit or effect on order.[6] Disruption to the chain of command is a non-factor in civilian courts, and any such disruption is outweighed by the threat sexual assault poses to the safety of servicemembers and their trust in the system.[7] Additionally, shifting the decision to prosecute away from commanders removes conflicts and biases inherent in the chain of command.[8]

Recently, Canada’s defense minister announced that the Canadian military will turn over investigations and prosecutions of sexual misconduct to civilian courts.[9] This prosecutorial shift by the Canadian government comes just a few months after the U.S. Department of Defense recommended a similar initiative. In July, President Biden announced support for the Department’s recommendation that sexual assault and harassment cases be shifted to prosecutors outside of the military’s chain of command.[10] In the U.K. as well, Military Police on the Defense Select Committee issued a landmark report this past summer advocating for serious sexual assault and rape cases to be tried in civilian courts rather than within the military justice system.[11]

The push to bring military sexual assault cases into civilian courts has already received pushback from military service leaders expressing concerns that removing cases from the chain of command could reduce the effectiveness and leadership abilities of commanders.[12] These and other opponents believe the problem can be addressed through changes to military justice systems, rather than by outsourcing cases to civilian courts. However, in the U.S., despite significant changes to the court-martial system in the last decade,[13] the number of sexual assault cases continues to increase annually[14] and the successful prosecution of offenders in military courts remains significantly low.[15] Other nations have similar conviction rates, including the U.K., where convictions for rape are four to six times lower in military courts than in civilian courts.[16] Such changes have clearly proven to be inadequate. Thus, it will be imperative that nations follow through in removing sexual assault cases from the chain of command.

Jacqueline Bartha is a staff member of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See, e.g., Emily Hazen, Restructuring U.S. Military Justice Through a Comparative Analysis of Israel, 34 Wisconsin J. Gender L. & Soc. 179 (2019) (discussing Israel); Ian Austen & Jennifer Steinhauer Canada Turns over Military Sexual Assault Cases to Civilian Courts, N.Y. Times (Nov. 4, 2021), https://www.nytimes.com/2021/11/04/world/canada/canada-military-sexual-assault.html?referringSource=articleShare (discussing Canada). 

[2] See id. Hazen, at 185.

[3] See Michal Buchhandler-Raphael, Breaking the Chain of Command Culture: A Call for an Independent and Impartial Investigative Body to Curb Sexual Assaults in the Military, 29 Wisconsin J. Gender, L. & Soc. 341, 347 (2014).  

[4] See id. at 343-44.

[5] See Hazen supra note 1, at 185.

[6] See Russel Spivak, Undue Sacrifice: How Female Sexual Assault Victims Fight the Military While Fighting in the Military, 80 Duke J. of Gender Law & Policy 109, 111-12 (2017).

[7] See Buchhandler-Raphael supra note 3, at 342.

[8] See Hazen supra note 1, at 202.

[9] See Austen supra note 1.

[10] See id.

[11]See Jonathan Beale, Female military staff denied justice by inadequate system -MPs, BBC News (July 25, 2021). https://www.bbc.com/news/uk-57956698

[12] See Lolita C. Baldor & Robert Burns, Military Leaders Wary of Changes in Sexual Assault Policy, AP News (June 3, 2021), https://apnews.com/article/politics-sexual-assault-government-and-politics-75a40fefff08a643e1e597efc9668332.

[13] See Spivak, supra note 6, at 109.

[14] See U.S. Dept. of Defense, App’x B: Statistical Data on Sexual Assault 7-8 (2020), https://www.sapr.mil/sites/default/files/Appendix_B_Statistical_Data_On_Sexual_Assault_FY2020.pdf (reporting 7,816 cases of sexual assault involving service members in 2020, a 42% increase since 2010).

[15] See Briefing re: 2013 Statutory Report: Sexual Assault in the Military Before the U.S. Comm’n on Civil Rights, 113th Cong. (2013) (statement of Elizabeth L. Hillman, Professor of Law, Univ. of Cal. Hastings Coll. Of the Law).

[16] See Beale, supra note 11.