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Utahns push for more changes to military sex assault protocol

Published December 16, 2013 6:14 pm

Congress • Removing cases from commanders urged to ensure justice.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Joni Makar was a lieutenant commander in the U.S. Navy, but her years of service hadn't prepared her for what she heard in the courtroom.

Makar was one of three senior personnel who had to decide whether a sexual assault case should proceed. She had no legal training. She listened to the victim describe the attack. But the victim also said she did not want the defendant prosecuted.

"I've learned a lot more about [sexual assault] after the military," said Makar, who retired in 2010 after 22 years of service. "There would have been a lot more questions I would have asked."

Makar is one of the handful of former Utahns who have been trying to educate the public about sexual assault in the military and monitoring what Congress intends to do about the issue. A compromise passed by the House on Thursday gives more rights to victims and limits questions about their character, but it omits a major change sought by Sen. Kirsten Gillibrand, D-N.Y., and some advocates.

The compromise keeps sexual assault cases in the chain of command, meaning commanders in the field can continue to determine whether a sexual assault case can proceed to court. Also under the compromise, high-ranking officers would retain the ability to set aside guilty verdicts and sentences reached at court martial, but only if the maximum sentence for that offense does not exceed one year and the sentence given by the court-martial does not include a punitive discharge. The changes are included in a defense spending bill and the Senate is expected to vote this week.

Gillibrand had proposed an amendment to a defense spending bill that would remove sexual assaults from the chain of command. Gillibrand, according to the Associated Press, has said she will pursue that change in a stand-alone bill.

Amos Guiora, a University of Utah law professor, has been among those advocating to remove sexual assault cases from the chain of command. In a column for The New York Times earlier this year, Guiora wrote how when was a judge advocate general in the Israeli military, he had authority to order an indictment against a soldier. Commanders had no role.

Giving American officers a role in who gets prosecuted creates an inherent conflict of interest, Guiora argues. He also rejects arguments that the U.S. military is too far deployed to require judge advocate generals involvement, saying telephones and video calls mean JAGS can quickly be contacted to determine how to handle a circumstance.

"I think there's a much larger question," Guiora said in an interview Wednesday. "That is: Is justice served by having commanders make the justice decisions?"

Guiora says as long as commanders retain decisions over whether to prosecute a cases, other changes to the U.S. military's sexual assault protocols don't mean much.

Spokespeople for Utah Sen. Orrin Hatch and Sen. Mike Lee said their respective bosses are still examining the legislation and had not determined how they will vote on the bill approved by the House.

Sen. John McCain, R-Ariz., has been a staunch opponent of taking sexual assault cases out of the chain of command. In a Nov. 20 speech on the Senate floor, McCain argued against any bill that would "farm that responsibility out to some other entity" when it should be the commanders who are responsible, and should be held accountable, for preventing sexual assaults.

"The Gillibrand amendment says we don't trust these commanders," McCain said. "Well, we trust those commanders with the lives of these young people."

Crystal Satterfield, who served in the U.S. Navy and leads a club for veterans at Dixie State University, supported the Gillibrand amendment. She said removing sexual assault cases from chain of command would encourage victims to report their attack. Under the current system, Satterfield said, victims fear retaliation, ostracism or just that nothing will happen.

"It needs to be taken out of the chain of command," Satterfield said. "That's the major problem right now. That's what keeping cases from being reported."

Makar agrees. She says commanders are reticent to allow sexual assault cases to proceed because it reflects poorly on them.

"They don't want a sexual assault on their rolls," Makar said.

Makar, who lives in St. George, wants the handling of sexual assault cases — from the time they are reported through their adjudication in the military justice system — to be handled by judge advocate generals or other professionals with extensive training in legal issues. But the bill passed by the House does not provide for that.

When Makar was called upon to hear a sexual assault case on a U.S. Naval base, she was a navigator. She had no legal training and knew little about the military's larger problem with sexual assault, yet it was her responsibility to ask questions of all the parties and decide if the case should proceed to a court martial.

The three-person panel, none of whom where in the accused's chain of command, decided the case should not proceed. Makar wonders if they made a mistake and if the accused assaulted someone else later.

"I don't know if I made the wrong decision or not," Makar said. "I would feel a lot better about it if I had the proper training and knew what to ask."

ncarlisle@sltrib.com

Twitter: @natecarlisle —

What the compromised legislation does

• Extends victims' rights, including the right to be "reasonably protected from the accused" and to be notified of the case's progression and right to be heard sentencing

• Specifies victim has right to an advocate or counsel if being interviewed by defense

• Eliminates five-year statute of limitations for sex offenses

• Commanders cannot consider a victim's character in determining how to dispose of an offense

• Limits how a victim's character can be raised during judicial proceedings

• Prevents commanders from considering the character and service record of the accused

• Strengthens prohibition on retaliating against someone who has reported sexual assault

— Source: National Defense Authorization Act for Fiscal Year 2014