Top Ten Reasons Sen. Gillibrand's Bill is the Wrong Solution to Military Sexual Assault

17 Pages Posted: 24 Nov 2013 Last revised: 24 Dec 2014

Date Written: November 22, 2013


Over the years Congress has made plenty of efforts to “improve” the military justice system for a variety of reasons, but few matters have generated more offerings than did the Pentagon’s report this past spring of an estimated 26,000 victims of “unwanted sexual contacts” in the armed forces. Some initiatives to address this very critical problem, like the bipartisan effort of Senators Barbara Boxer and Lindsey Graham, look promising; others, not so much.

However, none are as misguided as Sen. Kirsten Gillibrand’s proposal. Indeed, it is hard to think of a proposal that could be more wrong for the military, and especially for the victims of sexual assaults.

Sen. Gillibrand wants to remove commanders from the military justice process and replace them with a new, 600-person bureaucracy which would have lawyers as the “deciders” in disciplinary matters involving sexual assault and other serious cases. Her proposal is based on a popular narrative that is filled with false impressions such as the notion that the majority of the estimated 26,000 victims are women (actually, 53% are men); that military personnel do not “trust” their commanders (polls show they do); that the handful of foreign militaries who have removed their commanders have shown progress in combatting sexual assault (they have not); and that prosecutor-centric systems like the one Sen. Gillibrand wants to impose on the military are more successful than the military’s in suppressing sexual assault (the evidence shows they are less so).

Most troubling is the fundamental lack of a real understanding in Sen. Gillibrand’s proposal as to what solves problems in the armed forces. It is axiomatic in the military that everything important is commander-led. This is particularly true with respect to the matters of morale and discipline that are so central to the warfighting capabilities for which commanders – not lawyers – are ultimately responsible and accountable. Lawyers, even those thoroughly expert in the law and indisputably well-intentioned as those serving in the armed forces, simply do not, and could not, have the broader insights and experience that commanders acquire through years of leadership, and by bearing the grave burden of sending young Americans in harms’ way to do the Nation’s business. Commanders are uniquely and irreplaceably equipped to exercise disciplinary authority in what the Supreme Court recognizes as the military’s “separate society.”

This essay argues that combatting sexual assault through the military justice system is just too important to be anything other than commander-led, and offers ten reasons why Sen. Gillibrand’s proposal will hurt not only the military’s readiness and warfighting capability, but also sexual assault victims. In addition, it describes legislative initiatives that should be examined, but are not being considered by anyone in Congress.

Keywords: Gillibrand, sexual assault in the military, military law

JEL Classification: N4, A00

Suggested Citation

Dunlap, Charles James, Top Ten Reasons Sen. Gillibrand's Bill is the Wrong Solution to Military Sexual Assault (November 22, 2013). Available at SSRN: or

Charles James Dunlap (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
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