Breaking the Chain of Command Culture: A Call for an Independent and Impartial Investigative Body to Curb Sexual Assaults in the Military

29 Wisconsin Journal Law, Gender & Society 341 (2014)

Washington & Lee Legal Studies Paper No. 2015-28

31 Pages Posted: 29 Apr 2015

Date Written: November 01, 2014

Abstract

Despite extensive reform in the military's treatment of sexual assaults of service members, recent data suggests that the problem persists at disturbing rates. Successful investigation, prosecution, and conviction of offenders remain significantly low.

This Article identifies two shortcomings in the military justice system that might explain why existing measures fail to foster change. First, a significant problem stems from the current institutional structure of the military's reporting and investigation mechanisms. The reporting and investigative power lies with the military commander, who enjoys an unprecedented authority in deciding if and how to proceed with a complaint involving military sexual assault. Commanders currently have the authority to kill sexual assault complaints by preventing them from evolving into official reports, which commanders would be required to transfer to the military police for investigation.

Second, a major problem rests with the nature and quality of criminal investigations of military sexual assaults. Military investigative agencies use investigative tactics and techniques that adversely affect the future of a significant number of sexual assault complaints. These practices not only result in notable underreporting of military sexual assault but also often impede their prosecution. The path to successful reform lies in challenging these investigative practices, along with the prevailing military culture, myths and stereotypes that undergird them.

To address these problems, the Article proposes that military commanders are stripped of their authority to dispose of sexual assault complaints. Instead, this authority should rest solely with an independent and impartial body after the military police conduct a comprehensive investigation.

Keywords: sexual assault, military justice

Suggested Citation

Buchhandler-Raphael, Michal, Breaking the Chain of Command Culture: A Call for an Independent and Impartial Investigative Body to Curb Sexual Assaults in the Military (November 01, 2014). 29 Wisconsin Journal Law, Gender & Society 341 (2014); Washington & Lee Legal Studies Paper No. 2015-28. Available at SSRN: https://ssrn.com/abstract=2599742

Michal Buchhandler-Raphael (Contact Author)

Washington and Lee University School of Law ( email )

Lexington, VA 24450
United States
(540) 458-8510 (Phone)

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