Illustration by Bloomberg View
Illustration by Bloomberg View

Congress is poised to change the way the U.S. military deals with the profusion of sex crimes within its ranks. Changes are surely needed, but there’s a danger that Congress won’t reach the root of the problem: Most sexual attacks in the military go unreported.

One bill that has Defense Department support, and thus stands a good chance of passing, would toughen penalties and restrict commanders’ power to grant clemency -- good changes both. Sponsored by Senator Claire McCaskill, a Missouri Democrat, the legislation would mandate the dismissal or dishonorable discharge of anyone in the military found guilty of rape, sexual assault, forcible sodomy or the attempt of those acts. (Currently, the court-martial may or may not kick a convict out of the military.)

The law would also limit military commanders’ authority to reverse certain convictions by courts-martial and constrain their power to reduce sentences. Earlier this year, Congress was outraged by two instances in which Air Force generals, against the recommendations of their legal advisers, overturned jury convictions of sex offenders.

By adding mandatory expulsion from the military to the penalties for serious sex crimes, McCaskill’s proposal might deter some offenses. A better way to do that, however, is to create an environment in which such crimes are routinely investigated and punished. Clearly, that climate does not exist now. Although the military’s best estimate, based on an anonymous survey, is that 26,000 service members were sexually attacked last year, only 3,374 assaults were reported.

In the first three quarters of this fiscal year, the reported crimes were up by 46 percent over the same period last year, and the military considers this evidence that the climate is improving. It may be. Or, assaults may be increasing. From 2010 to 2012, the number of crimes registered in the anonymous surveys jumped 37 percent. Either way, the gap between reported assaults and the number in the anonymous survey remains yawning.

One huge impediment to reporting a complaint, military members say, is that base commanders are the ones who decide whether a report is investigated and prosecuted before a court-martial. This intimidates soldiers and officers from reporting attacks, and it produces conflicts of interest for commanders -- who may be reluctant to lose any good soldier to imprisonment. In 2012, investigations were completed for only half as many cases as there were reports of sexual abuse, and only a third of those investigations resulted in courts-martial.

A separate bill in the Senate, sponsored by Democrat Kirsten Gillibrand of New York, would address this problem by having professional military prosecutors decide whether to pursue crimes, including sex crimes, punishable by a year or more in confinement.

Military leaders argue that Gillibrand’s measure would undermine their authority and weaken discipline. Yet senior officers from Australia, Canada and the U.K. -- where legal professionals now make prosecution decisions -- have told Congress that such a system has had either no effect or a positive effect on military discipline.

For the past 20 years, the U.S. military justice system’s “zero-tolerance” policy has failed to stem an epidemic of sexual abuse. An independent system of justice is needed to encourage greater reporting and bring the problem under control.

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