As Washington grows alarmed about sexual assault in the military, lawmakers of both parties and in both chambers of Congress are moving to introduce legislation seeking to prevent abuses and prosecute cases better, says the New York Times. Military officials are largely opposed to what many experts believe is a crucial step toward reducing assault and more effectively punishing abusers: the reversal of a centuries-old policy stemming from English law that gives commanders the power to decide whether and how an offender should be tried.
Unlike civilian judges, a military commander decides who is prosecuted for what crimes and at what level of severity. The commander who convenes the court-martial picks jurors who will hear the case and after trial must approve or disapprove findings of guilt and sentences. “We have a system partly from the 20th century and partly from the 18th century,” said Eugene Fidell, who teachers military justice at Yale Law School. Commanders believe “as an article of faith that they must have the power to decide who gets prosecuted.” Victims and their advocates say the process serves as a disincentive for reporting sex assault because victims fear and often experience retribution from their peers and superiors and are not given the due process civilians receive. “Placing the fate of a case with one person from beginning to end is illogical, it's not practical and it also is a completely unjust system in which neither the victim nor the accused is well served,” said Anu Bhagwati of the Service Women's Action Network.