Note to readers: I usually limit myself to 700 words in this space. Since I’m going after the author so forcefully on this topic, though, I’ve blown that limit and gone over. I very much respect Prof Dunlap’s experience and his service to his country. Regardless, I take issue with what he wrote, and this is why.
Last month, Duke law professor and retired two-star general Charles Dunlap released an article with his “top ten” reasons why Senator Kirstin Gillibrand’s unfortunately un-acted upon initiatives regarding sexual assault in the U.S. military were a bad idea.
I don’t lightly take on a former general officer and law professor on military justice. That said, I’ve never been given more ammunition to do so. Dunlap’s article offers very little substance to the needed discussion on how to curb sexual violence within the military. Instead he writes with a repetitive and largely hyperbolic tone that exposes more a fear of change than anything else.
My top five objections:
1. The piece begins with a meaningless distraction. Dunlap questions why colleges and universities aren’t being “targeted” with regard to sexual assault instead of the military. He’s right to suggest that colleges aren’t doing nearly enough to curb what is a shameful problem in their environments. But aside from the fact that the military is far more centrally controlled by Congress and far easier to change institutionally than thousands of separately managed, public and private schools in 50 states, it’s also utterly beside the point. Higher education’s problem with sexual assault is another matter, period, and it’s being addressed through powers like Title IX.
2. It follows with a meaningless comparison to the highly-flawed civilian criminal justice system and the lowest-common-denominator environment it must govern. Dunlap, like many who have argued against the Gillibrand reforms, points out that, in cases where both civilian prosecutors and military prosecutors have had jurisdiction over a sexual assault case, military prosecutors were more likely to prosecute. This is true and not surprising, but again largely pointless to the issue of the Gillibrand reforms. First, most sexual assault cases with the potential for dual
jurisdiction are ones involving military personnel in off-base environments. Since these cases tend to involve military victims and military witnesses, I’m not surprised that the military justice system is more likely to take them than civilian offices (and good on them for doing so). Secondly, the traditional model of civilian rape prosecution has only recently begun to evolve to address these cases competently. Civilian prosecutors are also not dealing with members of a closed and selective system. Regardless, civilian prosecution needs to improve and should not yet be used, in general, as a model for anyone. What Gillibrand was hoping to create were enlightened, motivated and highly trained prosecution teams that would have been the state of the art in sexual assault prosecution. This is what I was helping to create through my civilian service to the Army, and I was joined by some of the very best minds in the business, some of whom are still in service to the military both in and out of uniform.
3. It grossly distorts the purpose of the prosecution function by conflating it with the command function. Dunlap believes that, since military commanders are focused on battlefield victories and not courtroom victories, they’ll be more likely to bring cases against defendants in order to “send clear messages” to troops. This may or may not be true, but in any event it is a terrible perversion of what justice is supposed to mean in any environment. No prosecutorial authority may ever bring an inappropriate or otherwise non-prosecutable case to bear against a defendant in order to “send messages.” Cases are appropriate for prosecution if admissible evidence exists that would support a conviction for an identified crime, not in order to further some other agenda, no matter how well-intentioned. I personally met no commanders who would confuse this profound responsibility, but Dunlap seems to encourage it.
4. It mischaracterizes the purpose and goals of military law. Dunlap insists that military justice is ultimately more about protecting the security of the nation than any individual or group, no matter how deserving. He believes this overarching goal actually provides more incentive for commanders to purge rapists from their midst as they understand that sexual violence in the ranks threatens good order, discipline, and ultimately fighting capability. On one level this is true, but on another it exposes a dichotomy that actually makes commanders less able to make appropriate prosecutorial decisions particularly in sexual violence cases. Protecting national security ultimately involves success in combat if combat becomes necessary. That is achieved through lethality, brutality and strength. The vast majority of our warriors are not sexually violent; rather, a prolific few cause most of the harm, as in any environment. But what is undeniable is that some of the same traits that make a person deadly when called upon are present in sexually aggressive people as well. In the military environment as in most environments, the offenders are often respected and very good at their jobs. Their sexually offending behavior is carefully compartmentalized and hidden. Conversely, the victims are often outcast and not valued. Commanders with the best intentions, particularly when unfamiliar with the dynamics of the kind of sexual violence most people experience, may still view a sexual assault case through the lens of what is best for the mission or the unit as a whole, and at the same time be misled by the otherwise sterling reputation of the offender. This is not a criticism of commanders; they simply have an enormous range of differing responsibilities, more so now than in previous generations.
5. It is insultingly dismissive of Trial Counsel, the military lawyers who enforce the UCMJ. Dunlap seems generally hostile to the decision making ability of prosecutors in pretty much any case, which might make slightly more sense if Gillibrand’s goal was to strip military officers of involvement in prosecutorial decisions in favor of civilians unfamiliar with military life, culture and circumstances. But this is not the case. Neither Gillibrand nor anyone with any influence has suggested replacing uniformed personnel with civilian prosecutors. What Gillibrand proposed was a corps within a corps of specifically trained legal experts untethered to the myriad responsibilities and conflicts of the command, but still active soldiers, airmen, sailors and marines. I was not always impressed with the military as an institution, but I was deeply impressed with the level of not only legal competence but military bearing and sense of duty that I encountered in the JAG’s I worked with across the services. Unlike Dunlap’s assertion that decision making authority will be removed from commanders and given to “lawyers far from the battlefield,” I helped create a system of special victims prosecution in the Army that places specially trained JAGs around the globe and in theater. There is no reason this could not continue. Dunlap then wastes a good page or so citing a Pew research poll that suggests Americans have more confidence in military leaders than in “lawyers,” apparently lumping all of them into one ignominious group. The fact is, Trial Counsel come from and serve in all aspects of military life, including special forces groups and “tip of the spear” units. They fight and die as honorably as anyone in uniform and should not be disregarded as the bureaucrats and pencil pushers Dunlap seems to characterize them as (“staff lawyers”).
Those are the top five, but there there is far more to dislike in this piece. Dunlap’s insistence on hyperbole, suggesting that commanders would be completely stripped of responsibility for serious crimes within their units (they would still have a great deal of involvement and influence and would maintain total control over directly mission-related crimes like desertion) is unhelpful and misleading. At one point he all but lends credence to a “political pundit” who suggests that the open service of homosexuals in the military could produce higher rates of offending. This is so patently baseless and offensive it has no place in the debate. Dunlap also bemoans the supposed $113 million cost of the Gillibrand initiative, claiming again with shameless hyperbole and fear-mongering that it will divert resources from the needs of service people, veterans and families. But with a defense budget of around $600 billion this does not move me. His only valid points are made when he correctly questions some of the legal definitions currently in place after 2012 amendments to the UCMJ, and whether the experience of foreign militaries is directly applicable to ours.
I am quite sympathetic to the arguments of friends and colleagues, some of them experienced Trial Counsel themselves, who are wary of Congressional “fixes” and public demand for change. I’ve made the determination that Gillibrand’s initiative would have served the military well, but I absolutely acknowledge room for debate. Just not the kind professor Dunlap has chosen to engage in.