USAF JAG: Keep Commanders Involved in Sexual Assault Proceedings

Lt. Gen. Jeffrey A. Rockwell, U.S. Air Force Headquarters judge advocate general, speaks during an investiture ceremony on Joint Base Andrews, Md., Oct. 9, 2018. Rockwell testified before the Senate Armed Services Committee's Personnel Subcommittee on Wednesday. Air Force photo by A1C Michael S. Murphy.

Removing commanders from Air Force sexual assault prosecutions would threaten Total Force discipline and readiness, and challenge current efforts to combat assault within the service’s ranks, the Air Force Judge Advocate General told Senate legislators Wednesday.

“If commanders are trusted with the decision to send airmen into harm’s way, where command judgment may cost lives, they should also be trusted to discipline and hold accountable those who commit offenses,” Lt. Gen. Jeffrey Rockwell wrote in prepared testimony submitted to the Senate Armed Services Committee’s Personnel Subcommittee.

Instead of overhauling the way assault cases are handled, Rockwell posited, the military should direct its energy towards tackling “evolving issues of retaliation, collateral misconduct,” investigating and resolving cases in a timely manner, “and education on the specific and general deterrent effect generated by the cases tried.”

“A commander-based disciplinary system, with direct, candid, and independent legal advice, is indispensable to building a ready, disciplined force to execute mission,” he said. “Ultimately, experience indicates that commanders are well positioned for the oversight, review, disposition, and adjudication of cases because they also have responsibility and sensibilities for the larger national security efforts that military justice exists to support.”

Rockwell said commanders “set the tone for the units” and are the best positioned to combat sexual assault in the Air Force, by virtue of “their unique position and responsibilities,” as well as the fact that they’re imbued with both a legal and moral duty to establish and enforce standards. He also pointed to the educational, experiential, ethical, and character-related qualifications for selection as a commander and the military justice training commanders receive to help justify their place within military legal proceedings.

“Commanders are the biggest part of the solution, not the biggest part of the problem,” he wrote.

But the ranking member of the Personnel Subcommittee, Sen. Kirsten Gillibrand, D-N.Y., pushed back on Rockwell’s remarks, saying the “technical decision” over whether felony sexual assault has occurred in US military ranks should be made by outside experts with criminal justice backgrounds.

“You do not need to decide a technical decision about whether a felony has been committed,” she told Rockwell. “You do not get to do that, because your job is to make sure the crimes don’t get committed, to make sure they get investigated properly, to make sure there is no retaliation, and to make sure you have unit cohesion, and you actually have good order and discipline.”

Gillibrand also emphasized that such a move wouldn’t be disempowering to commanders, since seniority only allows three percent of them to be convening authorities in such cases.

“We’re taking one thing off your to-do list that you’re not very good at,” she said.