Justice for Victims of Military Sexual Assault

Press Release

U.S. Navy Veteran Congressmen Ron DeSantis (R-FL) and Ryan Zinke (R-MT) announced today the Justice for Victims of Military Sexual Assault Act, which they also plan to introduce as an amendment to the FY 2017 National Defense Authorization Act this week. The bill would create a dedicated litigation track in the Army and Air Force judge advocate general corps (JAG) which would improve the quality of attorneys prosecuting and defending some of the most high-stakes cases like military sexual assault and Guantanamo Bay prosecutions. The Navy successfully adopted this approach in 2007. Reps. Zinke and DeSantis published an op-ed in The Hill on the subject.

"I'm not only a Commander, I'm a military dad; my daughter is a Navy Diver. To think of the U.S. military failing her not only once -- by failing to keep her safe in the first place -- but twice in not providing the strongest defense possible, is unconscionable and is not up to the morals and quality of the organization in which I proudly served for 23 years," said Rep. Zinke. "The Justice for Victims of Military Sexual Assault Act will improve prosecutors and litigators across the board and help victims gain the justice they deserve. Women make invaluable contributions to our national defense. We should do everything we can to welcome them into the Armed Forces, and do everything we can to keep them, and all troops, as safe as possible when they serve."

"Ensuring the swift prosecution of perpetrators of sexual assault within the military is an urgent goal," said Rep. DeSantis, a former federal prosecutor and Navy JAG. "By establishing a career track that will enable military JAG officers to develop the skills and expertise needed to prosecute complex cases, the Army and Air Force will be better able to achieve justice for victims of sexual assault in the military. This will help commanders maintain good order and discipline and be a great career opportunity for officers with a strong interest in military justice."

District Attorneys and United States Assistant Attorneys offices train their prosecutors through a progressive indoctrination process: new prosecutors are tasked with simple cases and senior supervisors readily available to guide them. They learn how to select witnesses, craft arguments, present evidence and argue the simplest of cases- slowly working their way to more complex cases- all under the watchful eye of career litigators who have collectively tried hundreds of cases.

In contrast, the military JAG corps rotates attorneys from one assignment to the next, which can vary from a prosecutor to administrative lawyer, rather than having them specialize in a field. While this is useful for some staffing needs and long-term leadership, there is no career track for JAGs to gain expertise in litigation. The limited experience, training, and caseloads that military JAGs are tasked with place them at the lowest level of experience compared to their counterparts in the civilian government.

This trial inexperience has had negative ramifications for good order and discipline. In 2013, a junior JAG made a novice error and failed to share exculpatory evidence with defense counsel in a child sex assault prosecution. This resulted in an appellate court dismissing the charges with prejudice, which prevents the case from ever being retried.

The Problem of Inexperience in Army and Air Force Jag

78 percent of military justice practitioners had tried 10 or fewer contested cases
89 percent of prosecutors had tried 10 or fewer contested cases
73 percent of defense counsel had tried 10 or fewer contested cases
Only 40 percent of Chief Justices (prosecution supervisors) had tried more than 10 cases

Benefits of a Career Litigation Track

Prosecutorial Experience: Sex assault and felony victims work with seasoned prosecutors who have accumulated years of experience, just like their civilian counterparts in major metropolitan areas
Well-prepared Defense Counsel: Defendants are represented by learned counsel who have defended misdemeanors and lower-level felonies before graduating to sex assaults and violent felonies
Development: Brand-new JAGs gain valuable experience while accompanied in courtroom by experienced co-counsel
Talent Pipeline: Guaranteed pipeline of experienced litigators -> competent judges -> fewer appellate issues and reversals
Less Brain Drain: Fewer skilled litigators forced out of UCMJ practice or military service due to fear of promotion boards that favor "generalists" over specialists
Complements SVP Program: Effectively expand the Special Victim Prosecutor (SVP)1 model to cover the Corps' entire litigation practice, detailing an experienced litigator to both sides of every contested case from beginning to end

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