>> i want to thank you for your unbelievable strength and courage and leading that conversation. thank you very much. [inaudible conversations]

>> [inaudible conversations] >> [inaudible conversations]

>> [inaudible conversations] >> out hearing of the subcommittee will resume. thank you, e.g., for your service, for dedications, for your sacrifices you've made for country. i'm so grateful you are here today with this important hearing. am also incredibly grateful that many of you came this morning and participated and listened to the first two panels. that means a great deal, not just to our witnesses but also to their families and all of our military families. we appreciate it very, very

much. i know that this is becoming very debated issue, both within the military and in everyday conversation. i also know that many of you have seen the film the invisible war, so the jumping off point on how important this issue is for our military and their families. i'm very, very eager to hear your testimony, and each of you will have five minutes to give an oral statement and you can submit for the record any addition material that you want to submit today, and after your testimony. we're going to from robert taylor, acting general counsel of the department of defense. lieutenant general dana chipman, judge advocate general of the united states army. vice admiral nanette derenzi, judge advocate general of the united states navy. lieutenant general richard harding, judge advocate general of the united states air force. mineral -- major general bunting, staff judge advocate to the commandant of the marine corps. major general gary patton,

sexual assault prevention and response office. rear admiral frederick kenney, judge advocate general of the united states coast guard. thank you all. i think we can start with admiral kenney. >> that afternoon. -- good afternoon take thank you for the opportunity to discuss the coast guard's efforts to prevent a response to sexual assault in our service. good afternoon to you, madam rag member graham. i share the commitment to the safety and well being of each of our servicemembers. ensuring that coast guard personnel have a collaborative cohesive work environment that allows them to accomplish their mission, protecting those on the sea, protecting america, protecting the sea itself. eliminating evidence of sexual assault within the coast guard with -- was a significant theme.

sexual assault is intolerable in the coast guard. it's devastating to its victims, it has broad repercussions throughout the service. we're committed to doing everything we can to prevent sexual assault, to investigate and every allegation, to holding people accountable through military justice and other actions, and to ensuring victims of sexual assault are protected, treated with dignity and provided appropriate ongoing support. i like to notice some highlights of our policies and programs, more detailed information that is contained in the written testimony submitted for the record. all allocation of serious sexual misconduct must be reported the coast guard investigative service for investigation. it was fo from establish a sex crime investigation program. cgs is a step chicago f-22 specially trained and credentialed agents known as family and sexual violence investigators. coast guard regulations on sexual assault prevention and response have been updated in the last year to more clearly

defined roles and responsibilities. the mandate significant education and training. and ensures greater victim support and safety. in april 2011 the vice commandant charted the task force to holistic would examine the coast guard posture towards sexual assault prevention and response. devise commandant approved 39 recommendations from the task force in january, including the establishment of sexual assault prevention council. it is a standing body of the most senior coast guard admirals and subject matter expert design to, among other things, oversee the implementation of the task force recommendation and ordered immediate and actual course corrections and the policy as needed. the vice commandant held the inaugural meeting on february 27 this year. a place great importance and need to train and about all coast guard personnel to recognize and respond appropriately when they observe situations that involve

disrespectful behavior. last year the coast guard crude a role about sexual assault prevention workshop presented live by agents, judge advocates and worklife specialist, includes gender specific breakout sessions to have a frank dialogue about sexual assault, how to prevent it and how to respond. since its inception the workshop has provided training to 40 units and the price was 7500 coast guard personnel. this initiative received the department of homeland security's office of general counsel of or for excellence in training in 2012. many coast guard have reported this train was the most meaningful and effective training they have ever received. training sessions are and have been incorporated into all command and leadership courses in the coast guard as well as our recruit training center in new jersey and coast guard academy in new london, connecticut. we've also significantly expanded the number of trained victim advocates across the coast guard with nearly 400 new

victim advocates added in the last two years. i'm committed to enhancing the expertise of coas coast guard l, services council and sexual assault case. coast guard judge advocates also attended advanced training to hone their litigation skills and sex assault cases. in closing our goal is to eliminate sexual assault within the coast guard by building a strong cultural prevention, education and training, response capability, victim support, appropriate reporting of procedures, and accountability. thank you again for the opportunity to testify today and i'm pleased that any questions that you may have. >> thank you. lieutenant general harding. >> madam chair and members of the committee, also thank you for the opportunity speak today about sexual assault prevention and response efforts in the air force. we are committed to supporting

victims of sexual assault while we do everything humanly possible to eradicate this awful crime from our services. are secretary, the honorable michael donnelly after chief of staff general mark, are fully committed to eliminating sexual assault within our ranks. it made their position abundantly clear. the air force has zero tolerance for this offense. one sexual assault is one too many. we believe our sexual assault challenge, like other challenges we faced in the past, and will face in the future, will be overcome by staying true to our core values and integrity, service and excellence. acting on those vouchers. with actively engaged in improving our efforts to prevent and respond to sexual assault across many different lines of f effort. ywhy would many ongoing efforts to combat sexual assault, time constrained to limit my comments to just one at this time. specifically, i'd like to talk to you about our special victims

council program that we initiated in january. i believe that represents a positive and profound change in the way we approach sexual assault cases. the pilot program provides airmen to report that they are victims of sexual assault with an attorney to represent them. our special victims council program is unique among federal agencies in providing that level of support to victims of sexual assault. this pilot programs primary purpose is to give the very best care to our people. our special victims council operate independently of the prosecution's chain of command. they establish an attorney-client relationship with victims, and they represent on their client's behalf. thereby protecting victims privacy and immeasurably helping victims, not field we victimized by having to endure alone of what can be complex, exhausting, and often confusing criminal justice process. we are in early stages of this

program, but we are extreme excited about what the future holds. in december, which render first cadre of 60 expands military attorneys a special victims council. the date you represent about 200 clients in various stages of the investigation, and adjudication phases of the cases. feedback from victims to date has been very positive. the svcp program is the right thing to do in caring for airmen. and we are making a difference for their clients. in closing the men and the women who raise the right hand with great pride volunteered to serve this great nation became more than just airmen. they became part of our air force family. therefore we strongly believe that we have a sacred obligation to provide a work environment that welcomes them, that keeps them free from sexual abuse by the federal airmen, and provides the very best care and advocacy on their behalf.

i look forward to answering your questions, thank you. >> next one, next speaker is lieutenant general chipman. >> madam chair and members of the committee, on behalf of the honorable john mchugh and general ray odierno, thanks for the opportunity to testify before you here today. listening to survivors who bravely testified this morning about breaks that should lie in the corkum had bond -- how do we restore those bonds? had we retain the trust, those who continue to add to the call to serve our army because it offends all of us. for me, the answer lies with the system of justice to give voice and support to victims, maintains good order and discipline for our force, and protects due process for any soldier who stands accused of a crime. sexual assault crimes destroy

the trust that enables missions accomplishment. because of the harsh reality of these cases, you develop a tailored approach to handle them. in the army, professional and independent investigators and prosecutors formed the vanguard for special victims capability directed by congress last year. we actually begin the transformation to a special victims focus in 2008. the capability start with report of a sexual assault. victims have various options to report an allegation. our goal is simple, to encourage victims to come forward. we understand that victims are often reluctant to report. every unrestricted sexual assault allegation reaches the army's criminal investigation division. they're specially trained criminal investigators, independent of the command pursue the investigations without interference or agenda. these agents receive extensive

training and sexual assault investigations. working hand in hand with these investigators are the arms special victim prosecutors. these experienced judge advocates are seasoned trial lawyers and are trained specifically to focus on victim care. a complete career prosecutor courses offered by the national district attorneys association, and on the job training with a civilian special victim in any large metropolitan city. in addition, both cid and a check or have hired civilian investigators and prosecutors to mentor, train come and assist the special victim teams. these experts bring decades of experience and expertise from something police agencies, other federal law enforcement agencies and state district attorney's offices. special victim prosecutors serve the interests and rights of the victim, the community safety interest, and the good order discipline of the unit i holding

offenders accountable. testimonials from victims and their families attest to the dedicated support these attorneys provide, such as that from a victims mother who described it as a member of her family who made her daughter feel stronger and more capable than she knew she could feel. 11 years of war have reaffirmed that commanders have a central role in administering military justice. in the same way that they are accountable for health, training, welfare, safety, morale, discipline, and mission readiness. a recent court-martial conviction set aside by a commander has focused concern over the posttrial role of the commander. should we evaluate needed changes to the posttrial role? absolutely. we collectively evaluate military justice, processes and procedures in an ongoing forum, the joint city committee established. moreover, we have congressionally mandated panel's

that can responsibly consider changes to these codes. these vehicles like this hearing are signs of a healthy system of justice, subject to scrutiny, transparency, and accountability. although the focus of your hearing today, the prosecution of these offenses, we cannot assume we can prosecute our way out of this problem. accountability remains critical. but real change will occur only when both convention and response measures yield culture change. so we begin with every new recruit, focusing on army values, and bystander intervention techniques. our system of justice is not perfect. no system is. we have worked dramatic changes over six consecutive cycles. we make mistakes. every day in every jurisdiction around this country, ross accused make difficult decisions

on cases. we are no different but my commitment to you is that will do everything in our power to retain the trust of the men and women who serve our armies, and to reserve a system of justice of which we can be proud. thank you and i look forward to your questions. >> mr. keiner? >> chairman gillibrand, ranking member graham, and members of the subcommittee, thank you. and members of the subcommittee, thank you for the opportunity to testify here today. the department is determined to combat and prevent sexual assault in the military. the men and women who put their lives on the line to protect this country must be ensured that they have the opportunity to serve without fear of sexual assault. sexual assault in the military as not only an abort crime, but does enormous harm to the victims, but it is also a virulent attack on the discipline and good order on

which military cohesion depends. we must combat this scourge with all the resources at our disposal. secretary hagel has made it crystal clear to the senior military and civilian leadership of the department that combating this blight is a major priority for him, and that he demands results. i watched the hearing this one and want to take this opportunity to thank the witnesses for coming forward, and i believe that their testimony will contribute to making our military better. the department is in the process of implementing a multifaceted effort to address sexual assault in the military. and the legal our been, my office along with the judge advocates general and the joint service committee on military justice, are working to improve departments legal policy pertaining to sexual assault. these efforts are designed to make our judicial investigative and support structures more efficient, effective and responsive to the rights and

needs of victims while preserving the rights of the accused. the department racially authorized the united states air force to let a pilot rogue ramp to victims who report sexual assault the special victims council our experienced attorneys who may advocate on behalf of the victims of commanders in authorities, staff judge advocates, drug council and to the extent authorized by the many for courts-martial, military judge. although the pilot has been operational for just six weeks, i understand the numerous victims have already requested assistance. in the need to evaluate the program's effectiveness and to resolve questions concerning the proper role special victims council in the military justice system, which is critical to ensuring that this expansion of victims rights does not have unintended consequences that continue the pursuit of justice. to that in them i passed the joint service committee military

justice experts from across the department and the coast guard with evaluating the program. a long-standing issue of concern of significant role that commanders have in military justice generally, and specifically in cases involving allegations of sexual assault. the recent action of the convening authority to disapprove the findings and sentence, and to dismiss the charges of sexual assault after a conviction by court-martial is underscored continuing concerns of the role of commanders. over the years, congress has preserved the center will of commanders. however, the role of commanders has been narrowed numerous times to provide protections for the accused actually be in this reading of the long legislative history of the ucmj to put the

role of the commander beyond to be careful re-examination. we must strive for a military justice system that impartially considers evidence, respects the rights of accused and victims alike, punishes the guilty, and reinforces military discipline. the effective members of the military must have confidence that the military justice system will treat both accused and victim fairly. with that in mind, the department has initiated a number of views to inform congress and the secretary of defense regarding the advisability of additional changes to the administration of military justice. specifically, secretary hagel directed me to ensure that the panel of independent experts to examine the systems used to investigate, prosecute and adjudicate crimes involving military assault required by section 576 of last year's nba a

considers the role of the convening authority in the military justice process, including the authority set aside at court-martials findings of guilt. the panel presents an excellent opportunity to solicit independent advice on the appropriate role of the convening authority in today's now to justice system which includes robust rights of appeal. proceeding with care and listening to all those affected by the military justice system and to experts on the administered justice under other systems, will ensure that changes to the administration and military justice are constructive and avoid any unintended negative repercussions. but care and caution must not be allowed to become an excuse for an action. we are further action is needed. our men and women in uniform serve to protect us every day. they put their lives on the line for us with this great country of ours. we owe them a military and

sexual predators have no part, and sexual assault has no place. until all sexual assault in the military is eradicated, it is our duty to ensure that the victims find support, and we lawyers at this table have a special obligation to ensure that the military justice system works effectively to provide justice in every case and to all involved. i look forward to your questions, thank you. >> vice admiral derenzi. >> thank you. afternoon, madam chair, ranking member graham, members of the subcommittee. and you for this opportunity to appear before you this afternoon to address the navy's commitment to fighting sexual assault, and specifically about the navy's accountability initiative. please let me state up front, this is not just a legal issue. it's the leadership issue for everyone of us. and in recognition of this, the secretary of the navy, ray mabus, the chief of naval

operations, admiral jonathan greene a, implement a multifaceted approach to combat sexual assault am including comprehensive training and awareness that emphasizes active in both leadership and bystander intervention. when incident does occur, the navy is dedicated to ensuring that victims receive full spectrum and timely support to include medical treatment, counseling and legal assistance. and certainly meeting and listening to the members of the earlier panel who put a face and a voice to the impact of sexual violence underscores the importance of victim care. into the den, and consistent with the 2012 nba, the navy is hiring 56 civilian credentialed full-time sexual assault response coordinator's, and 66 full-time civilian credentialed victim advocates. they will augment the more than 3000 active duty command victim advocates and they will work

with specially trained investigators and specially trained jag corps officers. the check or is intensely focused on upholding the special trust that his place in is to provide a fair, effective and efficient military justice system. with implement several key initiatives to ensure that our clients, both the government and the accused receive the highest level of advocacy. in 2007, it improve the overall quality of court-martial litigation. we established military justice litigation career track. jag corps officers apply for the designation as military justice specialists, for experts, a son of litigation experience and aptitude. those selected for the designation lead department and provide proven experience in the courtroom, personally conducting, overseeing, or adjudicating complex cases to include sexual assault. this program leverages trial

counsel, defense counsel and judicial experience to enhance the effectiveness of our court-martial practice for complex cases. in 2010, we established the trial counsel and defense counsel assistance program, the cat and the cat respectively, led by experts in military justice. they conducted outreach training to improve efforts between prosecutors and investigators and other military justice stakeholders. a service trial counsel or assist in f.a.r. council in several complex cases to include sexual assault cases. the tcap deputy director is a gs-15, a former state prosecutor with extensive sexual assault prosecution experience. she previously served as a director of the national center for the prosecution of violence against women, and she's a noted author in the field. dcap was established to support

and enhance the defense bar, provide technical expertise to case collaboration, and standardized resources defense council. the office leads training efforts and consult with detailed counsel through every phase of the court-martial process worldwide. in 2012, we hired to highly qualified experts, one to work at her headquarters level, and another to work in dcap. they are channeling significant sexual assault litigation experience into enhanced litigation skills and practices for prosecution and defense teams in the field. we are now in the process of hiring another highly qualified expert to work in our trial counsel assistance program. we provide are litigators with extensive trial advocacy training throughout the course of their careers. naval justice going conjunction with a criminal justice division, our tcap and are dcap, courtney specialist training on litigating complex sexual assault crimes, and to leverage from the this civilian sector

and from our sister services through crosstraining. we thank career litigators, to receive master of law degrees in trial advocacy. to further define our complex litigation capabilities, this last year the navy established and externship program, and assigned to mid-level career officers to work in the sex crime unit, one california and one in florida. what i hope is clear from these and other initiatives that are described more fully in my statement is that secretary mabus, admiral greenberg and the entire navy leadership team remain steadfastly committed to getting in front of the problem and to eliminating sexual assault from our ranks. for our part, the jack remains actively engaged in sexual assault awareness and prevention training, victim response and accountability initiative. thank you again for this opportunity, and i look forward to taking your questions.

>> major general ari? >> thank you. chairman gillibrand, ranking member graham, and members of the subcommittee, thank you for the opportunity to testify here today. i must begin by showing you that secretary mabus and general amos continue to make elimination of sexual assault a top priority in our department. within the marine corps our commandant is personally leading this fight. not just in words, but through action. in june 2012 the commandant issued his sexual assault prevention and response campaign plan. this plan is a blueprint for institutional and cultural change within our core and sets us on a course to improve our ability to prevent and respond to sexual assault. in july 2012, our commandant directed every marine general officer to attend sexual assault prevention, and response symposiums. this training event includes subject matter expert who spoke

about prevention, the use of alcohol as a weapon, inadvertent victim blaming, and dispelling myths. our commandant also spent most of 2012 coming around the world speaking to his leaders in a series of heritage briefings, making it clear that sexual assault would never be tolerated. as he recently stated, and i quote, we are determined to eradicate sexual assault in the marine corps. it's a personal thing to me. i want to address two main areas today, for someone to highlight the progress the military's initiatives to combat sexual assault. during the past few years there have been significant statutory and regulatory changes made to the military justice system that affects such sexual assault prevention and response. as with implement these changes, we must carefully balance three main interest. the commanders in hand responsibility to maintain good order and discipline, the

constitutional rights of an accused, and our fundamental obligation to protect and care for victims. military commanders are uniquely positioned to balance these three interests, and ensure the military justice system serves and protects each of them. second, i want to address the improvement to our legal response capability. .. >> composed of experienced

senior prosecutors. our highly-qualified experts are experienced civilian prosecutors who provide training, mentoring and advice on trial strategy and tactics to all military prosecutors in the region. all of these improvements protect victims' interests while insuring the accused receives the due process rights guaranteed by the constitution. in addition to increasing the available, per tease to litigate sexual assault expenses, the commandant on the disposition horse for sexual offenses to cover not to only penetration offenses, but also all contact sex offenses, all child sex offenses and attempts to commit such offenses. in essence, we now have a

smaller group of more experienced officers making decisions for all sexual offense allegations and any related misconduct. in addition, to gain more visibility and command attention on this critical issue, the commandant directed a new eight-day brief to the first general officer in the chain of command from the date of the victim's unrestricted report of sexual assault. this eight-day can brief serves as a checklist guaranteeing each victim's care is supervised by a senior commander. elimination of sexual assault is a top priority for our corps, and the commandant's leadership and commitment are making a difference. by using a comprehensive approach and by attacking from prevention to prosecution, i truly believe we are making a positive change in the culture of our corps. as we consider additional action, i believe the response systems panel and the judicial proceedings panel established in

the fiscal year 2013 national defense authorization act provide an opportunity to analyze any future reforms, and we look forward to participating. again, i thank you for the opportunity to testify here today, and i welcome your questions. >> major general patton. >> madam chair and members of the subcommittee, thank you for inviting me to appear today. first, i would like to thank the survivors for testifying today. their words inspire all of our efforts and renew my commitment every day to this cause. it has been my honor to serve our nation with service members just like them, and during that time i am no stranger to leading culture change. to include helping destigmatize mental health care, more fully integrating women in the armed forces with last year's department of women and service report and also managing the department's successful repeal

of don't ask, don't tell. the common denominator in all of these complex institutional challenges has been an unequivocal commitment to success, readiness of the force and the welfare of our men and women in uniform. now as the director of the sexual assault prevention response office for the past nine months, i want to say that the department recognizes that sexual assault is a terrible crime and more needs to be done in combating it. it is a national problem in our society, but we in the military must hold ourselves to a higher standard. sexual l assault has no place in my army and no place in my military. it is an affront to the values that we defend, and it erodes the cohesion that our units demand. it is unacceptable that 19,000 men and women, service members in 2010, are estimated to have experienced some form of unwanted sexual contact. this estimate is based on feedback from a department

anonymous survey of the active duty force. that same year just over 2,600 victims of assault made an official report of these crimes ranging from rape to abusive sexual contact. this number, when compared to the survey estimate, demonstrates the significant underreporting of this crime. this underreporting prevents victims from receiving the care they need, and it limits our ability to investigate these crimes and hold offenders appropriately accountable. finish as this reporting problem demonstrates, sexual assault is a complex issue. there's no single silver bullet solution. our dod-wide mission is to prevent and respond to this crime in order to reduce with the goal to eliminate sexual assault from the military. reducing and eliminating sexual assault requires a multipronged approach, one that engages every service member to prevent the crime from occurring in the first place. but when one does occur,

effective processes and expert people are in place to support victims and insure the delivery of justice. underpinning all our effort is the is the need for enduring culture change, requiring leaders to foster a command client -- climate from top to bottom where sexual assault is not tolerated, condoned or ignored. a climate where dignity and respect are the core values we must all live by, where a victim's report is taken seriously, and they are treated with sensitivity. where bystanders are trained and motivated to prevent unsafe behaviors, and finally, a climate where offenders know they will be found and held accountable for their actionings. these climate factors are being stressed and taught at multiple levels of noncommissioned officer and officer training, and we are getting positive feedback. i often get asked how we will

know when this culture change has taken told. my answer relates back to some of my formative experiences growing up in the army spanning the past five decades. i believe we will know change has occurred when prevention as closely scrutinized a as prevention of fratricide or friend fire, when sexist paver and derogatory language produce the same reaction as hearing a racist slur. we are not there yet, but we are heading in the right direction, and we need to remain persistent in moving this forward. the department's strategy is organized along five lines of effort; prevention, investigation, accountability, victim advocacy and assessment. all five are described in detail in my written statement submitted for the record. in the interest of time, i'll conclude with a few personal observations. i firmly believe we can turn this around, but it will take time and continued emphasis on all five lines of effort and at

all levels. culture change starts at the top. and i have seen in my nine months in this job unprecedented senior and mid-level leader attention and energy right now focused on sexual assault prevention response programs across all the services. the key now is transferring this energy and focus from top to bottom across the force through quality training and strong leadership. i began my remarks by stating that sexual assault is a national problem. i will conclude by stating that it is my view that the department of defense can and must be a leader in solving this problem for america. thank you for your attention, i look forward to your questions. >> thank you all. um, we have a number of statements for the record including statements from nancy parish, president of protect our defenders, lisa metz, mr. ben clay and from the victim of the avenue yang know air base.

i'd also like to turn these proceedings over to our chairman, chairman levin. >> madam chairman, thank you for your leadership and holding this hearing. and to all of us those who have joined in this effort, it's a major effort, it's vitally important. i just very much appreciate your recognizing me for a few moments, and i want to thank our colleagues as well who have been here waiting to asks questions, and this will just take a few moments. first of all, mr. taylor, i want to thank you. i wrote you a letter asking you for the legislative history of article 60, and as of, i believe, just today you responded to my letter with your own letter. and included in that letter is a fairly lengthy legislative history which i would ask you, madam chair, to incorporate in the record. >> without objection. >> and then i just have a couple questions for mr. taylor. the legislative history that you

provide indicates that the authority of a convening authority under article 60 of the uniform code dates back to 1775. now, at the time that that authority was established, did a service member convicted the have the ability to appeal his conviction to a higher military court? >> no, sir. >> now, given that a service member can now appeal his conviction to the air force court of criminal appeals and then in the case we're talking about and then to the united states court of appeals for the armed forces, is there any reason now to allow convening authorities to overturn a court-martial conviction on the basis of legal errors at trial?

>> there have been many developments since 1775 to get us where we are today. the robust apellate procedures provided by today's uniform code of military justice are, do raise a very serious question about whether the authority provided by article 60, which was most recently dealt with by the congress in 1983, whether the up -- unlimited authority of the commander to dispose of a finding of a court-martial is

any longer required or would serve, continues to serve a vital purpose. we are going to look into that very thoroughly with a very much of an open mind. but the change in the robustness of appellate procedures over time designed to protect the victim -- excuse me, to protect the accused -- >> right. >> -- makes this a very different question, certainly, than existed in 1775. >> thank you very much, mr. taylor. i want to thank all of our witnesses and, again, thank you, madam chairman, for your leadership here and for the others who have joined with you. again, um, i thank my colleagues and you for allowing me just a few minutes up front. >> thank you, mr. chairman. thank you. i'm now going to allow senator graham to ask his questions, pause he has a time constraint. senator graham? >> thank you, madam chairman, and just indulge me a bit here, and i'll try to be as quick as possible, but i do have a budget

markup. one, thank you for holding the hearing. i think it's been very informative to all of us. regarding setting awe side findings -- aside findings, from the marine perspective from 2010-2012, there were seven cases out of the 1768 the convening authority took action to disprove findings of guilty, none involved sexual assault. that's .4%. does that sound right, general? >> yes, it does. >> okay. the air force, in the last five years the convening authority disapproved findings of guilt in 1.1% of cases, 40 out of 3,713. five of the 40 were sexual assault cases. does that sound right, general? >> yes, sir. that's correct. >> the navy does not have a

tracking system for article 60 disposition, but you'll get one, won't you? okay, good. but you've been able to go around to your regional commands and collect evidence from those who have been involved in reviewing cases, and what we have is from the navy we found one known case where the convening authority took action to disapprove the findings. that one case was a sexual assault case. in the army since 2008, there have been 4,6 of 03 cases that went to court-martial with some conviction. in of 8 cases the convening authority either dismiss z or disapproved the findings of guilt, 1.4%. no army committing authorities has approved the finding disturb. [inaudible] of the soldier that commits the sexual assault. does that sound right for the army? >> it does, senator. >> okay. the reason i bring that up is i

want to make sure people understand, you know, one case has to be put in terms of the whole system. finish the convening authority, general harding, for a general court-martial is at what rank usually? >> with the air force that would be 09, general court-martial -- special court-martial convening authority would be normally an 06. >> what about the army? is. >> sir, our general court-martial conveneses typically an 08 or 09, special court 06. >> navy. >> typically, sir, for a gcm it's a one or a two-star, 07 or 08, and for a special court-martial it's 06. >> marine corps? >> one, two and three-star generals, sir. typically. >> army? >> sir, i think general chipman gave you the army. >> you're both here. >> i'm representing the sexual assault prevention office --

>> okay, i'm sorry, apologize. should have paid attention. coast guard. that's not fair. >> i called on them first. >> i know, good for you. >> well, thank you, senator. to answer the question, general court-martial convening authority are one, two or three-star admirals, special convening authorities can range from 03 lieutenant to 06 captain. >> so if there's a case generated at a local unit, let's say a squadron or a flight, the person reviewing that case, general harding, is quite a distance away from the incident in terms of command, is that correct? >> that's correct, senator. >> okay. so this concern that it's a buddy-buddy system, i just want the public to understand that the convening authority or particularly for general court-martials that would involve a case of rape or some serious sexual assault is a distance away from the unit in question just from the way the system works. now, the history of article 60,

and people in the civilian community may wonder why, why does a convening authority have the ability to set aside a punishment. you do have a robust appeals system, so if there's a legal error in the case, the accused has the right to appeal all the way to the supreme court if necessary to correct legal errors. but we still have the convening authority and the decision making role about setting aside findings. when you go back to the history of this concept, you do start with the continental army, and in -- i'm trying to find my paper here, can't find it. but general eisenhower testified to the house armed services committee before the old stead act which is a predecessor to the ucmj of 1950 that in his

opinion it is necessary that the person in the chain of command have the power to take final election on court-martials. he opposed to a proposal to mitt certain types of sentences from commanders to the judge advocate general. you had another general, collins, who offered similar testimony as commander of the guadalcanal. he believed in order to effectuate good order and discipline. so there's legal error problems that can be corrected by the appellate system, but when it comes to good order and discipline of a command, we have generally held the view that the one person that has the power to determine good order and discipline and to make sure it is present is the military commander. could each of you give me an opinion as to whether or not that concept is still viable and

relevant in 2013? >> well, senator, if i could, i'll start. i think it's incredibly viable. it is part of the reason why we succeed in the nation's armed conflicts. over the course of 238 years, we have largely been successful in armed conflict. it's because we believe four thupgs to every fight. -- things to every fight. we bring the best people. we're an all-volunteer force. we give them the best training. third is we bring the best equipment. congress helps us in that regard. the table wobbles and falls without the fourth leg and that's discipline. and command and control is an important element in discipline. it ties all those things together. and the convening authority's ability to exercise some accountability on every aspect of an airman, soldier, sailor, marine's behavior is incredibly important creating a responsive, disciplined force. so i think it is, it was

incredibly important in 1775, and the reason why we stayed in the field and bested the best army on the planet at the time, and it's still important today. >> could you indulge me, or do you want to -- >> go ahead. >> from the army's point of view, do you concur? >> senator, i would add this: in the cases where we have set aside findings or the entire case after, by the convening authority or, it's typically been where we have a greater result to achieve by doing so. so, for example, a very light sentence on what was charged initially as a very severe set of crimes, a light sentence was such that it was equivalent to nonjudicial punishment. therefore, we set aside those findings in return, for example, in lieu of court-martial to get the greater good of getting to fender out of our service. >> the convening authority cannot increase the sentence. >> that's correct, sir. but it can, in fact, an action -- >> in lieu of it.

>> that's correct. >> in the navy's point of view, does this command authority resonate 2013? >> yes, sir, i believe it does. manners are responsible for life and death decision, the safety, welfare, well being and good order of discipline of those under their charge. my experience has been that these convening authorities and these commanders take these decisions to heart. they strive day in and day out to do the right thing. they're people of integrity. they're advised by well qualified and well trained legal counsel. having said that, the military justice process has matured greatly over the last, since the last time article 60 was reviewed. and there are lawyers at every stage of that process now; trial counsel, defense counsel, staff judge advocates. and it is a good time to look at article 60 again in light of those changes, but ever mindful of the second and third order effects of adjusting or restricting somehow the --

>> is it the navy's position that the convening authority should not have this power, and it should be placed into someone else's hands? >> no, sir, that's not our position at all. >> what about the marine corps? >> sir, thank you for the opportunity to talk on this issue. i think for so long as we hold our commanders accountable for everything that a command does or fails to do, then they must have these types of authorities. they're responsible for setting command climate, they're responsible for the culture, and it is their leadership that we have to hold accountable, and they need to be able to hold everyone in their unit accountable to preserve that good order and discipline to accomplish their missions. >> coast guard? >> thank you, senator. as the coast guard is the smallest of the armed forces, our units tend to be smaller as well, and that commander is the embodiment of leadership and discipline within those small units. and to maintain that discipline i concur with my colleagues. i would add that we have also

reviewed our past court national practice to determine if a commander is ever overturned in the last four years, a charge or specification involving sexual assault. and there have been three instances where a specification, a part of a -- >> right. >> -- finding was overturned, but that was always on the advice of a judge advocate who had found plain legal error. >> right. now, what i will do just to wrap up here very quickly, i think that the hearing today shows the need, the first panel shows the need for the congress to be involved. and i think these programs that you're coming up with have a great possibility to pay dividends. but it is a cultural problem, and it has to be changed. and all i would urge my colleagues to do is that there's been a longstanding tradition in the military of allowing the commander of this authority for the reasons just cited, better than i could ever articulate.

general harding, i would like in private for you to offer to brief the members of the committee about the aviano case. you briefed me. it's quite an interesting case, and i would just ask every member of the committee to spend some time, if you could, being briefed about the facts of that particular case. but as to the climate in the military, the fact that victims feel they can't come forward, clearly, this has to be addressed. and i just want to thank you, madam chairman, for bringing this up to the nation's attention, to the committee's attention, and i look forward to finding a way to continue the progress that seems to be made. >> thank you, senator graham. i am extremely disturbed based on the last round of question and answer that each of you believes that the convening authority is what maintains discipline and order within your ranks. if that is your view, i don't know how you can say that having

19,000 sexual sexual assaults and rapes a year is discipline p and order. i do not understand how you can say that of those 19,000 cases to only have approximately 2400 even reported because the victims tell us that they are afraid to report payoff retaliation and the blame -- because of the retaliation and the plame and scorn they will get from their colleagues. and i really cannot understand how 2400 cases, only 240 of which go to trial can be result in you believing that that authority is giving you discipline. and order. it is the exact opposite of discipline and order. and i'm very grateful for all of the changes that have been made. each of you gave opening testimony that was very strong and thoughtful about the kinds of changes you are making, and i appreciated that i heard from each of you that there's a zero tolerance. and i appreciate that i hear from each i don't have how about the -- from each of you about the training you are giving your lawyers and your prosecutors and

the training you are giving your advocates. and that is all well and good. but if the convening authority is the only decision maker of whether a case goes to trial or proceeds and the only decision maker about whether to overturn a case, well, then all that training and all those excellent lawyers and prosecutors you have don't mean a difference. it doesn't make a difference. because the person with the authority is not the one who has that years of training in terms of legal ability and prosecute tore l y'all discretion and the understanding of the nature of a rape, that it is a violent crime. it is not ask her when she's sober. that is not what this issue is about. so i appreciate the work you are doing, i honestly do. but it's not enough. and if you think you are achieving discipline and order with your current convening authority framework, i am sorry to say you are wrong.

and every victim that has come in front of this committee and every story we have heard over the weeks and months shows that we have not even begun to address this problem. so to lieutenant general harding, let's talk about the aviano case. do you think justice was done in that case? >> i think that the convening authority reviewed the facts and made an independent determination. and that was his obligation as given to him by this body. granted, it was 65 years ago. but he fulfilled a statutory obligation, and he did so with integrity. >> and do you think the five senior officers that were the jury in that trial did not do justice? >> i can't say that they did not, ma'am. i think both the jury and the convening authority did their duty. >> well, as they reached the p

opposite decision, in one instance justice was not done. which instance do you believe justice was not done? >> i can't say. i'm not going to conclude that justice was or was not done. what i will conclude is all parties did their job. from my review -- >> well, one of the parties was wrong. and if you are the victim in that case to have gone huh eight months of -- through eight months of testimony, of providing evidence, i can assure you she does not believe justice was done. i'd like to move towards some questions concerning how we can evaluate a stronger system. mr. taylor, what do you think of the aviano case?

>> i am very concerned about the message receiveed as a result of that case. to back up just a little bit, each of the people at in this table gave a response to senator graham's question, but except for me. i believe that we have to look very carefully about whether there is a continuing value to the authority provided to the convening authority to throw out findings, to reject findings of a military trial, of a court-martial. as senator levin indicated, there is a very robust system of appellate rights that are available to protect the

accusers. and i think we have to very carefully reconsider whether there needs to be changes to article 60, whether there needs to be further guidance on how article 60 is to be employed, but the secretary has charged me to take a thorough and open and searching look into the continued need for article 60 as it exists today. and i intend to do so. it will be informed, certainly, by the experience of these very fine lawyers and leaders and by others to make sure that we have we don't do damage to good order

and discipline. but there is something that seems odd about the power to reject findings that came out of a jury in the absence of some major, obvious problem. so i'm concerned by the message that is received. i think we have to redouble our efforts to make sure that victims are are willing to come forward and are willing to entrust the military justice system. i think we need to redouble our ever efforts to insure that victims feel supported and respected and honored for is the service that they are doing by

coming forward and saying no. >> thank you. i have many other questions that i'll submit for the record for each of you. our next senator is senator blumenthal. >> first of all, let me thank senate gillibrand not only for the focus on this issue and convening this hearing, but also for the passion and commitment that she brings to this issue which i share. and let me begin by saying that you have all given very thoughtful and informed answers, and if i may say very lawyer-like answers. which is to say cautious and careful. this issue really demands

immediate action and not just tinkering around the edges. you know, in my first visit to afghanistan, i've been there three times, my mission was to find out what could be done to protect our military men and women against the ieds that continue to cause more than half of all our casualties. and we have since dealt with that problem more effectively through a combination of body armor, better equipment to detect them, a range of action. when i first visited camp leatherneck, i was shown what the marine corps was doing in the absence of the body armor and all the other measures that took time to do. and they had rigged a 10-foot-long pole with what looked like the end of a coat hanger. which they used very effectively

to detect roadside poms. because they -- bombs. because they couldn't wait. this problem is the e equivalent of an ied in every unit of every armed force. it is the equivalent of a immensely destructive force which the aviano case has brought to the public's attention in a very dramatic way much like the photograph of a roadside bomb going off in iraq or afghanistan would be. but i think it is equally potentially destructive to the good order and discipline and most especially to recruitment, to retention of the best and the brightest and the bravest that you now have. and i couldn't degree more, lieutenant general harding, that all of those elements are

necessary. but people, ultimately, are our greatest asset. in the military. and as i said this morning, i don't know how many of you were here, i truly believe we have the best and the brightest and the bravest now in the next greatst generation of the military, and we need to continue attract and retain them which is why this issue is so important and why the lack of effective action will be the equivalent of an ied for our armed forces. so my view is we need to do more than tinkering around the edges of the system, and we need to do it, reform, right away. and, you know, chairman levin asked a there are thoughtful -- a very thoughtful question about the convening authority's power to overturn a conviction.

and even if we were to remove that power, in my view, it would not really deal with some of the systematic shortcomings of this system which are not your doing. in part, they're our doing because one of those shortcomings is the lack of sufficient resources. i know as a prosecutor to gain a conviction you need evidence. for sufficient evidence, that is conviction beyond a reasonable doubt which is by no means an easy standard, you need really expert investigative elements. and we have an obligation to provide you with those resources as well as l to assist you in dealing with this issue by helping to reform that system. so i want to begin by asking you with, mr. taylor, you know, you have a panel, you have various

ideas, you've said you're considering them. what's your timetable? >> the secretary has directed me to provide a preliminary assessment of the need for change in article 60 and the nature of any such changes by march 27th. the panel is necessarily on a much longer time frame. it is a panel that is mandated by the 2013 ndaa. four members of the panel are to be appointed by chairman and ranking of the senate armed services committee and the house armed services committee, and so

it's -- and it will be subject to faca, i believe. it's on a much more extended time frame. so we'll do an internal effort, and then there will be this external, independent panel effort. and that, of course, time frame ultimately is up to you. >> is your ais accessment something that you can share with us at the end of this month? >> that -- >> i assume it's march 27th of this year. [laughter] >> yes, it is. >> okay. >> that, of course, would be up to the secretary. >> well, i would like to make a request on my behalf, others may join, in asking that it be made available on march 28th or as soon thereafter as possible. i know i don't have authority to issue subpoenas the way i did when i was a prosecutor, but i

hope that the secretary of defense will share the sense of urgency that we have in moving forward as quickly as possible. >> you've been asked about the rates convictions are overturned. do you have any numbers on the rates of conviction where courts martial are convened on sexual assault cases? >> i believe that each of the service jags provided that during the answer, and i didn't write it down -- >> right. >> but it's very low, specifically in cases involving sexual assault. >> can you give me an explanation, and i'm not -- unfortunately, my time has expired, but i have one last question for you and i will have others that i want to submit for the record. as to why the rates of conviction are so low? >> the rates of conviction,

unfortunately, well, sexual assault is a, can be a difficult charge to prove beyond a reasonable doubt. i think that many of the efforts that you heard about in improving the professionalism and the resources available for sexual assault cases, the creation of special victims prosecutors and that capability, the increased support to victims may result in an improvement in the conviction rate. but it's a hard -- it can be hard to prove. >> well, my time has expired, and i will submit these questions. but i would respectfully suggest that that issue be part of your

preliminary assessment submitted to the secretary of defense and then to us. i thank you all for your extraordinary service to our nation. none of this is personal to you or to the military as i hope you understand. i firmly believe that you will solve this problem because you have been so effective at solving similar issues whether they're cultural or strictly logistical or otherwise military in our history and thank you for your service. >> senator hirono. >> thank you, madam chair. and thank you to all of the testifiers. we heard from witnesses this morning, and i'm sure you may have been in the audience listening to the testimony from them where with they describe going through a very difficult process even reporting their sexual assaults. and you've testified this

afternoon on the various programs, training, education, you know, efforts to change the culture in the military. my question is do you know whether all of this focus to change the culture, to provide the kind of support, education, whether that's working? do you ask the victims, the survivors whether these programs are working for them? any of you -- >> i'll take a, take that first if that's okay with my colleagues. i direct the sexual assault prevention response office, and i do talk to survivors on a regular basis. we also have other informal mechanisms of hearing from them and other people on the issue such as anonymous safe help line which we've had tens of thousands of calls into over the two years that it's been in effect.

one of the things that we've been hearing fairly recently in those sorts of informal feedback is that that they are encouraged by the reforms, the initiatives and the programs that are being put in place. but it's something that we need to remain persistent on, that we've also got very positive feedback on the training that has been, essentially, revamped in the past year. the powerpoint slides and things we heard about this morning are done. they're over. there's no training that solely consists of powerpoint slides. they're interactive, they involve in some cases victim testimony, scenario-driven discussions, videos that are presented, ethical decision scenarios that are presented. i mean, i've been a part of training at multiple different levels on different bases, and this is revamped training that we are getting good feedback on. and it is having some effect in terms of pushing this interest,

awareness and education not only at the top level, but pushing it down through the ranks to the very bottom, to the influence leaders that we really, truly need to affect if we're going to make this an endouring culture change -- enduring culture change. >> and i would say that's probably a very long process. we also heard the discussion today that we should take out the decision to prosecute from the chain of command and go to an impartial al qaeda of adjudicatory system of decision making. and i would like to ask you if you can briefly comment on, do you foresee major problems with going that route? because countries such as great britain and canada have gone that route. maybe one of the other -- >> i'll answer it first, and if i can pass it down the row, i'm the only nonlawyer sitting at the table, but i have commanded

infantry, and it's for seven and a half years. so speaking from a command perspective on this answer, my point of view would be that we want command orers involved in the process. -- commanders involved in the process. we want commanders paying attention to victims. we want commanders caring for them, taking their reports seriously. we want commanders paying attention to crimes and other acts of discipline and harassment and derogatory language and all these things along the continuum of harm. we want commanders paying attention to that. we want commanders setting saturdays for what's acceptable and not acceptable in a unit where dignity and respect are the only standard in how we treat one another. we want commanders doing that. and as a commander, i'm responsible for the health and welfare of my men and women in my unit. take that as my ultimate responsibility, and i take it very seriously. i've led men and women in combat with that same responsibility. and so, you know, we expect and

hold commanders accountable for establishing standards in their unit and then holding people accountable that do not meet those standards whether they be standards or performance or standards of behavior. and as a commander, i want the know, you know, who that offender and perpetrator is of this crime because that person is degrading the readiness of my unit. and it's also committing a crime against another human being in my unit. so i, i feel we need commanders very involved in this. >> i think they should be involved, but on the other hand, should they be the, basically, judge and jury? i think that's the question that we are confronted with. and if one -- if you'd like to -- >> senator, if i could add at this point i visited my counterparts that run those systems in the u.k., in canada and in australia. i've visited every one of the judge advocates general from those respective armed forces. that model that they have is not a model to which we should aspire. moreover, they are not comparable in any way, shape or form to the size, the length,

the frequency of our deployments of u.s. military forces. when we have 300,000 soldiers in theaters of operations in afghanistan and iraq, we need a system that punishes swiftly, visibly and locally and not independent of the chain of command, not an independent adjudicative authority, but under the direct, control and focus of that responsible commander in the theater. >> well, that's just it, because we have a huge number of people who are serving, and thousands and thousands of them are being assaulted through information from the pentagon. so in this continues, and i would say that we do need to acknowledge and face some facts. i do commend all of you for the work that you're doing to address what is a large issue. and, in fact, one of the testifiers mentioned that getting convictions or pursuing

sexual assault cases are very difficult because often it becomes she said/you said or he said/she said. that kind of situation. and i have some experience in having to actually change a law in hawaii when i was in the state legislature where the law allowed for the victims and the you survivors to be revictimized which is what we're hearing time and time again from our testifiers in this morning. and i think that that is a situation, another situation where the actual underlying law and the authority probably needs to be address canned. addressed. and, mr. taylor, i think i heard you say that this authority of the convening officer to be able to just undo a decision, a court-martial decision that you think that in the situation where we do have a robust appellate process available to defendants in the military, that

perhaps this kind of an ultimate authority to overturn a decision should not rest in one person's hands who may not even have any kind of legal training. because that is what we're talking about. these are legal results. these are legal processes. finish and in my view, anybody who's going to overturn a legal process should have a legal background. and that is not the case. and i'm glad that this does not happen frequently which just says to me that perhaps we can eliminate this particular authority on the part of the convening authority. >> we will take -- >> comment? >> yes, yes, ma'am. we will take a very hard look at that, absolutely committed to doing so and directed by the secretary to do so. and we will, and as i indicated, i have a deadline imposed on me

by the secretary of march 27th to give a preliminary assessment. >> thank you. madam chair, my time has expired. >> i'm sorry. if i could add, we also have a deadline set by secretary of defense to secretary of the air force of the 20th, so we've got one week to let him know what our thoughts are on the very same subject. >> thank you. >> senator ayotte? >> thank you, madam chair. i want to thank the witnesses for being here. today on this very important issue which we've got to address. it is undermining, as you mentioned, our readiness, our military, and it's totally unacceptable, and it's not consistent with the greatest military on earth. so i want to ask about a gao report that was issued in january and, mr. taylor, the gao report found that military health care providers don't have

a consistent understanding of their responsibilities in caring for sexual assault victims and because the department has not established guidance for the treatment of injuries stemming from sexual assault and that there are certainly specific steps of care if someone is a victim, steps that have to be taken to protect their confidentiality and also in some instances steps that need to be taken to preserve evidence that may be needed if they choose, you know, if they choose to report. we, obviously, hope that they're able to do that, report their victimization in the crime that's been committed against them. so where are we in light of this gao report? do you have any established guidance from dod for the treatment of injuries that could be transmitted to medical providers so that they properly treat victims of sexual assault in the military? >> senator, i believe thatpatton

would be in a better -- that general patton would be in a better position to answer this question. >> general? >> yes, ma'am. we have a standing d. instruction, and it is -- department can instruction, and it is very close to being reinsured with a revised instruction, and the revised instruction, i expect that to be out by the end of this month. and the revised instruction addresses in detail some of the inconsistencies that were found in the gao report. and i personally have read the gao report and then looked at both the two enclosures, number 7 and 8, and i brought them with me here. if i, if you're interested in having those. but these are enclosures in the revised instruction, the policy that will be promulgated and which will address some of the very specific points that you were mentioning. specifically, how restricted reports, victims and survivors who make restricted reports how they are to be dealt with

confidentiality. and with regard to the other procedures that are medical practitioners must afford and the counseling that must be available and the examinations that must be given and those sorts of things. but equally, i think one of the gaps determined by the gao report was the gap between unrestricted care and a gap with the restricted reports. and there's, those points are specifically addressed in the revision of policy which, again, has completed the omb and interagency coordination i expect to be prom all dated here within the next couple weeks. like any policy, policy's only as good as the paper it's on. there has to be training based in that policy, and then the medical community, i know our assistant secretary for health

care has conferred with all the services and they are focused on addressing that point and insuring that those changes to the policy are promulgated and put in action as soon as possible. >> general, in formulating the policy before being in the senate i was an attorney general, and, for example, in my state we used to -- there was specific guidance issued from the attorney general's office after having brought together stakeholders including physicians, victims, basically all stakeholders and formulating these guidelines, law enforcement, to make sure that they were appropriate, that they were thorough and that this was not just something from the top down, but it came from really getting the stakeholders who are involved in it to make sure that they're right. so how did the process that you upside took to put these --

undertook to put these together, what did that involve, who did you consult? and, you know, there are very good models for this even in the civilian sector, and i wonder if you consulted any of those. >> ma'am, it was a very collaborative process. all the services and medical experts were involved in this particular portion of the policy. our health affairs staff was involved, and we do confer with the, with the experts in the field. i know one of the women on my staff has been involved in victim advocacy and has been a, and has been working pseudoby side, really on the front lines of victim advocacy and care for victims for most of her or adult life. another woman involved in the formulation of policy was the sexual assault coordinator of the year for the air force and has a lot of hands-on experience in dealing with the, with victims and getting them through

not only the difficult step coming forward and going through the reporting step, but then also into the medical system as well. so i, i'm pretty comfortable that it's been a broad and collaborative process, and like i said, the inconsistencies that were identified in the gao report, i've made a comparative look between the gao report and then what we have in our revised, and i believe it does cover the, all those areas. >> so when will this be issued and then, also, what are the implementation plans, and how do you -- i i mean, one of the biggest issues we heard this morning from the panel of victims was the culture issue. this is only one component of the culture issue, but how do you implement these guidelines to make sure that victims are also receiving the proper treatment and respect within the medical system? >> well, the first step is the policy. and like i said, we expect to have this back from the office

of management and promulgated by the end of this month. so that's the first step. but the policy then has to be taking -- the department policy has to be taken by the services and then promulgated in some fashion. and on this case being a medical, just take the medical component out, you know, i would expect that the surgeons generals and, would be issuing guidance and reinforcing guidance on those aspects of the policy then within their service. education programs then have to be based on the changes in the policy so people can be educated, and they know the new standards of performance in terms of medical practice and care for all type survivors. and then lastly, there's an assessment step which is to say, you know, we should be out there, and we need to be out there identifying, you know,

where the, how these policies are being applied by the medical practitioners. and i know that dr. woodson, our assistant secretary of health affairs, has a plan that he has shared with me. i don't know the timeline, but he does have a plan once this policy is promulgated and education in place and so forth to go out and audit various medical communities to insure that these standards are being applied and our victims are being cared for as they demand. we also hear -- of course, we also hear from the survivors. and they tell us things. i mean, i had a, i had a summit of survivors in my office several weeks ago, and one of the survivors told, shared with me a very difficult tale of how she was treated in an emergency room in a military hospital. and those types of inputs are very important to how we, you know, go about this. >> thank you, general. and also can you, i would ask that you provide that policy to

the committee, and i would also ask that you provide us with the action implementation plan so that we can follow up on this issue and thank you for being here. appreciate it. >> yes, ma'am. >> senator mccaskill. >> thank you. i have, after meeting with many of you and many of your colleagues, i have gotten much more familiar with the ucmj. in fact, on the advice of one of the army jags, i actually downloaded it on my ipad and now have it as an app. and i keep coming back to the structure that is very strange the more i think about it. i've tried every kind of criminal case there is from a low-level shoplifting, burglary to a capital murder death penalty case. and in the criminal justice system we build a fence around the fact finders. and we make sure that the evidence they hear is relevant, and judges are in charge of making sure that the evidence is relevant and that the rules are

followed. and generally in our system the only people that can overturn the fact finders are people who have also heard the witnesses. unless there is a legal problem with how the trial was actually conducted. now, your system is much different. in your system a defendant can refuse to take the stand, which is certainly their right and, therefore, their character doesn't come into evidence. because the only way someone's character comes into evidence is if they place it in evidence. so the fact finders don't get to hear what a great guy someone is. they are listening just to the facts of the case. now, it is bizarre to me that when that is over, you begin a clemency process. i'm going to read the quote from the victim in aviano about the clemency process.

the clemency process was a travel is city. the vast majority of the statements were personal attacks on the judge, the prosecutors and me. a few were actual clemency letters stating the relationship with wilkerson. pleads think of his family -- please think of his family, etc. many of them, especially the ones from the pilot community and their wives, wrote caustic, vitriolic letters alleging that the judicial system is corrupt and that the trial was not legitimate. they claimed the prosecutors were bullies and unethical, the panel was biased because they weren't pilots, the judge made bad decisions, i am a slut, a liar. unprofessional. now, this information goes to this general, and he is to look at that contemporaneously with supplanting his judgment for the fact finders'. there is no good reason for that. i can't think of one, and i

would love it if one of you would tell me why -- in our system after the appeal is finished, then there's an opportunity for clemency by an executive authority. to commute a seasons, to pardon someone -- to commute a sentence, to pardon someone, but not prior to a decision on whether the case was, n., conducted legally. how can someone's judgment about the factual determination in a case be clear if they are being bombarded with evidence of character of the defendant who hadn't taken the stand for an opportunity of fact finders for his character to be cross-examined for bad acts? and i would like some explanation from you as to how the good and discipline of the order is enhanced by the ability of the mixing of hose two very

different -- of those two very different deliberations. >> senator, i'd like to try, first, on that question. i think we have two distinct aspects to this, the convene authorities on findings and those authorities on sentence. because i can see that clemency, of course, extends also to sentence revision. in this some cases, for example, a convening authority might delay the imposition of forfeitures that were part of the sentence to provide continued support financially to the accused family, dependent spouse and children. so that's one aspect where clemency would be appropriate from the outset. as you know in some cases, clemency might be appropriate to address a legal error that was identified either by the judge during the course of the trial, by the staff judge advocate on his or her review and that we know will be taken care of by the appellate court, but why not go ahead and clean that error up

with the action by the convening authority? >> i guess i understand the point you made, but i think that there will have to be a stronger argument than that for me not to come down on the side that clemency belongs at the end of the legal determination, not in the middle of it. i'm not somebody who believes that somebody who hasn't heard the evidence presented should be making a determination on who is telling the truth. a transcript never tells the full story as to who was telling the truth. that's why we have trials. and to supplant that judgment for the people who actually heard the testimony, particularly in these cases. because these cases are he said/she said. these cases are all about the believer about of the witnesses -- believer about of the witnesses. and juries are very good at sniffing out who's telling the truth. i'm not sure a general, far removed with no legal training

looking at a stack of clemency contemporaneously with a dry transcript, is given the right information to make the kind of decision that's going to be for the good and order, discipline of the whole. so that is one issue. another issue i have, um, is that if this power, this amazing power that is given this one individual is ability the good of the whole -- and we talked about this, general, in my office with general welsh -- it appears to me that the aviano general has really failed. because if this decision is because you want them to have the ability of looking at the good of the whole, i don't think anybody is going to argue that this decision has been terrible for the whole. this decision has turned the military on its ear as it relates to the criminal justice

system that is contained therein. he was not looking at the good of the whole, he was looking at this individual case. so the irony is the very power he has is because of the good of the whole, but yet narrowly looking at the facts in evidence and a tack of clemency in this case and making a decision that sets the air force back with. we may be all the way back to tailhook at this point in terms of all the work you've tried to do to move the air force forward. you know, mr. taylor, could you comment on that as to whether or not these cases are really being decided on an individual basis or whether or not this good of the whole is being considered? because i think senator gillibrand's point is a really good one. if it's about the good of the whole, i don't know that we're doing a very good job since this problem is as pervasive as it is and is getting worse and not necessarily better. >> senator, i think you have a very good point. it is entirely possible, and it

is entirely possible that there is a disconnect between the rationale for this authority which is the good of the whole and how it has come to be utilized. that is one of the things that i i will need to consider in making my preliminary assessment, but it is, it is a serious issue, and it requires a lot of -- it requires a very serious response and hard thinking, and i i commit to you that i will think hard about that. i think it's a very good point. >> my time is out. i've got -- let me first make sure has everybody seen invisible war on the panel? general ary, i would certainly like for you later what, if any, action for the good and

discipline of the whole unit was, happened to any command at the military barracks here in washington as a result of the incident? you don't have to tell me now. but i'm dying to know what commander was relieved, what commander was dismissed. clearly, the facts around that case are, has serious implications beyond the sexual assault that is alleged. i will never look at the friday night ceremonies the same way again after seeing that movie, and on behalf of the marines, i would think that there would be a deep can desire to clean that up and show that it's a new day at the washington barracks. >> yes, ma'am. we'll get you that response. >> and finally, i have a long list of others about investigators and their specialized training. i don't know if -- okay, great. i'll wait then. thank you very much. >> thank you, senator mccaskill. we're going to take a second round because there's interest by the senators sitting here.

mr. taylor, we've talked a little bit about how other nations have addressed their previous practices of having a convening authority, britain, canada, australia. have you had an opportunity to study what they did in those jurisdictions and whether it had any beneficial effect on increasing amount of reporting, increasing the amount of prosecutions? did it have any effect on unit cohesion, unit morale, on discipline, on order? did they see a loss by removing convening authority? >> i've dope a little reading -- i've done a little reading on the topic, but the, as i understand it, the rationales for the action taken in canada and in great britain and some other countries has been focused really on protecting the accused. and it's to provide a further

layer of insulation for the benefit of the accused. and whether it has had any impact at all on sexual assault cases, i don't know. i will be, i plan to be talking with counterparts and try to gather some of that information over time. not for the 27th. >> i want to talk with each of you about in this real challenge of underreporting, and anecdotally listening to the testimony this morning, each of the victims said, you know, if i had an advocate early on to tell me what my rights were, to stand by me, to have some authority, if i knew that i could be transferred immediately or my, the perpetrator could be transferred immediately, that might give me the courage to withstand the 30, 60, 90 days it

would take to have a case reviewed. they said if i knew my alleges would be taken seriously and i had a real chance that this perpetrator could be convicted and he'd be held accountable, i might have been willing to report. so i'd like each of the services to tell me their view of why do you think there's so little underreporting? i mean, if it's literally 19,000 and more than half are sexual assaults against men and if only 2400 are actually unrestricted, that's a terrible reporting rate. what do you think the reasons are? are the things that are being implemented now, will they been to address -- will they begin to address it? what is the most important thing in your mind is there to increase the number of reports that are made for these sexual assaults? lieutenant general harding, you can start there, and we'll go across. >> that's one of the reasons, ma'am, that we, that we structured that special victims counsel program. >> could you talk into the mic there, general? >> i'm sorry, sir. that that's one of the reasons

we structured the svc special victims counsel program. the majority, at least the survey tells us, of our sexual assaults are not reported. we believe that if victims believe that there is somebody on their side as they go through this complicated process that can be very exhausting, that we'll see more of them come forward. that's our hope. in part. also, when we looked at fy-'11, the last batch of statistics we gave you, we noticed that in the unrestricted reporting side that we had 29% of our victims who had said i want to cooperate with law enforcement, walk away and refuse to cooperate before they got to the courthouse day. that was 90, in the air force's case 96 victims. so we believe that that helps us encourage and 'em bodden them -- embolden them as well and to feel less like they've been

revictimized by that process when they've got somebody there to explain why things are happening the way they are. and so, so i believe there are multiple reasons, our surveys have shown multiple reasons why people do not report. we know that one of them is the belief that this is a difficult process to get through. that's not the only reason. i think i'd turn it over to major general patton to let you know what that survey revealed and told us among the various reasons why people don't report. >> lieutenant general chipman? >> senator, i think to follow on what general harding said, these are the most difficult kinds of allegations to share with anyone. these are the intimate details of our personal lives, our bodily integrity. i think there's a natural reluctance there. i think there is a great desire for privacy on the part of these victims to avoid general knowledge among unit members of the community of the kinds of things that have been inflicted

upon them. and finally, i think it's just what's different about military service is this idea that you take on this member of a team cohesion,'s prix, good order of discipline. i i think that was shown very well in the documentary that you asked us if we'd seen. one of the biggest crimes was the assault but, secondly, the attitude of the military when it was reported, the lack of support that those victims received and that sort of violation of the fundamental belief that they were part of a team that would take care of them, that would not allow this to happen. so i think that still plays out in the underreporting. >> vice admiral? >> yes, ma'am. i agree with general chipman and with general harding as well. i think it comes down to victims knowing that they will be responded to, supported, cared for through the process. we're in the process of hiring professional, full--time victim advocates which is different than having a lawyer serve as a

victim advocate. we're striving to form a core relationship between prosecutors, investigators and the victim advocate to work with the victims who come forward in a constructive, cohesive way. we're watching with interest the our force pilot on what a special victims counsel role could be within the system where we don't have one very well defined. but they would not supplant a victim advocate. we've all instituted expedited transfer. last year the navy approved 79 of them. none were disapproved within 72 hours. and if a command declines, the request goes to the next flag on the chain. there were no declinations. i think the training that we've devised -- informed in large part by the experiences shared so powerfully in "the invisible

war" -- are helping at the deck plate, fleet level people to understand the resources that are available, what actually happens when an allegation is made. .. that we have the proper training for investigators, for lawyers, for first responders. we have hot lines that can be reached through phones, through e-mail. restricted reporting is something that i know is difficult for people to completely understand.

i think the truth is, we're trying to give people options to come forward. ideally we want people to come forward to us, and make an unrestricted report so that we can pursue accountability, aggressively. but not everyone, as we heard this morning, so difficult to come forward, the courage to come forward, the trust to come forward. we are working to earn that. until we do, and until an individual finds that come supported by the people around them, they have the ability to make the restricted report which allows them to get medical care, counseling, and victim support without going through the accountability process. and it's our hope that with the support they will find the courage to change into an unrestricted report. >> my time has expired so i'm going to turn out to senator graham. >> thank you. this is an emotional topic so i will be pushing back a bit

summer things said. but having said that, please do not mistake the pushback for an understanding that sexual assault in the military need to be addressed and we need to improve upon the current system. because what we have today is not working. but in terms of whether not we have a good order and well disciplined military, i would say the answer is yes. the answer is yes, because you see it in the way they conduct themselves in battle, the enemies of this nation have never faced a fine or a military force than exists today, and we have problems, their human beings involved in our military, and that's no justification for people acting badly and poorly. and i want america to know that the best test of discipline is when the flag or the balloon goes up. we are the best in the world.

now, this idea that fighter pilots take your fighter pilots, we don't talk about that -- we're going t to talk about a little bit. general harding, do you know the convening authority's? >> i do. >> is there any suggestion that he set aside the findings because of the career field he was in or a personal relationship with the accused? >> absolutely not. >> absolutely not. as a matter of fact, he doesn't know the accused. >> i just want to set this straight. you may not agree with what the general did, but actually know these people. they take this job very seriously, of sending people into combat get a take their job seriously as a convening authority to make sure that in their view for the units in question, justice was rendered. we are talking about a handful of convening authority action, given thousands of cases. please don't over indict the system.

mr. taylor, i want you, if you could come to people in your office to review every convening authority in the military, in terms of special court-martial, general court-martial convening authority, and see if you can find somebody who is not up to the task. because i believe, ladies and gentlemen, that our commanders that get to this rank have been chosen for a reason. now, the problem of reporting sexual assault in the military, mr. patton, is any greater problem in the military that it is in the civilian community? >> sir, i believe they are on par in both sectors. >> i would say that what happens in the civilian community in this area is probably duplicated in the military, on par may be the right word, but i promise

you this. there is no city, there is no state, there is no county that's going to take it more serious than the men and women before you. now, when it comes to defending somebody in the military, i've been a defense counsel and i've been a prosecutor. in the civilian world and in the military world. one thing i never had to worry about containing a military member is cost. i've got every witness i ever wanted. i didn't have any already pay an i did not hundreds of cases. as a military prosecutor, i spent an inordinate amount of time preparing a case that our civilians colleagues within the -- would envy. are their district attorneys out there not many cases they should? absent. sometimes the system fails. i just want people to understand, in the military justice arena, it is a focused effort to get this right.

the defense counsel is an independent chain. and i was on "60 minutes" once trying to take the drug labs down at the air force had created that i thought was producing false positives, and awarded 60,000 results because the system worked. my boss at my back, the military judge was a real hero. so the only thing i can say is that the purpose of this hearing is a good purpose. people are not feeling comfortable with telling what's going on in that unit regarding sexual assault. but the idea, quite frankly that convening authorities are the problem is not what i see here. i see the system broken. and i do believe that if you're going to give a man or woman the power to send someone in battle, and to literally go and i, that we should trust their judgment when it comes to disciplining that unit. that's just my personal bias. having said that i think there's a tremendous amount to build on

here, and mr. taylor, i look forward to working with you, and the administration, try to finalize -- ways to make the system work better. madam chairman, this is a difficult issue, but let's please not, i want you to read come if you can, a summary of the case. you may not come out with what the convening authority did but i just avoided did it. i just don't believe that. so finally, mr. taylor, as we go forward, what can we do in terms of sequestration? i mean, you know, we're talking as if nothing else is going on out there. everybody is doing more with less. there are less lawyers. bears more responsibility. so please tell us what you need in terms of budget to enhance these programs. and i think everybody on this

committee, and senator mccaskill, you've been terrific about focusing on this, let's find out what we need to resource that is not being resourced and make this a priority. because i will end with this thought. if women in the military, and men are victims, too, but if you really believe that there is no place for you to go and you are being abused, that's got to be the worst possible feeling in the world. i would not want one member of my family to ever have to live under those conditions. so this command climate i think is beginning to change, but how do we -- nobody wanted to talk about it. nobody wanted to embarrass the command. they wanted to show the stuff under the rug. there's no wind -- there's no other answer for this to get this out of him. i believe in today's you, and all i ask is that when we find this new way forward, that we still preserve the ability of the system to judge every individual case based on the

individual facts that we don't paint with a broad brush. everybody is guilty. thank you very much. >> well, i first, i certainly agree with senator graham, especially the first part of his statement. i'm compelled to be compassionate about this because i agree with them. we are the best in the world, and my comment about the overall health and good order and discipline of the unit is based on what i believe is a military that is grappling with a problem that the military knows you don't have under control. i don't think i'm saying anything that most of you don't agree with. i think you know we need to do better. i think you know there are women out there that feel like because of the particular facts and circumstances other military

service, their ability to get a piece of justice is limited. and i know you all want them to. so i don't think there's a significant disagreement between senator graham and me about that. i just think that some of the convening authorities power does not appear to be rational to me, particularly the way it's currently set up in terms of the order of things and the ability which i think most of you are uncomfortable with the notion that the rules say this can be done for no reason at all. as general welsh i think said to me, we're not anytime where you are getting people out of prison to put him on the front lines because we need warm bodies. some of these roles date from that time. when you didn't have to give any reason at all, and i think you explain to me why they said no reason at all, it came from the

mouth of general eisenhower in a hearing like this. or something to that effect. let me talk about a couple of things that i wanted to get to. it is my understanding that if member of the military needs to update their security clearance, they must self-report counseling around their sexual assault, and they do not have to report counseling for combat related issues, grief, or family matters. is that too, mr. taylor? >> -- is that true, mr. taylor? >> it is generally true. questions when one, there's a different interpretations, but generally that's accurate. i think there are serious issues with question 21, and i would just like to say that the issues are not limited to those who are

receiving, receiving the care that we want them to receive. that's true whether the need for care is a result of sexual assault or is something else. i personally am very concerned about question 21, and would like to see some action on it. >> i think we need to really take a look at that, because if you're looking at someone's mental health, what you are really saying is, if your mental health issues come from combat or a problem in your family, that doesn't impact your security clearance. but if you've been a rape victim, it does. now, i can't imagine any of you would agree with that outcome. does anybody think that's right or fair? okay. so, be sure and let us know if you have a problem with us looking at that, because i want to get that changed right away. if i was a woman in a military and i've been raped and had a security clearance, that she

would impact my willingness to come forward. it sure would impact my willingness in terms of giving up my career. what about this is just and i made earlier? if we have probable cause based on a sound criminal investigation, and the jag is recommended to the convening authority that we go to a general court-martial proceeding, why are we so focused about moving the victim? why are we not moving the perpetrator at that point speak with senator and we do the authority to move a perpetrator to another command or another installation, of the unit that is within the discretion of the chain of command. so that is an available option. it would make it a little more tedious in the sense of proceedings that had to go forward with the article 32 investigation, any emotions you, so you might have to move it back and forth to the installation that is holding the court-martial but certainly it's an option to me, chain of command.