had to find out. so i requested to go to 6 hall. they treated me for a huge the eye but they said i wasn't pregnant and explained to me why. .. he threw me against the wall, the brick wall, destroying my shoulder.

my female drill sergeant heard the noise, ran upstairs, saw me pinned against the wall, and her only reaction was, oh -- and walked back down the stairs. i was then summoned to their office and told that if i even dared to report either incident, that it would be their word against mine. and that there would be more punishment to come. the next morning i didn't know how badly my had been injured.

i tried to do pt that morning and my shoulder was completely out of joint with the first push up. they personally escorted to me to sick hall and told them i dislocated my shoulder doing -- and that is what i was told would be my story. i managed to get out of basic. but continued to have problems with the shoulder.

i also had bruises on my hips from where he had thrown me to the ground after the drill sergeant showed up. and i thought they were just bruises. my parents reiterated to me that the only way to survive this was to act as if it didn't happen. and not to ever speak of it again. but i didn't want to be that person. because if he did it to the girl

in the cycle before me, who else was he going to do it to? because he did it to me. so at one of my orthopedic appointments i tried to tell a doctor. i did tell the doctor the real reason behind the shoulder injury. he didn't document not one part of the story. but he did refer me to social work services for counseling. i was never allowed to go. at that point i just wanted to get to my next duty station, which was going to be germany.

when i got to germany no one knew what had happened to me. until one day i was working on the base post office by myself. and i was looking out the window just daydreaming. a patron walked in and all is it took were five words and i knew it was hip. -- him. i picked up everything i could to throw at him. first thing was a tape

dispenser. next thing was a stapler. the whole time i was screaming for anyone to come. instead of being the happy-go-lucky person that i had been the first year-and-a-half in germany, i changed. i cried at the drop of a dime. or it could have been a look. my xo finally got me to talk

about. and i told her what happened. she of course did what she thought she needed to do, which was to take it to top first sergeant and to our captain. not long after that i was told that i was going to be medically discharged. because of my shoulder. my shoulder kept dislocating but the injury was more complex because the color bone itself had also been completely torn out of its, both sockets.

so every time i would try to run, do pt, push-ups, the collarbone with would go in my airway and would crush the airway. they had to go in and remove an inch of it. it was my firing shoulder. so they said if i couldn't fire a weapon, i couldn't be a soldier. so i thought, one more time i'm going to try to tell what really happened so that something can be done. so when the medical review

papers started coming in i filled out the form where i requested to appear in front of the medical review board and specifically asked for a woman to be on the board. so that i could tell them what happened to me. within a month my discharge papers were there. mysteriously a telefonic form showed up in my file saying i agreed not to go and testify in front of the medical review board.

they just wanted me out. everything about the military i loved. going up drag hills didn't bother me at fort jackson, south carolina. running 12 miles didn't bother me. the long nights, cold nights, wet nights, none of that bothered me. because when i came in i thought i was going to be part of a team. a family about brothers and sisters at arms that would have

my back. and i would have theirs. that i would take a bullet for and they would take a bullet for me. and i believe that all the way through my chain of command. i have spent the last 20 years trying to get my disability through the va. for ptsd. even though it wasn't as severe as it is today i still had the nightmares, and i lost four marriages because of it.

when the soldier, when the shoulder injury got so bad that i could no longer be a registered nurse, it was like being raped all over again. now both of my dreams are gone. and i became a shell. to the gentle men that were

sitting at this table before us, i want to tell them that every blind eye they developed and every deaf ear they turned they raped me as much as the drill sergeant did that night. to me being silent isn't enough anymore. and president reagan's words,

they counted on me to be passive. they counted wrong. you raped me. and it's time for it to change. the military has had their time. thank you. >> thank you very much. very much appreciated hearing from you. some of -- >> some of the things i want y'all to take into consideration. >> i'm sorry i thought you

were -- >> just a few statistics. all of you can see that i'm someone's daughter. but just for a moment think that i'm your son. because there is many a man out there being raped and brutalized as there are women. but we have spoken more about women throughout this entire process than we have the men. and that needs to be addressed too. there needs to be tougher penalties, mandatory prisoning,

sentencing. when they do get out, they need to be required to be on sexual assault prevention registries. and maybe, just maybe, last year two police officers wouldn't have lost their life because a chief warrant officer was given a choice to either resign his commission after raping a fellow officer and enlistee. or face court-martial. he resigned.

and he did it again in the civilian world. and now there are two officers with dead, wives without husbands and children without their father. because we gave him a choice. neither way was happened to me or how that happened. is right. that is why the chain of command has got to be taken out of it. as a sexual assault examiner

volunteer that needs to be a part of the process for every victim, male and female. they know the protocols. commanders don't know the pretty calls. they don't -- protocols. they don't know how to take pictures to see tears in the cervix. or to comb for evidence. or to look under fingernails for scrapings that can prove a case. commanders aren't trained. they're trained to get us ready, troop ready to go to war.

not to go to court. >> thank you again, miss lee, very much. is there any further -- >> we had a request from mr. tim collins. i don't know if he has been able to make it today. >> mr. collins? >> and he did say he might not be able to make it and he didn't. and our final comment from miss

saraczak, from arlington. >> good afternoon, your honor. my name is sara zach. thank you for the opportunity to address the system as response panel today. i'm a retired navy commander and graduate student on leave of absence from the university of southern california school of social work. i'm not a stakeholder and i am not looking for employment. i'm not a victim of sexual assault and i am not an expert in i of the professional field that is are currently addressing this problem. i am an independent, self-supported concerned citizen who has come to the d.c. area to learn about the military sexual assault problem and what is being done to fix it. first, i would like to offer my thanks to the panel for all the work that has been done to find a solution to this problem. i can't imagine all the time and energy that has gone into it, from your part. i certainly have an idea how it has been for the witnesses.

given that the purpose of this panel is to make recommendations on how to improve the current system, i join with others who are eagerly anticipating the public release of the results of your investigation. personally i hope your report will include recommendations for two or three alternatives to the current system of investigation and prosecution and i hope that one of them will give senators gillibrand and mccaskill a basis coliberating on a single bill that will be sentable to the department of defense and get strong bipartisan support in congress. as i stated earlier i have a perspective on this issue that believe is unique so in closing i request your permission to offer a couple of personal thoughts. i agree with those who believe the commander of the accused should remain part of the

prosecution of an alleged sexual assault offender. i also agree with those who believe the commander of the qs may be too biased to fairly ajudicate cases involving sexual assault. with due respect to sexual assault victims and senator gillibrand, removing the commander of the accused from the process is not the only way to eliminate the perceived bias. as with many things in the military training may be part of the answer. and i know that is being addressed by the department of defense sexual assault prevention and reporting office. unfortunately the statistic that is are used to support military sexual assault prevention and reporting training pose a credibility problem. the consistency with which the statistics are being kept throughout the department of defense is an issue of concern. a lack of understanding about the source and collection of the

data also contributes to the general disbelief that military sexual problem, is a problem at all. so although the dod annual report on sexual assault for physical year '12 presents data that you have in front of you, it is a pie chart that indicates the percentages of rape, sexual assault, aggravated sexual contact, abusive sexual contact, non-consensual sodomy, and other, i would propose when that chart is presented in front of in some training to commanders they will see the pie chart but instead of seeing rape, they will see the victim asked for it. instead of seeing sexual assault, they will read, too much alcohol involved. instead of reading aggravated sexual contact, they will think, oh, my god, another he said/she said problem.

instead of abusive sexual contact, they're going to be thinking, the victim is lying. and as far as non-consensual sodomy is concerned, they will probably think, my say lore, airman, soldier, marine is not a sex offender. and for the other category it may be something as trivial, the accused was just joking around. after three decades of empty threats of zero tolerance, it seems to have taken hours in the congressional hot seats for the leaders of the military services to finally get there is a serious sexual assault problem in the military. i hope they're able to overcome challenges such as doubt of the statistics and get the rest of the troops on board with the new program in a timely manner. again, thank you for the privilege of speaking with today. >> thank you very much, miss

zach. that completes the public comment, ma'am. did you want to take a five-minute break? >> we'll try to reconfigure the seating up here. so we're going to take a five-minute break and then we'll come back to continue the process. thanks. >> based on all information considered to this point a strong majority of subcommittee members agrees, the evidence does not support a conclusion that removing authorities to convene courts-martial from senior commanders will reduce the incidents of sexual assault or increase reporting of sexual assaults in the armed forces. nor does the evidence indicate it will improve the quality of investigations and prosecutions or increase the conviction rate in these cases.

further the evidence does not support a conclusion that removing such authority will increase confidence among victims of sexual assault about the fairness of the military justice system. will reduce their concerns about possible reprisal for making reports of sexual assault. as a result, the subcommittee's assessment at this time is that the authority vested in senior commanders to convene courts-martial under the uniform code of military justice for sexual assault offenses should not be changed. now in reaching this conclusion the subcommittee has made the following findings. first, criticism of the military justice system often confuses the term commander with the person authorized to convene courts-martial for serious violations of the uniform code of military justice. these are not the same things. second, under current law and

practice the authority to refer a sexual assault allegation for trial by court-martial is reserved to a level of commander who will normally be removed from any personal knowledge of the accused or victim. if a convening authority has an interest in a particular case other than than official interest, the convening authority is required to recuse himself or herself. third, senior commanders, versed with convening authority do not face an inherent conflict of interest when they convene courts-martial for sexual assault offenses allegedly committed by members of their command. as with leaders of all organizations, commanders often must make decisions that may negatively impact individual members of the organization when these decisions are in the best interests of the organization. fourth, there is no evidentiary

basis at this time supporting a conclusion that removing senior commanders as convening authority will reduce the incidents of sexual assault or increase sexual assault reporting. fifth, sexual assault victims currently have numerous channels outside the chain of command to report incidents of sexual assault and they are not required to report to anyone in their organization or any member of their chain of command. these alternative reporting channels, which exist today, are well and broadly publicized throughout the military. military personnel in the united states may always call civilian authorities, health care professionals, or other civilian agencies to report a sexual assault. sixth, under current law and practice, sexual assault allegations must be referred to

and investigated by military criminal investigative organizations that are independent of the chain of command. no commander or convening authority may refuse to forward an allegation or impede an investigation. any attempt to do so would constitute a dereliction of duty or obstruction of justice which would be a violation of the uniform code of military justice. 7th, under current law and practice, the authority to resolve sexual assault allegations is limited to senior commanders who must receive advice from judge advocates before determining appropriate resolution. agentth, none of the military justice systems employed by our allies was changed or set up to deal with the problem of sexual assault and the evidence does not indicate that the removal of the commander from the decision-making process in non-u.s. military justice

systems has affected the reportg of sexual assaults. in fact, despite fundamental changes to their military justice systems include eliminating the role of the convening authority and placing prosecution decisions with independent military or sometimes civilian entities, our allies still face many of the same issues in preventing and responding to sexual assaults as the united states military. 9th, it is not clear what impact removing convening authority from senior commanders would have on the military justice process, or what consequences would result to organizational discipline, or operational capability and effectiveness. 10th, congress has recently enacted significant reforms, addressing sexual assault in the military. and the department of defense has implemented numerous changes to policies and programs to

improve oversight and response. these reforms and changes have not yet been fully evaluated to assess their impact on sexual assault reporting or prosecution and lastly, prosecution of sexual misconduct contributes to the overall effort to address this problem. . . .

and reviewed considerable information as i mentioned earlier about the roles, commander roles in the military justice system as the prosecutorial disposition authority, the sexual assault allegations. proponents advocating for system change and go to winning the current convening authority framework offered different opinions about what consequences would result from such change. the subcommittee did not find, however, clear evidence of what consequences, positive or negative, would result from substantially changing ucmj's convening authority framework. accordingly, the subcommittee believes caution is warranted, and systemic change may not be advisable if recent and current efforts produce meaningful improvements. the suggestion by some that vesting convening decisions for

courts-martial with prosecutors instead of senior commanders will better address the problem of sexual assault is problematic. a presenter at a september panel public meaning of served at it assumes too much that somehow a prosecutor is always going to be better at this than commanders. civilian jurisdictions face underreporting challenges that are similar to the military, and it is not clear that the criminal justice response in civilian jurisdictions where prosecutorial decisions are supervised by elected or appointed lawyers is more effective. a recent white house report describing the civilian sector notes, and i quote, across all demographics, rapists and sex offenders are too often not made to pay for their crimes, and remain free to assault again. arrest rates are low and

meritorious cases are still being dropped. many times, because law enforcement officers and prosecutors are not fully trained on the nature of these crimes or how best to investigate them and prosecute them. the white house report also highlighted how that low prosecution rates in the civilian sector and prosecution decisions that contradicted the desires of sexual assault survivors abounds. often, prosecutors-based charging decisions on whether physical evidence connecting the suspect to the crime was present, if the suspect had a prior criminal record, and if there were no questions about the survivors character or behavior. other factors outside of the intrinsic merits of the case such as budget, staffing, or time constraints also may

influence charging decisions for prosecutors. in short, arguments about the advantage of prosecutors over commanders with respect to convening authority are not consistent with information from the civilian sector. congress, as i previously mentioned, has recently enacted significant reforms to address sexual assault in the military, and the department of defense has implemented numerous changes, to both policies and programs to improve oversight and response. preliminary indicators demonstrated in recent reporting and prosecution trends appear encouraging, but these reforms and changes, as i've mentioned, have not yet been fully evaluated to assess their impact on sexual assault reporting or prosecution. irrespective of changes to senior commander of authority in the military justice system,

commanders and leaders at all levels must continue their focused efforts to prevent incidents of sexual assault and respond properly to incidents when they occur. military commanders are essential to creating and enforcing appropriate command climate, and senior leaders are responsible for ensuring all commanders effectively accomplish this fundamental responsibility. i would only like to add that as i mentioned, and i'll say it again, this is our initial assessment. and with respect to the role of the commander committee, there are a number of other issues that we are tasked with looking into. in the need to shrink and, indeed, i am certain will hear more information with respect to the retaining the commander as the convening authority. i'd like to now ask professor

hillman to speak, as she has a separate statement for the consideration of the panel. >> thank you, your honor. i appreciate the opportunity to set forth my perspective on the issues, and i'll read three notes and then i read the statement that is before you that is attached behind the report of the subcommittee. first i'll note that i wrote it before where testimony today, and i appreciate the testimony of everybody today, and as the subcommittee overall will do, i will integrate that into the statement that i wrote. i don't want folks -- [inaudible] second, i want to thank our staff. i could not have reached a conclusion or written it without the support of the staff -- [inaudible] and i'm grateful for that. i would also like to mention

that the subcommittee has not yet reported to us and i look forward to the report as the panel overall. and in the third thing about to say before i read it is, i have great respect for the survivors of military sexual assault, for the leaders of armed forces, and for my colleagues on this panel. we share a goal of improving the military's response to rape and sexual assault. i understand the recommendations to retain prosecutorial discretion in command stems from the commitment to both fight military rape and sexual assault, and preserve a military, legal and command structure that works. i don't share their opinion that this particular part of the military legal and command structure works for this particular problem, and that's why i reached a different conclusion from considering the

same evidence. i wrote separately to explain why i stand apart from my subcommittee colleagues on the issue of whether convening authorities should retain prosky to roll discussion but i think we should -- [inaudible] innocent people on them federal, state and many respected military criminal justice systems rely. trained, experienced prosecutors. for decades, military sexual assault scandals have been a regular source of national -- senior military officers have repeatedly and convincingly before our panel and subcommittee about the imperative to quote get to the problem. not to wait until the next incident to respond, but instead make immediate changes to break the cycle of scandal, apology, response and returns. they and many other witnesses asserted that the only way to

prevent military sexual assault is to attend to the big picture factors, cultural, social, demographic, environmental that enable it to occur. we heard no evidence that the military justice system is any worse than civilian jurisdictions at responding to rape and sexual assault. we did, however, see proof that rape and sexual assault continues to occur at too high a frequency in the armed forces, despite elements of military service that should curb their element. these elements include the elevation of honor and sacrifices on personal gains, greater degree of'surveillance and military life, a higher ethical standards that service members must embrace, and the military's ability to select its members from among those eligible to serve. rape and sexual assault pose distinctive challenges in the u.s. military which remains

predominately male and marked by imbalances of power among the individuals who serve. we entrust our military with the legitimate use of force to support and to defend our country and our constitution against all enemies. the duty bears in part by drawing on its history of war and military successes in which sexual violence has unfortunately been commonplace. commanders must overcome this by leading a cultural shift towards greater respect for gender equality and legitimate evidence for sexual expression away from the norm that is celebrated only in sexual -- [inaudible] it is a sea change, albeit one under way. if command history and focus implementing this change they will continue to improve the military's ability to respond. survivors and their families and communities will be able to trust that their assailants --

will not be protected from legitimate prosecution. they will realize fellow servicemen are not a consequence of reporting sexual assaults and all service members will know that attitudes that denigrate women and gay men will not be tolerated. mostly because they violate regulation that because they precondition in which sexual assault is more likely. although commanders must lead the way, they are neither essential norwell suited for their current role in the legal process in criminal prosecution. command authority in military justice has already been reduced significantly over time. it will be further limited to recently enacted changes. yet the ucmj continues to require the convening authorities exercise of prosecutorial discretion. must both protect the overall well being of the unit and ensure that unit mission is accomplished as well as decide

whether specific factual context warrants -- creates a conflict in different ways. [inaudible] this underlines legitimate of any later courts-martial. likewise, the heightened attention now directed towards military sexual assault -- convening authorities under pressure demonstrate high rates of conviction and prosecution will order courts-martial to go forward regardless of the strength of the evidence. moving the convening authority from the charging process went address these concerns -- zero in on the changes of culture that are our best hope for sustainable improvement on sexual assault prevention and response. the decision to prosecute is among the heaviest burdens we face in public service t. the ethics of the prosecutor are among the most powerful and

studied in the profession. whether that there is evidence to support a criminal prosecution -- senior judge advocates licensed by the same authorities that licensed civilian attorneys have spoken to the professional at the code for both civilians and military authorities are every bit as capable of exercising that discretion as their civilian counterpart. adopted legal reforms to replace in any authorities with experienced and trained prosecutors and voiced concerns about the deterioration of command -- similar to those now raised by many u.s. military leaders. yet no country with independent prosecutors has reported any such dire consequences. i see no reason to defer to predictions about the impact of this case over the pleas of survivors of sexual assault,

many of whom consider an independent prosecutorial authority the cornerstone of any response to modu sexual assault. likewise, and less service them court-martial deserve no fewer safeguards of an impartial and independent tribunal and service members of other countries with whom they serve. the united kingdom, canada, australia most of the country with well regarded miller just as systems have already ended command controlled courts-martial to protect the rights of accused servicemembers. that goal is consistent with the procedural barrier that both the victims and alleged perpetrators of rape and sexual assault deserve from the u.s. military justice. our panel and subcommittees heard again and again that they sexual assault problems, our military is given servicemen's and others' reason to boss when young people turn to them for advice about whether they should join the u.s. armed forces. that we mustn't allow our daughters and sons -- to our

country is the real threat to u.s. military effectiveness. an impartial and independent military justice system that operates beyond the grasp of command control would help restore faith that military service remains an honorable, viable choice for all. thank you, your honor,. >> thank you. at this point, are there any comments before we begin actual deliberations with respect to the contents of the report or the findings? >> one point based on the initial assessment by the majority of the subcommittee and by professor hillman, her statement. the one thing i would suggest, just reflect we heard from both male and female surviving sexual assault victims, and the winner from our allies brother, other military forces that was addressed in fines number eight on initial assessment in both

professor hillman but it's not in terms of who we look for and to be considered. >> thank you. any of the comments with respect to the substance of the report? all right. why don't i just begin, and we can go finding by finding and then reach the ultimate conclusion, which we can then discuss. the first one is the criticism of military justice system often confuses the term commander with a person authorized to convene courts-martial for serious violations of the ucmj. these are not the same thing. i think i would just like to throw out the fact that when i first got on this panel, i didn't know what a convening authority was. and learning exactly how the

system works within the military, how the justice system works, has made a big difference. the convening authority, and i think this is a later finding, is almost always not the direct commander of either the accused or the accuser. and i think there's a perception out there that a victim of sexual assault ends up having her case determined by her direct commander, or his direct commander. and i think that it's important to make that distinction. i guess i should back up and say, this is also a response systems panel that is charged with looking for positive responses that will be effective

to reducing sexual assault in the military. and i have not been persuaded that the removal of the commander as a convening authority is going to have a positive impact. there is no empirical evidence that reporting is going to increase. there's no empirical evidence that prosecutions will be better handled. that investigations, even before prosecutions, will be better handled. which, and i should say by the way, there's a lot of evidence with reforms and also just the training that's been going on for several years, investigations and prosecutions are being handled in a better fashion than they were with the military reaching out to the best practices of the civilian systems. and so i'm not, i'm not

denigrating those investigations and prosecutions. i'm sentencing that there is no evidence -- i'm simply saying that removing the convening authority is going to improve any of those parts of the system as they exist now. if i were persuaded that removing the convening authority would encourage victims to report, then this would be a different story. but i'm not persuaded of that. if you think back on most of the evidence that we've heard, both from victims who have come in to tell us what happened to them, and others, the complaints are about not just commanders, of course, but sexual assault by many members of the military, complaints about ostracism by

peters, -- by peters, complaint by lack of services, complaints about not being listened to or understood. those are all legitimate complaints. they all speak to the culture of the military and the failure, the failure to provide the services that are necessary or the quality of services that are necessary. and my mind they do not have anything to do with a convening authority who makes the decision on whether or not to prosecute. i think that when you have a problem, as we do, you look at it, you try to figure out what the elements of it are. you look for causes, and then you look for how to cure it. i just don't see a result coming out of removing the convening

authority that is going to make a difference, but what i do see will make a difference is they welcome the commanders, the leadership of the commanders and believe me, i agree with other statements today, they are under a lot of pressure to get it right, if you want to call it that this time, that's going to change culture. and i just don't see the efficacy of removing the command as convening authority. i have spoken for a long time. maybe others would like to comment. >> could i add something? >> by all means. >> i think one of the other things that we have seen is a big divide in understand the way the system works between those who are young in age, maybe also young in terms of time in

service. and although i know we're discussing the role of the commander here in our larger capacity as a panel, i think that where our future discussions on training and victim services and education so that individuals know where to go and where to turn when something happens is much more of an issue then as you said, who, at a high level far removed from the incident actually makes a decision on whether a case is referred to court-martial. >> may i respond? >> absolutely. >> i agree that there is no proof of what difference this would make. there is no -- there is no comparable jurisdiction of u.s. military. none. foreign military jurisdiction's

are not directly topical. seven jurisdictions which are all over the place in size and demographics and the complexity of the cases and the frequency of the cases and all the things that shape responses, they are all over the place. we can't look to a system and say, this is one we have made this change we can understand what happens. that's right. i just don't see proof of the negative effects of it either. and in part that goes to the first point about the commander and the convening authority. i don't think the soldier on the ground knows who the convening authority is. and if the soldier on the ground already dozen of the convening authority is, who is according to prosecution to go forward, then what difference would it make to move to an independent military prosecutor who is as, whose potentially remote? if we don't already have that conflict embedded in a close in command who knows what's happening, and that's why the service member would trust that it would be handled properly because that commander, because the command is someone who has the trust of that servicemember

already. that's not the person making the decision, so why would arm the confidence in the system to move that, distant in rank and location frequently to a distant similar prosecutors did was i agree that i don't think many or most soldiers do know what or who the convening authority is. but i think that also means that making that change actually has little value in the day-to-day reactions of our soldiers who may be potential sexual assault victims. spend your honor? >> yeah. >> we have heard so much testimony from commanders about how integral they view the uniform code, their authority under the ucmj to be to their ability to maintain good order and discipline in the command.

if i take what professor hillman just said about, well, if we change it, it's not going to impact the soldiers that much because it's so far removed, i think you don't make a change that large without a really good reason to make it. from my perspective we don't have the evidence to show that making the change will have the impact. >> i'm also concerned that this change won't have an impact. it will be made but it won't have, if it's made, won't have an impact. and then when it won't have been an effective response, and i worry about the reaction of sexual assault victims than. there's a perception that this change is going to make, sort of

make everything all right, i think someone said today the last thing we need. i don't view it that way, and i think if you're going to make a change, as general dunn said, is going to be a large, systemic change in where the uniform code of military justice works and how the command system works, the convening authority system works, you have to have some confidence that there's going to be a positive result in responding to sexual assaults. which is why i don't believe that we are necessarily going to see that. i have no proof of it. and moreover, i don't see where switching out a commander who is advised by a judge advocate, a general and his staff, is going to come out with any different, less informed decisions than a

different body of 06 jags who will be somewhere else. and, frankly, i don't think the sexual assault victims are going to know. they will see military lawyers, if they see them, making these convening decisions. and they are going to i do not different than going to look from the decisions they are getting now. my concern is, i cannot say as i sit here that they think there will be incredibly negative results to the command, if this convening authority is taken away. i don't know, and that's something we're continuing to look at. as we said, we don't have any clear evidence of what the impact will be one way or the other. but what i also don't have any proof of is that this is going to make a difference in terms of how sexual assaults are dealt with, the services that are

provided, how they're dealt with by investigators or prosecutors. and i think the results that need to be hud or is more reporting, better investigating, better services, medical, mental health, all of those. better prosecutions and adjudications. and i think those are the kinds of results that are going to make a difference in victims confidence. not the change of the convening authority, far distant from the command where the event occurred and the abuses where the event occurred. >> i find myself in kind of an unusual position here, because i

feel, i mean, i've heard the testimony of the survivors, and it's very powerful and it's very disturbing, as an american, as a woman. and, obviously, i think everybody on this committee wants to do whatever we can to try to make a difference, and so that this kind of experience doesn't happen to anybody else. i've spent a good deal of my professional life involved inviting sexual assault as a member of congress, as a district attorney, and so if the evidence were before me that removing the commander as convening authority and putting it in the hands of a prosecutorial bureaucracy would make a difference in conviction, the quality of prosecution, and

the willingness to report, the willingness to cooperate, i would be saying, junk it. we can't have the present system. but we haven't seen any evidence of that. i think as the chair pointed out and i think even professor hillman pointed out, this is such an abstract issue, the convening authority. nobody even knows what it is. i mean, very few people. i can also do this panel, i had no idea what convening authority, i had no idea how the military justice system works. i'm here as somebody who started out with a few that senator gillibrand is a very bright and intelligent and committed person for whom i have great amount of respect, and i thought her proposal sounded right. i've changed my mind. because i was just listening to what we heard. i started out that way, thinking why not change it? and now i think i'm why change

it? because i do think that some of what we have heard here gives me cause in terms of what would happen to the present system. i do believe that when the commander makes a decision, the convening authority, which is military personnel, says that this conduct warrants referral for prosecution, that makes a statement to the whole military that this conduct is unacceptable. that doesn't mean that this person did it, that the accused did it or that it actually happened, but this conduct is not tolerate. i think that kind of statement is will import. if we jump this idea -- junk this idea the commander, high up commander, as the convening authority, convening authority meaning having a decision about whether to prosecute and what charges to bring, who are we

leaving it up to? it's like jumping from the frying pan into the fire. what are we jumping from and what are we jumping to? and i'm very worried about the q. what we are eating out is an alternative. it sounds very wonderful. let's turn this over to trained prosecutors. i can say right now, i was district attorney in brooklyn, the fourth largest office in the united states. there was a major investigation about quote unquote trained prosecutors going on right now in that county. because the question is whether trained prosecutors follow the law, the constitution, not the coder meant to justice but the us constitution with regard to requirements to turn over evidence to defendants. these are trained prosecutors. there are other issues with regard to trained prosecutors. when i became district attorney,

i care a lot about the prosecution of sexual offenses, and i made those changes in priority. my office when they came there, i wouldn't say that the prosecution of sexual offenses was the top are your to and i would say that if the case were closed, they might decide not to bring it. i made a change in that because i said, as some commanders might say or convening authority might say, it's more important to send a message if the facts warrant it and the law warrants it to try to achieve a conviction, to say i want to have a high conviction rate. just turning it over to a prosecutor doesn't mean you're going to get the result that you're looking for here, because the prosecutor, what this provision would do would be to take all felony cases, burglaries, thefts, assaults, other kinds of similar crimes, murder, and take them to the

prosecutorial authority, whatever it is. well, who's going to side in this prosecutorial authority that sex crimes are a priority? maybe they will think that burglary is a priority. or maybe they will think that auto theft, at a felony level is a priority. or maybe they'll think regular assault is a priority. that's what happened when i became va. i had to change those buyers. who is going to be setting those priorities? we don't know. here we have a command structure were we know who was held accountable. we know the person who was made that charging decision. wind is turned over to a faceless, nameless organization, whose making that charging decision? who do i complain to? who do i hold accountable? these are very serious questions. and while it sounds very good, turned over to train and express prosecutors, i've been there.

i had an office of 400 trained experienced prosecutors and i would not say that without a leader setting the priorities and setting the charging direction, that just turning it over would produce a result that anyone of us would have supported. each decision might be fine on its own, but i have is the caseload and i'm worried about my promotion so i'm not going to take this stuff, he said/she said. because if i lose about, that would be a the merit for me. don't think the prosecutors won't have some of the very same concerns that everyone is worried about with regard to commanders. they are also human beings. and so before we jump to but i don't consider you to be a frying pan, i don't want to jump into a fire. so i need to know where we're going if we're going to make this change, and we don't have that clear. i think also that if we had them if we don't have the evidence we need to have, to make the change

at all, i just also want to point out that the decision now, because of the focused attention on this problem, the decision by the convening authority has been very narrowed so that if the judge advocate, the legal adviser and the convening authority don't agree on what should be done, then the whole matter automatically goes up. and so the decision -- no commander is going to have a final decision to say no. unless that's reviewed. well, that's pretty serious. means that that decision to say no is going to be really carefully scrutinized, and that's what i think is one of the problems here, that i raised with the members of the military. they fear that if you leave this with any commanders, that

somehow they will try to push this under the rug. by not deciding to prosecute or by entering with investigation. they can't interfere with investigations, but they can't push this under the rug either because a no decision is going to be reviewed on a higher level. how this works in practice is something we have to see. these are all new changes that have been made, but it seems to me that the changes that have been made will protect the concern that the commander, the convening authority, is making a series of judgment. people might not always agree with my opinion, but the decision is made with sincerity on the basis of the evidence and in an honest and honorable, straightforward way. and if it's not come it's going to be reviewed and that's going to be reviewed. so i think that the changes that have been made should address the issue of trust, and i think those people who want to see the

system changed a lot to take a really, really, really hard look at what the alternative is. and that has not been spelled out. it's very fuzzy, very vague, and very problematic and troublesome to me, having been in that very hot seat of a prosecutor, where we had to prosecute these cases. and without the leadership and without the drive to make those changes, who knows what kind of bureaucratic response there will be? your credit response to the issue of sexual assault by trained professional prosecuto prosecutors. that could happen and that is a danger, and that hasn't been addressed by those people who advocate that change. thank you. >> i'm one of the subcommittee members who is supportive of the majority, if you will, of opinion that's been reached.

and i think that, to separate from congresswoman holtzman's comments about trained professional prosecutors. i have been a professional prosecutor in the military. i have supervised the. there are many things that i don't know if there are probably few people who have more insight into this dynamic and 90. in terms of the relationship of the prosecutor with decision-makers in the military, i would submit that, number one, we have much evidence that decisions will not change at all. overwhelming evidence that any statistically significant way, that decisions will change it all. i would submit that the decisions are actually better as a result of having commanders involved. that having been here myself, having been down this road, i've learned from commanders who i've argued with integrated, and the

decision-making process that comes out of that interaction between the command and the judge advocate produces a stronger, not a weaker, decision. one of our witnesses this morning told part o of the story that he told in its entirety in an earlier panel. former congressman, colonel mckale, talked about this morning the fact that we knew was on reserve duty, h he was asked about a command to do something that he used to be inappropriate. he was asked to rush an investigation. and colonel mckale was outraged by the. that's what he described this morning. in our present session he told us the rest of the story, which was that he pushed back on the committee and he argued with the command and he persuaded the commander to do the right thing. that goes on all the time. and i think, the evidence of this i think that we haven't really commented much on what

they get out to be pretty compelling to people. is that we have advocacy for a system where military lawyers are essentially put in charge of prosecution. if you stop to think about it, your natural conclusion would be to think that military lawyers would support that kind of aggrandizement of their authority and their importance in the role of the system. it not to say something that to a person, military lawyers do not support that increase in their authority. as a judge advocate general of the united states navy for three years and the deputy check for three years before that. i think it would be a mistake to increase the authority of military authority, military lawyers in that way. and it's not a gender thing. female judge advocates feel the same way as male judge advocates do. why is that? why do we see it this way in a way that is so curious sometimes to civilians and to outsiders who look at the system that exists for the rest of society,

which seems to work well enough, although i do think studies that are coming out to a certain degree give light to how well it really does work. but why do we see it that way? i think because when we served, we have an understanding that has basic, fundamental to this is the issue of trust in the commander and the role that that plays a military society. and it is not the decision to give somebody an appendectomy or to set a broken arm. it is, as general brady talked about, fundamentally about behavior and the trust that we place in people to make decisions that put people in harm's way, to go to the death, to die, and to say now at this juncture, to acknowledge the obvious, that we have a long way to go. but that to remove commanders from this now i think since a signal of distrust to commanders in the inability to fix it. and, frankly, i think that is wrong to say that the military

has had 30 some years. it may not be wrong to say but i think it's oversimplistic tuesday, the military has had 30 some years or however many years you choose, to fix this. this dynamic is changing but it's a moving target and it is a morphing target and we have to continue to keep our eye on the ball to get there. but commanders have played a central role. a central judicial role in the solution of the drug problem in the military. they have played a central quasi-judicial role in the resolution of race as a problem in the military. and i think that the decision to keep the convening authority involved in this is the right one for those reasons. >> madam chairman, two points. one is going to be exactly what congresswoman holtzman had just said. when i said, i've been in the system by have to sit there and you look back and you say would it change anything if we did remove the convening authority peace lacks and i can confirm he

i a compacted if it is the evidence and the legal advisor and the commander considering the same information, i don't see that, whether it's an original the office or remote in a central location back in the united states, that that's going to get any of those results. i don't see that statistical difference. but even if i send that maybe it would come it changes the perception of the victims or of the people involved in the system, and that is critically important as well. the concern i have is to take that to the next step, the second or third order that you sometimes consider with the military and did you set up a centralized area, perhaps a prosecutorial bureaucracy. you're talking a felony cases, not just such a sal cases if you look at the proposal. if you've got now a team that is supposed to just prosecute these cases, that command case combat sexual assault case, that is now in a queue what might be the most important case at an individual command where they're giving it a priority because that's not a problem, not we

will fall into a queue with other cases. it becomes a number. if i try to think about what is the impact been on the victim that is still i in the field, wherever they're located, on the command trying to maintain discipline but have no import -- input or authority, the victim may see extra delays but i don't see how that helps. the command may have a discipline issue they can't address, and get somebody who stands accused of an offense, whether right or wrong, but that person is now having this on over their head, potentially. there is no evidence for that recover potential longer than might otherwise have. part of me says not so much to do no harm, i don't -- we didn't get evidence that shows would make a difference in terms of what the decisions that are there. we also have no evidence that those potential delays are being part of a political bureaucracy or prosecutorial bureaucracy of one case, that that's not going to cause more harm than it actually helps. the second point i would make is, in terms of recognizing, the

people who read this report, this is the initial assessment we will put together a final report for the panel at the end and recognize it's not just going to be read by people who have a military background or any exposure. we watched the difference between a convening authority and committed to the way this is currently worded it talks about the criticism of the justice system often confuses the term commander with the person authorized to convene a court-martial. that's not the same. or yes, it can be. i would recommend that we clarify that. it's the authority. there is command authority and there's convening authority. and they can't be the same person so don't focus on the person piece of that. a commander can have a convening authority and be the same person, which this talks about the person in the first instance and they just as it's not the same thing. command authority and convening authority are not the same thing. it can be one person has both of those authorities so i would request we clarify that final report. thanks. >> mr. bryant? >> think you. first of all i want to say how

much i appreciate those who have been on the subcommittee. you are all very, very experienced people with a great deal of wisdom and good judgment. and you've certainly worked hard and heard a lot of information. as a floor panel member i've heard and have been privileged to a lot of the information that we have all heard, and i am yet to understand how, if we remove the convening authority from military command, that somehow this has a tremendous effect on morale but it shows the troops we don't trust these men and women. and, you know, we talked about surveys. it would be interesting if we could have a survey of, i don't know, e-5 and above, not to put down the one through four, okay, we will start with e4. if j.a.g. officers were making

prostitute decisions and how these come with that somehow lessen your respect for your commander and your willingness to obey his or her orders? i just have to believe in, since the answer would be a resounding no, it's not going to affect anything i would do because the ultimate thing we have to number is our military, they are warfighters. that's what they do. that's what we want them to do. that's what we want to continue to empower them to do. so this idea that somehow the perception of a commander is going to be less and if he's not the one making this, hopefully, very small part of their overall duties, which is who's going to face a court-martial and who's not. i haven't seen anything that convinces me that that's going to be or should be a problem, other than the fact that was expressed early on in some of our panel meetings. i haven't heard that as much lately. that particular idea. the other thing that we all need

to keep in mind is, with injustice, it's perception that counts a lot. it counts an awful lot. in your jurisdiction, congresswoman, well, i just went blank on your name. .com in your jurisdiction, when you were district attorney in brooklyn, if the perception was that justice was being done, then just as wasn't being in the mind of the public. and that's part of the issue here. we cannot deny this group that there is a perception, and i think right or wrong, a substantial perception that if we place this authority in someone other than the commander who has got all of these men and women under his command, that something more fair and better is going to happen.

congresswoman holtzman, your point, who's going to decide what the priorities are, i think is pretty easily answered. the admiral houck's of the world, the secretary of the navy, army, they're going to decide whether or not this particular thing is going to be a priority. the j.a.g. officers are now past, if that's what kinky, to determine quote what priorities are. now, there's an awful lot of criminal experience at the table, people who've been involved in actual prosecutions and even some defense work. and what also needs to be said is that, in criminal law everything is fact driven. you don't have good facts, you don't have a good case but i don't care -- i don't care whether its mass murder, terrorism, rate or simple assault. if we don't have good facts, you don't have a good case. so for us to say that we have no evidence, and i don't even know

that this is essential to this particular issue of removing command of convening authority, to say we have no evidence that the conviction rate would go up or down or that the reporting rate would go up or down. to me, that's a side issue from whether or not we can then say that trained professional prosecutors are making these ultimate decisions about whether or not the case is winnable. it disturbs me a great deal when i read, when we heard evidence and testimony, which i will relate in just a minute, and you will probably recall it, and when i read proposals that indicate, well, commanders would go ahead despite come and have gone ahead despite the suggestion of their j.a.g. officers. and i think one of the examples that i'm leading up to is the documents that we have, refers

to the prosecution at the naval academy where the convening authority went ahead despite the prosecutors advice, now looking back in hindsight, we know that probably should've followed the prosecutors advice, at least in the cases have been adjudicated as far as opposed to the commander ignoring that advice and going head in those particular cases. again, criminal cases are driven by fax. what facts are visible, how well they are investigated and who was willing to testify and what kind of witness they make. and in my mind, that people who can best assess of that are those who do it for a living, and that's the prosecutors. i know it's -- i'm going to bring up my old -- let me finish with this. i don't remember what month it was, it was a full panel meeting and somebody on the end said that they had a case -- that they were quite proud of. they had a case of sexual

assault, i don't know whether was raped or not, which they quote me we couldn't win, but i have been court-martialed to teach him a lesson. now, that's just wrong. that's not justice. it makes the system start to come apart and frayed at the edges. when you start throwing bad cases into the courtroom, whether it's civilian or military, just to quote teach him a lesson when you know you're not going to win, first of all, it's abuse of the process. and second of all, it doesn't teach that defend anything. what it doubt that if it was, hey, even court-martialed, i can get away with this. because that person did. and that distressed me as well as the language that we have received today indicating that victims in these cases, and i'm taking this out of a particular paragraph, the victims of these cases got in -- had to go to

move a case forward. if we create a system in which prosecutors have the only say, we will see fewer cases go to court martial. well, what does it mean to say that? that commanders are going to have knee-jerk reactions -- yes. >> senator mccaskill. >> that's one of them. we've had her here before us, and i agree with congresswoman holtzman that she is a very dedicated, very wise person who has studied this. >> i didn't say anything about senator mccaskill that you're quoting me even though -- >> you are talking the center gillibrand at the time. i'm having back trouble with last names. let me check year, bryant, okay. let me move on. there some other things that i want to say and could address in particular.

you know, we say that commanders have to have that authority, you are probably tired of it but the example i used early on was in the paramilitary organizations of our sheriffs and police departments across the country, some who have thousands of employees, many of whom are committing crimes in time to time, we do not say, you either committed to you'll decide whether or not this officer, this deputy sheriff will be prosecuted. that just doesn't happen. it goes to the prosecutors office. and i've never heard a chief of police or sheriff say, boy, my men, women, to respect anymore because i'm not the one deciding who gets prosecuted and he doesn't. -- and who doesn't. letting the fox in the henhouse sometimes is what gives the perception that things are going like they should go. like people expect them to go

and have a right to see them go. the criticism, for instance, in the civilian world, often time and police department, the police department is getting themselves, no wonder they cleared this officer. that's the perception, rightly or wrongly, that is going on now. with commanders having convening authority. and again, just to conclude, i haven't seen or heard anything that convinces me that if we put this authority somewhere else, we have somehow significantly damaged or even slightly damaged, frankly, the war fighting capability of our men and women in uniform because their commander no longer decide who's going to get court-martialed for a felony and who's not.

>> i sort of wanted to address mr. bryant's comments sorted directly. you know, i think we are all here to do with the facts around getting rid of sexual assault in the military. not the perceptions of it. and if the facts do not show that moving the commanders authority is going to do anything, then i think it's our job to illuminate those facts to the public, and to say we thought this was a good proposal, we look at the proposal, the evidence just doesn't hold up. and what you said was, cases are solved with fax. i think problems are solved with fax. and i still think it's an open question. is more facts are brought before this committee at some point that say, look, we get rid of the commander and we're going to be able to deal better with the addition of such assault, and

shows the actual facts, i think that we can take that into consideration and make changes. but we haven't seen it. and that's my issue. into we see it. i worked for the national center for victims of crime, we want to stop crime, not the perception of crime because that, that just placates us if we're stopping the perception of it. if we're not getting to the root of the problem, and am also fearful that okay, we take the command of, all of the sudden our attention shifts to, is this change going to work? how many resources to have to throw at it? we are throwing resources at something we don't know is going to work. we need those resources were things that are going to work. and i think that's part of what this committee is trying to do. also, figure out what is going to stop sexual assault in the military. so i was like congresswoman

holtzman. i went into this thinking, you know, it makes sense. i was a former prosecutor. i like the independence of a prosecutor. it just sort of, when you hit it at first blush, you go, yeah, i want to go with that. but when you are the facts, like you would any case, it just doesn't hold up. if there is evidence out there, i'd like to see. all that said, i also do think that many of the changes that take place in the last couple of years are because we are arguing about the authority of the committee. and if that wasn't at risk, then many of these changes would take place. i think we need to honestly have a conversation about how we keep the pressure on the military to continue these changes so that we have real change and we see the end of sexual assault in the military. >> i also wanted to compliment that thought as well in terms

of, we are dealing with so many rebels all at once. and the more solutions and ideas to throw at the problem without really giving it time to really identify the effects of what we are already doing is just, i think, throwing, it's a potentially complicating the issue. ..

know what changes in the article 32 process which are wholesale, systemic change happening, we don't know what impact that will have. we don't understand how the emphasis on the specialized expertise to prosecute these complex cases the military is developing and transporting to the places it is needed, we don't know if that is sustainable from a resource perspective. all these changes are happening. if we don't change this part of the system that i deeply wary we are creating a system that is not only not better at doing what it is doing but will be much worse because commanders will pursue cases that are not warranted because they will do what general brady said, bird dog the issue, commanders are supposed to have full control of the system yet it is an independent impartial justice system. i can't reconcile those concepts in my mind.

i agree we can't consider this outside the larger context. i don't know what that prove what look like, that this change would work. we have a change in other military justice system is but are not enough like our military to draw conclusions from it and more significantly no one collects the data the united states does on this. we have more information what is happening in the united states and the information we have is terrible. we are talking about an iceberg we can see. if we don't have 75% of the report of these incidents which is our best guest at most we have 25% reporting rate, 5% to 25% are the numbers we get, we don't know. i don't think we can find evidence to support this kind of change. >> any response to the last comment? i don't know what that evidence would look like. i know in the military one of the basic reasons to have a uniform code of military justice

and to have an embedded military justice system is the expeditionary nature, the fact that commanders and military need to focus on fighting and winning wars, operational requirements that having a case be prolongs with the witnesses and victims and accused, not usually the case that are handled very quickly and completely and it moves on. i don't say they are always resolve appropriately. that is why we are here but as far as the evidence is concerned, to put it into the queue essentially. how long does it take within the civilian sector? how quickly, i know from my experience how quickly we have tried to. murder case from beginning to end from the time you find the evidence to get a conviction and somebody in jail for life. i don't know if that is possible in the sling community but i would need to know that before taking a risk to change something and put it into a centralized areas that doesn't do more harm than it does help. that is what i would like to

see. exists. i prefer not to see any more cases. >> also -- >> i also think there is -- when you think about our military and its mission and the responsibility of commanders which no one else in the world has, to make decisions that impact the unit that send people to die, and you tie order and discipline into that process, it does not work if there's not order and discipline in the unit. we have had commanders, retirees come in and tell us they think it could be moved but by vast majority we have had current and former commanders and leaders of military service is come in and say that is in trouble to the

way we function as a military and is so critical to our good order and discipline which allows us to get our ultimate mission which is not prosecute criminals but to prosecute our nation's worse. without knowing it will make a difference. without having evidence that will make any difference to the prosecution i don't see how i could support recommendation to change that. >> at one point last fall we were discussing as a panel or it came up as up panel a prototype program where it wouldn't be certified but a designated air force base or designated naval base or designated army base and so on would give this a try and maybe we would get some of the facts, results and be able to look at this as a pilot program

if you will. to see how it might play across the services side. just ask whether or not as a subcommittee might want to consider that as a secondary recommendation, given a try somewhere even if it is not all the services. i remember, i believe that 100% as one of the army generals said, we follow orders, we will do what we are required to do and what we are told to do. it was in response to that proposal war that suggestion. i put that out, an alternative way to find out would this work and gather some statistics. it would have to be something that ran for more than 12 months for you to find it. in terms of colonel cook, my

contact changes -- >> close enough. >> i am embarrassed. i have been with these people for months. i don't know why it would take longer to try the cases because we change the convenience. would that stay the same? maybe i missed your point. i don't know why that would change the amount of time it takes to finish the case because jag officers are doing those cases. >> if you have that team you increase and centralize the number of cases and again you have to prioritize within that scheme. that case could be the most important thing on your docket, the judge kyushu's located within driving distance of your region or area. the witnesses, i get concerned did get lost in a number when it is consolidated within the

region within -- to gets consolidated within the united states and where we're located is not just in the united states or even mainly in the united states. even if you put it on a regional basis it has to be prioritized, allocated and it won't have the same -- is that the only case in town? it may be what you find at a particular installation and try is in a particular command on a trial basis a number would say relatively low, you could have the judge advocate making that decision, i don't see that it might be different more than it is now when you do a prosecutor and commander but the volume is not the same. it won't be the aspect that i am more concerned with. >> it would be -- hypothetically, against fort bragg, let's pick for bragg, currently the army's largest base and let it go for a couple years and see what happens. all the things you are talking

about, the judges, the jags, the people are there. >> i will defer to the former inspector of the highest command and that will be you. >> you have five different, six different offers of convenience, 50,000 active-duty soldiers there, you have a combined number of cases prosecuted in six separate court-martial jurisdiction over the course of the year that exceed all the rest of the cases in the united states army. exactly what holly o'grady cook has said would be a concern because you would pull it away from all of those commanders over to one part and it would become like trying to get a medical plane up. you are not getting that day after tomorrow. >> originally too i was open to

the idea of a pilot project because i didn't come to this with an adverse approach to the proposal. i said there -- everybody thinks it could be harmful. let's try it out. i have reversed my view of that because i don't see any reason to do it. if you give me a reason to do it i will be ready to do it right now. where is the conflict of interest? i heard people talk conflict of interest, i am not seeing it. i don't see it. it doesn't exist. show me the conflict of interest, that is serious but just because a commander has to -- 05406 level or lieutenant-colonel, don't ask me what that is. that is a pretty high level person, that commander, not likely to know either one of the people and so what is the conflict? that presents the commander,

that convenience, he has to resolve kind of conflict. some two people get into a fight, not a criminal matter but some dispute that has to be resolved. is that a conflict? commanders have to decide all kinds of conflicts, all kinds of attentions and issues like that which -- who gets to drive the jeep today? who gets two jeeps? all those issues have to be resolved. doesn't mean it is a conflict of interest. show me the conflict of interest. what do we do to solve it? i haven't seen that. to make changes for these purposes, up i think we need to be passed that and the reason we need to be passed that is we need to be honest with the american people. what is really going on here? what is really going to make a difference? this is like a silver bullet. do this and we can walk away and solve our problem.

it hasn't solved the problem. no way has it solved the problem. are all the issues of victims services, quality of prosecution, the rape statute itself was rewritten several times. maybe you understand what it means. there are a lot of other serious problems that have to be addressed. veterans administration, services which we haven't looked at but came up. a huge problem. these are things that will make a difference in people's lives in a concrete way. i am interested in symbols but i am really interested in the concrete reality of what we can do that will affect people's lives. i am open. this commission, has until the end of june or may or whatever, and to change my mind again about this, but i would rather if we don't have the evidence,

that prompt chapped -- ask them to look at it again but let's move on to something where we can in a concrete way make improvements that will affect and qualitatively improve the prosecution of these cases. one other point i want to address. the question came up, how can you get more prosecutions? that worries me because the facts are the facts. the facts are the facts, he says x, she says why. i am a prosecutor. tough case to win. maybe i don't want to take that risk. it is not a question of fact, really. am i going to put my win/loss ratio on the line here? that is how a case can be brought or not brought. sometimes we don't want

decisions made on that basis. sometimes we say we are willing, it is a close case, but the facts, just the fact that the law justify the prosecution, willing to accept the possibility, the risk of defeat. some prosecutors may say i don't want to. that is how those things could work. the question is who is going to make those judgments? someone in the system? i don't know who makes those judgments. >> i don't think we heard one commander who came and testified at any point or use the term of the conviction rate. they look at the command climate and are likely to send the case to court because two people, credibility issue, put it in front of the panel, the military judge and let them figure out what justice comes out of the results of a conviction rate is a lawyer's term. >> that could be a factor for prosecutor in deciding whether to go forward with the case

whereas it would not be necessarily for a commander. >> you think you may not win and is ethical and in our realm of the attorney's ethics to do so. the fact that you think the case may not be winnable doesn't mean it is unethical to send it to the prosecution. >> you have to take a chance with the prosecution. prosecutors are sometimes in some places accused of wanting to shoot goldfish in a bold but i don't think that is true in the civilian world and it is not true in the military world leadereither . it has to be assessed. furrowing the case up and say is the government ready, yes we are ready, it is unlike you when we get a conviction here, spoils the view of the system, three panels of the judge and everyone else. no commander, no war fighter is going to say we are going to

attack that hill. don't think we have a chance of taking that but we will teach the lesson because i feel like we are going to at least give it a shot. i hope we are not conducting wars like that and i kill confident we are not conducting wars like that and hope we don't do prosecutions like that. there is the third aspect of the conflict of interest that general brady brought up in response to admiral houck 11's two pronged 's two prongepronged conflict, tha actual conflict and we should increase the prosecution rate if we get legitimate victims of legitimate evidence that has some substantial likelihood of getting conviction rather than just growing these things up to see who gets it.

that is contrary to everything i have seen and learned and practiced and believed in as a prosecutor for four years. >> it has never been my experience as a a prosecutor that we looked at things in terms of do we have a substantial ability to get a conviction? we think about it of course, but in a sexual assault case, if you find the victim credible, at least in my experience over the years, you already have probable cause, but believe that the victim is telling the truth you go forward with that if you can, if you have the resources or whatever other problems may exist but the fact that you may not think the case is winnable is not a reason not to go forward. >> but if you know, and for my own i have to tell you the last

case i had, in november, it was a rape case, we had a victim who did not speak good english, had to be translated from chinese. we had no dna, no fingerprints, no sperm, nothing. i took that case myself because i believed that a jury would believe her testimony based on some of the other facts and we did get a conviction. so i don't want to be misunderstood. i am not saying it has to be a slam dunk. we have tried cases that are not slam dunks and hope the judge and jury agrees with us but when a prosecutor's experience and primarily his experience and his understanding of the law and the elements tell him -- i put this case on. there shouldn't be a conviction.

there might be but there shouldn't be, that case shouldn't even be brought. >> i am very confident the overwhelming number of cases that are out there, military judge advocate's and commanders, that they are not treating these cases as chung balls, throwing them in the air and say it come what may, we will do this because it is politically correct, it is a large department of the fence. just like civilian jurisdiction that large you are not going to find the perfect record in any jurisdiction but it is not abnormal in the united states armed forces that the cases are being prosecuted this way. >> i was not a suggesting that they were. i was suggesting it is part of the conflict, potentially part of the conflict when we put such pressure on the convening authorities, commanders to go forward.

>> all we are saying is we are not putting wind in the equation, trying to decide when you have a victim who wants to go forward and to is credible and you have not just a probable cause case but those other two factors and you go forward. we are only talking bout winning here. >> i agree with you 100%. all the warriors on this panel have heard the cliche if you are not losing cases you are not trying cases. if you're going to lose your share of cases, everybody knows and understands that. >> response on congresswoman holtzman, i don't think we answered your question. what is the conflict? this is about perception. stopping the crime, why is it important? those are reasonable questions.

command control of the court martial process and at great risk for the fairness of the process. the consequences of failing conviction rate has never been higher for the convening authority. and working get command climate which is used to describe the atmosphere in which service members work and which of. if there is -- if there are not -- there could be many more restricted reports that would go forward that i could see pressure on the convening of 40 to force victims who report to convert from unrestricted restricted to unrestricted report, i don't think that would be good for those victims. i want more unrestricted reports that can be investigated and prosecuted but pressure did demonstrate progress on all the

metrics we as a panel are going to put out that we want to know about what is happening on the ground creates a lot of pressure on convening authorities in charge of this process and i think it creates a larger specter of unlawful command influence, too much intervention in the court-martial process which is a matter of perception. unlawful command influence is litigated all the time and lots of times in sexual assault cases and has to do with the commander being too embedded in the military justice process. s have already removed the commander from parts of the process especially detail end with changes in article lx. having the commander, the convening authorities as the charging of authority at the talk at the front end creates a potential barrier to sustaining those convictions going forward and the problem with the fairness of the process. it is to be a very -- accomplished. the other point about

perception. the thing we have to do and some of our panelists today referenced this to understand the problem better, to increase reporting rates. the biggest problem is not failure to investigate and prosecute. that is a big failure in some instances. if not in the military but elsewhere. that is a problem. the biggest problem is failure to report, that is all about perception. the perception of how my case will get treated when i come forward and say this is what happened to me. some of what our panelists have said today in our public comments made a point that the first person to hear that is the one we need to make the right choice about to receive that report. i want our commanders to be fighting wars, winning wars, coming up with great operational strategy and educating everybody within that military community over which they have far more control than civilian communities so everybody, that first report, say the right thing that will lead to an unrestricted report and get the

investigation and prosecution, adjudication and perpetrator out of commission for any crimes going forward and to me that is all about perceptions of i can't make you change it based on perception. azov thing on which to base decisions but it is the whole ball of wax. >> two points professor hillman makes are worth talking about. one is, she has not said this but others had implied it. some of our witnesses that implied it or said it directly. the commander needs to be freed to beat. disagree there's a barrier between sexual assault and not fulfilling his or her burden to prosecute cases in an ethical way. it does require the commanders to consult with a lawyer, with the judge advocate to make sure

their public pronouncements on military justice are consistent with command influence law but it is not difficult to do. most commanders do it. there's the occasional exception but again that is the imperfection of life. this can be done and it is not difficult. i have not heard a second point in the testimony, the eloquent and moving testimony of our survivors. today and in other days, i for one had heard many of them say they support the changes senator gillibrand is promoting. i have not heard one say the fear of the commander was a prominent part of their own situation. there is a difference and we need to be alert to that difference and i would not presume for a minute to be inside the minds of survivors

and what they have gone through. but i think others have said it and i will say it again. i have not seen empirical evidence that suggests fear of the commander is a prominent issue in why we have underreporting in the military. i would ask again why, if the figure is correct, 88% of college student women don't report it. the fear of their commander, of course not. so i think ms. fernandez made a spectacular point and made it in a really compelling way about this panel's obligation to study this issue rigorously and carefully to educate and congresswomen holtzman made the same point to educate and not react to perception if we don't believe these perceptions are accurate. panel member and witness after

witness after witness has used the same phraseology in describing, those who support the change, by saying right or wrong there is this perception. i am going to go back to the right or wrong part. is our obligation to point out if we believe it is wrong and to not be led by the right or wrong phenomenon. >> just to follow up on hillman's issue about perception. one of the biggest things is to get report going up, i am not going to sit in the shoes of sexual assault victim in the military also but my sense in working in this field is your perception that the system is working for you is the first person you have contact with says i believe you. i care about you and they start providing you with services. the idea of joint, what is going

to happen in the criminal justice system that i didn't understand myself until i left law school, is something pretty far away from the initial victimization. all you want is for someone to believe you and if you are hurt to get over your hurt. and then other things start kicking in. but i think that perception is really important, where i do think our resources need to be going which is those people who are making the first contact with victims and some of those could be commanders, some are best friends, some are all over the place. but that is where the perception that people will believe you is the most important.

>> have we said it all this afternoon? >> i also want to thank those of you who shared your personal stories. >> a reminder you can see this event at our video library c-span.org. we will be the last few minutes and take you live to capitol hill, a hearing about to get underway with the congressional budget office director doug elmendorf, set to testify before the house budget committee. a cbo report released yesterday shows the federal budget will decrease in the short term before increasing in the next decade, in part because of the health care law. the cbo report predicting the affordable care act, the president's health care law will reduce the number of full-time workers by 2 million in the the ditching -- coming year. white house economic adviser jason furman spoke to reporters at the white house. we cover that and you can find that in our video library. chairman paul ryanin