A col.'s view of commander's authority

By Col. Ellen Haring, U.S. Army

Best Defense guest columnist

When I was a lieutenant stationed in
Germany, one of my soldiers was murdered. Not for a second did my commander
consider investigating the crime himself. Instead, he immediately turned the
case over to the Army's Criminal Investigation Division (CID) and the German
police. By contrast, later when I was a major stationed in Hawaii, I was
assigned to be the investigating officer in a rape case.

At the time, it didn't occur to me to
question why the rape investigation came my way and the homicide investigation
did not. Presumably, my name was the next one up on the duty roster. Whatever
the case, I now know that I horribly failed the young women who reported the
crime. How could it be otherwise? I had limited resources to investigate their
allegations and so little training that I didn't even know what resources I
lacked. 

Three junior enlisted women claimed to
have been raped at different times by the same non-commissioned officer (NCO). None
of them came forward when the crimes occurred. They were all new to the unit,
they were afraid, they were ashamed, and they were traumatized. Over time, they
connected and confided in each other, and one decided to report the NCO. 

The commander responded by elevating
the case to the next higher level command where I was appointed as the
"investigating officer" on the case. For support, I was given the advice of a
staff lawyer and a copy of Army Regulation 15-6, which directed me to ascertain
and report on the facts using "informal means." Although I was committed to
doing an investigation that was thorough and fair, I realize now that I had no
clue how to accomplish either objective.

Over the years, this case has bothered
me. Recently, I asked my sister, a police officer, what the police would have
done to investigate. Off the top of her head, she came up with some steps that
I did not take, did not know to take, and had no authority to take. First,
police might have applied for a warrant to search the NCO's home for evidence
that he was a serial sexual predator. Unlike real police investigators, I did
not know that serial predators often hold onto physical evidence of their
misdeeds, which in this case could have included the drug that the women
believed the NCO had used to incapacitate them. Second, the police might have
asked the victims to record conversations with the NCO in an effort to obtain
admissions that would help to determine who was telling the truth and who was
lying. Finally and most basically, unlike me, the investigators who interviewed
the NCO and the victims would have known how to carry out such an interview.

At the end of the day, I was left to
resolve the basic "she said, he said" conundrum with nothing more to go by than
the parties' sworn statements. I believed the women's statements, and my report
included a finding that the NCO had committed rape. Although I was never given
any details, I believe that the commander's final decision was to reassign the
NCO to another unit. If so -- and if indeed the NCO was a rapist -- I fear that
this remedy simply gave him the opportunity to prey on other women.

Recently, I also asked a JAG friend why
I -- and not the CID -- had investigated this case. I was surprised to learn
that rape investigations do fall under the investigative authority of the CID
and not the commander. However, there is a catch in rape cases, which turns out
to be a big one. Commanders have the authority to investigate "indecent acts
when consensual." Although the three women reported that the NCO had raped
them, the commander apparently decided on his own that the case may have
involved consensual acts, making it unnecessary to proceed with a formal CID
investigation.

I do not believe that the commander's
actions were malicious. Nor do I think that he intended to cover up a crime. Still,
his response speaks volumes to the way in which our culture continues to
devalue the experiences of women who have been sexually assaulted. Until sexual
assault, in any form, is viewed as a major crime, we will continue to treat it
as if it warrants only an informal investigation that may be resolved by
removing the perpetrator from the vicinity of the victims.

Military commanders are not jacks of
all trades. Rape and sexual assaults are major crimes that require specialized
investigative training. Commanders don't conduct their own murder
investigations and they shouldn't be allowed to conduct their own sexual
assault investigations. Senator Gillibrand's move to take criminal
investigative discretionary authority out of the hands of commanders is on
target and should be supported by both the military and elected
representatives.

Ellen
Haring is a U.S. Army reserve colonel and a non-residential fellow at both the
Stockholm International Peace Research Institute (SIPRI) and Women in
International Security (WIIS). She is the project director of the Combat
Integration Initiative. Ellen is one of two plaintiffs in the first U.S.
lawsuit that challenged the constitutionality of the U.S. military's direct
ground combat exclusion policy that limited the roles and responsibilities of
female servicemembers. Ellen is a West Point graduate and she is currently
completing a Ph.D. in conflict analysis and resolution at George Mason
University's School for Conflict Analysis and Resolution. This represents her
own views and are not necessarily those of the U.S. Army or the Department of
Defense.