Admiral Winnefeld’s testimony

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ADMIRAL JAMES WINNEFELD: I would like to give you a couple of numbers on what the Army has discovered recently, peeling back the numbers on what a so-called objective observer might end up with.

The Army has looked back over the last 2 years and has found 35 cases where a civilian district attorney (DA) refused to take a sexual assault case—refused to take the case. The chain of command in the military insisted that the case be taken inside the military chain of command. Of those 35 cases, there are 14 out there that are not yet resolved. They are still in the court system. There are actually 49. Of the 35 complete, 25 resulted in a court martial conviction. That is a 71 percent conviction rate. The civilian rate is around 18 to 22 percent. So of those 71 percent that were convicted, 24 of the 25 got punitive discharges. They are doing prison time.

If the Army had not taken those 49 cases and the 35 where we have achieved a conviction, those people would be walking the street right now. The victims would not have had the resolution that they deserved in this case. This was done inside the chain of command, the chain of command insisting that a prosecution be pursued, and it was pursued successfully. I worry that if we turn this over to somebody else, whether it is a civilian DA or a non- entity in the military, that they are going to make the same kind of decisions that those civilian prosecutors made. I worry that we are going to have fewer prosecutions if we take it outside the chain of command.

SENATOR CLAIRE MCCASKILL: You mentioned, Admiral Winnefeld, in your testimony earlier that you all have taken a look at prosecutors’ decisions in isolation. I have some knowledge of this. There was discipline meted out in my office when I found out that prosecutors in our warrant desk, which was our intake desk, were getting lobbied by some of the trial prosecutors on their decisions because they did not want any losers. They did not want them to take cases that were going to reflect poorly on their won/lost record because when you are a prosecutor, there is a won/lost record. When you take a case to trial, you either win or you lose. So your status among your peers and in some instances your upward mobility in your job could depend on just your conviction rate. When you isolate them with this decision, then there certainly could be instances where you would have a prosecutor that did not want to take a close one, that did not want a ‘‘he said/ she said’’.

Do you have additional information that you can share with this committee in terms of numbers of the number of times that civilian prosecutors have said no, military prosecutors have said no, but there are victims out there today that have had justice because the commander said yes?

ADMIRAL WINNEFELD: I do, and I will give you a couple of examples. The Marine Corps has had 28 cases. They have looked back to 2010, 28 cases where civilian prosecutors declined to take the case. Of those, 16 of them the Marine Corps was able to obtain a conviction at court martial, 57 percent. So those are 16 perpetrators that are no longer walking the street and 16 victims who received justice who would not have received it otherwise.

The more startling numbers are from the Army, and I will repeat them. The Army has looked at 49 in the last 2 years. Actually 14 of them are still in process. We do not know what is going to happen with those cases. They are still in the trial system. Then 35 of them have been completed. Of those, 25 or 71 percent resulted in a conviction at a court martial. Two additional ones were plea bargained down to a punitive discharge. That takes the number up to 77 percent of these cases that civilian prosecutors would not take that resulted in some serious action taken against a perpetrator. There are some that were acquitted, understandably. Most of the ones who were found guilty have done hard time, are doing hard time, and have been given a punitive discharge from the military. These were all done inside the chain of command.

I would add, Senator McCaskill, some of these are very heinous cases that the DAs would not take. One of them was a 10-year-old autistic girl who was sexually assaulted. We took the case. The commander insisted on it, and a conviction was obtained.

ADMIRAL WINNEFELD: The most important thing—and Senator Gillibrand touched on this—is the command climate that we hold commanders responsible for establishing that makes the likelihood of a sexual assault drop down hopefully to zero. There are a number of aspects. It is about teaching people what a heinous crime this is. It is about re- porting it if you see it. It is about intervening if you see it about to happen, a whole host of measures that commanders must take to establish the climate inside their commands. We need to hold commanders accountable for establishing that climate, and we intend to. That is one of the reasons why the command climate surveys now are going to be seen, which we normally have not done, by the next echelon up in the chain of command. If that next echelon up detects a problem that the climate is not where it needs to be, then action can be taken and it can be even entered into somebody’s evaluation as sort of a down strike, as you will.

In keeping with the prevention and the advocacy, investigation, accountability, and assessment pieces of what we are trying to do to take on this pernicious issue, it is absolutely vital that the climate piece of it come to the forefront and that we hold commanders responsible for that.

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