A col.’s view of commander’s authority

 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.