The United States should adopt the international doctrine of command responsibility within the Uniform Code of Military Justice (UCMJ) as a solution to widespread reports of intra-military rape and sexual assault. Applying command responsibility to serious violations of the UCMJ, like rape, would establish a clear mandate for the military to prosecute any commander who fails to reasonably prevent, investigate, or punish serious UCMJ violations that he or she knew about, either via constructive or actual knowledge. Congress should limit the doctrine’s scope to serious UCMJ violations that commanders are aware of and recklessly choose to ignore in order to prevent significant, rather than trivial harms. Although the Department of Defense recently articulated a duty to prosecute intra-military rape and sexual assault, establishing a duty achieves nothing without proper enforcement—command responsibility is one solution.
Command Responsibility—A Legal Obligation to Deter Sexual Violence in the Military,
B.C. Int'l & Comp. L. Rev.