Pushing for change on military assault

Pushing for change on military assault
© Greg Nash

Retired Air Force Col. Don Christensen remembers when he first started realizing the military justice system has a problem
prosecuting sexual misconduct.

“When I was a junior defense counsel, pretty early in my career in like mid-’90s, I was representing a guy … who was charged with child-sex offenses, and a four-star general came to his defense, and just I remember thinking, ‘Wow,’ ” Christensen said from his office across the street from the Capitol and the Supreme Court. “It was just very strange to me, because this was pretty serious allegations. I think that was the first time I started thinking that strange things are going on.”

Now, Christensen serves as the president of Protect Our Defenders, a nonprofit founded in 2011 to combat sexual assault and harassment in the military. The group both advocates for new legislation and works with individual victims, issuing reports on the military justice system, meeting with lawmakers, providing clients with pro bono lawyers and engaging with the media.

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Christensen, 56, comes from a long line of military men — his father and grandfather both served in the Air Force, and multiple generations before that served in the Army.

So, when he was in law school, he enlisted in the ROTC. In 1991, he was commissioned into the Air Force’s Judge Advocate General’s (JAG) Corps. His first posting was at Ellsworth Air Force Base in his native South Dakota.

Switching between prosecuting and defending as JAG officers do, and working his way from South Dakota to California to Europe, he began to find himself drawn to sexual assault cases.

Intellectually, he says, they were the most challenging cases to work, be it as a prosecutor or defense. But more than that, as a prosecutor, working to bring justice for the victims was rewarding.

“I remember doing one for a woman who was an aircrew member, and she worked in air refueling, tankers, and she was raped while she was in lodges, just on her way to the desert. Just seeing the impact that had on her and being able to bring her justice was really an incredible thing,” Christensen said.

As a defense lawyer, he was popular among commanders. As a prosecutor, however, he could feel they and other airmen thought he was the “bad guy.”

During a 2005 conference of staff judge advocates in Europe, Christensen warned that commanders were too aligned with the accused and hindering appropriate convictions, comments for which he was chastised.

“The JAG Corps leadership really laid into me for saying that because they were so married to the idea that commanders are basically incapable of doing anything wrong, that they have to be in charge,” he said. “So I was wrong for saying that, versus, ‘Hey, let’s look at this.’ ”

In 2010, he became the Air Force’s chief prosecutor after a two-year stint as a military judge.

The beginning of the end of Christensen’s Air Force career was the 2012 case of Lt. Col. James Wilkerson. Wilkerson, then the inspector general at Aviano Air Base in Italy, was accused of digitally penetrating a civilian while she was sleeping after a party at his house.

“When we were prosecuting the case, I turned to my assistant trial counsel, and I said, ‘You know … I feel like we’re prosecuting a gang member’ because of the way his unit was treating us and the way they were trying to intimidate us,” Christensen said.

But Christensen won the case after picking apart Wilkerson’s wife’s testimony. A jury found Wilkerson guilty and sentenced him to a dishonorable discharge and a year’s imprisonment.

Four months later, Christensen got an email from the Air Force’s legal office: The convening authority, Lt. Gen. Craig Franklin, had overturned the conviction under the Uniform Code of Military Justice, which has since been changed.

After that, it was clear to Christensen he was being pushed out. He wasn’t invited to participate in the Air Force’s next convention on sexual assault response despite being the chief prosecutor, and his performance report was downgraded.

It was also during this time Christensen first became aware of Protect Our Defender; his assistant trial counsel recommended that the victim contact the organization after Wilkerson’s conviction was overturned.

In November 2014, Christensen retired from the Air Force and became Protect Our Defenders’ president.

During his time at the organization, Protect Our Defenders has successfully pushed for a number of changes to the military justice system: protecting victims’ mental health records, allowing victims to refuse to testify at pre-trial hearings and doing away with the so-called good military character defense, among others.

But a larger goal has remained elusive. The group has for years backed legislation known as the Military Justice Improvement Act that would take the decision to prosecute sexual assault and other serious crimes away from military commanders and give that authority to independent military prosecutors.

The Pentagon and some lawmakers from both parties oppose the proposal, arguing that commanders are essential to maintaining good order and discipline and that removing them from the process would undermine that.

Other reforms are showing progress, the Pentagon argues, pointing to its annual reports on sexual assault showing more victims are reporting their assaults while the overall number of assaults decreases.

The last report, released in May, found that 6,172 sexual assaults were reported in 2016, up from 6,083 the previous year. An anonymous survey done as part of the report found that about 14,900 respondents experienced sexual assault, down from 20,300 in 2014.

The Military Justice Improvement Act was voted on in the Senate in 2014 and 2015 as an amendment to the annual defense policy bill. Both times it received a majority of support, but not the 60 votes needed to pass.

The military has opposed changes to its justice system since its inception, Christensen said. So for him, it’s just a matter of time before the change he’s pushing for happens.

“From 1775 on, there’s been people that have stepped up and said, ‘This doesn’t make sense. We need to change it.’ And from 1775 on, those calls for reform have been met with the same refrain from the military, which is, if commanders don’t have this authority, people won’t listen to them, soldiers won’t listen to them, and we need this for good order and discipline,” he said. “I don’t know what year this is going to get done — hopefully it’s this year — but the one thing I’m 100 percent confident in is we are going to win and the opposition is going to lose. This will happen.”