WASHINGTON — Ariana Klay says she was raped by two men, one of them a fellow Marine Corps officer, while serving at the famed Marine Barracks in Washington. She can be a compelling witness to her nightmare.
But on Tuesday, with Klay absent from the courtroom, members of a top appeals court sounded skeptical about a legal bid to hold former Pentagon officials accountable for what Klay and other such accusers call a “hostile military environment.” Both Republican and Democratic appointees voiced skepticism.
“Not every harm gets redressed in court,” noted Judge Thomas B. Griffith, a GOP appointee.
A former Dallas-area resident who played soccer at the U.S. Naval Academy, Klay is now a front-and-center civilian in the debate over handling sexual assault in the military. One of the men she has accused was subsequently convicted of adultery and indecent language. On the latest legal and political fronts, though, Klay’s prospects appear bleak.
Tough questions Tuesday from three members of the U.S. Court of Appeals for the District of Columbia Circuit seem to foreshadow a loss in the legal case pressed by Klay and other accusers. A judge had dismissed the case last February before it went to trial, citing, in part, a rule that government employees aren’t held liable for injuries that occur during military service. A different appeals court dismissed a similar case by other veterans last July.
“We have special factors counseling hesitation in the military (cases),” Judge Sri Srinivasan, a Democratic appointee, said Tuesday. “It does seem like that’s a pretty significant hurdle.”
Klay’s attorney, Susan Burke, acknowledged that she was “asking for a heavy lift,” while adding that “our servicemembers who are serving our country deserve (the court’s) consideration.”
“You should not slam the courthouse door,” Burke said.
Griffith and Judge Judith W. Rogers, a Democratic appointee, countered that Congress hasn’t explicitly granted military members the right to sue, thus leaving intact government officials’ customary immunity. In a show of having read the judicial tea leaves, Justice Department attorney Lowell V. Sturgill Jr. sat down early, without using his entire 15 minutes allocated for oral argument.
In the Senate, meanwhile, Klay and her allies appear short of the votes they’d need to remove sexual assault cases from the standard military chain of command.
“We owe impartiality to our troops, harmed or accused,” she said at a news conference last November organized by Protect Our Defenders, an advocacy group for military victims of sexual assault, “and we owe it to their commanders to free their time so they can do what they do best: train ready forces, win our nation’s wars and protect our freedom.”
The long-debated legislation putting sexual assault cases on a different military legal track is slated for a Senate vote in several weeks. Supporters of the bill, authored by Sen. Kirsten Gillibrand, D-N.Y., claim 54 committed votes, short of the 60 needed to break a filibuster.
Unless the political dynamics change soon, the looming defeat for Gillibrand’s legislation will be a victory for Sen. Claire McCaskill, a Missouri Democrat who supports a competing set of military legal revisions. McCaskill, aligned with many military leaders, has opposed stripping commanders of their authority to decide whether to prosecute over sexual assault allegations.
Instead, McCaskill helped add changes to a defense authorization bill passed last year that included providing special counsel for accusers and limiting commanders’ ability to reverse verdicts or reduce sentences. For months, in public and behind the scenes, she’s been competing with Gillibrand for support. McCaskill’s efforts include introducing a separate military justice bill that’s expected to win easy Senate passage.
Gillibrand’s momentum stalled last year about the time the Senate was debating an annual defense authorization bill. Adding an amendment to that must-pass bill was probably Gillibrand’s best shot, as the GOP-controlled House of Representatives seems unlikely to move a standalone bill even if the Senate acts. A companion measure authored by Rep. Jackie Speier, D-Calif., has attracted 149 co-sponsors, but only one — Rep. Walter Jones of North Carolina — is a Republican.
In January, a subcommittee of an independent Pentagon advisory panel recommended against removing sexual assault cases from the chain of command.
“The evidence does not support a conclusion that removing authority to convene courts-martial will reduce the incidence of sexual assault or increase the reporting of sexual assault in the armed forces,” a 17-page panel report concluded last month. “Nor does the evidence indicate it will improve the quality of investigations and prosecutions or increase the conviction rate in these cases.”
In fiscal 2012, the Defense Department reported receiving 3,374 allegations of sexual assault involving members of the U.S. military. The military also is reporting that more cases are being criminally prosecuted, and fewer are being handled with non-judicial punishment, than was the case several years ago.