Group of senators begin push to remove sex assault cases from chain of command
By J. TAYLOR RUSHING | STARS AND STRIPES Published: November 6, 2013
WASHINGTON — A bipartisan group of senators began an effort Wednesday on Capitol Hill to pass a measure removing sexual assault prosecutions in the military from the chain of command.
Opposed by the Defense Department and top lawmakers such as Senate Armed Services Committee Chairman Carl Levin, D-Mich., the controversial bill nevertheless has a significant measure of support and will be debated sometime in the next two weeks.
Sen. Kirsten Gillibrand, D-N.Y., a member of the Senate Armed Services Committee, led a press conference that included a politically eclectic group — Sens. Rand Paul, R-Ky.; Ted Cruz, R-Texas; Chuck Grassley, R-Iowa; Lisa Murkowski, R-Alaska; Richard Blumenthal, D-Conn.; Barbara Boxer, D-Calif. and Mazie Hirono, D-Hawaii. Also appearing were several advocates of the proposal as well as a husband-and-wife team who described personal experience with the crime.
“Sexual assault in the military is not new, but it’s been allowed to fester in the shadows for too long,” said Gillibrand.
“America is home to the world’s best and brightest, brave men and women who join the armed services for all the right reasons … But too often, these brave men and women find themselves in the fight of their lives not off on some far-away battlefield, but right here on our own soil, within their own ranks and commanding officers, as victims of horrific acts of sexual violence.”
Ben Klay, a former active-duty Marine and reservist whose wife Ariana was the victim of an assault, was among several speakers who stressed the backwards nature of having commanders, many of whom have no legal training and possible biases make prosecutorial decisions for those within their ranks.
He followed several speakers who said the change would benefit and strengthen the military.
“The first step towards addressing sexual assault in the military is to remove prosecution from the chain of command,” he said. “It is unfair to expect commanders to be able to maintain good order and discipline as long as their justice system incentivizes and empowers them to deny their unit’s worst disciplinary failures ever happened.”
Gillibrand cited a fiscal 2012 report from the Defense Department’s Sexual Assault Prevention and Response Office, which estimated there were 26,000 cases of sexual contact and assaults that year — a 37 percent increase from fiscal 2011. According to the report, about a quarter of the men and women who reported such cases said the offender was in their chain of command, and 50 percent of the female victims said they did not report the crime because they had no confidence it would be addressed.
Gillibrand’s proposal — the Military Justice Improvement Act — would assign independent, trained, professional military prosecutors the task of prosecutorial decisions for any crime punishable by at least one year of imprisonment. Thirty-seven crimes that are “uniquely military in nature,” such as disobeying orders or going AWOL, would remain in the military chain of command, as well as any crimes punishable by less than one year of imprisonment.
The proposal would be introduced sometime this week or next as an amendment to the National Defense Authorization Act, which the Senate is likely to vote on before the week of Thanksgiving.
Gillibrand faces an uphill battle — she said the proposal is supported by 46 senators, including eight Republicans. But in the case of a likely filibuster or procedural block by another senator, the legislation would require a super-majority of 60 votes to pass.
Boxer created a stir Tuesday by introducing an alternative proposal to Gillibrand’s bill, which would reform Article 32 hearings by limiting the amount of personal testimony required of an accuser before trial. Boxer and Gillibrand are co-sponsoring each other’s bill, although it is likely only one will emerge from the Senate as part of the NDAA.
Boxer’s bill has 12 co-sponsors -- including influential Republican Armed Services committee members John McCain of Arizona and Lindsey Graham of South Carolina -- and might be better positioned to reach a 60-vote threshold in the Senate because it would not directly affect the military chain of command. There is a companion version of Boxer’s bill being introduced in the House by Democrat Jackie Speier of California and Republican Jeff Meehan of Pennsylvania.
Boxer’s bill attracted the support of Protect Our Defenders, whose president, Nancy Parrish, said in a statement that the changes “will inject legitimacy and order back into the system.”
“Article 32 hearings were originally designed to function as a probable cause hearing. However, they have been transformed into a ‘mini-trial’ before the actual trial -- where the victim's credibility and character are attacked,” Parrish said. “The most personal and intimate details of victims’ life are exposed in open court, and the victim is forced to publicly relive the attack in front of her assailant.”
Among the senators who spoke on behalf of Gillibrand’s bill Wednesday was Blumenthal, who acknowledged that military leaders have “closed ranks against this idea.” But he predicted that within a decade, officials will see the merits.
“The military will thank us for taking these decisions away from the chain of command and putting them in the hands of trained, experienced prosecutors and can make these decisions,” he said.
Cruz, also a member of the Armed Services Committee, said he was persuaded to support the legislation when, in multiple hearings before the committee, it became clear that sexual assault incidents are on the rise while reporting is dropping. He also noted that several U.S. allies have taken similar steps to shift prosecution decisions out of the military chain of command.
“It remains a problem that we have not yet been able to solve,” he said. “This is a problem on the civilian side, but it’s an even greater problem on the military side, of those victims of sexual assault being unwilling or unable to come forward and report that attack.”
Also appearing on Wednesday was Nancy Duff Campbell, co-president of the National Women’s Law Center, who said Gillibrand’s measure was “long overdue.” Campbell noted that the NDAA for 2014 contains some provisions to modify the military justice system, such as limiting the authority of commanders to overturn court martial convictions.
“But these provisions do not go far enough,” Campbell said. “Commanders would still have nearly complete authority over how these often-complicated cases are handled in circumstances in which they may have both the victim and the perpetrator under their command. Nowhere else in our justice system does one individual – particularly one with an inherent conflict of interest – have this authority.”
Campbell said that in September, the Defense Advisory Committee on Women in the Services recommended the change Gillibrand is proposing. Campbell serves on the committee.
“The proposed changes in the MJIA are not radical,” she said. “They are carefully crafted and have earned the support of many former military officials and organizations with expertise on military issues.”
This week, three veterans groups sent Congress an open letter expressing support for Gillibrand’s measure. They included the Service Women’s Action Network, Iraq and Afghanistan Veterans of America and Vietnam Veterans of America.
A VVA representative at Wednesday’s press conference distributed a statement by VVA National Vice President Marsha Four, in which she said the group was “unified” and “unwavering” in demanding change.
“Military sexual assault is a multi-generational issue,” Four said. “For decades, it has been swept under the rug yet continues to rear its ugly head. The Department of Defense has attempted to address it with tweaks to the system, but combatting this powerful enemy requires a more dramatic change.”
Ariana Klay, a former Marine officer and military sexual assault survivor, speaks in Washington, D.C. on Nov. 6, 2013, as Sen. Kirsten Gillibrand, D-NY, (background) looks on. Gillibrand is leading a bipartisan push calling for military sexual assault cases to be removed from the military chain of command.
C.J. Lin/Stars and Stripes