This story has been updated.
SAN DIEGO — The U.S. Senate unanimously passed an amendment Monday that will severely restrict the use of the “good soldier” defense and, supporters say, strengthen reforms to the Uniform Code of Military Justice to protect and empower victims of sexual assault.
Critics say the move does not go far enough.
Under the amendment, sponsored by Sen. Claire McCaskill, D-Mo., defendants can no longer use their good military character as a defense unless it directly related to an element of the crime with which they are charged. Critics contend that the “good soldier” defense is inherently biased in favor of long-serving, senior personnel.
The bill also requires military attorneys assigned to victims of sexual assault to discuss the merits of having their case heard in the military or civilian justice system; allows victims to say where they would like the case to be heard; and sets up a confidential process that allows victims of sexual assault to challenge the terms or characterization of their discharge.
The amendment also requires that the civilian service secretary review any case in which the prosecutor recommends moving forward and the commander disagrees. Changes passed in the National Defense Authorization Act in December call for review only if the commander disagrees with his or her legal counsel about moving forward. Additionally, the amendment clarifies that the sexual assault prevention-related changes that passed in the NDAA pertain to military service academies.
“This debate has been about one thing: getting the policy right to best protect and empower victims, and boost prosecutions of predators,” McCaskill said Thursday afternoon. “I believe we’re on the cusp of achieving that goal.”
Congress approved a raft of reforms in December as part of the 2014 defense bill. But even as military and congressional leaders address the crimes, the number of reports continues to grow. Preliminary data released last month showed about 5,400 instances of sexual assault and unwanted sexual contact were reported in fiscal 2013, up 60 percent from 2012.
The final vote on McCaskill’s amendment, which passed 97-0, follows a week of developments in several military sexual assault cases:
On Wednesday, sources confirmed that the top Army prosecutor for sexual assault cases is under investigation for allegedly groping and trying to kiss a fellow Army lawyer at a sexual assault legal conference; he has been suspended from his duties.
On Friday, a Fort Hood soldier was charged with 21 counts of pandering, conspiracy, abusive sexual contact and other crimes. He had been the coordinator of the post’s sexual assault harassment prevention program before he was accused of setting up a prostitution ring.
On Monday, a military judge ruled that the U.S. Army improperly interfered with a decision to reject an offer by Brig. Gen. Jeffrey Sinclair to plead guilty to lesser charges in his sexual assault case.
Also Monday, it was announced that the rape case of Airman 1st Class Brandon T. Wright, which was re-investigated after being dismissed by Air Force Lt. Gen. Craig Franklin last year, is going to trial.
The vote also comes just days after another bill aimed at combating sexual assault in the ranks fell to a filibuster. Sen. Kirsten Gillibrand’s bill, the Military Justice Improvement Act, would have removed prosecution authority from the victim and accused’s chain of command in the most serious offenses, including sexual assaults.
Gillibrand had been rallying bipartisan support for the measure for months, but the bill came in five votes shy of breaking the 60-vote threshold it needed to survive a filibuster.
Eugene Fidell, who teaches military justice at Yale Law School and supports Gillibrand’s proposal, said removing the good soldier defense is a good idea because it tends to give greater advantage to men and senior personnel to the detriment of women and lower-ranking troops.
“It represents putting your hand on one side of the scale,” he said.
Fidell said McCaskill’s amendment is nothing more than window dressing.
“This is taking a structure from 1774 and turning it into a structure from 1784,” he said. “This should be called the military deck chairs amendment of 2014.”
He is still hopeful that some version of Gillibrand’s bill will pass.
“I think the fact that the forces of reaction having done their damnedest were unable to get more than 45 votes is tremendously telling,” Fidell said. “I’m hoping that she will take advantage of this sort of timeout to critically review the bill, think of ways to make it even better, simpler, shorter, clearer … and when she comes out of the starting gate next time, I don’t see any erosion in her 55 votes.”
But Tim MacArthur, an attorney with Tully Rinckey who serves in the Army reserve and worked as a prosecutor and defense counsel while on active duty, said he does not anticipate that command authority will be taken out of the military justice decision-making process. Plus, he said, the system as it stands allows prosecutors who disagree with a commander on charging decisions to go to a different commander.
“At the end of the day, I think it’s a pretty fair system,” he said.
Gillibrand on Thursday praised the reforms that have already passed but said Congress has not gone far enough.
“We owe so much to those who bravely serve our country, and I will never quit on them,” Gillibrand said. “We will continue the fight for justice and accountability.”
Advocacy groups for victims of sexual assault in the military also vowed to keep fighting.
“Today’s disappointment is merely a detour in our march to justice,” said Lory Manning, a retired captain and senior policy fellow for the Service Women’s Action Network.