Sen. Gillibrand: No progress combating sex assault in the military shows need for major reform
AUSTIN, Texas — Congress has provided the military more than $1 billion, enacted 249 legislative provisions and chartered panels, commissions and committees to address sexual assault in the military, yet the statistics from the past 15 years show little progress, Sen. Kirsten Gillibrand, D-N.Y., said Wednesday during a Senate hearing.
“Not one of these steps has reduced sexual assaults within the ranks. We are right where we were when we started, nothing has changed,” said Gillibrand, who is the chairwoman of the subpanel for military personnel on the Senate Armed Services Committee.
Senators on Wednesday focused on sexual assault in the military during the hearing, which had three panels featuring survivors of sexual assault and those who advocate on their behalf and those who study the problem for the government, nonprofits or for academic research.
“Nearly every secretary of defense since Dick Cheney” has promised to do better, yet the number of assaults have remained at about 20,000 almost every year that the Defense Department has conducted prevalence surveys, Gillibrand said. “Military leadership has come before us and said that the chain of command would solve this problem. They're not solving the problem. They have failed.”
Many of the witnesses, including Quinton McNair, a retired Army veteran with more than seven years in the field of victim advocacy, offered suggestions on how the military could do a better job, including by holding perpetrators accountable.
“People who commit sexual assault are like sharks hunting. You aren't aware of them until they attack. Through accountability, we can make the water so hostile to the shark that they are afraid to hunt,” he said. “Lack of accountability emboldens them.”
No accountability also contradicts the effort of service members and civilians working within units to support victims and prevent future assaults, McNair said.
Gillibrand introduced legislation in 2013 that would overhaul the military justice system and take the decision to prosecute certain serious crimes such as sexual assaults out of the hands of commanders and give it to independent, trained military prosecutors.
“The justice system simply is in the wrong hands,” she said.
Gillibrand has not yet reintroduced the bill into this year’s legislative session.
“There is no accountability right now in the military,” said Natalie Khawam, attorney for the family of Spc. Vanessa Guillen, a soldier who was killed by another soldier at Fort Hood, Texas, nearly one year ago. Guillen told her family that she faced sexual harassment at the base but was too afraid to report it because some of those harassers were in her chain of command.
“A lot of people have a loyalty to the chain of command, but it's proven a failure. It's proven to have failed, and we need improvement,” Khawam said. “I'm here to support any kind of improvement reform to the military so our soldiers have a voice, they have the rights that we all have and they have the protections that they deserve.”
The attorney also worked last year with the Guillen family to introduce the I am Vanessa Guillen Act, which is similar to Gillibrand’s bill, but only applies to sex crimes. It also makes sexual harassment a crime under the Uniform Code of Military Justice and changes the options for service members who report assaults.
Khawam said they intend to reintroduce the legislation this year.
Guillen’s death also resulted in the creation of the Fort Hood Independent Review Committee, which released a report in December that found the base had a climate “permissive” of sexual assault and harassment. It also included specific ways that the Army’s program to respond to and prevent sexual assault and harassment is failing soldiers.
Military leaders have told Congress that removing prosecution decisions from commanders undercuts their authority and ability to maintain unit discipline.
Sen. Thom Tillis of North Carolina, the ranking Republican on the committee, said Wednesday that he warned service secretaries about a month ago that they are losing ground.
“There are members that are beginning to wonder whether or not we should keep the current structure,” he said, citing the Fort Hood report for sowing doubt.
Tillis said the challenge of sexual assault in the military is no different than in society or on college campuses.
“I don't want the young men and women who are considering going into the military to think it's a more dangerous environment say at the service academies than what they're going to find in any fine U.S. institution across this country,” he said.
Amy Braley Franck, founder of Never Alone, which provides advocacy and support for victims, disagreed.
“All the Gold Star mothers that I talk to [said] when their children, their soldiers, were deployed, or out of the country and being sexually assaulted, they have no bug out plan. They can't just go to a rape crisis center when they're in Afghanistan. They're not like a college student, they can't say, ‘Mom and Dad, come get me,’” she said. “They can be prosecuted if they just leave to make themselves safe.”
Meanwhile, Gillibrand said prosecution and conviction rates have gone down. In 2010, the military had a 24% conviction rate. In 2019, it dropped to 7%, which amounted to 264 cases, she said. In 2014, there were 422 cases with convictions.
Retired Air Force Col. Don Christensen, president of Protect Our Defenders, further broke down those numbers in his testimony. In fiscal year 2014, there were 4,660 unrestricted reports of sexual assault or rape. Of those, 588, or about 12.4%, were prosecuted and resulted in 204 nonconsensual sex convictions.
By fiscal year 2019, the number of unrestricted reports rose to 5,699, but prosecutions and convictions plummeted to 363 with 138 sex crime convictions, he said.
“They're taking fewer, not more cases to trial, and they're losing them at a much greater rate,” Christensen said. “Sexual assault and rape appropriately put the military justice system under the spotlight, but I … would strongly advocate for professionalizing and modernizing the justice system, even if there was not a single sex offense in the military. After 246 years, it's time for Congress to give the men and women serving our nation, a justice system worthy of their sacrifices.”
Retired Army Col. Lawrence J. Morris, chief of staff and counselor to the president of the Catholic University of America, was the main objector among the hearing’s witnesses.
“If this act were to pass, commanders would be just as responsible for their service members as they are today. They would just have an emptier toolbox. It's paradoxical to leave this responsibility to commanders, but to take away a key element of authority and undermine good order and discipline and military readiness, even more true in a deployed environment which the legislation doesn't account for,” he said.
“Three percent of commanders have convening authority for felonies and above,” Gillibrand said. “So your testimony is saying that 3% of commanders will have less tools in their toolbox. Is that not therefore saying that 97% of commanders will have the same tools they have today?”
“It's not just a matter of preferring a case to trial. It's a collaborative in developing impact on the case, from when it starts into the system,” he said.