Sen. Kirsten Gillibrand will get her second shot to strip military commanders of their ability to decide whether to convene a trial in sex-assault cases as the Senate prepares to return to the issue next month.
The New York Democrat says there needs to be an impartial military lawyer outside the chain of command to decide whether to prosecute cases, saying that’s the best way to reduce favoritism and accusations of retaliation that analysts say prevent some troops from reporting assaults.
But her plan is running into opposition from other senators who say smaller tweaks to the system are fine, but stripping commanders of their traditional authority won’t help the matter and is contrary to the unique life-and-death requirements of military discipline, which have no parallel in civilian life.
Several high-profile sex-assault cases have drawn considerable attention, but reports suggest the bigger problem is the number of cases that go unreported or where commanders decline to pursue them.
Congress tackled the issue late last year, adopting some changes such as preventing commanders from overturn jury convictions, requiring an outside review if a commander declines to pursue a case, criminalizing retaliation, and making dishonorable discharge mandatory for those convicted.
Sen. Claire McCaskill, the Missouri Democrat who sponsored many of those changes, says Congress could also give purported victims a say in whether the case is tried in civilian or military court, and could prevent someone’s past good behavior being used as a defense against sex-assault charges.
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But she and Rep. Michael Turner, Ohio Republican and co-chairman of the Sexual Assault Prevention Caucus, say Ms. Gillibrand’s proposal goes too far and that the changes already made last year should be given a chance to work.
“She seriously misrepresents the circumstances of the Defense Department, because she ignores the legislation that was passed,” Mr. Turner told The Washington Times. “I think at this point, it’s certainly not an issue of sexual assault, it’s just an issue of the senator wanting to promote her solution that has already lost. I think she’s getting a whole lot of attention for a debate that’s over.”
The sex-assault issue was supposed to be fought last year during the annual defense policy debate. But Democratic leaders had to put off that debate amid a procedural mess, and only some of Ms. McCaskill’s changes were made.
Ms. Gillibrand’s plan has garnered bipartisan support, with 54 public supporters, including nine Republicans, and 10 senators who are not yet committed for or against it.
“There are enough undecideds left on the table for us to be successful,” said Glen Caplin, Ms. Gillibrand’s communications director. “We are very optimistic the senators who are still weighing the issue as they continue to listen to survivors’ voices will conclude that this is a step that Congress must take.”
Even if Ms. Gillibrand’s bill clears the Senate, it faces opposition from House Armed Services Committee Chairman Howard P. “Buck” McKeon, who wants to see the findings of a Congressionally-ordered review of the Uniform Code of Military Justice, due this year, before considering any further changes.
And an independent panel of experts rejected Ms. Gillibrand’s proposal earlier this year, stating that there was no evidence that enlisting a military lawyer to make prosecutorial decisions would reduce incidents or increase reporting of sexual assault. Her critics said taking away a commander’s ability to call a military trial would have a negative effect on good order and discipline.
But military commanders rely on their leadership — not the threat of a military trial — to keep their troops in line, said Greg Jacob, policy director at the Service Women’s Action Network and a former Marine infantry commander. He said placing the decision to prosecute in the hands of an impartial, trained lawyer will restore troops’ faith in the military justice system.
“I was a journalism major who played in a punk rock band, then I became a commander and all of a sudden I have to make decisions that are made in the civilian world by people who went to law school for three years,” he said. “I was just a well-intentioned officer with a big book of regulations.”
• Jacqueline Klimas can be reached at jklimas@washingtontimes.com.
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