A rift has formed between U.S. Senate Democrats over the best way to improve the military’s handling of sexual assault cases.
Military unit commanders have the say in whether prosecution of soldiers under their command for serious crimes, proceeds. One proposal from Senator Kirsten Gillibrand (D-New York) would give that final decision to Judge Advocate General attorneys.
Senator Claire McCaskill (D-Missouri) backs proposals that she helped write, in a defense bill approved last month by the Senate Armed Services Committee. Those make other changes but keep the decision whether to proceed with prosecution with commanders.
McCaskill says it will better serve victims in several ways, including affording greater protection to victims from retaliation.
“If you’ve been victimized and you go back in the unit, do you think it’s more likely you’re going to get retaliation if a bunch of outside lawyers have said to go forward or if the commander has said to go forward? A level of protection comes to the victim because the commander has said, ‘We’re going to get to the bottom of this.’”
McCaskill also refutes arguments made by backers of Gillibrand’s proposal that countries using systems that hers would mirror would see more reporting and prosecution of assaults.
“None of the nations that have changed their systems have had an increase in reporting. The data does not support that position. Secondly we know that literally dozens and dozens and dozens of cases just in the last two years, prosecutors turned down the cases and commanders said, ‘Go ahead.’ We know that if prosecutors are the last say, that we will have fewer prosecutions.”
Several retired military women joined Senator McCaskill at a media conference to offer their support for the proposals.
Retired Army Judge Advocate Lisa Schenck says those proposals would empower victims, including through the requirement that a Special Victims’ Counsel be provided to offer legal advice and assistance to service members who are victims of sexual assault by a member of the U.S. military.
“They need to go to their attorney, their counsel, and they need to be told where they can report. There are nine other places to report aside from the chain of command in the Army … the other thing they need to be told is, they can initiate the court-martial process themselves by preferring charges … they don’t have to wait for the JAG office, they don’t have to wait for the commander, and that’s what that victim counsel is going to tell them.”
Both plans have bipartisan backing.
McCaskill’s position has earned her criticism from some former supporters, including a Navy veteran who was raped in 1986, campaigned for McCaskill last year and now has been featured in a half-page ad in the St. Louis Post-Dispatch calling McCaskill’s approach misguided.
The Armed Service Committee’s proposals would still strip commanders of authority to dismiss court-martial convictions for most offenses and require that any case in which a commander overrules the advice of a Staff Judge Advocate to proceed to court-martial be referred to the civilian Service Secretary for a final decision.
Other changes they would make are:
· Make it a punishable offense under the Uniform Code of Military Justice to retaliate against a victim who reports a criminal offense
· Require a commander, when serving as a convening authority in a military court-martial, to provide written justification for any modifications made to a sentence
· Require a commander, when serving as a convening authority in a military court-martial, to receive input from the victim before arriving at any decision during clemency proceedings
· Require that a person found guilty of an offense of rape, sexual assault, forcible sodomy, or an attempt to commit any of those offenses receive a punishment that includes, at a minimum, a dismissal or dishonorable discharge
· Eliminate the five-year statute of limitations for sexual assault and sexual assault of a child
· Ensure the military has the authority to move an individual accused of sexual assault from a unit to protect a victim from unwanted contact with their alleged attacker, while sustaining a victim’s right to request expedited transfer
· Provide for study of the military’s ability to create a database of information regarding those accused by victims in restricted military reports-meaning the victim chooses to not have the information given to law enforcement, commanders, or others to facilitate potential prosecution-such that serial offenders might be identified and victims might be encouraged to make unrestricted reports that allow for prosecutions in those cases
· Express the Sense of the Senate that commanding officers are responsible for a command climate that appropriately handles sexual assault, that failure of a commanding officer to maintain such a command climate is an appropriate basis for relief of their command position, and that command climate should be a consideration in a commander’s performance evaluation
· Remove the past performance and character of an accused from those factors that may be considered by a commander, when serving as a military courts-martial convening authority, in deciding whether to refer a case to court-martial
· Provide that in sexual assault cases in which a Staff Judge Advocate and a Commander, when serving as a military courts-martial convening authority, agree that a case should not proceed to court-martial, the next higher military commander also review this determination
See the media conference, courtesy of the office of Senator Kelly Ayotte (R-New Hampshire):