Remove Prosecution of Sexual Assault from Military Chain of Command

TAKE ACTION — Send your message to the Senate now. Demand that a floor vote on S. 967 be scheduled and urge your senators — both Democrats and Republicans — to vote for this bill. Tell them that you will be watching closely as to whether they will vote to protect sexual assault survivors and make this necessary reform that will truly bring about military justice.

Background:

Shocking 35 Percent Increase in Assaults — The 2012 Annual Report on Sexual Assault in the Military, released in early May, disclosed the shocking information that the anonymously reported number of sexual assaults rose in every branch of the military, with a 35 percent increase since 2010, rising from 19,300 service members in 2010 to 26,000 in 2012. Only 3,374 sexual assaults were officially reported last year; just 300 were prosecuted.

Clearly, the U.S. military is experiencing a crisis of sexual violence amid a culture of immunity.

Military Culture Fails to Take Reports Seriously — For more than 20 years, both female and male survivors of sexual assault in the military have had their allegations disbelieved and dismissed by their superiors up the chain of command. In addition, many survivors who have made reports of assault have been bullied and threatened by their perpetrators; women service members have especially been brutalized. Most victims just do not report the violence out of a well-based fear of retaliation. Many military careers have ended because of the failure of military brass to take allegations seriously and to properly investigate and punish those responsible. It seems obvious by now that the dominant military culture is incapable of effectively handling allegations of sexual assault and that factors inherent in the chain of command prevent proper adjudication of such serious charges.

Independent Military Prosecutor Would Decide — Fundamental reform of the Military Code of Justice to remove from the accused’s chain of command the determination of whether to try sexual assault charges is needed. Sen. Gillibrand’s bill, the Military Justice Improvement Act, would do just that. Twenty-eight senators have joined as co-sponsors. S. 967 would place in the hands of high-ranking experienced military prosecutors the decision whether the case will go to a military court. Offenses that are uniquely military in nature, such as disobeying a command or being absent without leave, would remain within the chain of command.

Other Nations Have Separate Systems — Key U.S. allies have adopted similar reforms. British military trial decisions for all crimes are made by trained prosecutors in the Service Prosecuting Authority, part of Britain’s Ministry of Defence. Canada, Israel and other major nations have removed the sexual assault reporting system from the chain of command. These countries have found that a command-driven system more likely violates a defendant’s right to a fair and impartial trial.

Sen.Gillibrand’s bill would also:

  • Adopt in law Department of Defense (DOD) Secretary Chuck Hagel’s proposal to prevent senior commanders, or convening authorities, from overturning a conviction by a military court or from changing a court’s guilty finding to a lesser offense. It also requires commanders to justify in writing any changes made to court-martial sentences.

  • Gives the authority to establish courts, empanel juries and choose judges to hear cases to the Chiefs of Staff of each service branch.

  • Ensure commanders retain the authority to punish alleged perpetrators through other means such as non-judicial punishment if a military prosecutor determines there is insufficient evidence to take a case to a court-martial.

S. 967 further calls for an independent panel established by the DOD secretary to monitor and assess the implementation of the act and its amendments. Rep. Dan Benishek (R. Mich.) has introduced the House counterpart ( H.R. 2016) to Gillibrand’s legislation. Sen. Claire McCaskill (D. Mo.) has introduced a similar, but much abbreviated, bill in S. 538.

Senate Committee Caved to the Generals — Bowing to Pentagon pressure, Senate Armed Services Committee chair Carl Levin (D. Mich.) last Wednesday pushed for adoption of an alternative to S. 967 that retains the existing system of (not) prosecuting sexual assault cases. The committee’s action was widely criticized in editorials in a number of major print and electronic news outlets. Women members of the Senate were outraged by the committee’s rejection of the Gillibrand bill.

House Adopts Amendments, but Rejects Best Solution — As if to one-up the Senate, on Friday the Republican-led House passed (315-108) a $638 billion defense spending bill that strips a military commander’s authority to overturn guilty verdicts in sexual assault cases and sets a minimum sentence for dismissal for offenders. Legal counsel for victims would be expanded, and the bill would also require removal of service members who have inappropriate relationships with people they train. But the legislation stopped short of removing prosecution of sexual assault cases from the chain of command. Republicans on the Rules Committee did not permit to go forward amendments offered by Rep. Jackie Speier (D. Calif.), that would have given chief military prosecutors the oversight of sexual assault cases, and by Tulsi Gabbard (D. Hawaii), to give cases to military lawyers.

House Democratic Women’s Amendments Successful — Accepted by House floor votes were amendments advanced by Rep. Lois Frankel (D. Fla.) that would make sexual abuse of subordinates an offense; another by Rep. Nita Lower (D. N.Y.) that would require service academies to add sexual assault prevention in their curricula; and, a third from Rep. Rosa DeLauro (D. Conn.) to require the Department of Defense to report on how it is keeping records related to sexual assault.

Only the Senate can now act to do the right thing: that is, pass Sen. Gillibrand’s bill and take sexual assault cases out of the military chain of command. Please send your message now.