11-7-2013 Military Sexual Assault S967 Alert

Sen. Kirsten Gillibrand’s (D-N.Y.) bill, the Military Justice Improvement Act (S. 967), that would establish an independent, objective and unbiased military justice system to better respond to the epidemic of sexual assault in the U.S. military will soon come to a floor vote in the Senate. Military leaders have been claiming since 1992 that there will be “zero tolerance” of sexual assault, yet there were 26,000 incidents of sexual assault and unwanted sexual touching that were reported in FY 2012.  It is clear that the current system of military “justice” does not work and must be changed.

Our major allies, Great Britain, Canada, Australia and Israel along with many other nations, years ago moved disposition of sexual assault crimes out of the chain of command to be handled independently by trained prosecutors. The U.S. should do the same.  

TAKE ACTION: Your email message and your call – yes, please also call your senators – could make the critical difference.  It is likely to be a close vote and senators need to hear from the grassroots that we demand justice for survivors.  It is a broken system that will remain broken unless Congress requires a fundamental reform of the process.  Please make that call today: tell them you want an independent, objective and unbiased military justice system that deals promptly and effectively with all reports of sexual crimes.


 BACKGROUND

The 2012 Annual Report on Sexual Assault in the Military disclosed the shocking information that the anonymously reported number of sexual assaults and unwanted sexual touching (both women and men) rose in every branch of the military by 35 percent between FY 2010 and FY 2012 to total 26,000 in 2012.  Yet only 3,374 sexual assaults were officially reported that year, with just 300 cases prosecuted.

Independent Military Prosecutor Would Decide – Sen. Gillibrand has carefully crafted legislation that would allow trained military prosecutors to decide, independently of the accused’s or victim’s chain of command, whether and how to prosecute an alleged sexual assault.  This is the juncture at which that current system fails victims because superiors are too often dismissive of such claims.  We know that many sexual assault survivors do not report out of a concern that they will not be taken seriously or, worse, suffer retaliation. S. 967 would place in the hands of high-ranking, experienced military prosecutors the decision whether to proceed.   Offenses which are uniquely military in nature, such as disobeying a command or being absent without leave, would remain within the chain of command. 

DACOWITS Recommends Independent Prosecutor - The Defense Advisory Committee on Women in the Service (DACOWITS) which is composed of civilian women and men who are appointed by the Secretary of Defense to provide advice and recommendations on key policies affecting women in the service is backing a professionalized, independent approach.  The DACOWITS statement notes that “because a commander often supervises both the victim and the accused perpetrator, this decision-making poses an inherent conflict of interest.”

Their recommendation:

DoD should support legislation to remove from the chain of command the prosecution of military cases involving serious crimes….  Instead the decisions to prosecute, to determine the kind of court martial to convene, to detail the judges and members of the court martial, and to decide the extent of punishment, should be placed in the hands of the military personnel with legal expertise and experience and who are outside the chain of command of the victim and the accused.

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, Australia, 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 – like the U.S. military has -- more likely violates a defendant’s right to a fair and impartial trial. Military superior officers in many cases are not trained to deal with serious crime and should not be in the role of deciding whether to prosecute. 

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 chooses 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-MI) has introduced the House counterpart ( H.R. 2016) to Gillibrand’s legislation. Sen. Claire McCaskill (D-MO) has introduced several bills related to sexual assault in the military; her key bill is S. 1032, Better Enforcement for Sexual Assault Free Environments Act, which would strip the high-ranking commander’s ability to overturn jury convictions of those under their command, install a civilian review to study instances in which prosecution was not pursued,  mandate harsher punishments in the form of dishonorable discharges for anyone convicted, eliminate the statute of limitation in sexual assaults and, for the first time, criminalize retaliation against individuals reporting themselves as the victim of a sexual crime.  Undoubtedly, there are a number of important improvements in this bill, but it fails to address the core problem: that is, the decision to proceed with prosecution is left in the hands of an accused’s or victim’s commander who is not a prosecutor and who likely has an inbuilt conflict of interest.

Pressure from the Pentagon – Reportedly, pressure is intense coming from the top brass to retain the current system.  In June, the military leaders teamed up with Senate Armed Services Committee chair, Sen. Carl Levin (D-MI), and others to defeat Sen. Gillibrand’s bill in committee.  In messages sent at the time, NOW activists demanded a full Senate vote on S. 967.  The bill currently has 46 co-sponsors and supporters from both parties. Another two or three un-named senators may be supportive, but most likely we will need to gain enough votes (at least 60) to overcome a filibuster threat.  We expect the S.967 to be offered when the Senate takes up the National Defense Authorization Act which could happen anytime between Nov. 12 and Thanksgiving.