The Two Men Blocking Military Sexual Assault Reform

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These days, it is tough to get a supermajority of U.S. senators to agree on the color of the sky, much less a politically delicate piece of legislation. Yet this is precisely what is happening with the Military Justice Improvement and Increasing Prevention Act, a bill championed by Senator Kirsten Gillibrand, the New York Democrat, that would overhaul how the armed services handle accusations of rape, sexual assault and other serious crimes. In addition to beefing up training and prevention, the proposal would shift the decision to prosecute many felonies “from the chain of command to independent, trained, professional military prosecutors.”
The military’s current handling of sexual assault cases ill serves everyone involved. For example, an independent 2020 review found that more than 30 percent of charges of penetrative sexual offense shouldn’t have been brought to trial because of insufficient evidence. That has the effect of undermining confidence in the military justice system and being unfair to both the accused and the victims. Independent prosecutors could help remedy this problem. If there’s more confidence in the justice system, it’s more likely that victims will come forward and crimes will be successfully adjudicated.
This is the dysfunctional system that Ms. Gillibrand has been fighting to change for years — a mission repeatedly endorsed by this board. She first introduced legislation to this end in 2013. It ultimately fell to a filibuster. Since then, she has been steadily collecting additional votes from colleagues in both parties. Her bill’s latest iteration, introduced in April, currently has 66 co-sponsors and more than 70 total supporters, including senators who opposed her earlier efforts.
To the next generation of recruits. To the next generation of recruits. To the next generation of recruits. You’ve decided to dedicate your life to the service of this nation. Having served for 23 years of my life, I’m extremely proud of you. But the sad truth is, you’re more likely to be sexually assaulted by a fellow service member than be shot by an enemy at war. “My assault occurred—” “Two sexual assaults—” “They started sodomizing me.” Thousands of service members report being raped and sexually assaulted each year. But only a fraction of those cases end in a conviction. The problem is almost all the authority lies in the hands of commanders. It’s like you have to tell your boss that you were raped by a colleague. And then they have the power to decide whether to dole out justice. This needs to change. It’s time for sexual assault cases— To be handled by specialized, independent military prosecutors— Outside the chain of command. Outside the chain of command. Outside the chain of command. I joined the military because I was growing up in a really poor neighborhood. And I wanted to give my son a better life. I was in my barracks room. A sergeant came up to my door. He pushed his way into the room, and he raped me. I went up to my team leader. I went to my squad leader. I tried to talk to my platoon sergeant about it. I went up my chain of command, and I was shut down at every turn. They have no loyalty to me. I had just gotten there. They were never going to take my side. So I had finally gotten approved to move out of the barracks room. I was getting ready to live with my son. A officer showed up at my front door and threw me on my bed and violently raped me. This assault left me with cuts. It left me with bruises. I was bleeding. Once he finished, he made sure to let me know that he was an officer and that even if I did report it, I’d be wasting my time. All we can do is tell our chain of command, which is essentially our boss and hope that he either believes us, or he cares enough about us as a person. Recruits, your success in the military depends on your ability to understand the chain of command. So let me explain how it works through a hypothetical scenario. You’re being sexually harassed at work by one of your colleagues. What do you do? Well, normally, you’d probably make a complaint with HR. But this is a special company that doesn’t have an HR. Actually, they specifically have rules that all complaints must be made to the employee’s manager, who will investigate the misconduct and determine if any punishment is necessary. But there’s a problem. Your boss really likes that colleague of yours. They’ve worked together for a long time. And you see them getting drinks together quite often. So you consider taking the complaint to your boss’s boss. But you don’t know him. And he’s also friends with your boss. And the rules strongly discourage you from going to the police. To make matters worse, imagine that the company you work for has you stationed in a far-away country. And the only people there are you, your colleague, and your boss. Or to make matters even worse, imagine if the harassment is coming from your boss. Imagine you get raped. At any normal American company, this would be unacceptable. But in the American military, this is the status quo. This is how the chain of command works. “Seven months into serving, I was assaulted by somebody I thought I could trust. They took advantage of me while I was unconscious and unable to consent.” “22 months ago a man I had just met raped me in a dark alley.” Today, he was tried in a military court martial and found not guilty.” Out of the 20,500 sexual assaults in fiscal year ‘18, only 108 people were actually convicted. “He said you know, this guy is a really good sailor. Do you want to ruin his career?” “They found his DNA inside my rape kit. He was still found not guilty.” During my time as a prosecutor, I had no ability to make sure that cases actually got to trial. I would routinely see a commander, supervisors, co-workers intimidate the victims. “When I asked her, do you want to see the bruises? She wrote me up for disrespect.” “And every single time I complained, the assaults escalated worse. I’d be waking up with them pulling my clothes off me, trying to shove their penis in my anus.” If I knew that I was going to get justice, I absolutely would have stayed in the military. I love the Air Force. I’m third generation. But I knew I had to leave. The chain of command military justice process is not delivering justice. I have been so torn about taking that decision-making authority away from the chain of command. The senators were listening to generals and admirals who were promising that they would solve the problems, saying if you were to do this, it would destroy the chain of command and good order and discipline. Removing commanders, making commanders less responsible, less accountable will not work. It will undermine the readiness of the force. It will inhibit our commander’s ability to shape the climate and discipline of our units. As a former commander in the National Guard, I do believe our chain of command should have the authority to discipline. So for the past six years, I’ve worked heavily on a number of efforts that I had hoped would curb military sexual assault. And it hasn’t. So I do think it’s time to do something different. Now, as a Senator and wearing a slightly different uniform, I am supporting sending sexual assault cases to a specialized military prosecutor outside of the chain of command. “It is time we take new action—” There’s currently a bill in Congress that would remove the prosecution of sexual assault from the chain of command. What the bill will do is one, is to improve the prosecution. The second line of effort is prevention. “It increases security on our bases and stations. It trains leaders from the top to the bottom on developing a better command climate.” But there are still some senators that don’t support this bill. As a combat veteran and a survivor of sexual assault, I want to know that I did everything I could to support all of our service members. This is going to make the military a better place. It’s time for sexual assault cases to be handled outside the chain of command.
This coalition is a tribute to Ms. Gillibrand’s doggedness, but it also reflects a growing frustration in Congress and beyond with the military’s persistent failure to get a handle on the problem, despite throwing hundreds of millions of dollars into prevention efforts and support systems for victims in recent years. You know a situation needs urgent attention when Senators Ted Cruz, Elizabeth Warren, Cory Booker, Joni Ernst, Bernie Sanders and Josh Hawley all rally around the same bill. Even the Senate Republican leader, Mitch McConnell, whose partisan obstructionism is the stuff of legend, is on board.
Looking beyond Congress, earlier this year, Defense Secretary Lloyd Austin III ordered the establishment of an independent commission to conduct a 90-day review of the sexual assault and harassment problem. Among its early recommendations, the panel endorsed removing investigations of such crimes from the chain of command. President Biden has previously expressed support for doing so for an array of felonies. This is a proposal that has clearly met its moment.
Except. The bill may not receive a proper vote. It is currently sitting in the Senate Armed Services Committee, whose chairman, Jack Reed of Rhode Island, is impeding its progress — with an assist from the ranking Republican, Jim Inhofe of Oklahoma. For years, these two old bulls, both Army veterans, opposed disrupting the chain of command in such cases, in alignment with the military’s objections. Mr. Inhofe still does. Mr. Reed now says that he supports shaking up the way sexual assault is handled — but that he nonetheless opposes Ms. Gillibrand’s bill because it applies to other felonies as well. Insisting the proposal needs more debate, the chairman says he will fold it into negotiations over the giant military authorization bill that lawmakers must tackle later this year.
In the Senate, process is often the murder weapon of choice. Reform advocates are accusing Mr. Reed and Mr. Inhofe of being too deferential to the military and trying to delay and dilute the bill, if not derail it altogether.
“They are both against my bill, and they would like to kill it in committee,” Ms. Gillibrand told The Times recently.
If this happens, it will be a disservice to the country.
No one seriously disputes that the U.S. military has a sexual assault problem. According to the Defense Department’s 2018 report on the subject, in fiscal year 2018, an estimated 20,500 service members were sexually assaulted or raped, including 13,000 women and 7,500 men. Only a tiny fraction of reported cases result in a conviction. That leads to lower confidence in the military justice system for the all-volunteer force. Many incidents go unreported altogether, which is unsurprising considering that “64 percent of women who reported a sexual assault face retaliation,” according to the advocacy group Protect Our Defenders.
The military has long argued that removing prosecutorial decisions from the chain of command would undermine commanders’ authority and harm the services. But that claim doesn’t withstand much serious scrutiny. Moreover, defense officials have repeatedly pledged to deal with the problem, but their efforts thus far have not curbed it.
The Defense Department’s 2018 report on sexual assault said that the estimated number of service members who experienced sexual assault within the year before being surveyed rose to 20,500 in that fiscal year from around 14,900 in fiscal year 2016. The number of reported incidents of sexual assault that occurred during military service rose in that period as well, to 6,053 from 4,794. The percentage of victimized service members who chose to report an incident, though, declined slightly, to 30 percent from 32 percent.
The case for reform received tragic support last year following the April murder of Specialist Vanessa Guillén by another soldier at the Army’s Fort Hood. Investigators learned that, unrelated to her death, Ms. Guillén had endured harassment by her supervisor, which unit leaders had failed to address despite the problem being repeatedly reported. The base in general was found to have a command climate “permissive of sexual harassment and sexual assault.” The national attention spotlighted how the existing system had failed Ms. Guillén.
While sexual assault is the focus of the reform push, supporters of Ms. Gillibrand’s proposal say that reforming the military justice system more broadly will make it fairer and less prone to bias — and help address existing racial disparities in prosecutions and convictions. They warn that singling out sexual assault would establish a “pink court,” effectively creating a two-tiered justice system and further stigmatizing victims.
Advocates also point out that many U.S. allies, including Israel, Britain and Canada, have already made similar changes to their military justice systems.
Ms. Gillibrand is happy to have a floor debate over the merits of the bill, maybe even fights over amendments. But she is determined not to let the plan get delayed and then chewed up in the fight over the sprawling National Defense Authorization Act — as has happened in the past.
In recent days, she has been trying to use a maneuver that would bring the bill directly to the Senate floor. Each day the chamber is in session, she asks for unanimous consent to open debate. Each day that she asks, Mr. Reed, backed by Mr. Inhofe, objects. Ms. Gillibrand plans to continue her daily requests indefinitely.
Supporters of the bill are hoping that the issue will get a new wind when a bipartisan coalition in the House introduces a related bill, which is expected in the coming week. Reform-minded lawmakers and staff members have been working to woo members of the Congressional Black and Hispanic Caucuses, which could give the issue even more kick.
There has been much debate of late over whether the filibuster makes it too hard to enact meaningful legislation. Ms. Gillibrand’s bill has more than enough support to clear that hurdle and take a much needed step forward to address an urgent, longstanding crisis. If only it is given a fighting chance.
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