This article first appeared in the St. Louis Beacon: WASHINGTON -- After a high-profile disagreement between U.S. Sen. Claire McCaskill and another Democratic senator on how best to deter sexual violence in the military, the Senate Armed Services Committee backed reforms Wednesday that are closer to her proposal.
"It is going to dramatically change the way these cases are handled, the support that victims get," McCaskill, D-Mo, said after the committee's 17-9 vote in favor of changes to the military justice system. The panel rejected a plan sponsored by U.S. Sen. Kirsten Gillibrand, D-N.Y., to completely remove commanders from consideration of sexual violence cases.
Instead, the committee accepted language -- similar in some parts to a bill authored by McCaskill and U.S. Sen. Susan Collins, R-Maine -- that would distance commanders from the process of prosecuting sexual assault allegations. It would require an automatic review if a commander overrules a military lawyer's advice and opts not to prosecute sex-assault cases. Such reviews would be undertaken by the civilian secretaries of the armed services.
"I believe that this is the absolute strongest system we can devise," McCaskill told reporters after the vote. U.S. Sen. Roy Blunt, R-Mo., supported the committee-approved version.
While Gillibrand and other critics contended that the changes did not go far enough and remove commanders from the loop, McCaskill argued that the panel's action is "sending a very clear signal to the military in some of the most aggressive and historic reforms that the Uniform Code of Military Justice has ever seen."
The Senate committee's chairman, U.S. Sen. Carl Levin, D-Mich., offered the amendment that replaced Gillibrand's version, which had been endorsed by a subcommittee she chairs. Levin argued that commanders are more likely to press charges in such cases than are military prosecutors. He contended that Gillibrand's plan "would weaken our response" to sexual assault.
"This is not an issue on which there is division between those who advocate strong action to address sexual assault in the military and those who don't," Levin said. Members of the Joint Chiefs of Staff had warned last week that removing the chain of command from sexual assault cases would erode the authority commanders need to maintain discipline.
In addition to more oversight over commanders' decisions, the committee-approved provisions call for new reporting requirements that aim to allow Congress and the public to more closely monitor sexual assault cases.
"I think we have fashioned a very strong reform," said McCaskill, noting that the committee-approved plan includes a provision to make it a crime under military law to retaliate against those who bring sexual assault charges.
Gillibrand and her allies on the committee had argued that sexual assault victims fear retaliation if they bring charges through their chain of command. That's why she argued for an outside, objective prosecutor, which she contended would lead to more prosecutions and lessen the danger of retaliation within the military unit.
McCaskill disagreed, saying that "the issue of retaliation would be greater, not less, if the only decision to go forward [with prosecution] was made just by the lawyers.
"The likelihood of a unit retaliating against a victim is greatly enhanced by 'outsiders' that make the decision to move to trial," McCaskill said. "Whereas, if a commander has signed off, it is a completely different situation, in terms of an environment of retaliation."
Noting that the House Armed Services Committee already had passed a defense bill with similar provisions, McCaskill told reporters that she saw a "strong likelihood" that Congress would include such a bipartisan approach as part of its major defense authorization bill this year.
A summary of the committee-approved plan, provided by McCaskill's office, said it would:
- Strip commanders of their authority to dismiss court martial convictions for most offenses, including in cases of rape and sexual assault
- Require any case of sexual assault where a commander overrules the advice of a staff judge advocate be automatically referred to the civilian secretary of that part of the military for a final decision as to whether the case should proceed to court martial
- Make it a punishable offense 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
- Dictate that the commander, when serving as a convening authority in a military court martial, must get input from the victim before arriving at any decision during clemency proceedings
- Require that anyone found guilty of rape, sexual assault, forcible sodomy, or an attempt to commit 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 their alleged attacker
- Study whether the military can create a database of information about persons accused by victims in "restricted" military reports (in which the victim chooses to not have the information given to law enforcement, commanders) in a way that serial offenders might be identified and victims encouraged to seek prosecutions.