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McCaskill takes issue with rival approach to deter military sexual assaults

This article first appeared in the St. Louis Beacon, July 26, 2013: WASHINGTON – The final battle lines are forming in the Senate in the long-running dispute over how best to deter and prosecute sexual violence in the military -- with U.S. Sen. Claire McCaskill caught in the crossfire.

Even though the Missouri Democrat has been one of the Senate's leading advocates for years of a tougher approach to prosecuting sexual offenders, she is being targeted in a pressure campaign by groups that back a rival plan.

The key issue is the extent to which military commanders should be removed from the decision of whether to investigate and prosecute such allegations. On the one side are McCaskill and a bipartisn group of senators who backed a plan approved by the Senate Armed Services Committee that would weaken, but not completely remove, the role of commanders in such cases.

On the other side is a rival “purple coalition,” led by U.S Sen. Kirsten Gillibrand, D-N.Y., but also including a range of senators from progressives to tea party stalwarts. They want to completely separate the chain of command from the decision – which would be made by military prosecutors – on whether to pursue allegation of sexual violence. 

McCaskill believes the committee-approved approach is better for victims of sexual assault and will result in more prosecutions.

“I am very sensitive to some suggestion that this is the victims versus the Pentagon, and I’m on the Pentagon’s side,” McCaskill told the Beacon.

“I’m the one who spent hours trying to hold the Pentagon accountable for their failures in this area. I’m the one who’s going to insist, along with some of my other colleagues, that these changes be made.”

But backers of the alternate approach contend that sexual assault victims would be better protected by completely removing the military chain of command from the decision on whether to prosecute such crimes.

In fact, Protect our Defenders, a group of such victims that backs Gillibrand’s approach, is targeting McCaskill as part of a pressure campaign – including social media and newspaper ads – to recruit senators to its side before the full Senate votes on the issue, probably in September.

“It is incomprehensible to victims that the senator from Missouri would stand in the way of reforms that survivors themselves have been calling for,” said the group’s leader Nancy Parrish, in a statement.

To drive home that message, the group bought a half-page ad in the Post-Dispatch this week featuring an open letter from Terri Odom, a Navy vet from Imperial who says she was sexually assaulted while in the service in 1986. Last year, Odom had publicly backed McCaskill’s re-election campaign, praising her work on the military sexual assault issue.

“Without your support, perpetrators may continue to go free; victims will be too afraid to come forward; and our military readiness will suffer,” Odom wrote in the open letter. The organization is also running “Where’s Claire?” ads on Facebook and other social media.

In an interview, McCaskill said such criticisms are unfair, given that she is a former Jackson County prosecutor and a longtime advocate of changing the military code of justice to allow for more prosecutions in sexual assault cases.

“I don’t think there is anybody in the Senate who has handled more sexual assault cases in the courtroom than I have,” said McCaskill.

On Thursday, she joined two Senate allies – U.S. Sens. Kelly Ayotte, R-N.H., and Jon Tester (D-Mont.) – in an appearance with a group of retired female service members to describe and support the reforms that the Senate Armed Services Committee added last month to the major Defense Authorization bill.

The women in the group included a retired judge advocate, commanders and non-comissioned officers who argued that keeping commanders involved in prosecutions is a better approach to deter sexual assaults.

“This boils down to a commander’s ability to exercise good, fair, strong leadership,” retired Navy Capt. Kathy Beasley said. “As a commander, I would have wanted these reforms to deal with tough cases."

Tester and Ayotte both agree with that assessment. “Everything within the military happens within the chain of command,” said Ayotte, who like McCaskill is a member of the Armed Services panel. “To make sure that victims are supported and that these cases are vigorously prosecuted, we can’t let commanders off the hook.”

That approach differs from Gillibrand’s bill, the Military Justice Improvement Act, which was offered as an amendment in committee but rejected. She plans to offer it as a floor amendment to the Defense Authorization bill.

That approach has picked up support from an unlikely coalition of liberal and conservative backers. On the GOP side, supporters include Sens. Ted Cruz of Texas, Rand Paul of Kentucky, and David Vitter of Louisiana. But Gillibrand’s bill is also supported by some leading Democratic progressives, including Elizabeth Warren of Massachusetts, Bernie Sanders of Vermont, Al Franken of Minnesota and Barbara Boxer of California.

Commanders and prosecutions

In the interview, McCaskill argued that Gillibrand’s approach “in the long run will result in fewer prosecutions and less protection for the victims.”

“Completely removing the command from the beginning of the process, I think, makes victims much more vulnerable in their units,” McCaskill said. “When the commander says a case should go forward, then everybody in the unit knows it. Whereas, a bunch of lawyers that nobody knows say the case should go forward, I think it makes the victim more vulnerable."

The Missouri senator said the Armed Services panel – approving amendments also backed by U.S. Sen. Roy Blunt, R-Mo. – had made “huge changes in the military code of justice” in an effort to find the right balance.

“Our version removes the command from the ability to overturn verdicts. It removes their ability to take into consideration the military conduct of the defendant in deciding whether or not to bring charges. And whether or not someone is guilty or innocent,” McCaskill said.

“Secondly, we have found – in instance after instance – where federal or military prosecutors say ‘No, I don’t want this case’, and the commander said the case should go forward. And many of those cases resulted in guilty verdicts.”

While Gillebrand and her allies – so far, numbering more than 30 senators, including U.S. Sen. Mark Kirk, R-Ill., and seven other Republicans – want to remove commanders from the decisions, McCaskill said that argument doesn’t hold water.

“They can’t find any cases where the prosecutor said you should prosecute this case, and the commander said no,” she said. “It’s the opposite problem from what they seem to be selling, in terms of the media narrative.”

Another argument made by Gillibrand and her backers is that removing commanders would encourage more reporting of sexual assault cases. McCaskill countered: “They have absolutely no evidence to back that up. In fact, the evidence is to the contrary. In countries that have done this, the reporting has not gone up.”

Despite all the sound and fury over the rival approaches, there are many areas where the committee bill and Gillibrand’s approach overlap. A chart from McCaskill’s office highlights the areas of agreement and disagreement in the two approaches.

The main provisions of the approach approved by the Armed Services Committee, and backed by McCaskill, 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 di

Rob Koenig is an award-winning journalist and author. He worked at the STL Beacon until 2013.

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