By Jeremy Herb - 11/05/13 07:30 PM EST
A bipartisan group of senators introduced legislation Tuesday that would change the way sexual assault victims are treated in the military’s pretrial court proceedings.
The legislation, spearheaded by Sen. Barbara Boxer (D-Calif.), would no longer require victims of sexual assault and other crimes to be questioned during the pretrial process, known as Article 32 hearings, and would also limit the scope of pretrial hearings to questions about probable cause.
Boxer’s measure has 11 co-sponsors, including Sens. Kirsten Gillibrand (D-N.Y.) and Claire McCaskill (D-Mo.), who have clashed over Gillibrand’s proposal to take sexual assault cases outside the military’s chain of command.
The bill is also backed by Sen. Lindsey Graham (R-S.C.), a military prosecutor who has been a vocal opponent of Gillibrand’s legislation.
Boxer introduced the measure on Tuesday ahead of a looming fight in the Senate over Gillibrand’s proposal.
Both Boxer’s and Gillibrand’s measures will be taken up as amendments to the Defense authorization bill, which will be on the Senate floor this month.
It’s unclear whether the Pentagon will sign off on Boxer’s legislation, and a Pentagon spokesman declined to comment on the bill because it is pending.
Boxer said she had not spoken to Defense Secretary Chuck Hagel about her measure, but an aide to the California senator said there have been positive informal discussions with Pentagon officials.
Senate Armed Services Committee Chairman Carl Levin (D-Mich.) said he is inclined to support the measure but wants to consult with experts inside and outside the Pentagon first.
“I’m very much in favor of reforming Article 32,” Levin said. “We’re scrubbing it. It looks very good, but we haven’t finished the scrub.”
Boxer’s bill is the latest in a series of lawmaker proposals this year to change the way the military handles sexual assault cases.
It comes amid a wave of outrage over several high-profile incidents and a Pentagon report estimating 26,000 cases of unwanted sexual contact last year, an increase of one-third from 2010.
The proposal to change the Article 32 pretrial process was prompted by a sexual assault case involving football players at the Naval Academy, where two of the three suspects are now facing court-martial.
Lawmakers were outraged over a September report in The New York Times that said the victim in the case was subjected to 30 hours of questioning by defense attorneys. She was asked invasive questions including how wide she opened her mouth during oral sex and what she was wearing under her clothes the night of the incident.
“It’s supposed to be a pretrial hearing and it turns into a rampage against the victim with no boundaries whatsoever,” Boxer said.
The military’s Article 32 hearings are used to determine whether a case goes to court-martial, similar in some ways to civilian grand jury proceedings and preliminary hearings.
At the military hearings, the prosecution presents its evidence and witnesses, and the defense counsel is able to cross-examine witnesses.
Boxer said cases like the Naval Academy trial discourage victims from coming forward to report sexual assault crimes.
She said her bill aims to make the military’s process more in line with civilian pretrial proceedings, where the scope is limited to the issue of probable cause.
The measure would give victims the option not to testify at the hearing, and instead allow them to submit a statement for the record.
The legislation would also require the proceeding to be presided over by a military lawyer of equal or higher rank than the attorneys for the defense and prosecution, and would mandate all hearings be recorded and transcribed.
The provisions would apply to all criminal cases in the military, not just sexual assault trials.
If approved, the changes to the Article 32 process would join a long list of proposals Congress is poised to pass this year.
In the defense authorization bill, lawmakers are already planning to strip commanders’ ability to overturn guilty verdicts, in response to a guilty verdict that was overturned in a sexual assault case this year.
Proposals to expand a special victims counsel for sexual assault victims and to require those convicted of sexual assault be discharged have attracted widespread support.
But a major fight has been teed up in the Senate over Gillibrand’s bill, which would take the decision to prosecute sexual assault and other major criminal cases away from commanders and put it in the hands of military prosecutors.
Article 32 hearings are generally open to the public, although the commander in charge of the case has the ability to close them.
This story was posted at 12:10 p.m. and updated at 7:30 p.m.