Conflicts loom as lawmakers tackle sexual assaults in the military

President Obama's push for tackling the military's persistent problem of sexual assault has provided a major boost to advocates in Congress who want to overhaul the way the Pentagon handles sexual assault cases.

But there are significant fault lines among the most vocal advocates over what steps should be taken, setting the stage for a contentious policy fight.

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Obama said Tuesday it was time to “step up our game” on military sexual assaults, as a Pentagon report was released estimating 26,000 sexual assaults occurred in 2012, an increase of more than a third. Most are not reported.

“I expect consequences. I don’t want just more speeches, awareness programs or training where people ultimately look the other way,” Obama said.

Tuesday’s report was the latest in a series of incidents generating unprecedented momentum in Congress for making major changes to the way the military handles sexual assault.

The Senate Armed Services Committee held its first hearing on sexual assault in nearly a decade this year, and House Armed Services Chairman Buck McKeon (R-Calif.) has indicated he is open to making changes.

“I think we have a lot of momentum, but it never hurts to have the commander in chief backing us up and expressing his absolutely strong opinion that this is something that we can’t tolerate,” Sen. Claire McCaskill (D-Mo.) told The Hill.

The political urgency surrounding sexual assault and the military has amplified this year following a commander’s decision to overturn a guilty verdict in an Air Force sexual assault case that sparked widespread outrage.

The case came as the Air Force was already reeling from a scandal at Lackland Air Base with more than two dozen basic training instructors investigated for sexual misconduct.

The arrest of the Air Force’s top sexual assault prevention officer this past weekend — on charges of sexual assault — was pointed to as a perfect symbol of the problems with the Pentagon’s approach to the issue.

The best way to remedy that problem is less clear.

Lawmakers have introduced a host of bills in recent days to change the way the military prosecutes sexual assault and cares for victims, and Defense Secretary Chuck Hagel released his own proposal to Congress last month.

The chairmen of the House and Senate Armed Services committees are expected to consider the measures as part of this year’s Defense authorization bill, which will be marked up in June.

The crux of the debate is focused on how much authority commanders should have to investigate and prosecute sexual assault cases.

Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Jackie Speier (D-Calif.) are proposing measures to remove sexual assault cases from the military’s chain of command.
They argue that sexual assault is a different type of crime, and victims are discouraged from reporting it to their superiors because of fears of retaliation.

“Because it's in the chain of command … people aren't reporting,” Gillibrand said at an Air Force hearing Tuesday. “They don't feel that there is an atmosphere by which they can report safely. They're afraid of retaliation. They're afraid of being treated poorly by their commanders.”

The military is opposed, however, warning that it would undermine the unique structure of the military where the commander is tasked with maintaining good order and discipline.

It’s still unclear whether the proposal can gain traction in Congress. Several lawmakers on the Senate Armed Services Committee, including Chairman Carl Levin (D-Mich.), told The Hill this week that they are examining Gillibrand’s proposal, but they stopped short of endorsing it.

Others who are vocal on military sexual assault, including Reps. Michael Turner (R-Ohio) and Loretta Sanchez (D-Calif.), say they oppose removing the cases from the chain-of-command altogether.

A greater consensus has formed around Hagel’s proposal, which came after he ordered a review of the Air Force case where the guilty verdict was overturned.

Hagel proposed stripping commanders’ authority to dismiss guilty verdicts, while still keeping their ability to reduce sentences if a written explanation is provided.

McCaskill has introduced a bill that would accomplish that in the Senate, and Turner and Rep. Niki Tsongas (D-Mass.) proposed legislation to do so in the House.

Both Levin and McKeon have signaled they are open to that change, which would reverse a decades-old provision in the Uniformed Code of Military Justice (UCMJ).

Senate Majority Leader Harry Reid (D-Nev.) on Wednesday threw his weight behind the proposal, sending a letter to the Armed Services Committee heads saying he supported including the changes in the Defense authorization bill.

Not all are on board. Sen. Lindsey Graham (R-S.C.), who is an Air Force lawyer in the Air Reserves, argues the change is being made based on a single case.

“I understand this is an emotional issue, but what they are trying to do is going to do more harm to the military than solve the sexual assault problem,” Graham told The Hill. “The reason we have a rise in sexual assaults has nothing to do with commanders setting aside findings.”

Other Republicans appear to be more open.

Sen. James Inhofe (R-Okla.), the top Republican on the Armed Services panel, had initially expressed skepticism to Hagel’s proposal. But he told The Hill this week that he now agrees with Hagel’s proposal. “I would support it, and I think that’s probably as far as they should go to change the judicial code,” Inhofe said.

Sen. Roger Wicker (R-Miss.), a panel member and former Air Force JAG, said he is considering it.

“The system has worked, but it’s shown to have some shortcomings, so I’m listening, and I’m open to the suggestion,” Wicker told The Hill.

Congress is also poised to take several other steps to deal with sexual assault in the military.

Sens. Kelly Ayotte (R-N.H.) and Patty Murray (D-Wash.) introduced a bill Tuesday that was a hybrid proposal, which would move sexual assault cases up the chain of command when there was a conflict of interest.

The Ayotte and Murray bill also expands a popular Air Force pilot program that created a Special Victims Counsel to help victims through the tenuous legal process.

Sanchez and Rep. Jackie Walorski (R-Ind.) proposed a bill this week that would expand whistle-blower protections for sexual assault victims.