Gillibrand bill targets chain of command in sex assault cases

Sen. Kirsten Gillibrand (D-N.Y.) and a dozen other lawmakers introduced legislation Thursday to remove sexual assault cases from the military’s chain of command.

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The bill would represent a major shake-up of the military’s centuries-old judicial code by removing the decision to prosecute felony-type cases from military commanders.

Momentum is growing in Congress to address the military’s problems with sexual assault on the heels of several embarrassing incidents and a new report that found an estimated 26,000 sexual assaults occurred in 2012, an increase of more than a third from 2010.

“This is the only way to provide the unbiased justice that our victims need,” Gillibrand said Thursday.

Two Republican senators, Sens. Susan Collins (Maine) and Mike Johanns (Neb.), joined in supporting Gillibrand's bill Thursday, a move that will help boost its prospects.


Ten other Democratic senators, including four members of the Senate Armed Services Committee, are also on board. Four House members are backing the bill in the lower chamber, including two Republicans.

But the measure faces an uncertain future in Congress. Military leaders and some lawmakers have expressed resistance to making the significant structural changes Gillibrand is proposing.

“It is my strong belief — and I think others on Capitol Hill and within our institution — the ultimate authority has to remain within the command structure,” Defense Secretary Chuck Hagel said at a press briefing last week.

A Pentagon spokesman on Monday clarified Hagel’s comments to say he remained open to all options to address the problem of sexual assault.

Gillibrand said that she thought the military brass could be convinced that her bill was the right approach.

“I think through consideration and thoughtful review, they will find that moving this one decision point, which is the disposition authority to decide whether or not to go to trial, is an authority that is not necessary for good order and discipline,” Gillibrand said.

President Obama is holding a meeting at the White House on Thursday with Hagel and the Joint Chiefs to discuss sexual assault. Senior White House officials met with lawmakers last week to hear their proposals.

Obama last week called on the military to do more in the wake of the Pentagon report showing an increase in sexual assaults.

“I expect consequences,” Obama said. “I don't want just more speeches or awareness programs or training.”

Lawmakers have expressed widespread outrage over a number of incidents in the military in recent months, which were punctuated in the past two weeks by two separate sexual assault allegations against service members tasked with sexual assault prevention.

Gillibrand rolled out her bill with a press conference Thursday. It included statements from victims and advocacy groups in support of the legislation. 

The bill would take most crimes punishable by a sentence of one year or more — not just sexual assault cases — outside of the chain of command. It would place the decision to prosecute the case in the hands of military prosecutors, not commanders.

Sen. Barbara Boxer (D-Calif.), who helped Gillibrand write the bill, argued the proposal is necessary to ensure victims they will receive justice if they report the crimes. Boxer cited statistics in the Pentagon’s sexual assault report that found only 3,374 cases were reported while there were an estimated 26,000 assaults.

“It’s in the chain of command [now],” Boxer said, “and it is an utter failure.”

Some lawmakers, however, say that the problem of sexual assault will not be solved by tweaking the military justice system and warn that the proposed changes will have unintended consequences by disrupting a commander's ability to maintain good order and discipline.

Sen. Lindsey Graham (R-S.C.) told reporters Wednesday that he “adamantly” opposed Gillibrand’s measure.

“I think it will do a lot of damage,” said Graham, who is an Air Force prosecutor in the Reserves.

“For 200 years, military commanders have been the court martial authority,” he said. “And sexual assaults are not on the rise because the military justice system lets people go. It’s on the rise because of the culture that’s created in the military.”

Rep. Michael Turner (R-Ohio), one of the most active House members on military sexual assault, has expressed his opposition to removing cases from the chain of command, as have several House Democrats.

Congress is poised to change at least one aspect of the military’s judicial code, as there is bipartisan consensus to strip commanders’ ability to overturn verdicts in a post-trial review.

Hagel proposed making that change last month after a review of an Air Force case where a commander had dismissed a guilty verdict in a sexual assault case.

Both Senate Armed Services Committee Chairman Carl Levin (D-Mich.) and House Armed Services Committee Chairman Buck McKeon (R-Calif.) have indicated support for taking that step in this year’s Defense authorization bill.

Gillibrand’s legislation will be considered during the mark-up of the Defense authorization bill next month, as will several other legislative proposals that have been introduced to address military sexual assault.

Levin said he is still looking at Gillibrand’s bill and does not yet have a position on it.  He said it was encouraging that the bill does not change the way the military handles non-judicial punishments, one option currently available to commanders that’s less severe than a court martial.

“Part of it is clearly the right way to go, and that’s the part about not allowing the commander, the convening authority to reverse a conviction,” Levin said Wednesday. “The more complex issue is what to do up front, whether or not to take away from the commander that power and put it in the hands of somebody else.”