Senate set for battle over military sexual assault

A senior senator pulled rank on a bill proposed by women senators that would have taken the power to prosecute sexual assault cases out of the hands of the military chain of command in the armed forces.

Democratic Senator Carl Levin of Michigan said Tuesday that he will replace Sen. Kirsten Gillibrand’s amendment to the 2014 Defense Authorization Act that would remove major military crimes from the chain of command. Instead, Levin offered a plan requiring senior officers to review decisions to prosecute sexual assault cases.

This proposal is similar to changes made last year by then Secretary of Defense Leon Panetta, which placed authority to investigate and convene a court martial in the hands of a colonel or Navy captain. Levin’s provision would also make retaliation a criminal offense, although as of now it only applies to retaliation in personnel matters.

Gillibrand praised many of the changes Levin’s proposal would make, but had harsh words over keeping the process completely within the chain of command. “Victims have told us what [the problem] is….It’s the climate. They feel they can’t report without being blamed, retaliated against, marginalized.”

When it comes to investigating and prosecuting sex crimes, she said, “it’s not that the decision is wrong, it’s the decider.”

Senator Levin’s bill “is another half measure that will essentially kick the can down the road,” said Nancy Parrish, president of Protect Our Defenders told msnbc. Parrish argued that, even if higher-ranking officers are involved in reviewing decisions, “It is the low-level commanders who hold the initial disposition authority that can prevent a sexual assault case from ever moving forward.  These unit commanders hold the keys to the courthouse.”

Nine committee members, including Gillibrand, Republican Ted Cruz of Texas, and Democrat Mazie Hirono of Hawaii, voted against Levin’s provision. A total of 17 senators voted for the provision.

Gillibrand and her bill’s co-sponsors have already said that they will not stop advocating for the removal of prosecutions from the chain of command. Democratic Sen. Barbara Boxer of California said in a statement that she was “stunned that when it comes to prosecuting these crimes that the committee is largely embracing the status quo,” and that she “[looks] forward to fighting for these critical changes on the floor of the Senate.”

Related story: Military chiefs fight for commander control of sexual assault cases

Another Democratic co-sponsor, Senator Richard Blumenthal of Connecticut, worried about how Levin’s proposed changes would look to survivors. “My fear,” he said, “is that it will look like we are simply tinkering with the process. The system will remain, for the victim, a black box.”

Gillibrand’s bill has faced strong opposition from the military, Secretary of Defense Chuck Hagel and senators from both parties. All twelve military leaders that testified before the Armed Services committee last week insisted that they had the ability to reduce sexual assault without outside assistance.

Democratic Senator Jeanne Shaheen of New Hampshire said on Jansing and Co. Wednesday that this move was not unexpected. “It didn’t surprise me,” she said. “What we knew after the hearing last week on sexual assault, and the opposition we heard from virtually everybody serving in the military, that this was going to be an uphill battle.”

A Pentagon report released in May estimated that the number of servicemembers reporting unwanted sexual contact rose from 19,000 to 26,000 between 2011 and 2012. For more than 20 years, high-ranking members of the military have resisted serious efforts to reform the military when it comes to sexual assault and harassment, although a record number of women in the Senate and a recent spate of allegations against officers in charge of preventing and responding to those crimes has led to unprecedented pressure on the Pentagon to make reforms.

Top military brass has already announced some changes that it will implement immediately. General Martin Dempsey, chairman of the Joint Chiefs of Staff promised that the military would change its tracking system in order to separate incidents of unwanted sexual contact into categories, something it does not currently do.

Thirty four legal scholars, several of them veterans, published an open letter last week urging Congress to make major structural changes to the way the military deals with rape and other sex crimes, although the letter stopped short of supporting Gillibrand’s proposal and suggested that there is not yet enough data to act.

“Congress should take the time needed to make a careful study of these issues,” the letter read, “but it should not use study as a substitute for action.”

Other service members and veterans find this argument unpersuasive. “SWAN has carefully studied this issue for five years now and has consulted with many victims, JAGs, academics, commanders and military law experts, who agree that that allowing prosecutors to handle felony level crimes will provide justice for victims, adequate due process rights to the accused and restore faith in what is now a broken status quo.” a spokesperson for the Service Women’s Action Network, another advocacy group, said. “The MJIA actually protects commanders’ ability to prosecute military specific misconduct.”

Both Shaheen and Rep. Jackie Speier, a Democrat from California, pointed out on Wednesday that military allies of the United States have adopted policies similar to what Gillibrand had proposed.

“If we don’t follow the example set by nations like England, Canada, Australia, and others,” Rep. Speier said to Thomas Roberts, “It’s putting us in a position where we’re going to be reviewing another scandal in six months or a year.”

Gillibrand also urged her fellow Senators to look to those for guidance, citing evidence from Israel that showed that after a series of high-profile prosecutions and major system changes, reporting increased by 80% over the past five years.