During the fiscal year of 2012, there were 3,374 reports of sexual assault in the military, a Pentagon report revealed. Anonymous surveys combined with this report, estimate that there were 26,000 military members who were sexually assaulted in the last year. Senator Kirsten Gillibrand (D-NY) estimates that this represents a 37% increase from 2011. Noted documentarian, Kirby Dick shined a light on the devastating effect of sexual assault in the military in his emotional documentary, The Invisible War. Many people took notice.
Under the current military justice system, if a sexual assault occurs, the commander of the accused attacker, is the one who chooses whether or not to prosecute. Commanders are also allowed to overturn sexual assault convictions.
American lawmakers understand that this is a problem. They have written the most comprehensive change to the Uniform Code of Military Justice into a bill, known as the National Defense Authorization Act (NDAA). According to the Washington Post, these changes would "end the statute of limitations on cases of sexual assault or rape; strip military commanders of the ability to overturn jury convictions in sexual assault and rape cases; require that civilians review commanders' decision not to prosecute certain cases; make it a crime to retaliate against victims who report sexual assaults; and require the dishonorable discharge or dismissal of anyone convicted of sexual assault."
But some Senators, want to go even further. Led by New York Democrat, Kirsten Gillibrand, the Senate is considering a change that would strip away the power of the military commanders to choose to prosecute. Instead, this decision would be made by specialized military prosecutors. Senator Gillibrand has a number of notable detractors.
Senator John McCain (R-AZ) has questioned whether Gillibrand has the military experience to make this type of decision. Another Senator who served in the military, Lindsey Graham (R-SC) has promised to filibuster the amendment. But even more notable, the Pentagon opposes Gillibrand's amendment on the grounds that commanders' ability to court martial their soldiers is necessary to unit cohesion and discipline. Because of the opposition in the Pentagon and opposition of Secretary of Defense Chuck Hagel, the Senate Armed Services Committee and Chair Carl Levin (D-MI) opposed the amendment.
A competing amendment in the Senate authored by Claire McCaskill (D-MO) has a more moderate solution. Her proposal, which would keep the military commanders in the loop for charges of sexual assault, would also allow sexual assault victims to challenge a discharge from the military and extend the protections to military service academies. Senator McCaskill's proposal has the backing of the Pentagon and senior military officials. While Senator Gillibrand supports Senator McCaskill's proposal, Gillibrand does not believe it goes far enough.
Senator Gillibrand attempts to point out the flaws in the current system. Of the over 3,000 reports of sexual assault, 1,700 were resolved. 880 assailants faced sex crime charges while 240 faced lesser charges, such as underage drinking. In 509 cases, commanders could not take action because of insufficient evidence, the statute of limitations expired, or the victim declined to participate. Of the 880 assailants facing sex crimes, nearly 600 were referred to court martial. 300 went to trial and 238 were convicted. The United States Commission on Civil Rights issued a study finding that 66% of those who were sexually assaulted are not comfortable reporting it. Why did they feel uncomfortable reporting sexual assault? 50% of silent victims stated that they did not report their attack because they did not think anything would be done, even if they did report it. 47% of victims feared retaliation if they reported it. The uncomfortable silence, you're feeling is the silent acceptance of the status quo.
A senior official who spoke to The Nation has suggested that the military is encouraging service members to lobby against the legislation. The anonymous Air Force lawyer opined that publicly advocating for Gillibrand's proposal would effectively end his career. Further, The Nation argues that because of the military's hierarchy, many officers and commanders are not allowed to make the case for reform to Congress. The lawyer who spoke to The Nation also stated that he was encouraged to write editorials and argue publicly for keeping sexual assault prosecutions within the chain of command. All active duty military officials who go to the Capitol are in favor of keeping the chain of command intact, because that is who the Department of Defense sends there, according to one military lawyer. Since that is the case, only outside advocates and retired military officials publicly support Gillibrand's legislation. But there are numerous veterans' and women's groups who support Gillibrand's legislation. There is some pushback for other reasons, as well.
Senator McCaskill, a former prosecutor herself, has argued that military prosecutors may shy away from tough cases to preserve their win-loss ratio. The military official interviewed by The Nation explains that military prosecutors have zero political reasons to avoid prosecution, as they do not have to deal with their win-loss ratio. But JAGs often move back and forth between defense and prosecution. JAGs are also rewarded for their efforts to bring tough cases to trial. JAGs are not the same as civilian prosecutors, no matter how you slice it.
The epidemic of sexual assault in the military is a problem; the debate over how to fix it is one that is being discussed in the Senate today. I believe the Gillibrand Amendment that is supported by many victims' survivor groups is the one that will do the most in combating this problem. With respect to others in this debate, it seems unlikely to me that keeping the prosecution of sexual assault within the chain of command is an effective strategy, just looking at the status quo. Senator McCain is welcome to question whether or not I have the military experience to judge this. But I believe it is the best way to combat it.