In 1992 then-Secretary of Defense Dick Cheney pledged to end the problem of sexual assault that plagued the United States Military. More than twenty years later the problem is as pervasive as ever; an estimated 26,000 sexual assaults occurred in the military in 2012 according to the Pentagon. In the past year, a bi-partisan coalition including Senators with as disparate views as Rand Paul (R-KY), Ted Cruz (R-TX), Barbara Boxer (D-CA) and Dianne Feinstein (D-CA) came together to support a bill authored by Senator Kirsten E. Gillibrand (D-NY): the “Military Justice Improvement Act of 2013” (S. 1752). The bill proposed a variety of changes to how justice is dealt with in the military, but the most important aspect was that passage of this bill would remove sexual assault prosecution from the chain of command. Despite the auspicious bi-partisan support this bill garnered, its strongest opposition came from a member of Gillibrand’s own party: Claire McCaskill (D-MO). In March, after a filibuster led by McCaskill, the bill fell five votes short of the required 60-vote majority required to move forward.

Image courtesy Sean K. Harp, U.S. Army, © 2013. Some rights reserved.

Image courtesy Sean K. Harp, U.S. Army, © 2013. Some rights reserved.

The strongest points of Senator McCaskill’s bill, the Victims Protection Act (S. 1917), are the removal of the “good soldier” defense in cases of sexual assault, and that it allows victims to challenge their discharges. In terms of prosecution, it provides for a civilian review in cases where commanders and prosecutors disagree as to whether or not to litigate. After the MJIA failed to move forward, McCaskill’s bill passed unanimously. Senator McCaskill and others opposed to the Gillibrand bill claim that taking the decision to prosecute in cases of sexual assault out of the hands of commanders would reduce commanders’ accountability. This is a seriously exaggerated point, given that commanders would remain responsible for the functioning and positive culture of their units. Furthermore, McCaskill’s side claims it would hinder commanders’ ability to ensure order and discipline in their units. The Gillibrand bill leaves all military-specific crimes as well as misdemeanors and non-judicial punishment in the hands of commanders, effectively making this a null point.

Opposition to Senator Gillibrand’s bill alleges that MJIA would open the door for retaliation against victims. Sixty-two percent of victims reported some form of retaliation for reporting assault. While it is true that McCaskill’s bill explicitly criminalizes retaliation against victims who have reported their assault, leaving these decisions within the chain of command means that a commander who failed to foster a culture that prevented sexual assault is unlikely to prevent retaliation. If the commander is biased in favor of the perpetrator, there is nowhere for a victim to turn in a case of retaliation under the McCaskill bill.

On the other hand, in the Military Justice Improvement Act there is an independent prosecutor, called a Judge Advocate General or JAG, overseeing the case. McCaskill’s has insinuated that commanders are the ones pushing for victim’s cases to go through prosecution, even when prosecutors think they can’t win the cases. In an interview with New Republic, she said: “[Gillibrand] is advocating that prosecutors be the only judge as to whether or not a case should go to trial…Those consent cases are challenging, and there are many prosecutors that think if it’s just a he-said-she-said, it’s a wash.”[1] However, unlike civilian prosecutors, JAGs work on different sides of different cases—sometimes with the prosecution, sometimes with the defense. For this reason, their career success is not based upon the number of prosecutions they win, and as such they do not have incentives to choose not to prosecute cases they don’t believe they can win. Critically, this also means trained prosecutors rather than commanders would be taking depositions, which ameliorates the problems of bullying, bias, and tampering.

There is overwhelming statistical and anecdotal evidence that survivors of sexual assault in the military do not get the justice they deserve or the support they need. After a push to make the Pentagon more transparent about sexual assault cases, it became clear that strong cases were overwhelmingly reduced to lesser charges. There were even cases of commanders overturning rulings that a crime had been committed.[2] One of the most compelling statistics in this debate is that one-third of victims are assaulted by someone in their chain of command: 25% of women and 27% of men.[3] This would explain why 74% females, 60% males perceived a barrier to reporting sexual assault in the military.[4] Another primary concern with having the decision to prosecute in the hands of commanders is bias. As Senator Gillibrand has said, “It is like being raped by your brother and having your father decide the case.” Not only can the popularity of the defendant come into play, but also their skill as a solider or playing an integral role in a given operation.

The steady opposition to the bi-partisan effort to take the strongest stance possible on sexual assault in the military has caused much head scratching over the last year, but luckily the momentum for the cause does not seem diminished and neither does Senator Gillibrand’s stalwart leadership. She plans to push to include the chain of command issue in this years’ Defense authorization bill, and in the meantime work with Senator McCaskill to combat sexual assault on America’s college campuses.[5]  Senator Gilliband and Senator McCaskill’s bills both included major leaps toward better protecting those who protect us. However, the case against taking sexual assault prosecution out of the chain of command fails to hold up to scrutiny or statistics. We can only hope that the bi-partisan coalition behind the Military Justice Improvement Act of 2013 can pave the way for a more cooperative and productive Congress, which will benefit servicemen-and-women and civilians alike.