The Military’s Need for Sexual Assault Prosecution Reform

By: Erin Mee

The United States military has an enormous sexual assault problem. Roughly 23,000 cases of military sexual assault went untried this past year. Of cases of sexual assault that were reported, sixty-two percent of victims state that they were retaliated against for reporting their sexual assaults. Senator Kirsten Gillibrand (D-NY) has proposed a military sexual assault prevention and prosecution bill that seeks to prevent both sexual assault and retaliation in the military by placing sexual assault prosecution power in the hands of independent prosecutors instead of military leadership. If passed, Gillibrand’s bill would lead to the largest overhaul of the military’s criminal justice system in over sixty years.

Gillibrand’s bill would grant independent military prosecutors, instead of military commanders, the ability to decide which cases of sexual assault to try. While military commanders are officially responsible for ensuring the health and safety of their troops, their judgment in determining which cases of sexual assault to bring to trial may be impaired because of their personal relationships with the troop members involved in the cases. This is problematic because the commanders have a conflicting desire to uphold the status quo by not prosecuting sexual assault instead of seeking justice for sexual assault victims.

Senator Gillibrand believes her bill is necessary because “at the end of the day, commanders aren’t objective. Commanders may have different training, different perspectives. They may or may not want women in the armed forces. They may not understand what sexual assault is, or what constitutes rape. They may not agree, what is a rape or not a rape. But that shouldn’t be their judgment. It should be an objective, trained prosecutor who makes the decision about whether or not there is evidence to prosecute these crimes. That hopefully will instill more confidence in the system, that justice can be possible.”

The bill would bring the United States’ military sexual assault reporting and prosecution systems more in line with international standards. The UK, Canada, Australia, Germany, and Israel all have placed responsibility for prosecuting serious crimes outside of the military chain of command. This leads to an objective military justice system where the leadership does not influence the outcome of the prosecution.

Before this happens, Gillibrand must overcome significant political hurdles to pass her bill. Over the summer, Gillibrand’s bill was rejected by the Senate Armed Services Committee. Much like the military commanders who are fearful of prosecuting sexual assault due to upsetting the status quo, members of the Armed Services Committee have too many ties to the military community and do not want to anger their military constituents. Gillibrand has stated that she is hopeful that Senators with less close ties to the military community will support her bill.

She currently has 46 senators publicly supporting her sexual assault bill. Her bill’s range of supporters is bipartisan and diverse. It ranges from liberal Democrats to 2016 GOP presidential contenders Rand Paul of Kentucky and Ted Cruz of Texas. Many members of the Senate are still publicly undecided.

Gillibrand’s bill also has some unlikely enemies. Senator Claire McCaskill (D-MO) has publicly spoken out against the bill. McCaskill has proposed an alternative military sexual assault bill that would keep the prosecution power in the military commander’s hands, while strengthening the review processes involved. McCaskill, a member of the Armed Services Committee, has received harsh criticism from sexual assault victim organizations. While McCaskill’s bill is better than no reforms at all, it does nothing to address the underlying problems in the military sexual assault reporting system. McCaskill’s bill fails to address the main problem of military commanders’ inherent biases and lack of training in prosecuting sexual assault cases. Gillibrand’s bill completely alleviates these problems by placing the entire review and prosecution process in independent and qualified hands, removing the bias problem in addition to the retaliation problem.

Another hurdle Gillibrand’s bill faces is the current debate regarding whether the United States should intervene militarily in Syria. Many Senators believe that they should not meddle in internal military affairs while at the same time beginning a new conflict abroad. Gillibrand’s bill, which Majority leader Reid stated he would bring to a vote this fall, will now likely be placed on the backburner until the Syria issue is resolved. In the meantime, countless members of the United States military will continue to be sexually assaulted and then victimized again by the outdated and ineffective military sexual assault prosecution system currently in place. Gillibrand’s sexual assault overhaul should be passed as soon as possible in order to begin to fix these abuses that military is currently perpetuating against sexual assault victims.

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