Rand Paul and Ted Cruz Join Gillibrand, Boxer, Grassley Effort to Create Independent, Non-Biased Military Justice System for Victims of Sexual Assault When Defense Bill Comes to Senate Floor This Month
Growing Bipartisan Momentum for Measure Supported by Major Victims’ Advocacy Groups and Former JAG Officers Creating Real Reform and Accountability in Military Justice System by Having Trained, Independent Military Prosecutors Make Decisions Over Whether Serious Crimes Go to Trial -- Military Justice Improvement Act to be Offered as Amendment to Annual Defense Bill, Could Be Debated on Senate Floor As Soon As This Month
July 16, 2013
Washington D.C. – U.S. Senators Rand Paul (R-KY) and Ted Cruz (R-TX) joined Kirsten Gillibrand (D-NY), Barbara Boxer (D-CA), Charles Grassley (R-IA), Mazie Hirono (D-HI), Richard Blumenthal (D-CT), Susan Collins (R-ME), Lisa Murkowski (R-AK) and Jeanne Shaheen (D-NH) today to announce their full support of a proposal offered by a bipartisan coalition of 33 Senators that seeks to reverse the systemic fear that numerous victims of military sexual assault have described in deciding whether to report the crimes committed against them due to the clear bias and inherent conflicts of interest posed by the military chain of command's current sole decision-making power over whether cases move forward to a trial.
The carefully crafted Military Justice Improvement Act moves the decision whether to prosecute any crime punishable by one year or more in confinement to independent, trained, professional military prosecutors, with the exception of crimes that are uniquely military in nature, such as disobeying orders or going Absent Without Leave. The decision whether to prosecute 37 serious crimes uniquely military in nature plus all crimes punishable by less than one year of confinement would remain within the chain of command. The Military Justice Improvement Act will be offered as an amendment when the annual National Defense Authorization Act (NDAA) is debated on the full Senate floor, which is expected as early as the last two weeks of July. Similar legislation was stripped out of the underlying NDAA bill by the full Senate Armed Services Committee this past June.
According to the FY2012 SAPRO report released earlier this year by the Defense Department, an estimated 26,000 cases of unwanted sexual contact and sexual assaults occurred in FY2012, a 37% increase from FY2011. Another report released by the Defense Department this year showed that more than 1 in 5 female servicemembers reported experiencing unwanted sexual contact while serving in the military. Also according to the FY2012 SAPRO Report, 25% of women and 27% of men who received unwanted sexual contact indicated the offender was someone in their military chain of command. Further, 50% of female victims stated they did not report the crime because they believed that nothing would be done with their report. Even the current top military leadership admits the current system "has failed" and as Commandant of the Marine Corps General James F. Amos stated this year, victims do not come forward because "they don't trust the chain of command."
“What our strong and growing bipartisan coalition has shown is that ending sexual assaults in the military by creating an independent and accountable military justice system is not a partisan or ideological issue. Our carefully crafted common sense proposal written in direct response to the experiences of those who have gone through a system rife with bias and conflict of interest is not a Democratic or Republican idea – it is just the right idea,” said Senator Gillibrand.
“It’s time to reboot the U.S. military’s approach towards sexual violence by reforming the military justice system, preventing sexual violence, empowering victims to come forward and prosecuting sex crimes. Failing to crack down on a corrosive culture or on individuals who use sexual violence as a means of power will create lingering institutional problems that jeopardize morale and impact recruitment and retention of troops,” Senator Grassley said. “The bipartisan Military Justice Improvement Act would give members of the Armed Forces more confidence in the military system of justice, including protection from sexual violence and prosecution for those who violate the rule of law.”
“For the last two decades, every Secretary of Defense has promised a zero tolerance policy for sexual assault,” Senator Boxer said. “We need to reform our military justice system so that survivors of sexual assault will finally feel confident reporting these heinous crimes knowing that justice will be served.”
“The vast majority of our service members are honorable and upstanding individuals. In the instance when one is accused of a serious crime, especially one of harassment or assault, the allegation needs to be taken seriously and conflicts of interest should not impact whether a crime is prosecuted properly,” said Senator Paul.
“Sexual abuse in the military is a grave violation of trust and the duty we owe to protect our men and women in uniform,” said Senator Cruz. “Despite good-faith efforts from the chain of command, sexual assault remains a persistent problem. We must act to ensure that assaults are prevented and victims of assault are able to report any crimes that occur. Senator Gillibrand should be commended for her leadership working to modernize our military justice system to protect our men and women from sexual assault, and this amendment makes real progress in that regard. Several of our strongest allies such as Israel, the United Kingdom, and Germany have made similar reforms to their military justice systems, and seen marked improvement. I support this amendment and believe it will improve readiness and capability so that the United States military remains the greatest fighting force in the world.”
“Our service members deserve the opportunity to report assaults without fear of retaliation and to face a fair military justice system. I am pleased this bipartisan group of my colleagues are rallying behind these changes to fight sexual assaults in the military,” said Senator Hirono.
“Recent incidents involving alleged sexual assault by military personnel assigned to stop them, dramatize the urgent need to give this problem greatly heightened priority,” Senator Blumenthal said. “We must have action now, not merely plans or promises. When sexual assault protectors become perpetrators military order and discipline become a mockery. For victims already afraid to come forward before these incidents, the chilling effect is incalculable. Sexual assault is a vicious, predatory crime that must be vigorously investigated and punished in the military so that more survivors will be encouraged to report it and more perpetrators will be deterred from committing it. We have the best and strongest military force in the history of the nation and the world, and our men and women in uniform deserve a military justice system worthy of their excellence.”
“To be sure, the vast, overwhelming majority of our military personnel are honorable, conscientious, and respectful individuals, not rapists or harassers. It is for their sake that the pattern of covering up, blaming the victim, and failing to provide even the most basic protections that has been all too common for far too long must end,” said Senator Collins. “What does it say about us as a people, as the nation, as the foremost military in the world when some of our service members have more to fear from their fellow soldiers than from the enemy? This epidemic of sexual abuse cannot stand. We must ensure that justice is swift and certain to the criminals who have perpetuated these crimes.”
“I’ve just heard too much from Alaskans, I’ve read too much of cases nationwide, to say, ‘Well, maybe we just need to nibble around the edges here on this,' ” Senator Murkowski said. “There is consensus from the Pentagon to the bottom of the chain of command that the current system has not been working. The number of victims we see coming forward is evidence that it is not working. And so if we need to reform the military-justice system in this way, I’m prepared to take that step.”
“Protecting our men and women in uniform is one of our most important responsibilities but sadly, the Pentagon has failed to reduce incidents of sexual assault in the military. Removing responsibility for investigation and prosecution of these crimes from the chain of command will eliminate conflicts of interest, improve the professionalism of the handling of these crimes, and most importantly send a message to victims that the status quo will no longer be tolerated,” said Senator Shaheen.
The problem of sexual assault in the military is not new, neither are the pledges of “zero tolerance” from commanders, which date all the way back to then-Secretary of Defense Dick Cheney in 1992. The Military Justice Improvement Act would for the first time remove the decision whether to take a case to special or general court-martial completely out of the chain of command and give that discretion to experienced military prosecutors for all crimes punishable by one year or more in confinement, except crimes that are uniquely military in nature, such as disobeying orders or going AWOL.
Many of our allied modern militaries have reporting outside of the chain of command, such as Britain, Canada, Israel, Germany, Norway and Australia. For example, the British military has prosecutors making trial decisions for all crimes through the Service Prosecuting Authority (SPA) within Britain’s Ministry of Defense.
The Military Justice Improvement Act also:
- Provides the offices of the military chiefs of staff with the authority and discretion to establish courts, empanel juries and choose judges to hear cases (i.e. convening authority).
- This legislation does not amend Article 15. Commanding officers will still be able to order non-judicial punishment for lesser offenses not directed to trial by the prosecutors.
According to the FY2012 SAPRO report released earlier this year by the Defense Department, an estimated 26,000 cases of sexual assault or unwanted sexual contact occurred in FY2012, a 37% increase from FY2011. This number does not include incidents of sexual harassment. The Pentagon defines unwanted sexual contact as: “…intentional sexual contact that was against a person’s will or occurred when the person did not or could not consent. The term describes completed and attempted oral, anal, and vaginal penetration with any body part or object, and the unwanted touching of genitalia and other sexually related areas of the body.”
Meanwhile, overall rates of reporting dropped from 13.5% in 2011 to 9.8% in 2012. In 2011, victims reported 3,192 out of 19,000 incidents, compared to 2012, where victims reported just 3,374 out of 26,000 incidents. While the number of perpetrators convicted of committing a sexual assault increased from 191 in 2011 to 238 in 2012, the conviction rate dropped from 1% in 2011 to 0.9% in 2012.
Of the 3,374 total reports in 2012, 2,558 reports were unrestricted, which means they were actionable. Of those unrestricted reports, 27 percent were for rape, 35 percent were for abusive and wrongful sexual contact, and 28 percent were for aggravated sexual assault and sexual assault. The remaining cases were for aggravated sexual contact, nonconsensual sodomy, indecent assault and attempts to commit those offenses.
Also according to the FY2012 SAPRO report, across the Services, 74% of females and 60% of males perceived one or more barriers to reporting sexual assault. 62% of victims who reported a sexual assault indicated they perceived some form of professional, social, and/or administrative retaliation.
The Military Justice Improvement Act is cosponsored by a bipartisan coalition of 33 Senators: Mark Begich (D-AK), Richard Blumenthal (D-CT), Barbara Boxer (D-CA), Susan Collins (R-ME), Chris Coons (D-DE), Dianne Feinstein (D-CA), Al Franken (D-MN), Chuck Grassley (R-IA), Mazie Hirono (D-HI), Mike Johanns (R-NE), Barbara Mikulski (D-MD), Mark Pryor (D-AR), Jay Rockefeller (D-WV), Brian Schatz (D-HI), Jeanne Shaheen (D-NH), Elizabeth Warren (D-MA), Lisa Murkowski (R-AK), Tim Johnson (D-SD), Tom Carper (D-DE), Robert Casey (D-PA), Jeff Merkley (D-OR), Heidi Heitkamp (D-ND), Martin Heinrich (D-NM), Tammy Baldwin (D- WI), Charles E. Schumer (D-NY), Patrick Leahy (D-VT), Robert Menendez (D-NJ), Ben Cardin (D-MD), Ron Wyden (D-OR), Maria Cantwell (D-WA), Bernie Sanders (I-VT), and Tom Harkin (D-IA).
The Military Justice Improvement Act is supported by the International Federation of Professional & Technical Engineers (IFPTE), CLC, AFL-CIO and all the leading victim’s advocates groups, including but not limited to, Service Women's Action Network (SWAN), Protect Our Defenders (POD), Iraq and Afghanistan Veterans of America (IAVA), and the National Women’s Law Center and Vietnam Veterans of America.