Military Justice Improvement Act: Gillibrand Testimony

Senator Gillibrand’s Testimony to Response Systems Panel on the Military Justice Improvement Act

Senator Kirsten Gillibrand:

Thank you so much, Madam Chairwoman. It’s a delight to appear before your Panel. I want to thank every single one of you for this public service you are offering to our country. It is invaluable, and I’m grateful for your time and deliberate consideration.

I really want to thank you for the opportunity to actually address the Panel. I know that we all share the same goals of changing the status quo to protect our men and women service members from the crisis of sexual assault occurring across services and academies, and finding solutions that will better hold perpetrators of these horrific acts accountable. So I appreciate the opportunity to share the insights of victims and commanders that I have heard over the last several months.

I want to begin by reminding this Panel that a strong and growing bipartisan coalition in Congress has shown that ending sexual assaults in the military by creating an independent and accountable military justice system where trained military prosecutors make the little — make the critical legal decision about whether alleged crimes move forward to trial is not partisan. It’s not ideological. It’s just the right thing to do.

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 Democratic. It’s not Republican. Senators from both sides of the aisle have listened to the victim’s voices and agreed that what’s right is not just tweaking the status quo, but a real transformational change required to give victims the hope of a fair shot at justice so that they are willing to come forward and report the heinous crimes committed against them. So as you move forward in your work, I hope you will listen loudly and clearly to the voices of the victims because what you will hear is eye opening and alarming.

The mother of one survivor, whose name I am not at liberty to divulge, wrote: “I reluctantly supported my daughter going into the Army, fearing that she may be a casualty victim in combat overseas by some foreign enemy. I never imagined she would be a victim on U.S. soil from the Army she partnered with to protect the USA and our rights. She was sexually assaulted at the end of 2012, which is a case still pending. She’s lost her lust for life. She’s become dependent on drugs to mask the pain and is now being pushed out of the Army because the captain is derelict in his responsibilities and failed to respond to her plight. He has re-victimized her emotionally by exposing her to unsafe conditions, verbal abuse, and total disregard for her as a soldier and as a woman. Please help me.”

Sarah Plummer, who was raped as a young Marine in 2003, said, “I knew the military was notorious for mishandling rape cases, so I didn’t dare think anything good would come of reporting he rape.” She said, “Having someone within your direct chain of command just doesn’t make any sense. It’s like getting raped by your brother and having your dad decide the case.” Army Sergeant Rebecca Havilla, who served in Afghanistan and was raped in 2007, said reporting the crime to her commanding officer was unthinkable. “There was no way I was going to report to my commander. He made it clear he didn’t like women.”

Airman First Class Jessica Hynes was raped in 2009 by a co-worker who broke into her room at 3:00 a.m. “Two days before the court hearing, his commander called me on a conference at the JAG office and he said he didn’t believe that the offender acted like a gentleman, but there wasn’t reason to prosecute. I was speechless. Legal had been telling me this is going to go to the court.

We had the court date set for several months. And two days before, his commander stopped it. I later found out the commander had no legal education or background, and he had only been in command for four days.” Her rapist was given the award for Airman of the Quarter, and she was transferred to another base.

We must not forget that this is a crime that does not only affect women. More than half of the victims, as you know, are men. Blake Stevens, now 29, joined the Army in 2001, just seven months after graduating high school. “The verbal and physical attacks started quickly,” he says, “and came from virtually every level of the chain of command.” In one of the worst incidents, a group of men tackled him, shoved a soda bottle into his rectum, and threw him backwards off an elevated platform onto the hood a car. When he reported, Steven says his drill sergeant told him, “You’re the problem. You’re the reason this is happening.” And he refused to take action. Blake said, “You just feel trapped. They basically tell you they’re going to have to keep working with these people day after day, night after night. You don’t have a choice.” His assailants told him that once he deployed to Iraq, they would shoot him in the head. “They told me they were going to have sex with me all the time when we got there.”

These are just a few stories of the many stories that I’ve heard from survivors over these last few months. But if the victims’ voices are not enough, you can also listen to the generals themselves, the commanders and JAG officers, who have spoken on this issue.

Retired General Lieutenant Claudia Kennedy, the first woman to become a three-star general in the Army, wrote to me, “Having served in leadership positions in the U.S. Army, I have concluded that if military leadership hasn’t the fixed the problem in my lifetime, it’s not going to be fixed without a change to the status quo. The imbalance of power and authority held by the commanders in dealing with sexual assaults must be corrected. There has to be independent oversight over what’s happening in these cases. Simply put, we must remove the conflicts of interest in the current system, the system in which a commander can sweep his own crime or the crime of a decorated soldier or friend under the rug, protects the guilty and protects serial predators. It harms the military readiness. Under leadership — until leadership is held accountable, it won’t be corrected. To hold leadership accountable, it means there must be independence and transparency in the system. Permitting professionally trained prosecutors rather than commanding officers to decide whether to take sexual assault to trial is measured with a first step towards accountability.

“I have no doubt the command climate, unit cohesion, and readiness will be improved by these changes.” Retired Brigadier General Lori Sutton, the former top psychiatrist in the Army, wrote, “Failure to achieve these reforms would be a further tragedy to an already sorrowful history of inattention and ineptitude concerning military sexual assault. In my view, achieving these essential reform measures must be considered as a national security imperative demanding immediate action to prevent damage to individual health and well-being, vertical and horizontal trust within units, military institutional reputation, operational mission readiness, and the civilian military compact.

Far from stripping commanders of accountability as some detractors have suggested, these improvements will remove the inherent conflict of interest that clouds the perception and all too often the decision making process under the current system. Implementing these reforms will actually support leaders to build and sustain unit cultures marked by respect, good order, and discipline.”

Retired Brigadier General, David McGuiness, a former Pentagon appointee, wrote: “I am a believer that there is nothing in the Military Justice Improvement Act that is inconsistent with the responsible or authority of command. Your efforts in this regard will actually strengthen good order and discipline of our military.”

Retired Air Force General, Martha Rainville, the first woman in the history of the National Guard to serve as a State Adjunct General, who served 14 of her 27 years in command positions, wrote: “As a former commander, endorsing a change that removes certain authority from military commanders has been a tough decision. It was driven by my conviction that our men and women in uniform deserve to know without doubt that they are valued and will be treated fairly with all due process should they report an offense and seek help or face being accused of an offense. When allegations of serious criminal misconduct have been made, the decision of whether to prosecute should be made by a trained legal professional. Fairness and justice requires sound judgment based on evidence and facts independent of preexisting command relationships.”

Retired Army General Major, Stennis Leach, has said publicly, “We have relied on the chain of command to deal with this issue, and the chain of command has failed for decades. America gives us their sons and daughters, and we failed to discharge the responsibility to take care of them.”

Retired U.S. Navy Captain Lori Manning, who served active duty in the U.S. Navy for 25 years, and served as commanding officer and court martial convening authority for almost 400 people who were part of her command, wrote: “As a former commanding officer and convening authority, I completely understand the service’s insistence that commanders must retain their authority to dispose of charges of sexual assault. However, as an advocate for military women and men, it is crystal clear to me that too many commanders have betrayed the trust placed in them by their subordinates, their services, and their fellow citizens, because they have not used this authority properly. I have, therefore, come to the reluctant conclusion that this authority must be removed from the chain of command and placed in the hands of trained military prosecutors, who can serve as an unbiased, professional expert on the disposition of sexual assaults and other felony cases. This is critical to ending sexual assault in the military.”

Former JAG Corps officer in the U.S. Navy and Executive Director of Protect our Defenders Tarin Meeks, wrote: “In my experience, mid-level commanders, department heads, and military leadership do not want this responsibility. They don’t want the burden of convening a court martial, and the entire process is a distraction from their mission. These mid-level leaders are busy with operational demands, and handling complex sexual assault cases occupies their time and energy and is counterproductive to the mission of readiness.”

Former Army JAG officer with the U.S. 82ndAirborne Division while stationed in Iraq from ’03 to ’04, and former congressman, Patrick Murray — excuse me, Patrick Murphy, wrote an op-ed. “It’s time for real common sense changes. District attorneys and attorneys general don’t have to get permission from mayors and governors to prosecute cases because they’re independent. At the felony level, military judge advocates should be independent, too.”

And if listening to the victims plus the testimony of retired generals, commanding officers, and JAGs is not yet enough, I hope you’ll listen to the current commanders themselves when they speak truthfully about this issue.

In a speech on April 19th of this year at Paris Island, Commandant of the Marine Corps, General James Amos said, “Why wouldn’t female marines come forward? Because they don’t trust us. They don’t trust the command. They don’t trust the leadership.” And then went on to lament a climate in which leaders have “become so soft” on holding wrongdoers accountable. In response to questions regarding sexual assault crimes on May 17th of this year, Chairman of the Joint Chiefs of Staff, General Martin Dempsey, said, “You might argue that we have become a little too forgiving because if a perpetrator shows up a court martial with a rack of ribbons and has four deployments and a Purple Heart, there certainly is a risk that we might be a little too forgiving of that particular crime.”

What the testimony I have just read tells me quite clearly is that among other things, there is no accountability because the trust that any justice will be served has irreparably broken under the current system where commanders hold all the cards whether a case moves forward to prosecution.

I strongly believe it is time that we restore this trust. It’s time to move the sole decision making power over whether serious crimes akin to a felony go to trial from the chain of command into the hands of non-biased, professionally trained military prosecutors where it belongs. Critics say moving these decisions outside the chain of command will diminish good order and discipline. The truth is our bipartisan bill is carefully crafted to leave 37 serious crimes that are unique to the military within the chain of command, such as insubordination or going absent without leave, in addition to crimes punishable by less than a year of confinement under Article 15.

Second, I know you’ve heard testimony from other jurisdictions who have removed this decision making from the chain of command, the UK, Israel, Australia being some of them. And they do not see a lack of good order and discipline because this one legal decision isn’t being made in their chain of command. They will not tell you that they lack good order and discipline. They will not tell you that their militaries have fallen apart. They will not tell you that their commanders have no ability to set the command climate without this one ability to make a legal decision.

And I would like you to consider the record before Secretary Hagel removed – requested that we remove one other legal decision making authority. Secretary Hagel requested that we remove Article 60, the ability to overturn a jury verdict out of the chain of command because he was so offended by instances where that’s exactly what commanders did, overturning a jury verdict, inappropriately in his view.

The day before he said that, the entire military brass said you cannot possibly remove that decision making from the chain of command. Article 60 is essential for good order and discipline. And I can give you the testimony. The day after Secretary Hagel suggested we remove this from the chain of command, every one of the service chiefs wrote a letter to Chairman Levin saying of course we can do this. It’s a vestige of pre-World War I.

So I assert to all of you that removing this second legal decision, this Article 30 decision of whether to go to trial, is something that should be removed so we have objectivity and no bias, and will not undermine the commander’s ability to instill good order and discipline.

A second argument you will hear about this will let commanders off the hook. That could not be farther from the truth. Only commanders are responsible for setting command climate. Only commanders are responsible for good order and discipline. And now with the underlying NDAA bill, we are making retaliation a crime. But what I can tell you is this is where commanders are failing. They are not maintaining enough good order and discipline because we had 26,000 rapes, unwanted sexual assault — unwanted sexual contact and assaults a year, and only 3,300 reporting. That means under the current command climate, it is not sufficient to prevent these rapes. The current command climate is not sufficient for retaliation not to happen. And under the current command climate, it is not sufficient for victims willing to come forward.

The last point I want to make. Only commanders can possibly protect victims if they come forward, so you must leave this under the commander’s authority. Well, there, too, we see enormous failure because of the 3,300 cases that were reported last year, 62 percent of the victims were retaliated against. So in 62 percent of the cases, those commanders did not protect the victim, did not have his or her back to make sure no retaliation could happen. So I see no reason why you’d think that commanders are protecting these victims and only commanders can protect these victims if they are the one deciding the case.

I am sure there are many individual examples where a commander did do the right thing, had the back of the victim, made sure it went to trial, made sure the evidence was marshaled and got a conviction. But last year, we had less than 300 convictions. So you can say in one out of 100 cases, the commander might’ve got it right. It’s not good enough. And this is a problem you will never train your way out of. You have too many commanders, at least 62 percent, who allowed retaliation to happen against victims who reported last year.

I don’t think it possible. I think what we need so urgently is transparency, and accountability, and an objective review of facts by someone who knows what they’re doing, who is trained to be a prosecutor, who understand prosecutorial discretion. And these cases on a good day for any prosecutor in America to get right is difficult. So why would we be giving it to someone who doesn’t have a law degree, who knows nothing about sexual assault, who may have a bias against women in the military, who may have a bias against gays in the military, who may know the perpetrator, who may know the victim?

The possibility for bias is so severe. I think we’re kidding ourselves if we think leaving the status quo in place, having these commanders have this responsibility is just naïve.

And probably the most disturbing thing is, we have allowed the Secretaries of Defense to say for 20 years, since Secretary Cheney said, we have zero tolerance for sexual assault. We’ve not had a Secretary of Defense who hasn’t said that in the last 25 years. When are we going to change?

When are going to actually fix the problem?

And if there’s any responsibility that you feel you have, I believe it’s the responsibility to change the system. It needs to be changed. It’s not working. And we are failing the men and women who do everything, who give us everything to protect this country. And please in your own mind imagine it’s your son or your daughter who is so brutalized, and then their command and their unit turns its back on them.

You cannot survive that. And when you look at the percentages of women who leave the military, who have post-traumatic stress disorder, they don’t survive it. The suicide rate is astronomical. Thank you.

Key Facts and Info

Read the Gillibrand Report of Four Largest U.S. Military Bases (2015): Documents Reveal Continued Lack of Improvement in Military Justice System

Read the Gillibrand Report of Four Largest U.S. Military Bases (2014)Despite Recent Congressional Reforms, Dysfunction In Military Justice System Remains

Read the Gillibrand Report of Four Largest U.S. Military Bases (2013): Nearly Half of Survivors Who Reported Assaults Dropped Out of Military Justice Process; Sexual Assaults More Prevalent Than Previously Acknowledged (pdf)

Read AP story: "Pentagon Misled Lawmakers on Military Sexual Assault Cases"

Read Human Rights Watch Report: U.S. Raped In Military - Then Punished: Unjust Discharges Cause Lasting Harm

Read "Embattled" the Human Rights Watch Report: Survivors 12x More Likely to Suffer Retaliation Than See Assailant Convicted; Not A Single Case of Serious Disciplinary Action Found for Retaliation (pdf)

NY Times Magazine Cover Story: "The Military's Rough Justice on Sexual Assault" on military’s continued failure to combat sexual assault – including accounts of retribution and retaliation

VIDEO: “Military Justice’s Dirty Secret”: Fmr. Chief Prosecutor USAF “Put Out to Pasture” for Speaking Out & Doing His Job

5/9/16 DOD IG Report: Evaluation of the Separation of Service Members Who Made a Report of Sexual Assault 

Quotes You Should Read

MJIA: Myths vs Facts sheet

12/3/2014: Top Reasons Why Military Justice Improvement Act Is Still Needed After Previous Incremental NDAA Reforms (pdf)

Senators Who Voted In Favor of MJIA

Retired Military Officers Supporting MJIA

Veterans', Faith, & Women's Groups Supporting MJIA

Letter from UCMJ legal experts supporting MJIA (pdf)

Editorials & Op-Eds Supporting MJIA

ESPN Report: The Enemy Within

Read DOD’s Own Advisory Panel Opinion in Support of MJIA

Allies Testimony: No Impact on Good Order & Discipline From Change To Independent Military Justice System

Gillibrand Testimony to Response Systems Panel

Text of Response Systems Panel Dissent (pdf)

List of Excluded Offenses

Useful Links

Iraq and Afghanistan Veterans of America

Vietnam Veterans of America

Survivor Stories: 1 | 2

DOD Annual SAPR Reports

Defense Advisory Committee on Women

The Invisible War

“Twice Betrayed” Investigative Report

ESPN Report: The Enemy Within

Service Women’s Action Network

Protect Our Defenders