Grassley, Harkin support failed bill on military sexual assault cases (updated)

Yet another good idea has fallen victim to the U.S. Senate’s rules requiring a super-majority to advance legislation. Although 44 Democratic senators and eleven Republicans supported a bill that would have taken sexual assault cases outside the military chain of command, backers fell five votes short of the 60 needed to pass a cloture motion yesterday. Iowa Senators Tom Harkin and Chuck Grassley both voted for cloture (roll call) on the bill sponsored by Senator Kirsten Gillibrand. Pentagon leaders and Democratic Senators Dick Durbin and Claire McCaskill lobbied against the measure. A weaker sexual assault prevention bill proposed by McCaskill advanced after senators rejected cloture on Gillibrand’s bill.

After the jump I’ve posted the key arguments for both sides in the debate, as well as comments from Grassley and Representative Bruce Braley (D, IA-01). In the floor statement I’ve enclosed below, Grassley urged colleagues, “We need a clean break from the system where sexual assault isn’t reported because of a perception that justice won’t be done.” Braley has long supported reforms along the lines of Gillibrand’s bill, and yesterday he promised to keep pushing on the issue, saying opponents are “on the wrong side of history.” Braley is the Democratic candidate for the U.S. Senate seat Harkin will vacate at the end of this year.

P.S. – Of the Republican senators considered most likely to run for president in 2016, Ted Cruz and Rand Paul voted for cloture on Gillibrand’s bill. Marco Rubio voted against it.  

Excerpts from the report by Jeremy Herb and Ramsey Cox for The Hill:

Gillibrand and her supporters argued that the proposal is necessary because victims aren’t reporting sexual assault crimes for fear of reprisal, while opponents and Pentagon brass said that commanders needed to maintain accountability to curb the problem of sexual assault within the military’s ranks. […]

After Thursday’s vote, Gillibrand said the Senate had failed victims of sexual assault and vowed to fight on with her legislation. […]

McCaskill led the charge against Gillibrand’s proposal, arguing the legislation would actually harm the prosecution of sexual assault perpetrators. […]

McCaskill said after the vote that Gillibrand’s proposal was the only policy where she and Gillibrand were divided on military sexual assault. […]

McCaskill has complained that the chain of command fight distracted from the significant reforms that were signed into law in last year’s National Defense Authorization Act (NDAA), which she says will have a major impact on curbing sexual assault in the military. […]

The NDAA stripped commanders’ ability to overturn guilty verdicts, required discharge for those convicted of sexual assault and expanded a program that gives victims legal representation in court proceedings.

Press release from Senator Chuck Grassley’s office, March 6:

Grassley:  Improve Justice for Victims of Sexual Assault in the Military

           WASHINGTON – Arguing that “we’re past the point of tinkering with the current system,” Senator Chuck Grassley today worked to build bipartisan support for the Military Justice Improvement Act in advance of a vote of 55 to 45 by senators which defeated the bill on a procedural motion that required three-fifths of the votes for passage.

Click here to watch Grassley’s floor statement.

           The legislation sponsored by Senator Kirsten Gillibrand with Grassley as an original co-sponsor, would have empowered victims to come forward by taking the judicial process for sexual assault cases outside the chain of command.

The proposed reform would move the decision about whether to prosecute any crime punishable by one year or more in confinement to independent, trained, professional military prosecutors.  Thirty-seven crimes that are uniquely military in nature, such as disobeying orders or going Absent Without Leave, would be excepted and remain within the chain of command.  A companion measure is pending in the House of Representatives.

           “We’ve had promises from military leaders for years and years about tackling the problem of sexual assault within the current system, but the problem isn’t getting better.  The current system has a deterrent effect on reporting sexual assault, and if sexual assault cases aren’t reported, they can’t be prosecuted,” Grassley said.  “Something as serious and life-altering as sexual assault requires bold action.  And when young people make the commitment to serve their country in uniform and put themselves in harm’s way to defend and protect America’s freedoms, they deserve to know their rights will be protected, including access to justice.”

Last fall, the Defense Advisory Committee on Women in the Services, known as DACOWITS, voted overwhelmingly in support of every component of the Military Justice Improvement Act.  This committee was created in 1951 by the Secretary of Defense and includes civilian and retired military women and men to provide advice and recommendations on matters and policies relating to the recruitment and retention, treatment, employment, integration, and well-being of highly qualified professional women in the Armed Forces.

Grassley said that sexual assault in the military isn’t a military matter but a law enforcement matter, and that the Military Justice Improvement Act does justice to the U.S. military code of honor, which is based on integrity and fidelity to the rule of law.

           Below is the text of remarks made today by Grassley during Senate debate, along with a recent opinion column in The Des Moines Register and a recent story about the leadership of Air Force Lt. General Michelle Johnson, an Iowan, in combating sexual assault in the military.

Floor Statement of U.S. Senator Chuck Grassley

Thursday, March 6, 2014

I am proud to partner with Senator Gillibrand as an original cosponsor of the Military Justice Improvement Act and I would like to say a few words about why it is needed.

I appreciate the fact that a large number of common sense reforms were included in the National Defense Authorization Act.

These changes were long overdue.

However, we are past the point of tinkering with the current system and hoping that does the trick.

We have had promises about tackling the problem of sexual assault within the current system for years and years but the problem isn’t getting any better.

We don’t have the luxury of time to try some new reforms of the current system and hope that has an impact.

What’s more, the current system appears to be part of the problem.

Let me elaborate on what I mean by that.

We know from a recent Defense Department report, 50 percent of female victims stated they did not report the crime because they believed that nothing would be done with their report.

Seventy-four percent of females and 60 percent of males perceived one or more barriers to reporting sexual assault.

Sixty-two percent of victims who reported a sexual assault indicated they perceived some form of professional, social, and/or administrative retaliation.

We can talk about protections for victims and we can enact more protections as we did in the National Defense Authorization Act.

But, the fact remains that the current structure of the Military Justice System is having a deterrent effect on reporting of sexual assault.  If sexual assault cases aren’t reported, they can’t be prosecuted.

If sexual assault isn’t prosecuted, predators will remain in the military and that results in a perception that sexual assault is tolerated in the military culture.

That destroys morale and it destroys lives.

If an enemy tried to sew that kind of discord among our military, we wouldn’t tolerate it, but we are doing it to ourselves.

The men and women who have volunteered to place their lives on the line deserve better than that and our military readiness demands it.

Taking prosecutions out of the hands of commanders and giving them to professional prosecutors who are independent of the chain of command will help ensure impartial justice for the men and women of our armed forces.

I know some senators will be nervous about the fact that the military is lobbying against this legislation.

I have the greatest respect for our military leaders, but Congress has given the military leadership more than enough time to try and fix the current system.

We can’t wait any longer.

We also hear that this measure will affect the ability of commanders to retain “good order and discipline.”

Our legislation in no way takes away the ability of commanders to punish troops under their command for military infractions.

Commanders also can and should be held accountable for the climate under their command.

But, the point here is that sexual assault is a law enforcement matter – not a military one.

If anyone wants official assurances that we are on the right track, we can take confidence in the fact that an advisory committee appointed by the Secretary of Defense himself supports our reforms.

On September 27, 2013, the Defense Advisory Committee on Women in the Services (DACOWITS) voted overwhelmingly in support of each and every one of the components of the legislation before us.

DACOWITS was created in 1951 by then Secretary of Defense, George C.  Marshall.

The Committee is composed of civilian and retired military women and men who are appointed by the Secretary of Defense to provide advice and recommendations on matters and policies relating to the recruitment and retention, treatment, employment, integration, and well-being of highly qualified professional women in the Armed Forces.

Historically, the recommendations by DACOWITS have been very instrumental in effecting changes to laws and policies pertaining to military women.

This isn’t an outside advocacy group or ad hoc panel.  It’s a longstanding advisory committee handpicked by the Secretary of Defense and it supports the substance of our legislation to a tee.

It’s easier to support incremental reform.

In fact, it is often prudent to try small reforms before making bigger changes.

I understand why some senators are nervous about a total overhaul of the military justice system.

It isn’t something I approach lightly.

However, we have waited for years as various initiatives to tackle this problem have been tried.

When we are talking about something as serious and life altering as sexual assault, we cannot afford to wait any longer than we already have.

The time has come to act decisively to change the military culture.

We need a clean break from the system where sexual assault isn’t reported because of a perception that justice won’t be done.

Our men and women serving this country deserve nothing less and they deserve it now.

They shouldn’t have to wait any longer for justice.

For those reluctant to take this step now, I would say: if the more modest reforms proposed by others prove insufficient and we have to come back and enact our reforms at a later time, how will you justify your vote today?

Now is the time for bold action and I would urge all my colleagues to join us.

***

Nov. 16, 2013

Rekha Basu

Basu: Bipartisan winds carry hope for military rape victims

In these hyper-partisan times over health care, taxes, regulations, the environment, marriage and almost everything else, one controversial issue is cutting refreshingly across party lines. It’s the debate over how to tackle sexual assaults in the military.

Full Article: http://www.desmoinesregister.c…

March 2, 2014

Sharyn Jackson

Woman takes controls at key time for Air Force Academy

DES MOINES, Iowa — When Lt. Gen. Michelle Johnson was a child, she would climb up onto her parents’ hog house with her German shepherd and look out at the horizon. It was one of her favorite afternoon activities as a rural latchkey kid left to her own devices after school.

Full Article: http://www.usatoday.com/story/…

Statement from Representative Bruce Braley, March 6:

Braley Statement on Senate’s Failure to Pass Military Justice Improvement Act

Washington, D.C. – Rep. Bruce Braley (IA-01) released the following statement today after a filibuster in the United States Senate was used to block the Military Justice Improvement Act (MJIA) which would have made dramatic reforms in order to protect survivors of military sexual assault.

“It’s shameful that the Senate missed this historic opportunity to make the kinds of changes sexual assault survivors have told me are needed to protect the brave men and women in our military,” Braley said. “Those who oppose these reforms are on the wrong side of history and I’m going to do everything I can to support reforms that address this crisis.”

The MJIA moves the decision whether to prosecute any crime punishable by one year or more in confinement to independent, trained, professional military prosecutors. Currently, military commanders have the power to overrule military lawyers and prevent sexual assault prosecutions from moving forward. Braley has been a longtime advocate of removing the decision to prosecute away from the military chain of command.

This year, Braley’s guest to the State of the Union Address was Anu Bhagwati, Executive Director of the Service Women’s Action Network (SWAN)-a group that has been at the center of the national effort to reform the military’s handling of military sexual assault.

In 2011, Braley introduced the Holley Lynn James Act–a bill to help victims of sexual assault and domestic violence in the military get justice. The bipartisan bill was named after a constituent of Braley’s who was killed by her husband while both were in the service.

This press release from June 12, 2013 provides more background on Braley’s support for stronger measures against sexual assault in the military (emphasis in original):

Braley & Speier Launch Effort to End Epidemic of Military Sexual Assault

Will seek to amend Defense Authorization Act to reform military judicial system

Washington, D.C. – Reps. Bruce Braley (IA-01) and Jackie Speier (CA-14) announced today that they will seek to reform the way the US military handles sexual assault crimes by introducing two amendments to the National Defense Authorization Act being considered by the US House of Representatives this week.

Their first amendment would take the decision making of whether to prosecute a military sexual assault case out of the chain of command and give that discretion to trained prosecutors. This is modeled after the Sexual Assault Training Oversight and Prevention (STOP) Act, a bill Braley and Speier introduced in April 2013 to comprehensively overhaul the way the military handles cases of rape and sexual assault.

The second amendment changes the current requirement that an alleged victim must testify twice during an Article 32 proceeding, a preliminary hearing that takes place to determine whether there is enough evidence to move forward with a court martial. The amendment would allow the alleged victim to submit written testimony instead of needing to testify in-person at the hearing, avoiding re-victimization and making the Article 32 proceeding similar to preliminary hearings that take place in civilian courts.

“The Defense Authorization Act makes some important changes to the way the military handles military sexual assault,” Braley said. “But until decisions over investigating and prosecuting sexual assault allegations are removed from the normal chain of command, the problem will persist. Independent prosecutors trained in handling these crimes should be responsible for seeking justice, not individual commanders without legal expertise and clear conflicts of interest. Our amendment seeks to make that change.”

The National Defense Authorization Act (NDAA) being debated by the House this week already includes provisions that would prohibit a military court martial’s convening officer from overturning a conviction handed down by the court martial. The bill also prohibits these officers from lessening sentences handed down by courts martial, except in limited cases.

These changes were first proposed by Braley and Speier in March 2013, when they introduced the Military Judicial Reform Act after a lieutenant general at Aviano Air Base in Italy overturned the sexual assault conviction of an airman who’d been found guilty and sentenced to a year in prison by a jury of his peers.

As it is currently written, however, the NDAA does not remove discretion over how to handle rape and sexual assault convictions from the normal military chain of command or revise the in-person testimony requirement in an Article 32 proceeding.

Full text of the Independent Prosecutor Amendment can be found at the following link: http://1.usa.gov/ZJXoXY

Full text of the Article 32 Amendment can be found at the following link: http://1.usa.gov/17HxngD

Background on the Holly Lynn James Act:

Braley Fights to Get Justice for Victims of Sexual Assault in Military

Apr 13, 2011

Introduces bipartisan bill to investigate sexual assault, domestic violence in military

Washington, DC – This week, Congressman Bruce Braley (IA-01) introduced the Holley Lynn James Act – a bill to help victims of sexual assault and domestic violence in the military get justice. The bipartisan bill is named after Holley Lynn James, a constituent of Rep. Braley who was killed by her husband while both were in the service. James had filed complaints against her husband, who was supposed to be restricted to his barracks the night he murdered her.

Rep. Braley’s bill would strengthen the legal process for addressing claims of domestic violence and sexual assault in the military and improve policies to prevent sexual assault. The bill would better protect victims’ rights, streamline the way cases are handled, guarantee that experienced prosecutors are handling investigations, and help make sure that punishments fit the crime.

“Holley’s story is a tragic one and we are all responsible for making sure no family has to go through something like this again,” said Rep. Braley. “This bill would make sure that each report of sexual or domestic abuse is thoroughly investigated by experienced prosecutors – and that criminals are properly punished even if they wear a uniform.”

In recent years, there has been an alarming increase in reports of sexual assaults in the military. According to the Department of Defense, there were 3,158 official reports of sexual assaults in the military in 2010. Because most incidents are not reported to a military authority, the Pentagon estimates this number represents only 13 to 14% of total assaults.  The Department of Defense admits that it has difficulty tracking and addressing domestic violence cases.

“The current system for preventing sexual assault in the military doesn’t work,” said Rep. Braley. “The numbers alone are staggering. Just last month, Linda Schwartz, President of the National Association of State Directors of Veterans Affairs, testified in front of the Veterans Affairs Committee that 23% of women serving in combat areas report being victims of sexual assault perpetrated by other members of the military. That’s unconscionable and intolerable.”

The Holley Lynn James Act is co-sponsored by Rep. Ted Poe (TX-02), Rep. Louise Slaughter (NY-28), Rep. Bob Filner (CA-51) and Rep. Chellie Pingree (ME-01). Rep. Braley is also working closely with organizations like the Service Women’s Action Network (SWAN) to identify the best ways of helping victims get justice and end rape, sexual assault and harassment in the military.

“The Service Women’s Action Network applauds Rep. Bruce Braley for his courage and conviction in defending the rights of servicemembers and military families,” said Anu Bhagwati, former Marine Corps Captain and executive director of the Service Women’s Action Network (SWAN).  “The Holley Lynn James Act is a long-overdue piece of legislation that will make civil rights history. It will protect the 19,000 servicemembers sexually assaulted annually, provide a strong deterrent to both perpetrators of sexual and domestic violence and the commanders who turn a blind eye towards regulations, and encourage institutional change by allowing survivors and their families to have their day in federal court.”

“Today, military rape, sexual assault and sexual harassment are at a crisis point, posing a significant threat to military personnel, mission readiness and national security.  Despite decades of trying, the military has failed to implement policies to protect servicemembers or to defend the basic rights of survivors. With 19,000 servicemembers assaulted last year, there is an immediate need for this crucial legislation,” said Bhagwati.

Last month, Rep. Braley also introduced the bi-partisan Support for Survivors Act that would require the military to preserve records connected with cases of sexual trauma and assault.

UPDATE: On March 10 senators unanimously passed McCaskill’s weaker bill “to provide for additional enhancements of the sexual assault prevention and response activities of the Armed Forces.”

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