Subcommittee Report Sides Against Gillibrand on Military Sexual Assault

A majority said removing senior commanders wouldn’t increase the number of sexual assaults reported in the Armed Forces or bolster victim confidence.

Sen. Kirsten Gillibrand (D-NY) questions military leaders while they testify before the Senate Armed Services Committee on pending legislation regarding sexual assaults in the military June 4, 2013.
National Journal
Jordain Carney
Jan. 31, 2014, 7:42 a.m.

Re­mov­ing com­mand­ers’ au­thor­ity in mil­it­ary sexu­al-as­sault crimes would neither boost sexu­al-as­sault re­port­ing nor strengthen a be­lief that the mil­it­ary justice sys­tem is fair, ac­cord­ing to a sub­com­mit­tee re­port re­leased Thursday.

“A strong ma­jor­ity of sub­com­mit­tee mem­bers agrees the evid­ence does not sup­port a con­clu­sion that re­mov­ing au­thor­ity to con­vene courts-mar­tial from seni­or com­mand­ers will re­duce the in­cid­ence of sexu­al as­sault or in­crease re­port­ing of sexu­al as­saults in the Armed Forces,” ac­cord­ing to the Role of the Com­mand­er sub­com­mit­tee re­port.

The sub­com­mit­tee, which has nine mem­bers, was cre­ated as part of the Re­sponse Sys­tems to Adult Sexu­al As­sault Crimes Pan­el, es­tab­lished by the 2013 Na­tion­al De­fense Au­thor­iz­a­tion Act.

That find­ing sets most of the mem­bers squarely against a pro­pos­al by Sen. Kirsten Gil­librand. The New York Demo­crat has been lob­by­ing her col­leagues for months, try­ing to garner the likely ne­ces­sary 60 votes to pass le­gis­la­tion that would re­move the chain of com­mand’s power to de­cide wheth­er sexu­al-as­sault cases are pro­sec­uted.

It’s a move Pentagon of­fi­cials and Sen. Claire Mc­Caskill — who has a du­el­ing pro­pos­al — have been push­ing hard against. Sen. Harry Re­id said Monday the Sen­ate would de­bate sexu­al-as­sault le­gis­la­tion by mid-Feb­ru­ary, but he didn’t spe­cify if the Sen­ate would take up one or both of the pro­pos­als. He came out in sup­port of Gil­librand’s bill last Novem­ber, but oth­er high-pro­file Demo­crats in­clud­ing Armed Ser­vices Com­mit­tee Chair­man Carl Lev­in have spoken against it.

Mc­Caskill, re­spond­ing to the re­port, said the find­ings “must in­form any fu­ture de­bate about al­tern­at­ive pro­pos­als.”

Only one of the sub­com­mit­tee mem­bers, Eliza­beth Hill­man, a law pro­fess­or at the Uni­versity of Cali­for­nia Hast­ings Col­lege of the Law, dis­agreed with the sub­com­mit­tee’s re­port. Hill­man, in a sep­ar­ate state­ment, said com­mand­ers “are neither es­sen­tial nor well-suited for their cur­rent role in the leg­al pro­cess of crim­in­al pro­sec­u­tion.”

But most of the sub­com­mit­tee mem­bers be­lieve there isn’t enough evid­ence to sug­gest that “re­mov­ing such au­thor­ity will in­crease con­fid­ence among vic­tims of sexu­al as­sault about the fair­ness of the mil­it­ary justice sys­tem or re­duce their con­cerns about pos­sible re­pris­al for mak­ing re­ports of sexu­al as­sault,” ac­cord­ing to the re­port.

Mem­bers of Con­gress have tweaked how the mil­it­ary deals with sexu­al-as­sault cases in the past few Na­tion­al De­fense Au­thor­iz­a­tion Acts, in­clud­ing re­quir­ing new or pro­spect­ive com­mand­ers to un­der­go sexu­al-as­sault pre­ven­tion and re­sponse train­ing, re­mov­ing a com­mand­er’s abil­ity to over­turn jury con­vic­tions, and re­quir­ing a ci­vil­ian re­view if a com­mand­er de­cides against pro­sec­ut­ing. And the re­port sug­gests that more time is needed to see if such changes can cre­ate “mean­ing­ful im­prove­ments” be­fore mak­ing a “sys­tem­ic” change.

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