Gillibrand, McCaskill Rekindle Debate After High-Profile Military Sexual-Assault Case

Both senators see vindication after charges are dismissed.

Missouri Democrat Senator Claire McCaskill questions a panel of the Joint Chiefs of Staff and their legal counsels, including Chairman of the Joint Chiefs of Staff General Martin Dempsey, Chief of Staff of the Army General Raymond Odierno, Chief of Naval Operations Admiral Jonathan Greenert, Commandant of the Marine Corps General James Amos, Chief of Staff of the Air Force Gen. Mark Welsh III and Commandant of the Coast Guard Admiral Robert Papp Jr., as they testify regarding sexual assaults in the military during a Senate Armed Services Committee hearing on Capitol Hill in Washington, DC, June 4, 2013.
National Journal
Stacy Kaper
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Stacy Kaper
March 17, 2014, 12:35 p.m.

One court de­cision. Two po­lar-op­pos­ite con­clu­sions.

That’s the story on Cap­it­ol Hill on Monday after sexu­al-as­sault charges in a high-pro­file case against an Army gen­er­al were thrown out in mil­it­ary court un­der a plea deal for less­er vi­ol­a­tions.

The case fur­ther fueled Demo­crats’ in­tra-party fight over how to handle mil­it­ary sexu­al as­sault, a struggle that pits New York’s Kirsten Gil­librand against Mis­souri’s Claire Mc­Caskill. Fol­low­ing the plea deal, both sen­at­ors re­mained as dug in as ever.

Con­gres­sion­al re­ac­tion Monday to the dis­missal of the charges was swift and di­vis­ive. It re­in­forced fa­mil­i­ar battle lines over an on­go­ing polit­ic­al fight over the prop­er role for com­mand­ers in such cases.

Mc­Caskill con­tends that the charges that Brig. Gen. Jef­frey Sin­clair twice forced his former mis­tress, a cap­tain, in­to sex acts and threatened to kill her and her fam­ily would nev­er have come for­ward if not for the com­mand­er.

“As a former sex-crimes pro­sec­utor, Claire knows how dif­fi­cult these cases can be, and this case is ob­vi­ously a com­plic­ated one,” said Mc­Caskill spokes­wo­man Sarah Feld­man. “But one of its les­sons high­lights what we already know—that com­mand­ers are of­ten more ag­gress­ive than pro­sec­utors in pur­su­ing pro­sec­u­tions.”

Mc­Caskill has ar­gued that com­mand­ers need to be held ac­count­able and should keep this power, ar­guing that it is the best way to en­sure sexu­al-as­sault pro­sec­u­tions are brought for­ward. The sen­at­or’s of­fice ar­gues that if the case had been handled by pro­sec­utors alone, the rape charge would not have been brought for­ward. It points to re­ports in The New York Times that a pro­sec­utor in the case resigned after try­ing to pres­sure a com­mand­er to drop the sexu­al-as­sault charges, ac­cord­ing to de­fense law­yers.

“If this court-mar­tial had been handled by pro­sec­utors alone, it would not have gone to tri­al,” said a back­ground memo on the case from Mc­Caskill’s of­fice, which was sent to re­port­ers.

Mean­while, on the oth­er side of the di­vide, crit­ics who have fought to strip com­mand­ers of the power to de­cide which sexu­al-as­sault cases move for­ward came out ar­guing the gen­er­al’s plea deal proves the sys­tem is broken.

Gil­librand, whose le­gis­la­tion to take the de­cision to pro­sec­ute out of the chain of com­mand failed in the Sen­ate earli­er this month, said that the Sin­clair case was an ex­ample of what’s wrong with the sys­tem.

In an op-ed in the New York Daily News on Fri­day, Gil­librand said she was con­cerned about a re­port in USA Today that the judge had to tem­por­ar­ily halt the court-mar­tial in the Sin­clair case “over fears the com­mand­ing of­ficer had re­jec­ted a plea deal on less­er charges for polit­ic­al reas­ons, des­pite con­cerns over the evid­ence.”

Al­though she did not re­spond im­me­di­ately to re­quests for re­ac­tion to the Sin­clair de­vel­op­ments Monday, Gil­librand said in her op-ed that she would con­tin­ue to fight for the re­form.

“We will work harder than ever in the com­ing year to strengthen our mil­it­ary by tak­ing sexu­al as­saults and oth­er ma­jor crimes out of the chain of com­mand — so that no vic­tim is com­pelled to turn to his or her boss to ask for justice,” she wrote. “We need every case to move for­ward based solely on the evid­ence and judged solely on the mer­its, not polit­ic­al pres­sure or oth­er non­leg­al con­sid­er­a­tions.”

Oth­ers who share Gil­librand’s stance on re­mov­ing the chain of com­mand spoke up as well.

“This is an­oth­er ex­ample of why com­mand­ers shouldn’t be de­cid­ing wheth­er someone is pro­sec­uted,” said Rep. Jack­ie Spei­er, D-Cal­if., who has long sought le­gis­la­tion to cre­ate a joint mil­it­ary-ci­vil­ian struc­ture to over­see such cases. “Leg­al de­cisions should be made by leg­al ex­perts, not com­mand­ers.”

Spei­er ad­ded, “A justice sys­tem that is be­hold­en to the whims of a com­mand­er is not cred­ible. Even after plead­ing guilty to sev­er­al sor­did of­fenses, I am cer­tain Sin­clair will be sent home with a gen­er­ous pen­sion paid by tax­pay­ers who ex­pect their mil­it­ary lead­ers to serve hon­or­ably.”

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