Kirsten Gillibrand Blames White House in Failure of Military Sexual-Assault Bill

The senator pledges to continue in her quest and pursue additional reforms.

WASHINGTON, DC - NOVEMBER 19: Sen. Kirsten Gillibrand (D-NY) speaks at a news conference supporting passage of the Military Justice Improvement Act November 19, 2013 in Washington, DC. The legislation would help address increasing numbers of sexual assaults in the U.S. military by establishing an independent military justice system. Also pictured are (L-R) Sen. Richard Blumenthal (D-NY), former U.S. Marine Sarah Plummer, Sen. Dean Heller (R-NV) and U.S. Army veteran Kate Weber.
National Journal
Stacy Kaper
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Stacy Kaper
March 6, 2014, 12:23 p.m.

Sen. Kirsten Gil­librand blamed the White House’s lack of sup­port for the fail­ure of her sexu­al-as­sault bill in the Sen­ate on Thursday, and she vowed to keep fight­ing to re­form the mil­it­ary justice sys­tem.

“I made my greatest case, I ad­voc­ated for this po­s­i­tion, this re­form, and the pres­id­ent has been very clear: He wants to end sexu­al as­sault in the mil­it­ary, he wants it to be fur­ther stud­ied, and he wants to see pro­gress and wheth­er it’s been ac­com­plished in the next year,” the New York Demo­crat said at a press con­fer­ence after her bill went down.

When asked if she would have suc­ceeded if Pres­id­ent Obama had pushed for her bill and wheth­er she was dis­ap­poin­ted by the White House’s lack of sup­port, she quickly answered, “Yes, yes.”

The le­gis­la­tion, which was fought migh­tily by the Pentagon and cham­pioned by vic­tim-ad­vocacy groups, would have stripped from com­mand­ers the power to de­cide which sexu­al-as­sault cases are pro­sec­uted. It failed to at­tract the 60 votes ne­ces­sary to over­come a pro­ced­ur­al hurdle to pass the bill on a vote of 55 to 45.

Lead­ing up to the vote, Gil­librand had said she had 55 sup­port­ers and was con­fid­ent she would pick up more. Al­though she did in­deed pick up two un­de­cideds, Sen­ate Minor­ity Lead­er Mitch Mc­Con­nell and Re­pub­lic­an Mike En­zi of Wyom­ing, she also lost two co­spon­sors: Tom Carp­er, D-Del., and Mark Kirk, R-Ill.

Carp­er voted against the bill be­cause the pres­id­ent has asked the mil­it­ary to con­duct a re­view of its ef­forts to com­bat sexu­al as­sault, which is due in Decem­ber, ac­cord­ing to an aide. In a state­ment or­der­ing the re­view last year, Obama said that if cur­rent ef­forts do not work, then ad­di­tion­al re­forms should be con­sidered, which was seen by many as squelch­ing sup­port for Gil­librand’s re­form.

Kirk said he be­lieved Gil­librand’s bill could make the mil­it­ary weak­er.

“I co-sponsored Sen­at­or Gil­librand’s le­gis­la­tion be­cause I strongly be­lieve that vic­tims of sexu­al as­sault should al­ways be pro­tec­ted, but ul­ti­mately sup­por­ted the bi­par­tis­an Mc­Caskill al­tern­at­ive be­cause “¦ [Gil­librand’s] broad scope could jeop­ard­ize our read­i­ness and our mil­it­ary sta­tioned in the field.”

Without a boost for the le­gis­la­tion in the Sen­ate, it ap­pears dead for now, par­tic­u­larly since sim­il­ar le­gis­la­tion has lan­guished in the House for so long.

A com­pan­ion House bill to Gil­librand’s from GOP Rep. Dan Ben­ishek of Michigan has 71 co­spon­sors but has gone nowhere.

An­oth­er bill from Demo­crat­ic Rep. Jack­ie Spei­er of Cali­for­nia, which has stalled since it was first in­tro­duced in 2011, has 157 co­spon­sors. It would also re­move com­mand­ers from the de­cision to pro­sec­ute sexu­al as­saults and would place jur­is­dic­tion in the newly cre­ated, autonom­ous Sexu­al As­sault Over­sight and Re­sponse Of­fice, which is com­prised of ci­vil­ian and mil­it­ary ex­perts. The of­fice would be un­der mil­it­ary pur­view.

Even though Gil­librand failed to pass her le­gis­la­tion, she did drum up more sup­port than many thought pos­sible, con­sid­er­ing the broad op­pos­i­tion from the mil­it­ary’s top brass and Armed Ser­vices Com­mit­tee lead­ers.

Vic­tim-ad­vocacy groups who sup­port the Gil­librand bill said that it was an im­port­ant step to fi­nally see a vote after so many fits and starts, but that the in­creased buzz on the is­sue still needs to be fol­lowed up with de­cis­ive le­gis­lat­ive ac­tion.

“The at­ten­tion has gen­er­ated some help­ful steps,” said Susan Burke, an at­tor­ney who col­lab­or­ates with Pro­tect Our De­fend­ers on sexu­al-as­sault cases. “The prob­lem is that it is like build­ing a house on a faulty found­a­tion. It’s a waste of time and money if you don’t fix the struc­tur­al prob­lems.”

Prom­in­ent fel­low Demo­crat and former sexu­al-as­sault pro­sec­utor Sen. Claire Mc­Caskill of Mis­souri lob­bied col­leagues hard against the Gil­librand bill for months, ar­guing it could lead to few­er pro­sec­u­tions, not more, by re­mov­ing com­mand­ers’ power.

She offered a non­con­tro­ver­sial al­tern­at­ive, build­ing off re­forms that were ad­op­ted last year in the de­fense au­thor­iz­a­tion act, which is ex­pec­ted to sail through the Sen­ate next week. The bill was moved ahead in a 100-0 pro­ced­ur­al vote Thursday, but a vote on fi­nal pas­sage was delayed for un­re­lated schedul­ing is­sues.

Gil­librand said she does not plan to change her bill to ease op­pos­i­tion, and she plans to press for its in­clu­sion in the next de­fense au­thor­iz­a­tion round, where she says she can con­tin­ue to build sup­port if the mil­it­ary fails to fix the prob­lem.

“Many people said to me, ‘Kirsten, I’m go­ing to watch this; if it doesn’t get bet­ter with­in the next six months, I’m with you next time,’ ” she said. “So for a num­ber of people, an in­cre­ment­al step was more mean­ing­ful to them, and they wanted to see what happened. I think there will be many more sen­at­ors who will side with us, be­cause this is a huge prob­lem.”

For her part, Mc­Caskill said she is hop­ing to fast track her re­form pack­age in the House, and if not, roll it in­to the next de­fense au­thor­iz­a­tion.

Her bill would elim­in­ate a sol­dier’s good mil­it­ary char­ac­ter from be­ing con­sidered part of his de­fense. It would al­low vic­tim in­put in pro­sec­u­tions, al­low sexu­al-as­sault vic­tims to chal­lenge un­fair dis­charge from the ser­vice, make it easi­er for pro­sec­utors to re­com­mend courts-mar­tial for sexu­al-as­sault cases, in­crease com­mand­er ac­count­ab­il­ity, and ex­tend re­cently ad­op­ted re­forms to mil­it­ary academies.

The de­bate has been full of drama and colored by but­ting egos. Mc­Caskill said she did not en­joy be­ing cast in the me­dia as against vic­tims, hav­ing at­tack ads run against her by vic­tim groups, or bat­tling her de­term­ined Demo­crat­ic col­league.

“That’s no fun,” she said. “But be­cause I was so con­fid­ent that the policy was right, it is something that I couldn’t have slept at night if I would have fol­ded on this, be­cause I really feel strongly that this is the right policy.”

Mc­Caskill said she plans to start fo­cus­ing on boost­ing sexu­al-as­sault re­port­ing and ser­vices on col­lege cam­puses and wants to go back to work­ing with Gil­librand to en­sure sexu­al-as­sault re­forms are im­ple­men­ted.

“It will be a re­lief to get back to Kirsten Gil­librand and I work­ing lock­step to make sure that all these re­forms are im­ple­men­ted in a way that pro­tects vic­tims and bring per­pet­rat­ors to pris­on where they be­long,” she said.

Gil­librand said she is re­view­ing why con­vic­tions so of­ten res­ult in slaps on the wrist and is press­ing the armed ser­vices for more data on how cases were handled.

Both Gil­librand and Mc­Caskill said they also plan to fo­cus ef­forts to ad­dress sui­cides and post-trau­mat­ic stress prob­lems re­lated to sexu­al as­saults in the mil­it­ary, with an eye to­ward im­prov­ing ser­vices and treat­ment offered.

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