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
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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