The two men blocking military sexual assault reform
By The Editorial Board
These days, it is tough to get a supermajority of U.S. senators to agree on the color of the sky, much less a politically delicate piece of legislation. Yet this is precisely what is happening with the Military Justice Improvement and Increasing Prevention Act, a bill championed by Sen. Kirsten Gillibrand, the New York Democrat, that would overhaul how the armed services handle accusations of rape, sexual assault and other serious crimes. In addition to beefing up training and prevention, the proposal would shift the decision to prosecute many felonies “from the chain of command to independent, trained, professional military prosecutors.”
The military’s current handling of sexual assault cases ill serves everyone involved. For example, an independent 2020 review found that more than 30% of charges of penetrative sexual offense shouldn’t have been brought to trial because of insufficient evidence. That has the effect of undermining confidence in the military justice system and being unfair to both the accused and the victims. Independent prosecutors could help remedy this problem. If there’s more confidence in the justice system, it’s more likely that victims will come forward and crimes will be successfully adjudicated.
This is the dysfunctional system that Gillibrand has been fighting to change for years — a mission repeatedly endorsed by this board. She first introduced legislation to this end in 2013. It ultimately fell to a filibuster. Since then, she has been steadily collecting additional votes from colleagues in both parties. Her bill’s latest iteration, introduced in April, currently has 66 co-sponsors and more than 70 total supporters, including senators who opposed her earlier efforts.
This coalition is a tribute to Gillibrand’s doggedness, but it also reflects a growing frustration in Congress and beyond with the military’s persistent failure to get a handle on the problem, despite throwing hundreds of millions of dollars into prevention efforts and support systems for victims in recent years. You know a situation needs urgent attention when Sens. Ted Cruz, Elizabeth Warren, Cory Booker, Joni Ernst, Bernie Sanders and Josh Hawley all rally around the same bill. Even the Senate Republican leader, Mitch McConnell, whose partisan obstructionism is the stuff of legend, is on board.
Looking beyond Congress, earlier this year, Defense Secretary Lloyd Austin III ordered the establishment of an independent commission to conduct a 90-day review of the sexual assault and harassment problem. Among its early recommendations, the panel endorsed removing investigations of such crimes from the chain of command. President Joe Biden has previously expressed support for doing so for an array of felonies. This is a proposal that has clearly met its moment.
Except. The bill may not receive a proper vote. It is currently sitting in the Senate Armed Services Committee, whose chairman, Jack Reed of Rhode Island, is impeding its progress — with an assist from the ranking Republican, Jim Inhofe of Oklahoma. For years, these two old bulls, both Army veterans, opposed disrupting the chain of command in such cases, in alignment with the military’s objections. Inhofe still does. Reed now says that he supports shaking up the way sexual assault is handled, but that he nonetheless opposes Gillibrand’s bill because it applies to other felonies as well. Insisting that the proposal needs more debate, the chairman says he will fold it into negotiations over the giant military authorization bill that lawmakers must tackle this year.
In the Senate, process is often the murder weapon of choice. Reform advocates are accusing Reed and Inhofe of being too deferential to the military and trying to delay and dilute the bill, if not derail it altogether.
“They are both against my bill, and they would like to kill it in committee,” Gillibrand told the Times recently.
If this happens, it will be a disservice to the country.
No one seriously disputes that the U.S. military has a sexual assault problem. According to the Defense Department’s 2018 report on the subject, in fiscal year 2018, an estimated 20,500 service members were sexually assaulted or raped, including 13,000 women and 7,500 men.
Only a tiny fraction of reported cases result in a conviction. That leads to lower confidence in the military justice system for the all-volunteer force. Many incidents go unreported altogether, which is unsurprising considering that “64% of women who reported a sexual assault face retaliation,” according to Protect Our Defenders, an advocacy group.
The military has long argued that removing prosecutorial decisions from the chain of command would undermine commanders’ authority and harm the services. But that claim doesn’t withstand much serious scrutiny. Moreover, defense officials have repeatedly pledged to deal with the problem, but their efforts thus far have not curbed it.
The Defense Department’s 2018 report on sexual assault said the estimated number of service members who experienced sexual assault within the year before being surveyed rose to 20,500 in that fiscal year from around 14,900 in fiscal year 2016. The number of reported incidents of sexual assault that occurred during military service rose in that period as well, to 6,053 from 4,794. The percentage of victimized service members who chose to report an incident, though, declined slightly, to 30% from 32%.
The case for reform received tragic support last year following the April murder of Spc. Vanessa Guillén by another soldier at the Army’s Fort Hood. Investigators learned that, unrelated to her death, Guillén had endured harassment by her supervisor, which unit leaders had failed to address despite the problem being repeatedly reported. The base in general was found to have a command climate “permissive of sexual harassment and sexual assault.” The national attention spotlighted how the existing system had failed Guillén.
While sexual assault is the focus of the reform push, supporters of Gillibrand’s proposal say reforming the military justice system more broadly will make it fairer and less prone to bias — and help address existing racial disparities in prosecutions and convictions. They warn that singling out sexual assault would establish a “pink court,” effectively creating a two-tiered justice system and further stigmatizing victims.
Advocates also point out that many U.S. allies, including Israel, Britain and Canada, have already made similar changes to their military justice systems.
Gillibrand is happy to have a floor debate over the merits of the bill, maybe even fights over amendments. But she is determined not to let the plan get delayed and then chewed up in the fight over the sprawling National Defense Authorization Act, as has happened in the past.
In recent days, she has been trying to use a maneuver that would bring the bill directly to the Senate floor. Each day the chamber is in session, she asks for unanimous consent to open debate. Each day that she asks, Reed, backed by Inhofe, objects. Gillibrand plans to continue her daily requests indefinitely.
Supporters of the bill are hoping the issue will get a new wind when a bipartisan coalition in the House introduces a related bill, which is expected in the coming week. Reform-minded lawmakers and staff members have been working to woo members of the Congressional Black and Hispanic caucuses, which could give the issue even more kick.
There has been much debate of late over whether the filibuster makes it too hard to enact meaningful legislation. Gillibrand’s bill has more than enough support to clear that hurdle and take a much-needed step forward to address an urgent, long-standing crisis. If only it is given a fighting chance.