Two key Senators in the effort to crack down on military sexual assault said on Thursday they would not support a bill that would strip commanders of their authority to say whether a case should be prosecuted.
Sens. Claire McCaskill, D-Mo., and Kelly Ayotte, R-N.H., told reporters they believe a special panel that studied the issue and recommended by a 7-2 vote in late January to keep commander authority made the right choice.
"When they look at this and say [removing the commander's authority] is not going to increase reporting and it's not going to reduce the incidents of sexual assault [then] I'm still not sure what is the goal of doing" it," Ayotte said.
The announcement by the two lawmakers is a blow to legislation filed last year by Sen. Kirsten Gillibrand, D-N.Y., that would remove the commander's role and leave the call to the prosecuting judge advocate. Proponents for pulling the commander out of the chain argued that they have a vested interest in suppressing incidents of sexual assault, or may simply be biased in favor of defendants.
McCaskill and Ayotte have proposed their own legislation, which includes removal of the so-called "good soldier defense," which has allowed defendants to use "good military character" as a consideration in their favor. It also requires special counsels to advise victims of the advantages and disadvantages of a case being prosecuted in the military or civilian justice systems and gives victims a say in the venue.
Finally, it also allows victims to challenge their discharge or separation from the military and gives the prosecutor more of a role in advising commanders on going to court martial with a sexual assault case.
Based on the findings of the panel, taking the commander out of the picture does not do anything to improve the situation for victims, Ayotte said.
McCaskill said she agreed Gillibrand's argument early in the debate because "it sounded right." She said that was also a point made by members of the Response Systems Panel, one of them former Rep. Elizabeth Holtzman, D-NY, who authored the federal Rape Shield Law, and Mai Fernandez, executive director of the National Center for Victims of Crime.
A spokesman for Gillibrand slammed the panel's recommendation last week, telling U.S. News and World Report that there "is nothing surprising about a Pentagon sub-panel working mostly behind closed doors supporting stated Pentagon policy and encouraging more time to wait and see if the problem gets better."
McCaskill was dismissive of such criticisms. She pointed out that the majority of the 7-member panel were civilians and female, among them Holtzman, whom she described as "a liberal feminist icon," and former Federal District Judge Barbara Jones, who wrote the judicial opinion striking down the Defense of Marriage Act.
"Anyone who says this was a Pentagon panel, they are only saying that because they didn't decide what they wanted them to decide," McCaskill said. "I can assure you, if the decision had gone the other way they would be acknowledging that this was not a panel that was under the control of the military or the commanders, but that they were in fact dedicated professionals and experts who made a call her based on evidence."
Ayotte said the Pentagon has been involved in the issue lately only to the extent officials there responded to lawmakers request for information.
"My sense is that when specific members have inquires they want the pentagon to answer, they will, but beyond that I think this is really a policy debate based on what the evidence is," Ayotte said.
