After 8 Years of Effort, Senate Has Votes It Needs to Overhaul Military Sexual Assault Prosecutions

In this March 14, 2017 photo, Sen. Kirsten Gillibrand, D-New York, questions Marine Gen. Robert B. Neller, the commandant of the Marine Corps, at a Senate Armed Services Committee on Capitol Hill in Washington. (J. Scott/AP Photo)
In this March 14, 2017 photo, Sen. Kirsten Gillibrand, D-New York, questions Marine Gen. Robert B. Neller, the commandant of the Marine Corps, at a Senate Armed Services Committee on Capitol Hill in Washington. (J. Scott/AP Photo)

After nearly a decade pushing for legislation that would alter the way the U.S. military prosecutes sexual assaults, Sen. Kirsten Gillibrand, D-N.Y., finally has the votes to make it happen.

Gillibrand, along with Sen. Richard Blumenthal, D-Conn., and Republican Sens. Chuck Grassley and Joni Ernst of Iowa, announced Thursday they have more than 60 cosponsors for a bill that would place the decision to prosecute sexual assaults in the hands of trained attorneys, not line commanders.

The 60-vote threshold ensures that the legislation can override a filibuster that would effectively quash it for this Congress.

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Since 2013, Gillibrand has sponsored legislation that would alter military procedures for prosecuting sexual assaults, citing low rates of reporting and prosecutions. 

On Thursday, she called the movement in the Senate "a defining moment."

"For decades, sexual assault in our military has been an uncontrolled epidemic hurting readiness, recruitment and morale," Gillibrand said. "This commonsense legislation will ensure that the justice system works for all service members and enact measures to help prevent sexual assault across our armed forces."

Grassley said the momentum "vindicates years of work to secure justice for military survivors."

"It's utterly unacceptable that so many of those who serve our country in uniform have dealt with a system that's broken," he said.

The senators' announcement comes as more leaders inside the Pentagon have said they are receptive to the move following the recommendations of an independent review panel on the issue.

Both Gen. Mark Milley, chairman of the Joint Chiefs of Staff, and Army Chief of Staff Gen. James McConville said they are open to the idea; Master Chief Petty Officer of the Navy Russell Smith said Thursday that he personally feels "it's a positive step."

"I don't want to get ahead of my chief of naval operations, but we discussed this as well and, in my own opinion, I do feel like it's probably a good step," Smith said during a hearing on Navy and Marine Corps quality-of-life issues.

A survey of military personnel conducted in 2018 found that more than 20,000 service members had been sexually assaulted but just one-third had filed a formal report.

Reporting of assaults has also increased, up 13% in 2018 and 3% in 2019, according to the Defense Department.

Of the estimated 20,000 cases, fewer than 600 accused perpetrators were court-martialed.

A commission created to study the issue recommended in March that, for certain special victims crimes, an independent judge advocate who reports to the chief special victims prosecutor should decide whether to bring charges against alleged perpetrators and/or court-martial them.

Defense Secretary Lloyd Austin received the recommendations and has asked the military services, their secretaries and the Joint Chiefs of Staff to review them.

The National Institute for Military Justice, or NIMJ, a nonprofit organization that advocates for fair administration of justice in the armed forces, issued a release Wednesday in support of the changes, but also proposed they go further to address any crimes that carry a punishment of at least one year in prison.

"The time has come for this structural change," NIMJ Board of Directors members wrote. "Additionally, commanders should play no role in selecting court-martial members."

Gillibrand's legislation, the Military Justice Improvement and Increasing Prevention Act, or S. 1520, is supported by 61 senators, including 41 Democrats, 18 Republicans and two independents.

In the House, Rep. Jackie Speier, D-Calif., has proposed legislation that contains provisions similar to Gillibrand's and has the backing of Speaker of the House Nancy Pelosi and Rep. Adam Smith, D-Wash., chairman of the House Armed Services Committee.

Speier's proposed "I am Vanessa Guillen Act" not only would remove the prosecution decisions from commanders, it would criminalize sexual harassment and establish a process by which service members could make claims for negligence and seek damages in cases of sexual assault and harassment.

The bill is named for Guillen, an Army specialist who was killed just over a year ago at Fort Hood, Texas, allegedly by a fellow soldier who later took his own life. Guillen had tried to report twice that she had been sexually harassed, but her leadership failed to take action either time.

Late last month, retired Air Force Col. Don Christensen, former chief prosecutor of the Air Force and president of Protect Our Defenders, an advocacy group for victims of sexual assault, predicted that Ernst's support would prove pivotal to garnering more votes for the change.

Ernst is a retired Iowa National Guard lieutenant colonel who revealed in 2019 that she was raped in college.

"The passage of this critical legislation will increase our military's readiness and ability to bring the fight to the enemy. And will finally provide a real opportunity for justice for survivors," Christensen said.  

In a hearing on Navy and Marine Corps quality-of-life issues Thursday, Rep. Ed Case, D-Hawaii, said he would prefer the military to adopt the change on its own.

"I'm sure if we can't get it right, that's where it's going to go [to legislation]," Case said. 

-- Patricia Kime can be reached at Follow her on Twitter @patriciakime 

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