Senate Committee Reaches Deal on Prosecution Decisions for Most Felonies

In this March 14, 2021, file photo, Sen. Kirsten Gillibrand, D-N.Y., speaks during a news conference in New York. (Seth Wenig/AP Photo File)

The decision to prosecute sexual assault or other serious crimes such as kidnapping or murder would be made by military attorneys outside a unit's chain of command under an agreement reached by the Senate Armed Services Committee late Wednesday.

The panel, deliberating a proposed $740 billion defense policy bill this week, agreed to include all provisions of New York Sen. Kirsten Gillibrand's Military Justice Improvement Act, which calls for removing prosecutorial decisions for serious crimes that aren't inherently related to military service from unit commanders.

The proposal reaches far beyond what the Defense Department has said it plans to implement by 2023, which includes removing decisions on seven crimes, including sexual assault and harassment, stalking, posting photos without permission and domestic abuse, from the chain of command.

Committee Chairman Sen. Jack Reed, D-R.I., had said the issue should be addressed within the fiscal 2022 National Defense Authorization Act, or NDAA. On Wednesday, he and Gillibrand announced they had reached an agreement.

"We are proud to announce the committee has put forth a strong bill that makes historic changes to the military justice system and combats the scourge of military sexual assault," the two said in a joint statement. "We look forward to working together to bring this bill to the Senate floor and making the National Defense Authorization Act law."

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For Gillibrand, the deal marks a milestone in an eight-year quest to remove prosecution decisions on sexual assault from the chain of command. With strong support in the House for a change, the passage of the provision in some form in the defense bill is nearly assured.

The closest Gillibrand has come to getting the legislation through the Senate was in 2014, when the chamber struck down her bill in a 55-45 vote, despite support from Republicans including Sens. Mitch McConnell and Rand Paul of Kentucky and Ted Cruz of Texas.

Earlier this week, Deputy Defense Secretary Kathleen Hicks told lawmakers that the Pentagon is taking steps to implement recommendations from an independent commission convened to study the issue by 2023.

Hicks objected to the proposal to remove prosecutorial decisions for all serious crimes from the chain of command.

"The question is around the scope of the set of offenses that would move outside the chain of command, which is, at once, a very large issue and, at the same time, not really related to the sexual assault/sexual harassment scope that we're trying to push," Hicks said during a hearing before the House Armed Services personnel subcommittee. "We have a concern that [as] we are trying to accomplish this important goal on sexual assault and sexual harassment, we would be swamping it and diffusing our efforts with other goals."

But lawmakers, including Gillibrand, have said that the military justice system is racially biased, citing statistics that service members of color are prosecuted at higher rates than white troops.

"It really comes down to a data set that soldiers, sailors, airmen, Marines and guardians don't trust commanders," Rep. Anthony Brown, D-Md., told Hicks. "And that's why we're taking [the decision] away from the commanders. I put into the record the 1972 study. What they found was a lack of trust, Black and brown service members, in commanders. 

"This issue has been around for a long time," he added. "It's an under-prosecution of sexual assault and an over-prosecution of Black and brown people."

Some lawmakers also have argued that commanders do not have the technical expertise to decide whether a crime should be prosecuted.

"Crimes like murder, arson and robbery are complex to investigate and prosecute," said House Armed Services Personnel Subcommittee Chairwoman Rep. Jackie Speier, D-Calif., during a hearing Tuesday. "And commanders who are not attorneys do not have the expertise or experience to make high-quality prosecution decisions, and victims and their loved ones may perceive a conflict of interest that discourages reporting."

In addition to including Gillibrand's provisions, the proposed fiscal 2022 NDAA includes efforts to improve the Defense Department's sexual assault prevention programs.  

Sen. Tim Kaine, D-Va., said Thursday he is proud of the work that was accomplished by the committee, but he also described the language related to changes to the Uniform Code of Military Justice as a "conceptual formulation."

"It's still going to need a little bit of sandpaper, you know, applied to it to make it just right," he said. "We'll likely do that between now and when the bill comes up on the floor. But we're all disappointed in the results that we're seeing, and we're committed to make some major changes."

The bill is expected to come before the full Senate in September, according to lawmakers.

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

Related: 'It's Always a Long Game': Inside Kirsten Gillibrand's Campaign to Overhaul Military Justice

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