MacCaskill's Military Sexual Assault Bill Passes Senate After Gillibrand's Fails

Senator Clair McCaskill (D-MO). Photo: John Shinkle/Politico

From Politico
By Daren Samuelsohn

Sen. Claire McCaskill’s legislation to force changes in the military’s sexual assault policies passed the Senate on Monday without dissent, capping her latest bid to get the Pentagon to clean up its ranks.

The 97-0 vote on the Missouri Democrat’s measure establishing new rules for how victims and defendants should be treated came as no surprise, particularly since it had already cleared a procedural vote to final passage, 100-0.

Even Sen. Kirsten Gillibrand (D-N.Y.) and backers of a more controversial approach to overhaul the World War II-era military justice system — removing the chain of command from prosecutions — supported McCaskill’s legislation as another key step to give victims greater power in the legal process.

Instead, the suspense surrounded whether - and when - McCaskill’s approach would get its moment on the floor. The Senate had punted on sexual assault votes for several months due to procedural and partisan breakdowns completely unrelated to the issue. McCaskill’s approach, touted in a recent Washington Post column as “meatier than advertised,” would eliminate the “good soldier” legal defense from evidence rules unless a defendant’s military character is directly tied to the alleged crime.

It would allow sexual assault victims to weigh in on whether their cases should be prosecuted in a civilian court instead of in the military justice system. And victims could use a confidential process to challenge any discharge or separation from the service that comes as a result of their cases.

All of the sexual assault policy changes made in the most recent defense authorization law — there were dozens of provisions, including making it a crime to retaliate against victims and removing the commander’s ability to overturn a jury verdict — would also be extended to the military service academies.

“We have accomplished in less than a year sweeping, historic, sea-changing reforms for the American military when it comes to crimes of sexual assault,” McCaskill told reporters last week. “We have now got a laundry list of things that are going to protect victims, that are going to bring perpetrators to justice, that are going to hold commanders accountable.” McCaskill’s measure now heads to the House, where Republican and Democratic aides say they expect to see her proposals surface during debate later this year on the new defense authorization bill.

“Certainly, this is something that will be under consideration along with other sexual assault prosecution reforms as we continue to help the department affect the kind of culture change needed here,” said a House Armed Services Committee GOP aide.

Victim advocacy groups that pushed for Gillibrand’s chain-of-command change said Monday they‘d welcome the improvements to the military justice system included in McCaskill’s proposal.

“Although this bill does not create the critical fundamental change needed to improve the military justice system, [McCaskill’s legislaiton] builds on useful reforms already undertaken by Congress,” said Greg Jacob, policy director for Service Women’s Action Network. “It is one more step toward creating a military where men and women can serve their country without threat of harassment or assault.”

Nancy Parrish, president of Protect Our Defenders, a group that challenged McCaskill’s opposition to the-chain-of-command bill in one of her home state newspapers, called the senator’s proposal “an important change and absolutely necessary.”

But Parrish also said the bill could still be tweaked on the section dealing with a defendant’s military character “to make absolutely clear” that its limited to military-specific offenses like desertion or failure to obey an order. If it isn’t changed, she warned that judges could have “too much wiggle room to essentially ignore the rule.”

President Barack Obama has given the Pentagon until the end of the year to show improvements on combating sexual assaults, otherwise he could order up more changes. In an interview aired Friday on the PBS NewsHour, Joint Chiefs Chairman Gen. Martin Dempsey praised both Gillibrand and McCaskill for their work on the issue but noted the White House-imposed timeline “to review this thing and show me you can make a difference.”

“Just because Sen. Gillibrand’s vote was defeated yesterday doesn’t mean that a year from now it may not be reintroduced,” Dempsey said. “And if we haven’t been able to demonstrate we’re making a difference, then we deserve to be held to the scrutiny and standard.”

Speaking to reporters last week, McCaskill warned that obstacles remain to address the issue.

“This is always going to be the most under-reported crime in America because no woman wants to talk about the most personally painful moment of her life in public, much less to be questioned about it, much less to be challenged by her perpetrators,” the senator said.

“We’re never going to get any of these crimes 100 percent reported because of the nature of the crimes,” she said. “But I believe we will have a much higher reporting [rate] in the military with our reforms than we will have, for example, where I think most under-reporting occurs now.”