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Panel approves pilot program to take military sex assault cases outside chain of command

Lt. Gen. Michelle Johnson, superintendent, United States Air Force Academy, shakes the hand of Congresswoman Jackie Speier before testifying with the House Armed Services Committee on sexual assault within America's service academies, May 2, 2017, Washington, D.C. Johnson was joined by Vice Adm. Walter E. "Ted" Carter, Jr., superintendent, U.S. Naval Academy, Lt. Gen. Robert L. Caslen, Jr., superintendent, U.S. Military Academy and Dr. Elizabeth Van Winkle, Assistant Secretary of Defense for Readiness. (U.S. Air Force photo/Wayne A. Clark)

Advocates of taking the decision for prosecuting military sexual assaults — a persistent problem within the ranks — outside the chain of command scored a significant victory Wednesday when the House Armed Services Committee approved a pilot program that would do just that at the service academies.

Rep. Jackie Speier, chairwoman of the Military Personnel Subcommittee, pushed through a four-year program that would require the commandants of the service academies to follow the recommendation of an independent prosecutor in cases of sexual assault.

The language triggered familiar objections from Republicans about removing such cases from the chain of command, but ultimately prevailed on a mostly party-line vote.

Debate on Speier’s language marked the beginning of the contentious portion of the marathon markup of the massive Pentagon policy bill.

Speier’s amendment would authorize a special prosecutor to handle sexual assaults at the military academies, marking her first legislative victory in her yearslong effort to take the decision for prosecuting these crimes out of the chain of command.

“The number of sexual assaults at the military service academies has more than doubled — I repeat, doubled — from 327 to 747 (from) 2013 to 2018,” Speier said. “Over that time, reporting rates decreased from 16% to 12%.”

Speier’s proposal would require the commandants of the service academies to accept the determinations of an outside prosecutor in cases of sexual assault. But removing these cases from the chain of command has been suggested before, and the idea has proved controversial both on Capitol Hill and at the Pentagon.

Rep. Michael R. Turner, R-Ohio, countered with a substitute amendment that would require a comprehensive review of the role of the chain of command in sex-related offenses. His substitute mirrored language in the Senate’s version of the National Defense Authorization Act.

Cadets and students could build a constitutional argument that they are treated differently than others in the military, he said.

“You start changing the criminal code, you start having cascading effects,” he said.

Rep. Don Bacon, R-Neb., who was a wing and group commander in the Air Force before he was elected to Congress, also voiced reservations.

“I am very leery of undermining the court martial authority of our commandants,” he said. “Chain of command involves commanders, not lawyers.”

After a 27-30 vote along party lines (with Rep. Elaine Luria, D-Va., voting yes with Republicans), the panel rejected Turner’s substitute and adopted Speier’s amendment on a voice vote.

Congress has for years included provisions to combat military sexual assault in the annual defense authorization bill, but the military continues to grapple with the problem within its ranks. The Pentagon’s most recent statistics indicate a sharp rise in sexual assaults — from 14,900 in 2016 to 20,500 in 2018.

In April, the Pentagon announced the formation of a new Sexual Assault Accountability and Investigation Task Force. Acting Defense Secretary Patrick Shanahan also expressed support for making sexual harassment a standalone crime in the military code.

The issue of chain of command has long been at the crux of the debate, with Speier, D-Calif., and New York Sen. Kirsten Gillibrand, the top Democrat on the Senate Armed Services Personnel Subcommittee, the most vocal advocates for taking the decision for prosecution outside the chain of command. They have argued that is the only way to ensure these crimes are prosecuted.

But Turner, who has pushed for years for other provisions to address this issue, and other lawmakers have argued that commanders should retain this authority to maintain good order and discipline in their ranks.

A second amendment from Speier that would protect victims of sexual assault in the military from reprisal was adopted on a voice vote.


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