Lawmakers, frustrated by the Defense Department’s inability to curb rape in the ranks, are moving closer to possibly making a momentous change in the military justice system.
Members of the Senate Armed Services Committee are increasingly receptive to a long-standing proposal by New York Democrat Kirsten Gillibrand, chairwoman of the Armed Services Personnel Subcommittee, to move responsibility for prosecuting sexual assault, and perhaps other major crimes, from military commanders to independent prosecutors.
Several committee members this week hinted that they would back Gillibrand, in some cases reversing earlier positions. And, in so doing, they rebuffed abiding Pentagon resistance to the proposal.
Momentum may be gathering, meanwhile, behind a similar House proposal by Jackie Speier, the California Democrat who chairs the comparable Armed Services personnel panel. Nearly half the House co-sponsored her bill in the last Congress.
Gillibrand has long argued that major crimes such as murder and rape should be prosecuted independent of military brass. Speier’s legislation, by comparison, is targeted at sex crimes.
President Joe Biden, unlike his two immediate predecessors, unequivocally supports such a change, so Defense Secretary Lloyd J. Austin III may soon implement it.
Biden “is further along on the solution than many of our military leaders,” Gillibrand told CQ Roll Call in a statement.
GOP movement
Even more important than Biden’s backing is the mounting support in Congress for enshrining the change in law — a potentially historic milestone.
In 2014, when Gillibrand’s proposal came up for a Senate floor vote, three-quarters of Senate Republicans voted against it. Some of them are no longer in office.
But now many Republicans, including key Senate Armed Services members, are beginning to file into Gillibrand’s camp.
One Republican Senate Armed Services member, Thom Tillis of North Carolina, who was not in the Senate in 2014, said in a brief interview this week that he is dismayed by the military’s lack of progress in dealing with sexual offenses and is considering supporting Gillibrand’s proposal.
“I’m beginning to be more open to it,” Tillis said. “A lot of time’s passed, and a lot of things haven’t changed.”
Similarly, another committee Republican who was not in the Senate in 2014, Dan Sullivan of Alaska, said he has been speaking with Gillibrand about her proposal.
“I think it’s in play,” said Sullivan, a former active-duty Marine who still serves as a reservist.
Some influential Senate Republicans will continue to oppose Gillibrand’s proposal. James M. Inhofe of Oklahoma, the most senior Republican on the Senate panel, told CQ Roll Call it is more important to prevent sex crimes than to prosecute them.
“There’s more we can and must do on this serious issue, but taking military leaders out of the equation is not the answer — finding better ways to prevent it from happening in the first place is,” he said via email.
Democrats reconsidering
With Biden backing the Gillibrand-Speier idea, Democrats are likely to largely fall in line behind it. Some Democratic senators who voted against Gillibrand’s proposal in 2013 and 2014 hinted this week that they may change their minds.
When the Senate Armed Services Committee voted in 2013 to oppose Gillibrand’s proposal, a key “swing bloc” of senators did so reluctantly and said they would prefer to give the Pentagon a chance to fix its rape problem, Virginia Democratic Sen. Tim Kaine said at a committee hearing Tuesday.
But today, Kaine said, “virtually all” of those key senators are disappointed with the unremitting reports of sexual assaults in the military, and those lawmakers are ready to consider “a different path” — an apparent allusion to Gillibrand’s proposal.
Maine Independent Angus King, who was also among the Armed Services senators who voted against Gillibrand’s proposal in 2013, said at the same hearing: “I’m also in the camp of being receptive to a more significant change.”
One key unanswered question is whether Rhode Island Democrat Jack Reed, the Senate Armed Services chairman, would reverse his 2013 vote against Gillibrand’s proposal. West Virginia Democratic Sen. Joe Manchin III also voted against Gillibrand eight years ago.
The House might be a more hospitable venue than the more narrowly divided Senate for an attempt to change how sexual crimes are prosecuted in the ranks. But that is not a foregone conclusion, and the chamber has yet to weigh in on the question.
“It’s time to move those cases from the chain of command to give survivors the trust and confidence in the system to come forward,” Speier told CQ Roll Call in a statement.
Speier secured a provision last year in the House’s fiscal 2021 defense authorization bill that would set up a temporary pilot program to have a chief prosecutor at the service academies handle sex crimes.
The provision never made it into the final bill, amid opposition from key senators and Pentagon officials, congressional observers said.
Rising assaults, retaliation
Since the Senate votes of 2013 and 2014, the problem of sexual assault in the military has gotten worse, by many measures. Last year saw a record number of assaults reported and the lowest conviction rate yet, Gillibrand said during Austin’s Jan. 19 Senate confirmation hearing.
Protect Our Defenders, a group dedicated to combating the problem, calls it “an epidemic of rape.”
“There are an estimated 20,500 military men and women sexually assaulted in a year, yet barely 100 offenders are convicted,” Don Christensen, the group’s president, said in an email.
What’s more, 64 percent of those who reported a sex crime perceived some form of retaliation, a recent Defense Department survey showed.
Inhofe, on the other hand, said the rising reports show victims have growing confidence in the system and are more willing to come forward.
In any event, concern about the problem has grown too, Christensen and others said, due partly to growing awareness of it and partly to the #MeToo movement against sexual crimes.
A political tipping point, some say, was the case of Vanessa Guillen, a soldier at Fort Hood, Texas, who was killed and dismembered last April by a fellow soldier — a man who unconfirmed reports indicated had sexually harassed her.
An investigation after Guillen’s death found a climate at Fort Hood that tolerated violent crimes, including sexual assault. The investigators determined that commanders there should not oversee prosecutions of sexual crimes.
Guillen’s case was “the first time the military was really faced with #MeToo,” said Christensen, a former Air Force prosecutor.
Presidential backing
When Biden was asked at a fundraiser last April whether he would support moving prosecution of major nonmilitary crimes outside the chain of command, his answer was: “Yes, yes, yes.”
Austin committed to Gillibrand at his confirmation hearing that he would tackle sexual assault as a top priority.
Austin, in a Jan. 23 memo to Defense Department leaders, noted that Biden wants a 90-day commission to explore options to address sex crimes in the military. Austin said he supports that effort, yet added, “But I do not want to wait 90 days to take action.” He ordered a review of actions to date.
Referring to sexual assault, he spoke of “enemies within the ranks” and said, “We must do more.”
He did not, however, commit to changing the way crimes are prosecuted.
Up to now, and including as recently as last year, Defense Department officials have resisted that change. They have argued that commanders must retain responsibility for discipline in their units.
Gillibrand said at Austin’s hearing that previous Pentagon promises in this regard have proved “empty.”
Similarly, Speier said Defense Department officials “say all the right words about how they’re working to eliminate sexual violence and DoD has spent $1 billion over the past decade to prevent and respond to the issue, yet the problem not only persists, recent surveys show it’s getting worse.”
Many lawmakers bowed to the Pentagon’s give-us-a-chance position in 2013 and 2014. In the meantime, Congress passed 150 provisions, by one count, to deal with the problem.
But Kaine, at the Tuesday hearing, said he and some other senators are “really unhappy with the progress since 2013. We’re now very open to pursuing a different path, as we said we would at the time.”
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