Siding with the Pentagon’s top brass, the Senate Armed Services Committee approved legislation Wednesday to keep commanders involved in deciding whether to prosecute sexual assault cases, rejecting an aggressive plan to stem sex-related crimes in the armed forces by overhauling the military justice system.
By a vote of 17-9, the committee passed a bill crafted by the committee’s chairman, Sen. Carl Levin, D-Mich., designed to increase pressure on senior commanders to prosecute sexual assault cases by requiring a top-level review if they fail to do so. Levin’s proposal also makes it a crime to retaliate against victims who report a sexual assault and also would relieve commanders who fail to create a climate receptive for victims.
The committee rejected a proposal in a bill by Sen. Kirsten Gillibrand, D-N.Y., to remove commanders from the process of deciding whether serious crimes, including sexual misconduct cases, go to trial. That judgment would have rested instead with seasoned trial lawyers who have prosecutorial experience and hold the rank of colonel or above.
Members who backed Levin said they feared taking commanders out of the legal process would create more problems than it would solve by undercutting the ability of officers to maintain good order and discipline in their units.
Levin’s bill will be included in a sweeping 2014 defense policy bill. It retains a provision from Gillibrand’s proposal that would largely strip commanders of the power to overturn convictions in rape and assault cases
Under Levin’s legislation, the civilian secretaries of the military services would be required to conduct a review if a commander ignores the recommendation of a military lawyer to prosecute a sexual assault case.
Commanders actually are more likely to prosecute sexual assault cases than are military lawyers, Levin argued. He cited recent congressional testimony from commanders who said they have prosecuted sexual assault cases against the advice of military lawyers “because of the importance of the message that such prosecution sends to the troops.”
But Gillibrand, her voice rising, called Levin’s plan insufficient. She said the problem is not that commanders are dismissing the advice of the lawyers on their staffs, but that sexual assault victims fear reporting the crimes within their chain of command.
“If you look at the victims descriptions of what happens to them, their assailant is someone usually senior to them, someone up the chain, more decorated, a Purple Heart recipient, someone who has done great acts of bravery, and they see that the chain of command will not be objective,” Gillibrand said.
Only one Republican on the committee supported Gillibrand’s legislation: Sen. Ted Cruz of Texas, who said he was swayed by Gillibrand’s plea for an impartial reporting process.
By week’s end, the House is scheduled to vote on its version of a defense policy bill that includes a number of sexual assault prevention provisions.
The legislation approved last week by the House Armed Services Committee currently requires that anyone found guilty of rape, sexual assault, forcible sodomy or an attempt to commit any of those offenses receive a punishment that includes dismissal from military service or a dishonorable discharge.
Rep. Michael Turner, R-Ohio, plans to offer an amendment to the House bill that would make two years of confinement and a dishonorable discharge the mandatory minimum sentence for any service member convicted of rape or sexual assault.
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