Sens. Kirsten Gillibrand, center, and Claire McCaskill, right, have rival proposals to change how the military handles sexual assaults.
(Photo: Jack Gruber, USA TODAY)
WASHINGTON - The Senate began consideration Wednesday of proposals to overhaul how the military justice system handles sexual assault, including a measure that would strip commanders of their input in such cases.
That proposal, introduced by Sen. Kirsten Gillibrand, D-N.Y., had support from a majority of the Senate, according to her office. Trained military lawyers would replace commanders, revoking their authority to prosecute or toss out cases.
Sen. Claire McCaskill, D-Mo., pursued a different, more gradual approach. It would allow commanders to determine the cases that get prosecuted but prevent them from overturning convictions and add more layers of review for their actions. It also would eliminate the "good soldier defense," which could be used to mitigate punishment for troops who perform well on their job. McCaskill's approach has support from Pentagon leaders.
The issue of sexual assault in the ranks erupted in the spring when the Pentagon released a study estimating that 26,000 instances of unwanted sexual contact - from groping to rape - occurred in 2012. That represented an increase by nearly a third over 2010. About 3,000 cases of sexual assault were reported, and about 300 were prosecuted.
"The bottom line is really simple: The current system oriented around the chain of command has been producing horrible results," Gillibrand said.
The chairman of the Armed Services Committee, Sen. Carl Levin, D-Mich., urged rejection of Gillibrand's approach. The key to combating sexual assault in the military is allowing commanders to court martial troops for the crime.
Gillibrand's amendment "removes a powerful tool" from those responsible for dealing with the problem, Levin said.
Sen. John McCain, R-Ariz., agreed with Levin, saying Gillibrand's amendment went too far and impugned the character of military commanders. Less far-reaching reforms, such as criminalizing retaliation against accusers, will allow commanders to address the problem.
"Do we trust the commanders to do the right thing with the proper parameters?" McCain said.
News about a number of high-profile sexual abuse cases in the military broke focused attention on the issue. In one case, a three-star Air Force general tossed out a jury's sexual assault conviction of a pilot. At the Air Force basic training base in Texas, more than 30 instructors have been convicted of sexually assaulting recruits. All the services have had problems with sexual assault, including the Army, which has investigated a sergeant in charge of sexual-assault prevention programs for operating a prostitution operation. Court martials have been ordered for two midshipmen at the Naval Academy for allegely sexually assaulting a classmate.
Currently, a high-ranking officer who is the defendant's superior decides whether to bring charges, who sits on the jury and whether a conviction or punishment can stand. The officer is neither a lawyer nor a judge, although he or she receives written advice from a military attorney.
The arrangement is a key principle for maintaining order within a fighting unit. It is a tradition the United States inherited from the British military when the nation was formed in the 18th century. Britain, Canada and other countries have moved away from commanding officer's authority, but it lives on in the American military's Uniform Code of Military Justice created by Congress.
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