With the Senate doing what it does best these days – splintering into partisanship and deadlocking – lawmakers punted last week until after the Thanksgiving holidays a vote on a must-pass defense authorization bill. As a result, Kirsten Gillibrand’s controversial proposal to put independent prosecutors – rather than military commanders – in charge of military rape and other serious charges could get the 60 votes it needs to pass.
That would be a good thing.
Gillibrand, D-N.Y., makes a compelling case for this more radical change. In a commentary she coauthored with, of all people, Sen. Ted Cruz, R-Tex., she pointed out that “across the branches, a majority of service members – 74 percent of females and 60 percent of males – perceived barriers to reporting [sexual assaults]. And, that's only among the soldiers who were willing to report. The [Department of Defense’s] report stated that 66 percent of victims said they were not comfortable enough to report it, 50 percent believed nothing would be done if they did, and 47 percent cited fear of retaliation to explain their silence.”
Those statistics highlight a failure of military commanders. They are part of the problem – a huge systemic problem that has left servicewomen and servicemen largely unprotected from serious crimes and unable to get justice for the harm they incurred.
The military estimates that as many as 26,000 service members were the targets of unwanted sexual contact in 2012, but only 3,374 incidents of sexual assault were reported to military officials. Sadly, the report uncovered that in many cases where sexual assault charges were pursued, investigations were haphazard and negligent with cases lacking basic elements including simple witness interviews.
Critics of Gillibrand’s approach have embraced a plan pushed by her colleague and friend, Sen. Claire McCaskill, D-Mo., a former prosecutor who prefers keeping prosecutions within the chain of command to ensure commanders are held accountable and maintain the good order of the military. Her proposal, which has the support of military leaders and key senators including Armed Services Committee Chair Carl Levin, D-Mich.,would drop the “good soldier” defense from military evidence rules in sexual assault and rape cases unless military character is directly relevant to the crime alleged, and would establish a more stringent civilian review of disagreements between military prosecutors and commanders.
But Gillibrand is right that it is far easier for people to come forward with assault claims if an impartial third-party is involved, and not a service member’s commander. And as she aptly points out, the United States’ strongest allies, including Israel, Britain and Germany, already use this approach. It would be hard to make a case that those countries, especially Israel, have abandoned good order or devolved into chaos as a result.
Gillibrand’s plan is backed by national veterans groups, victims’ advocates, 17 of the 20 female senators and a bipartisan coalition that includes not only Cruz but Democratic senate leader Harry Reid.
In a Washington Post-ABC News poll released last week, respondents also backed her approach: Nearly six in 10 people said they believe decisions in military sexual assault prosecutions should be made by an independent group instead of within the military chain of command.
When the Senate returns next month, lawmakers should give military victims of this vicious crime the best shot at justice that they can. Gillibrand’s plan does that.
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