Claire McCaskil Responds To My Inquiry

April 1, 2014
Dear Mr. Rosen,

Thank you for contacting me regarding the unacceptable problem of sexual assault in the military.  I appreciate hearing from you on this important issue, and I welcome the opportunity to respond.

In December, 2013, I joined a bipartisan group of my colleagues in passing the National Defense Authorization Act (NDAA) for Fiscal Year 2014, which included historic reforms I fought to include that address sexual assault in the military.  This legislation will force the military to better protect survivors and hold perpetrators accountable.  Rape and sexual assault have no place in the military, and I am pleased that these historic reforms will become law. 

As a former prosecutor who has tried many challenging rape and sexual assault cases, I have held the hands of survivors of sexual assault.  I have comforted them about their fears in testifying against those who attacked them.  I know how difficult it is for a survivor to come forward.  Survivors must be encouraged to report the assaults against them, perpetrators must be held accountable, and survivors must receive the care they need.  Unfortunately, the U.S. military has failed to provide such an environment for victims of sexual assault in its ranks, leading to unacceptably high numbers of unreported incidents, insufficient numbers of prosecutions and inadequate support of victims.  In the face of this crisis, I have joined with many of my colleagues in the Senate to work to pass laws to force change and to further demand that military leaders act to remedy this situation.  Getting more survivors to report the crimes that have been committed against them is a particularly important step in changing the tide of sexual assault in the military. 

One especially important provision in the NDAA strips military commanders of the authority to vacate or nullify a jury verdict, a provision I fought to include after I learned of a case at Aviano Air Force base in Italy where a military commander used his authority to dismiss a jury conviction against a military sex offender, reinstate him in the Air Force, and expunge his record.  My provision will ensure that this never happens again.  The bill also strengthens accountability in the Uniform Code of Military Justice (UCMJ) by requiring commanders to provide written justification for any modification they make to a criminal sentence.

To prevent commanders from dismissing a sexual assault case against the advice of legal counsel, the NDAA includes a provision requiring that any case involving sexual assault where a commander overrules the advice of a Staff Judge Advocate to proceed to court martial be automatically referred to the civilian Service Secretary for a final decision on how to proceed.  This means the top civilian leaders in the Department of Defense will have the final decision on whether to take these cases to court martial.  The bill also makes it a crime under the Uniform Code of Military Justice to retaliate against a servicemember who has reported a crime.  In addition, any person found guilty of an offense of rape, sexual assault, forcible sodomy, or an attempt to commit any of those offenses will be required to receive a punishment that includes, at a minimum, a dismissal or dishonorable discharge.

The NDAA also includes a number of provisions strengthening protections for survivors.  For example, the NDAA requires each of the military services to provide victims with their own lawyer, which will provide a level of legal support that is unmatched in the civilian justice system.  I also fought to include provisions ensuring that military commanders have the authority to move from a unit an individual accused of sexual assault in order to protect a victim from unwanted contact with the reported perpetrator and requiring a commander to receive input from a victim before arriving at any decision to modify the sentence of a convicted offender.  These changes will serve to create a more supportive environment where a victim's voice can be heard and where victims will feel safer and more confident about reporting crimes against them, a step that requires both strength and courage.

In addition, recent media reports have detailed the case of a female Midshipman at the U.S. Naval Academy who was subjected to nearly 30 hours of intimidating and invasive questioning by attorneys representing her alleged assailants during an Article 32 proceeding - a pre-trial investigation required before a case can be referred to a general court-martial.  Too often, victims come forward only to be re-victimized during the Article 32 process.  The NDAA includes a provision I fought for that will ensure that victims who come forward to report sexual assault are not harassed and intimidated during Article 32 proceedings.  Specifically, the bill will limit the scope of the proceedings to the question of probable cause and would allow a victim to submit a sworn statement rather than undergo direct questioning at the proceeding.

The reforms enacted in the NDAA represent a significant first step in how the military handles cases of sexual assault within its ranks, however further improvements are needed.  For this reason, on March 10, 2014 the Senate passed a bill that I introduced, S. 1917, the Victims Protection Act of 2014, by a vote of 97-0.  This bipartisan bill builds on the reforms passed into law with the NDAA, including the elimination of the "Good Soldier Defense." The Victims Protection Act specifically prevents individuals from using good military character as a valid defense against sexual assault charges. Additionally, this legislation would, among other things, ensure commanders are held more accountable by linking their promotion reviews to their handling of allegations of sexual assault and the treatment of those under their command who report these crimes.

I believe that the reforms included in the Victims Protection Act and the NDAA represent the strongest possible protections for victims.  As you may know, an alternative approach, proposed by Senator Kirsten Gillibrand of New York, would strip commanders entirely of their responsibilities, including their ability to convene and proceed to courts martial.  I do not believe that this approach would result in stronger protections for victims or increased prosecutions.

Over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which a commander ultimately decided to proceed to a court martial.  Those 93 survivors would not have had their day in court under this alternative proposal.  In fact, the ongoing case at the Naval Academy will proceed to a court martial because the Commander at the Naval Academy has ordered a trial, even though the Judge who conducted the initial investigation recommended that the case not proceed to trial.  Without a commander being involved and being interested in maximizing discipline as well as empowering a victims' voice, this victim would never get her day in court.

Additionally, stripping commanders of their ability to move cases forward removes a key tool for protecting survivors - command support is crucial in creating a climate of acceptance and protection for survivors, a climate that is vital for increasing the number of victims who feel comfortable coming forward to report.  Removing the chain of command from the decision making process has been tried by some of our allies and has not resulted in an increase in reporting of sexual assaults.  In fact, a panel created by Congress to study sexual assaults in the military verified that none of America's allies who made this change did so to protect victims, and none saw significantly more victims come forward.  Finally, removing commanders from this process would create a separate, parallel legal systems for handling sexual assault, resulting in a number of constitutional and procedural problems that would only serve to re-victimize survivors and prolong legal proceedings.  For all of these reasons, I strongly believe that the reforms in the NDAA will better protect victims and hold perpetrators accountable.   

The historic reforms included in the NDAA and the Victims Protection Act are a step in the right direction to combat sexual assault in the military.  However, if the military continues to fail to address the crisis of sexual assault, more changes will be forthcoming.  I will not rest until I am confident that survivors in the military feel comfortable coming forward, perpetrators are fully held accountable, and survivors are receive the care and support they need.

Again, thank you for contacting me. Please do not hesitate to contact me in the future if I can be of further assistance to you on this or any other issue.

Sincerely,

Claire McCaskill
United States Senator

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