WASHINGTON -- Following a months-long, emotionally-charged showdown between Democratic Sens. Claire McCaskill (Mo.) and Kirsten Gillibrand (N.Y.) over their competing proposals to curb military sexual assault, Gillibrand's bill to remove sexual assault cases from the chain of command failed to get the 60 votes it needed to overcome a filibuster.
Gillibrand's proposal to take the decision to prosecute military sexual assault cases out of commanders' hands and charge it to independent military lawyers had majority support in the Senate and would have passed if it had gone to an up-or-down vote. But the motion to proceed to the vote needed 60 votes to overcome a filibuster, and it received only 55. The aye votes included Majority Leader Harry Reid (D-Nev.) and, surprisingly, Minority Leader Mitch McConnell (R-Ky.).
"Today, a minority of senators used procedural tactics to quash the will of a majority of the Senate," said retired Capt. Lory Manning, senior policy fellow for the Service Women's Action Network, a veteran advocacy group. "To this small fraction of lawmakers we say: today's disappointment is merely a detour in our march to justice. We will not stop fighting for military sexual assault survivors until service members receive the justice they deserve."
Gillibrand and the bill's supporters argued that 90 percent of rape victims in the military are not currently reporting their assaults because they do not trust the chain of command.
Out of 26,000 estimated military sexual assaults in 2012, only 3,374 were reported, and only 302 were prosecuted, according to the Department of Defense.
"The victims and survivors of sexual assault having been walking the halls of Congress for more than a year asking us to protect them," Gillibrand told her colleagues. "It's not about whether the members of Congress trust the chain of command. The people who do not trust the chain of command are the victims."
Gillibrand said she has met with dozens of victims who have told her that that they are afraid to report rapes to their commanders. She said one victim told her, "It's like being raped by your brother, and your father deciding the case."
Opponents of Gillibrand's bill, including the Pentagon, McCaskill and Sens. Kelly Ayotte (R-N.H.) and Lindsey Graham (R-S.C.), argue that there is no evidence showing that stripping commanders' responsibility for sexual assault cases would eliminate retaliation or encourage more reporting. Commanders should be held more accountable for sexual assault in the ranks, they said, not less.
"If you've got a rape in the barracks, the worst thing that can happen in a unit is for the commander to say, 'This is no longer my problem,'" Graham said.
He added, "This is about liberal people wanting to gut the military justice system. Social engineering run amok."
Supporters of Gillibrand's bill, however, could hardly be considered "liberal." Eleven Republican senators, including McConnell and Rand Paul (Ky.) and Ted Cruz (Texas), were prepared to vote in favor of it.
McCaskill and Ayotte said the sexual assault reforms they have proposed in their bill, which the Senate is expected to pass unanimously on Thursday, will be sufficient to address the problem without having to remove those cases from the chain of command. Their reforms would appoint a special victims counsel to advise victims of their options and require that commanding officers be graded on their success or failure to create a climate in which victims can report their crimes without fear of retaliation.
Congress passed additional reforms that were pre-negotiated by the House and Senate at the end of 2013. These reforms make retaliation against accusers a crime, require an inspector general to investigate all complaints of retaliation, ensure that any decision by a commander not to prosecute a sexual assault complaint must be reviewed and mandate the dishonorable discharge of anyone convicted of sexual assault.
House Speaker John Boehner (R-Ohio) told reporters on Wednesday that he doesn't think any additional reforms are necessary, implying that Gillibrand's proposal would have no shot of getting a vote in the House.
"I frankly think that the agreement that was stuck in the House in the defense authorization bill strikes the correct balance," he said. "And so I don't frankly see any reason at this point for any further action to be taken."
Gillibrand responded to the failed vote in a statement expressing her disappointment.
"I always hoped we could do the right thing here –- and deliver a military justice system that is free from bias and conflict of interest –- a military justice system that is worthy of the brave men and women who fight for us," she said. "But today the Senate turned its back on a majority of its members."
She continued, "As painful as today’s vote is, our struggle on behalf of the brave men and women who serve in our military will go on."
UPDATE: 3:30 p.m. -- The Senate voted unanimously to end debate and proceed to a vote on McCaskill's bill Thursday afternoon. The bill is scheduled for a vote on Monday, and it is expected to pass.
Sabrina Siddiqui contributed reporting.
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