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Sexual Assaults in the Military -- The Policy Matters

A lot has to happen between now and then -- but when President Obama signs this year's annual defense bill, I'm confident that it will be a watershed moment for justice in America's Armed Forces. We're on the cusp of legislative reforms that are nothing short of historic.
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A lot has to happen between now and then -- but when President Obama signs this year's annual defense bill, I'm confident that it will be a watershed moment for justice in America's Armed Forces. We're on the cusp of legislative reforms that are nothing short of historic, reshaping how the military handles sexual assaults in its ranks.

What will change look like?

  • Stripping military commanders of their ability to overturn jury convictions
  • Requiring civilian review if a commander declines to prosecute a case
  • Assigning victims their own independent legal counsel to protect their rights and fight for their interests
  • Mandating dishonorable discharge for anyone convicted of sexual assault
  • Criminalizing retaliation against victims who report a sexual assault
  • Eliminating the statute of limitations in rape and sexual assault cases

Historic? You bet. These proposals have already been approved by the Senate Armed Services Committee, and are included in the defense bill up for debate this week. But we're not stopping there.

Last week, I joined two of my women colleagues to announce that we will introduce an amendment to strengthen these already historic reforms. Our amendment would eliminate the "good soldier" defense for those accused of assault, allow victims a say in whether their case is pursued in military or civilian court, and look back at possible past instances of retaliation against victims. And the week before last, I joined a bipartisan group of senators backing legislation to reform the "Article 32" pre-trial process to better protect victims, which came under particular scrutiny following a recent Naval Academy rape case.

For me, this effort is personal. I spent years in Kansas City courtrooms, prosecuting rape cases and putting predators behind bars. And during seven years on the Armed Services Committee, I've battled the Pentagon on issues ranging from wartime contracting, to requiring preservation of medical evidence in sexual assault cases.

In this debate, I've used a single yardstick to measure each idea on the table: will it better protect victims, and lead to more prosecutions? By that measurement, an alternative approach being proposed this week -- one that would completely strip commanders of their responsibilities, including the ability to launch courts-martial -- falls short. Here's why:

It would leave a huge number of victims behind. Over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which a commander launched a court martial. And many of those courts-martial resulted in convictions. That's 93 victims who would never have had their day in court if commanders lost the ability to bring a case to court martial. We've also found almost no cases in which a prosecutor wanted to pursue charges but was overruled by a commander. Stripping commanders of the ability to launch courts-martial seeks to solve a problem -- commanders refusing to move cases forward -- that we just don't have.

It hasn't worked where it's been tried. Supporters of this alternative point to a number of our allies that have moved to similar military justice systems. But not one of these countries has seen the increase in reporting that proponents promise here. This month, the 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. In fact, many of our allies changed their systems to better protect the accused.

It would raise the likelihood of retaliation against victims who report an assault. If you're a victim of a sexual assault, agonizing over whether to report your crime, your foremost worry is likely to be whether you'll be retaliated against by your fellow servicemembers. So what system will better protect you from such retaliation -- one in which your unit's commander signs off on a case moving forward, or one in which outside lawyers, possibly hundreds of miles away from your unit, do so? Civilian review is needed when a commander decides to not prosecute, but stripping commanders of the ability to move cases forward removes a key tool for protecting victims.

Recent reports of a scaled-back version of this alternative are even more troublesome -- the idea of creating a separate, parallel legal system to handle only the crime of sexual assault opens a "Pandora's box" of legal and Constitutional questions.

Dramatic reform to the military justice system must be measured against the yardstick of protecting victims and boosting prosecutions -- and must be evidence-based, and grounded in hard data. We have to thoughtfully build the strongest possible reforms to protect and empower victims, crack down on commanders' ability to abuse their authority, and retain a commander's ability to do it right.

That's what I plan to do during this week's debate. And I plan to ensure that such reforms make it to the president's desk.

The policy matters.

U.S. Senator Claire McCaskill is a former courtroom prosecutor of sex crimes, and a senior member of the Armed Services Committee.