This year’s defense bill will be a watershed moment for curbing sexual assaults in America’s military.
What will change look like? Stripping commanders of their ability to overturn convictions, assigning victims independent lawyers, mandating dishonorable discharge for those convicted, criminalizing retaliation against victims, and requiring the civilian head of each service to review decisions to not prosecute.
These historic proposals are already included in the defense bill. But we’re going further.
We introduced an amendment along with Sen. Deb Fischer, R-Neb., to eliminate using a soldier’s service record as a defense and to allow victims’ input in whether their case goes to military or civilian court. We’re also working on reforming pretrial processes to better protect victims.
For us, this effort is personal. Before joining the Senate, we spent years as courtroom prosecutors.
And we’ve used a single yardstick to measure each proposal: Will it protect victims and increase prosecutions? By that measure, an alternative approach to completely strip commanders of their responsibilities falls short:
- It would leave victims behind. In two years, there have been at least 93 cases in which civilian prosecutors declined to pursue charges but commanders launched a court-martial (and almost none where a commander overruled a prosecutor who wanted to proceed). That’s 93 victims who wouldn’t have had their day in court if commanders lost the ability to bring a case to court-martial.
- It would raise the likelihood of retaliation. Victims agonizing over whether to report a crime say they worry about retaliation by fellow servicemembers. So what system better protects against such retaliation: one in which a unit’s commander signs off on a case, or one in which a military lawyer outside the unit does? Stripping commanders of the ability to move cases forward removes a key tool for protecting victims.
- It hasn’t worked. None of America’s allies who made this change did so to protect victims, and none can attribute any rise in reporting of assaults to removing commanders from the process.
Commanders can’t just be bystanders. We want commanders to say “not in my unit” instead of “not my responsibility.” Congress must build strong, evidence-based reforms to empower victims, prosecute the accused, and hold commanders accountable.
The policy matters.
Sens. Claire McCaskill, D-Mo., and Kelly Ayotte, R-N.H., both former prosecutors, are members of the Armed Services Committee.