Sen. Gillibrand: Voters Want Lawyers — Not Commanders — to Prosecute Sexual Assault in the Military
By Senator Kirsten Gillibrand
There is an epidemic of sexual assault in the military and the current military justice system has proven incapable of addressing it. An estimated 20,500 service members are sexually assaulted every year, but last year, fewer than 6,300 of those service members reported their assaults. That’s often because they rightfully fear that they are more likely to face retaliation than get justice. While two in three service members face retaliation for reporting, less than one in ten of the cases considered are sent to trial, and just a small fraction of those cases end in conviction.
To change that, we need to change who is responsible for handling these cases. Right now, commanders who often know and oversee both the accuser and the accused act as judge and jury. Commanders may — intentionally or not — draw into consideration other factors like their personal relationships with the plaintiff or defendant, or the importance of the role either party plays within the ranks. Commanders are also not trained lawyers, and they should not be asked to handle complex legal charges that can lead to serious sentences. This system must change.
This month, in a historic announcement, President Biden and Defense Secretary Austin recognized this need for change and endorsed the Independent Review Commission’s recommendations to remove decisions on whether or not to prosecute sexual assault cases from military commanders. This is a monumental step forward in a years-long fight for military justice reform.
This is, however, as President Biden said, “the beginning, not the end of our work.” While the IRC was tasked with reviewing sexual assault and related crimes, Congress has been tasked with a larger duty: to provide justice to all of our service members. To do that, we must go further.
The bipartisan, bicameral Military Justice Improvement and Increasing Prevention Act would do that by taking the same approach to military justice as the military takes in most of its operations. It would put specialized work in the hands of specialists. In this case, it would move the decision on whether to prosecute serious crimes like sexual assault and murder out of the chain of command and put them in the hands of independent, highly trained, and professional military prosecutors.
New polling from Data for Progress finds that nearly 7 in 10 Americans support this kind of change. That includes the majority of Democrats, Republicans and Independents alike. That type of broad support is rare. It also mirrors the bipartisan support this bill has in Congress. The American people — and growing numbers of my colleagues — recognize that we must do more for the people who do so much for our nation. This is not a partisan issue, it’s simply about creating a military justice system worthy of the sacrifice that our service members make. The very people who fight to defend the fundamental American right of “justice for all” should not — and cannot — be denied it.
I have been fighting to reform the way that the military handles cases of sexual assault for years. In that time, we’ve discovered that the same fundamental flaw that affects sexual assault cases affects all cases involving serious crimes, and that it’s not just survivors of sexual assault who lack trust in the system. Department of Defense surveys have shown that Black service members also have serious doubts about their ability to get justice in the command-controlled system. Black service members believe they will not be given the same benefit of the doubt as their white counterparts, that they will face harsher punishments for their behavior, and that if they report harassment nothing will happen.
Those doubts are understandable. In 2017, a report found that Black service members were as much as 2.61 times as likely to have disciplinary action taken against them as their white counterparts. And in 2019, the GAO found Black and Hispanic service members were more likely than white service members to be subjected to criminal investigations and to face general and special courts-martial. Those types of racial disparities are unacceptable and must be addressed immediately.
I have been pushing for this change for nearly a decade, and every year I hear the same tired claims that before we institute this reform we have to have another study or panel, or try a more limited reform. Congress has now spent more than a billion dollars and enacted hundreds of legislative provisions to address military justice — not one has reduced sexual assault within the ranks, not one has successfully addressed those racial disparities.
For years we have heard the same refrain from our military leaders who come to Congress and tell me that “We’ve got this, ma’am.” They don’t have it. By nearly every measure things are moving in the wrong direction.
It is time to move all serious crimes away from the chain of command. Not only do we have proof that more limited reforms have not worked, we have seen our allies like the United Kingdom, Israel, Australia, Canada and the Netherlands make this change to positive results.
If we would not ask a lawyer to do the job of a commander, we should not ask a commander to do the job of a lawyer. There is no reason to delay a vote on this bill when the majority of the American people; a bipartisan, filibuster-proof majority of senators; a bipartisan group of House members; legal experts; and service members agree that passing it is the right thing to do.
The Military Justice Improvement and Increasing Prevention Act would create a real, professional, and impartial military justice system. It would give every service member a chance at a fair trial — whether they were the plaintiff or defendant. And it would help us deliver on our national promise of justice for all.
Senator Kirsten Gillibrand (@SenGillibrand) is the junior Senator from New York.