Senators Spar Over Bill on Sexual Assault in the Military

Stark battle lines are emerging in the Senate over efforts to stamp out the military’s reputation for providing inadequate protections for victims of sexual assault.

As the Senate prepares to take its first step in addressing sexual assaults in the military, sizing up legislation to include in a defense reauthorization bill next week, Senate Armed Services Committee members are sparring over how much power should be entrusted to commanders to ensure justice.

Lawmakers are also debating a slew of other issues, including what measures should be used to hold military leaders accountable; what screens should be set up to block sexual offenders from serving in the military; and what the military can do to distinguish between sexual harassment and violent criminal acts.

The growing crisis continues to make unwanted headlines for the Pentagon. Two military leaders in charge of preventing sexual violence were recently accused of perpetrating such crimes, and a separate rape incident at the U.S. Naval Academy sparked President Obama to condemn such acts during his commencement address there last month.

Sexual assaults in the military remain steadily on the rise, but the majority of them go unreported largely because victims say they fear retaliation and lack faith that justice will be served. According to the Defense Department, there were an estimated 26,000 sexual offenses in the military last year, but only one out of eight victims reported the attack and less than 1 percent of those cases resulted in convictions.

Lawmakers of all stripes agree that action needs to be taken to improve reporting as a first step, but they differ on how to eradicate a long-brewing culture of tolerance in which sexual assaults have gone unchecked.

One fundamental divide is over the question of how much power to leave to commanders who oversee the military justice system. Sen. Kirsten Gillibrand, D-N.Y., is championing a bipartisan bill with Sen. Susan Collins, R-Maine, that would take the power to decide which sexual-assault cases to prosecute out of the chain of command but leave the judicial process within the military.

Gillibrand did not appear to win crucial support Tuesday from Chairman Carl Levin, D-Mich., who gave a strong defense for commanders, arguing that they have ultimate responsibility to fix the problem.

“The key to cultural change in the military is the chain of command,” Levin said. “Only the chain of command has the authority needed to address any problems with command climate that foster or tolerate sexual assaults.... The chain of command has achieved cultural change before ... and they can do it again.”

Levin told National Journal Daily after the hearing that he was particularly struck by the argument made by military officials that commanders sometimes decide to prosecute sexual-assault cases to underscore the point that they won’t tolerate sexual offenses, even when they don’t have enough evidence to win and are going against the recommendation of their own legal advisers.

But Levin carefully kept his powder dry on the several bills under consideration, including the Gillibrand bill, and is sure to continue to factor prominently in the debate.

Several committee members expressed confusion reconciling the military’s position on the power of commanders.

On the one hand, Defense Secretary Chuck Hagel has recommended removing the power of commanders to overturn convictions, amid recent cases in which commanders have done so without explanation. But senior military leaders also staunchly oppose taking away the power of commanders to decide which cases get prosecuted and spent a large part of Tuesday’s hearing lobbying against such a change. They argue that retaining such power is necessary to maintaining order.

But even to Republicans—who tend to be more sympathetic to the military’s point of view—Pentagon officials struggled to make a clear argument as to why their views about the two issues differ.

Sen. Lindsey Graham, R-S.C., who opposes Hagel’s recommendation, called the military’s message “inconsistent.” Sen. Kelly Ayotte, R-N.H., echoed that, saying military leaders needed to provide clear answers on “an important threshold issue” before the vote next week.

Sen. John McCain, R-Ariz., said the armed services need to prevent convicted sex offenders from serving in the military, leading Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, to admit there are “inadequate protections” to prevent this.

Sen. Jack Reed, D-R.I., argued the handling of sexual offenses should be a factor in considering promotions.

Sens. Claire McCaskill, D-Mo., and Graham found rare common ground when they expressed similar incredulity that the military does not break down statistics of unwanted sexual contact between rape and sexual harassment, calling it a fundamental flaw in their approach. Levin asked Dempsey to start tracking that breakdown. Levin said committee members will decide how to proceed. “I can’t tell you precisely how we will end up,” he said. “But I can tell you that we will act as a committee in our bill. I have no doubt we will take significant actions.”

This article appears in the June 5, 2013, edition of National Journal Daily.