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Why Taking Sexual Assault Cases Out of the Chain of Command Protects Our Troops

The Military Justice Improvement Act will help victims of sexual assault get a fair chance at justice. By Sen. Kirsten Gillibrand

Since Dick Cheney served as defense secretary during the Tailhook scandal two decades ago, the Pentagon has pledged “zero tolerance” for sexual assault in the military. While I do not doubt the sincerity of the Pentagon leadership’s efforts, the results of those efforts clearly show there has been zero accountability. It is long overdue to fundamentally change the system to strengthen our military readiness and give victims of sexual assault a fair shot at justice. 

I did not come to this conclusion lightly. I came to this conclusion because I listened to the voices of the too many brave survivors who wanted nothing more than to serve our country honorably, but have been left twice betrayed by the system that failed them. A system where 62 percent of those who report a crime say they have been retaliated against, 50 percent of women think nothing good will come out of reporting, and 25 percent of the assailants are directly within the victim’s chain of command.

Survivors like Sarah Plummer, who was raped as a young Marine. She said, “Having someone within your direct chain of command just doesn’t make any sense, it’s like getting raped by your brother and having your dad decide the case.” 

And I have listened to former generals, judge advocate general (JAG) officers, and veterans with years of firsthand experience in these cases. In September, three retired flag officers joined other former commanders and Uniform Code of Military Justice legal experts and announced their public support for the Military Justice Improvement Act – a broadly bipartisan proposal to move the decision-making authority of whether serious crimes akin to felonies should go to trial into the hands of independent, trained, military prosecutors where it belongs. 

(Related: Gillibrand Builds Support for Military Sex Assault Amendment)

Lt. Gen. Claudia Kennedy, (Ret.), the first woman to reach the rank of a three-star general in the Army, Brig. Gen. Loree Sutton, (Ret.), formerly the highest-ranking psychiatrist in the Army, and Brig. Gen. David McGinnis, (Ret.), who most recently served in the Obama administration as the principal deputy to the assistant secretary of defense for Reserve affairs all said that these reforms are the only way to achieve justice and accountability in a system rife with conflicts of interest and bias.  

Kennedy wrote to me, saying, “If military leadership hasn’t fixed the problem in my lifetime, it’s not going to be fixed without a change to the status quo. The imbalance of power and authority held by commanders in dealing with sexual assaults must be corrected. There has to be independent oversight over what is happening in these cases. Simply put, we must remove the conflicts of interest in the current system.”

In fact, there has been a growing chorus of military voices calling for this common sense reform. Just last week, three leading veterans organizations urged Congress to pass the bipartisan Military Justice Improvement Act, calling it, “a vote for our troops and a vote for a stronger military.” Last month a key advisory panel that Defense Secretary Chuck Hagel says he “places a great premium on” voted overwhelmingly in support of removing these decisions from the chain of command. Ten members of the Defense Advisory Committee on Women in the Services (DACOWITS) voted in support of our measure, six abstained, and not one single member voted against. 

Even the top military leadership admits the current system “has failed” and lost the trust of its servicemembers. The commandant of the Marine Corps, Gen. James Amos, said earlier this year that victims do not come forward because “they don’t trust us, they don’t trust the chain of command, they don’t trust the leadership.” Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey said the military is sometimes “too forgiving” in these cases, admitting the system can be biased toward decorated officers. Even Hagel has said, “The chain of command has failed over the years.”

There are those who argue moving these decisions outside the chain of command will diminish good order and discipline. This is no longer a theoretical question. Our allies have already made these reforms and recently testified to a Defense Department panel there has been no negative impact on good order and discipline. The director-general of the Australian Defence Force Legal Service, Paul Cronan, said that Australia had faced the same set of arguments from military leaders in the past. "It's a little bit like when we opened up [to] gays in military in the late '80s," Cronan said. "There was a lot of concern at that time that there'd be issues. But not surprisingly, there haven't been any."

There are those who argue that with our reform commanders would no longer be accountable. Let me be clear, there is nothing about this bill that takes commanders off the hook, they will still be responsible for setting command climate even if they do not make this one single legal decision. Further, it is carefully crafted to leave 37 serious crimes that are unique to the military within the chain of command, in addition to crimes punishable by less than one year of confinement as well as non-judicial punishment under Article 15.

The strong, growing bipartisan coalition of support we have in the Senate is showing that this is not about Democrats or Republicans. This is not about politics or ideology, winning or losing. This is the right thing to do to achieve accountability and justice, and the right thing to do for our servicemembers and our national security. 

So as we celebrate Veterans Day and honor our brave men and women who served and helped make our military the greatest the world has ever known, I hope we can seize the opportunity and create a military justice system worthy of their service and sacrifice.

Sen. Kirsten Gillibrand is a Democrat from New York and a member of the Senate Armed Services Committee.