J. Scott Applewhite/AP

The Debate Over Reforming Military Sexual Assault Is Not Over

For New York Sen. Kirsten Gillibrand and Missouri Sen. Claire McCaskill, the debate over how to reform military sexual assault cases continues. By Stacy Kaper

One court decision. Two polar-opposite conclusions.

That's the story on Capitol Hill on Monday after sexual-assault charges in a high-profile case against an Army general were thrown out in military court under a plea deal for lesser violations.

The case further fueled Democrats' intra-party fight over how to handle military sexual assault, a struggle that pits New York's Kirsten Gillibrand against Missouri's Claire McCaskill. Following the plea deal, both senators remained as dug in as ever.

Congressional reaction Monday to the dismissal of the charges was swift and divisive. It reinforced familiar battle lines over an ongoing political fight over the proper role for commanders in such cases.

McCaskill contends that the charges that Brig. Gen. Jeffrey Sinclair twice forced his former mistress, a captain, into sex acts and threatened to kill her and her family would never have come forward if not for the commander.

"As a former sex-crimes prosecutor, Claire knows how difficult these cases can be, and this case is obviously a complicated one," said McCaskill spokeswoman Sarah Feldman. "But one of its lessons highlights what we already know--that commanders are often more aggressive than prosecutors in pursuing prosecutions."

McCaskill has argued that commanders need to be held accountable and should keep this power, arguing that it is the best way to ensure sexual-assault prosecutions are brought forward. The senator's office argues that if the case had been handled by prosecutors alone, the rape charge would not have been brought forward. It points to reports in The New York Times that a prosecutor in the case resigned after trying to pressure a commander to drop the sexual-assault charges, according to defense lawyers.

"If this court-martial had been handled by prosecutors alone, it would not have gone to trial," said a background memo on the case from McCaskill's office, which was sent to reporters.

Meanwhile, on the other side of the divide, critics who have fought to strip commanders of the power to decide which sexual-assault cases move forward came out arguing the general's plea deal proves the system is broken.

Gillibrand, whose legislation to take the decision to prosecute out of the chain of command failed in the Senate earlier this month, said that the Sinclair case was an example of what's wrong with the system.

In an op-ed in the New York Daily News on Friday, Gillibrand said she was concerned about a report in USA Today that the judge had to temporarily halt the court-martial in the Sinclair case "over fears the commanding officer had rejected a plea deal on lesser charges for political reasons, despite concerns over the evidence."

Although she did not respond immediately to requests for reaction to the Sinclair developments Monday, Gillibrand said in her op-ed that she would continue to fight for the reform.

"We will work harder than ever in the coming year to strengthen our military by taking sexual assaults and other major crimes out of the chain of command—so that no victim is compelled to turn to his or her boss to ask for justice," she wrote. "We need every case to move forward based solely on the evidence and judged solely on the merits, not political pressure or other nonlegal considerations."

Others who share Gillibrand's stance on removing the chain of command spoke up as well.

"This is another example of why commanders shouldn't be deciding whether someone is prosecuted," said Rep. Jackie Speier, D-Calif., who has long sought legislation to create a joint military-civilian structure to oversee such cases. "Legal decisions should be made by legal experts, not commanders."

Speier added, "A justice system that is beholden to the whims of a commander is not credible. Even after pleading guilty to several sordid offenses, I am certain Sinclair will be sent home with a generous pension paid by taxpayers who expect their military leaders to serve honorably."