Military Sexual Assault Reform Fails on Chain of Command Issue

The vote over how to reform military sexual assault cases came down to the most contentious part of the debate: whether to remove the chain of command from prosecutions. In the end, the Senate voted down New York Sen. Kirsten Gillibrand’s bill by vote of 55-45 and overwhelmingly passed Missouri Sen. Claire McCaskill’s alternative bill, which contains several reforms to the military justice system but keeps the chain of command in place.

The two Democrats battled it out to the end, both supporting each other’s efforts while sharply disagreeing over the chain of command issue. After the vote, McCaskill praised Gillibrand for her efforts, but told reporters that in the end they had “one honestly held policy difference.”

“This debate has been about one thing—getting the policy right to best protect and empower victims, and boost prosecutions of predators. I believe we’re on the cusp of achieving that goal. The Senate has voted to strengthen even further what is now one of the most victim-friendly justice systems in the world. I’m eager to continue working closely with my colleagues such as Senators (Carl) Levin (D-Mich.), (Kelly) Ayotte (R-N.H.), and (Deb) Fischer (R-Neb.) – and with Senator Gillibrand who has been instrumental in focusing the nation’s attention on addressing this critical topic — to aggressively and vigilantly implement these reforms and turn the corner in our shared battle to curb sexual assaults in the ranks.”

[READ MORE: Sexual Assault Reform or ‘Slippery Slope’ for Military Justice?]

The Uniform Code of Military Justice that governs military courts is separate from civilian courts. While over the ages, the military has adopted many of the procedural rules and ethics of civilian American courts it has maintained command authority. In the military, commanders known as the “convening authority” are empowered decide when and how to prosecute crimes committed by troops, and can reduce convictions and sentence lengths handed down by military judges and juries. The law is backed by the notion that in order to keep discipline and order among the ranks, commanders must have the ability to punish and prosecute.

Gillibrand’s bill would give military prosecutors the power to decide which cases to try, not commanders.  The idea has broad support within civilian and military legal circles, but the Joint Chiefs of Staff argued against the change. The junior senator from New York said she would continue to push her legislation. “Despite earning the support of the majority of the Senate, we fell five votes short of overcoming the 60-vote filibuster threshold. But we will not walk away, we will continue to work harder than ever in the coming year to strengthen our military,” she said after the vote. “Without a doubt, with the National Defense bill we passed, and Senator McCaskill’s Victims Protection Act, we have taken good steps to stand up for victims, and hold offenders accountable.” 

McCaskill’s bill, co-sponsored by Ayotte and Fischer, would provide victims with a special counsel to guide them through the process, remove the ability to use the “good soldier” defense, where a commander looks the other way because a service member is valuable to the mission, and give victims more formal input into whether their case goes to trial.

Several women’s advocates criticized the vote. "Today, a minority of senators used procedural tactics to quash the will of a majority of the Senate," said Ret. Navy Capt. Lory Manning, a senior policy fellow at the Service Women's Action Network. "To this small fraction of lawmakers we say: today's disappointment is merely a detour in our march to justice. We will not stop fighting for military sexual assault survivors until service members receive the justice they deserve." 

Pentagon officials said they would continue to make reforms and combat sexual assault in the military. "[Defense Secretary Chuck] Hagel and the department's leadership remain committed to working with Congress to explore a wide range of options to improve the military's response to sexual assault. There is no higher priority than the safety and welfare of our men and women in uniform. For the secretary, this means ensuring they are free from the threat of sexual harassment and sexual assault.

Kirby said the Pentagon has implemented 21 new reforms since May, “including reforms to the military justice system, the creation of dedicated legal support to victims, enhanced access to victim advocacy, and increased training and awareness for the entire force.”