Senators Seduced by Radical Military Sexual Assault Bill

by Elaine Donnelly

At a Tuesday news conference, Republican senators Ted Cruz (Tex.,), Rand Paul (Ky.,), and Chuck Grassley (Iowa) teamed up with Senator Barbara Boxer (D., Calif.) to support Senator Kirsten Gillibrand (D., N.Y.)’s bill to radically revise the military’s legal procedures for prosecuting sexual assaults. Senator Paul claimed there was no reason why conservatives should oppose Gillibrand’s controversial bill. The senators are mistaken.

On June 4, the Senate Armed Services Committee conducted a hearing with members of the Joint Chiefs of Staff and their top Judge Advocates General. The chiefs looked defensive and unpersuasive, but their high-ranking JAGs explained why it would be a mistake to remove decisions about prosecutions of sexual assault and other serious offenses from military commanders, placing them in the hands of independent prosecutors. 

Vice Admiral Nanette Drenzi explained that under the Uniform Code of Military Justice (UCMJ), commanders are accountable for everything that happens in their area of responsibility, including decisions regarding courts-martial or career-ending non-judicial punishments. “If we want to implement effective, permanent change in our military,” she said, “we must do so through our commanders.” Military lawyers do not want or need command authority in order to do their jobs representing adversaries in litigation.

On June 12, Senate Armed Services Committee chairman Carl Levin (D., Mich.) easily defeated Senator Gillibrand’s subcommittee-approved legislation with substitute language for the National Defense Authorization Act for 2014. Levin’s measure, requiring automatic review if a commander disregards legal advice to prosecute sex-assault cases, was approved 17–9.

On the losing side were Senators Ted Cruz and David Vitter (R., La.), who inexplicably placed themselves to the left of Chairman Levin and even Senator Claire McCaskill (D., Mo.); This encouraged Gillibrand to seek support for a floor vote, promoting her “Military Justice Improvement Act” with a misleading appeal based on a peculiar form of chivalry.

Gillibrand emphasizes women’s fear of filing complaints when abusers are in their own chain of command. But assigning cases to professionals elsewhere would not guarantee confidentiality. Nor would cases lacking convincing evidence result in automatic prosecutions or convictions. Instead, cases of sexual assault could be politicized by persons who are not responsible for what happens in a given command.

Senator Gillibrand’s legislation essentially would assign “victim” status based on accusations alone, replacing the presumption of innocence with a presumption of guilt. For insight into politicized prosecutions, consider what happened when federal and state authorities interfered in the recent George Zimmerman trial. The Florida case demonstrated how political pressure can turn an emotionally charged case into a show trial that is supposed to have only one outcome: conviction. 

Senator Gillibrand’s bill would have similar consequences in the military, inviting Pentagon feminists and pressure groups to demand their version of “justice” no matter what the evidence shows. None of this would reduce rates of sexual misconduct, or add anything to the many options that persons suffering abuse already have.  

Retaliation is wrong, but legislation to make it a crime also should protect the rights of persons who are falsely accused by persons motivated by personal resentments or self-interest. The Pentagon recently reported that unsubstantiated accusations have increased by 34 percent since 2009 (13 percent to 17 percent). The only way to achieve true justice is to protect due process for all. 

Senator Gillibrand often mentions other countries, but it is difficult to find any evidence that incidents of sexual assault decreased when military discipline was shifted out of the chain of command. Separate legal systems in the British, Canadian, and Israeli militaries were not adopted in response to sexual-assault cases, and none of these countries’ forces are comparable to the American military and its unique legal code, the UCMJ. 

In a well-received Wall Street Journal article, Marine Captain Lindsay Rodman, a Harvard-educated Pentagon lawyer, expressed concern that exaggerated reports based on anonymous surveys could lead to drastic legislative “solutions” that will make matters worse. In a Weekly Standard article, San Diego law professor Gail Heriot noted that the military is doing a better job on sexual misconduct than civilian colleges and universities. 

If military trends keep escalating, however, that could change. Confirmed assaults involving military personnel have risen from 1,275 to 2,949, an increase of 129 percent since the annual Sexual Assault Prevention & Response Office (SAPRO) reports began in 2004. 

There are many good ideas for improving the military justice system in this sensitive area of law. Heritage Foundation senior legal fellow Charles Stimson, a military judge in the Navy JAG Corps, has recommended better training of sexual-assault officers and legal advocates for both accusers and the accused. Instead of pursuing this and other commonsense solutions, some lawmakers unfairly suggest that our military is full of predatory males, indifferent commanders, and fearful women who are incapable of taking action when threatened by colleagues. 

These stereotypes misrepresent military culture, which depends on core values such as honor, courage, personal integrity, and accountability. When individuals depart from these cultural standards, punishment is justified. But instead of slandering military culture as an environment that encourages sexual abuse, policy makers should strengthen core values and guard due process for all.   

— Elaine Donnelly is president of the Center for Military Readiness.

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