Angus King: Reform military’s sexual assault policies, but don’t relieve commanders of duty to get it right
On Dec. 6, Caroline Baldacci published an OpEd in which she eloquently describes the problem of sexual assault within our nation’s military. Like Caroline, I agree that any incident of sexual assault in our armed services is unacceptable, that it is not only a stain upon the character of our military but upon our nation as a whole, and that it is necessary for Congress to take serious steps to address the issue.
As a member of the Senate Armed Services Committee, I have been immersed in this issue since entering the Senate in January and, like every member of Congress, I am committed to finding the most comprehensive and effective way to eradicate the problem. I supported the national defense bill reported by our committee that contains the strongest steps ever undertaken by Congress to address the problem of military sexual assault, and I have also spoken in favor of additional amendments that would continue to make significant changes to the military justice system.
In fact, legislation I supported would trigger an automatic review of any sexual assault case by the civilian service secretary — the highest ranking official in the service — when a commander overrules the recommendation of a military legal advisor to prosecute that case. Additionally, if a military legal advisor recommends and a commander agrees not to prosecute a sexual assault case, the bill would require the next higher level commander to review that decision. Perhaps most importantly, though, in an effort to protect victims and improve reporting, a provision I supported would criminalize retaliation against a victim for speaking out. No victim of sexual assault should ever live in fear of reporting it because they are concerned about retaliatory action.
Furthermore, along with all of these strong provisions, which Sen. Kirsten Gillibrand, D-N.Y., and I both support with a majority of our colleagues, lies the difficult question of whether to remove the commander from the decision-making process, which Gillibrand’s approach seeks to do.
After considerable thought and discussions with members of the military (principally women), I am very concerned that removing such a consequential decision from the commander’s jurisdiction would have the unintended consequence of relieving the commanders of their responsibility to push forward on prosecutions. That is why I supported an alternative approach authored by Sen. Claire McCaskill, D-Mo. Her legislation would remove a commander’s authority to overturn jury convictions, mandate that convicted service members be dishonorably discharged, and require an independent review of a case if a commander decides not to prosecute it — but it would keep the control of court-martial proceedings within the established military chain of command.
Indeed, rather than remove commanding officers from the process, I want them to be fully engaged in it. I agree with McCaskill when she says, “We have to thoughtfully build the strongest possible reforms to protect and empower victims, crack down on commanders’ ability to abuse their authority, and retain a commander’s ability to do it right.”
I believe the only way we can confront and defeat the scourge of military sexual assault in the long-term is to fundamentally change the culture that allows too many sexual assaults to occur and discourages too many victims from reporting crimes against them — a point I have made repeatedly, including to the joint chiefs of staff. To do so, though, we must ensure commanders are fully accountable and fully responsible for the decisions they make. Ironically, I believe Gillibrand’s amendment would do just the opposite by relieving commanders of this responsibility.
I also worry that putting these decisions in the hands of prosecutors may actually be detrimental to victims. Since 2011, military commanders prosecuted 93 sexual assault cases that civilian prosecutors had in their jurisdiction but refused to take on. At least 52 of those cases resulted in a conviction. In these instances, a commander’s decision to prosecute resulted in bringing a perpetrator to justice, whereas if the prosecutors had the final say, the perpetrators would have escaped punishment.
Lastly, when other countries have taken the decision to prosecute sexual assaults out of commanders’ hands, their service members have generally not benefited from increased reporting of sexual assaults or more convictions of sexual predators. The United States military, on the other hand, has seen significant increases in reporting in recent years as efforts have been undertaken to give sexual assault victims more options for reporting, better protections and better services. In fact, in many cases, the decision by other countries to take the prosecution decision away from commanders was made to increase protections for the accused, not the victims. When the ultimate goal is to increase reports, prosecutions and convictions of sexual assault, I am concerned that the approach taken by Gillibrand will produce a result opposite of what she intends.
There is no doubt, though, Caroline Baldacci is right in much of her OpEd. Our servicemen and women must be held to the highest standards, and when some sadly fail to meet the longstanding standards of service by committing sexual assault, we must ensure that justice is appropriately served and that the victim is provided with the support and care they rightfully deserve. I strongly believe the legislation we reported from the committee will give the military the tools and resources it needs to do just that.
Angus King, an independent, represents Maine in the U.S. Senate.