Senate Armed Services Committee Chairman Carl Levin (D-Mich.) is continuing his fight against Sen. Kirsten Gillibrand (D-N.Y.) and other colleagues to take military sexual assault cases out of the chain of command.
Tea Party GOPs Rand Paul (R-Ky.) and Ted Cruz (R-Texas) this week signed on to Gillibrand’s measure, which moves the decision whether to prosecute any crime punishable by one year or more in confinement to independent military prosecutors, with the exception of 37 crimes deemed “uniquely military in nature,” such as disobeying orders or going absent without leave.
Her amendment died in Levin’s committee but supporters plan to bring it as an amendment to the defense reauthorization bill on the Senate floor.
Vice Chairman of the Joint Chiefs of Staff Adm. James Winnefeld appeared at his nomination hearing for reappointment to his post armed with evidence that Army commanders, over the past two years, have successfully prosecuted more than two dozen sexual assault cases that civilian prosecutors refused to pursue.
“This was done inside the chain of command, the chain of command insisting that a prosecution be pursued, and it was pursued successfully,” Winnefeld testified. “I worry that we’re going to have fewer prosecutions if we take it outside the chain of command.”
Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey, under questioning from Gillibrand, elaborated on “peeling back the numbers on what a so-called objective observer might end up with.”
Of the 35 cases pursued in the military judicial system after civilian prosecutors refused to pursue the case, court-martial convictions were achieved in 25 cases.
“That’s a 71 percent conviction rate, which is about — you know, the civilian rate is around 18 percent to 22 percent,” Dempsey said. “So of those 71 percent that were convicted, 24 of the 25 got punitive discharges. They are doing prison time. OK, so if we hadn’t, if the Army hadn’t taken those…those people would be walking the street right now. The victims would not have had the resolution that they deserved in this case.”
Gillibrand brushed off the Joints Chiefs’ numbers as “you may have helped a handful of victims.”
“We’re still having 23,000 victims who don’t feel the system is strong enough, objective enough and transparent enough to even report,” she said.
But Levin said the testimony “raises additional significant concerns that removing commanders’ authority to prosecute would weaken our efforts to halt sexual assaults in the military.”
“It is increasingly clear that there is no evidence that removing commanders’ prosecutorial authority would result in stronger prevention efforts, and in fact, it appears such a change would result in fewer prosecutions and reduce the likelihood that sexual assault survivors will see justice done,” the chairman said.
Winnefield said the Marine Corps looked back through 2010 and found 28 cases where civilian prosecutors declined to take the case. The Marines were able to obtain court-martial convictions on 16 of the cases.
He further said that the military justice system was taking some “heinous” cases that the civilian system refused to pursue, including the sexual assault of a 10-year-old autistic girl. “We took the case. The commander insisted on it. And a prosecution — and a conviction was obtained,” Winnefield added.
Levin struck a bipartisan compromise during the defense reauthorization’s markup that angered Gillibrand, leaving prosecution authority in the hands of commanders while providing for an automatic high-level review of any sexual assault allegation in which commanders decide not to prosecute. It also makes retaliation against service members who report a sexual assault a crime.