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Levin Armed with New Joint Chiefs Evidence in Military Sex Abuse Battle

The chairman of the Senate Armed Services Committee dug in further this week against a coalition of senators wanting to take military sexual assault cases out of the chain of command, presenting evidence from the Joint Chiefs that sours the coalition argument of using other militaries as a shining example of how to handle such cases.

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) presented a letter from Army Brig. Gen. Richard C. Gross, legal counsel to the chairman of the Joint Chiefs of Staff, stressing that U.S. allies who have adopted policies to take prosecutorial discretion on sexual abuse and other cases out of the hands of military commanders have done so to protect the accused more than the victims.

Gross said he and Chairman of the Joint Chiefs Gen. Martin Dempsey had consulted with counterparts in the UK, Canada, Australia, New Zealand, the Netherlands and Germany to survey their military justice systems, and found that “no allied country changed its system in response to sexual assault crimes specifically or the rights of victims generally.”

“In most cases, commanders were removed as convening authorities to better protect the rights of the accused, often in response to decisions by domestic courts and/or the European Court of Human Rights,” Gross wrote Levin. “…None of the allies surveyed could draw a correlation between their new system and any increased (or decreased) reporting by victims of sexual assault. There was no statistical or anecdotal evidence that removing commanders from the charging decision had any effect on victims’ willingness to report crimes.”

This week, Vice Chairman of the Joint Chiefs of Staff Adm. James Winnefeld expanded upon his July 18 testimony before Levin’s committee on the sexual assault cases picked up by the military justice system when civilian prosecutors didn’t want to try them — nearly 100 over the past two years.

“In one case, for example, two soldiers engaged in sexual intercourse with a victim who was substantially incapacitated by alcohol,” Winnefeld wrote to Levin. “When questioned, both soldiers lied to civilian law enforcement. A civilian investigator accused the victim of lying, and concluded as much in the official report. After local authorities declined to prosecute, military investigators opened a case, located additional victims, and discovered evidence indicating that the soldiers had conspired to obstruct justice. Both soldiers were convicted by a court-martial, sentenced to confinement, and punitively discharged.”

Winnefeld cited another example in which a soldier raped and sodomized his 10-year-old autistic stepdaughter and civilian authorities declined to prosecute “lacking physical evidence and a statement from the accused.” Military prosecutors took the case, discovered key evidence, and he was sentenced to 35 years in a court-martial.

“After querying the field, the Army, Navy, and Air Force have responded that they have no recollection of cases in which commanders declined to prosecute, or a court-martial ended in an acquittal, and civilian authorities subsequently prosecuted,” the vice-chairman added.

Levin said these confirmations strengthen his hand in a battle that should resurface soon as this week the House passed the defense appropriations bill and sent it to the Senate.

After Sen. Kirsten Gillibrand’s (D-N.Y.) effort to remove sexual assault cases from the chain of command failed in Levin’s committee, she and other supporters have vowed to bring it to the full Senate as an amendment to the defense reauthorization bill.

“Our goal should be to prevent sexual assaults and to bring perpetrators to justice. Following the lead of allies who removed prosecution decision from the chain of command to provide greater protection for defendants will hurt our efforts rather than help,” said Levin. “This is more evidence that removing commanders from our military justice system would weaken our efforts to combat sexual assault.”

Gillibrand countered Levin’s letters with a fact sheet from her office after hearing “more of the same in opposition to the bipartisan coalition sponsoring the Military Justice Improvement Act.”

That measure 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.

Gillibrand’s office called it a “myth” to suggest their proposal will lead to fewer trials because prosecutors are concerned about their win/loss record and will only recommend cases they can win.

“Under our new structure the O-6 JAG would have the disposition authority to decide if a case proceeds to trial based on the strengths/weaknesses of the evidence,” the senator’s office said. “In the military, prosecutors are professionally graded on a whole host of matters – not just wins/losses. In fact, military prosecutors often receive praise from their superiors for being willing to take tough cases to trial.”

Supporters on the Gillibrand side range from Tea Party Sens. Rand Paul (R-Ky.) and Ted Cruz (R-Texas) to polar opposites Barbara Boxer (D-Calif.) and David Vitter (R-La.).

In the Armed Services Committee, backers of Levin’s alternative language, which left 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, were Sens. Jack Reed (D-R.I.), Bill Nelson (D-Fla.), Claire McCaskill (D-Mo.), Joe Manchin (D-W.Va.), Tim Kaine (D-Va.), Angus King (I-Maine), Jim Inhofe (R-Okla.), John McCain (R-Ariz.), Jeff Sessions (R-Ala.), Saxby Chambliss (R-Ga.), Roger Wicker (R-Miss.), Kelly Ayotte (R-N.H.), Deb Fischer (R-Neb.), Lindsey Graham (R-S.C.), Roy Blunt (R-Mo.), and Mike Lee (R-Utah).

None of Levin’s allies on that vote are co-sponsors on Gillibrand’s revamped amendment.

Nelson was criticized today for his vote by MSNBC’s Andrea Mitchell, who asked him, “Why don’t you believe that the victims should get what they want in terms of the way these cases are prosecuted?”

“This is a lot of misunderstanding here. If you take the commander out of the loop, as Senator Gillibrand wants, then if the prosecutor thinks they don’t have enough evidence, that’s it,” Nelson said. “Under the system that we are proposing is, the commander stays in. If he wants a prosecution he’ll get it. Likewise, if the commander says no and the prosecutor wants to go forward, it will go all the way to the service secretary for review.”

“There are also the safeguards of many places that the victim is encouraged to come forth. All of those are improvements to a system that has not worked,” he added. “And the question that, I believe, if people will see the alternative, is that it makes it a lot more likely if the commander is there that there will be a prosecution.”

The Pentagon estimated that 26,000 episodes of unwanted sexual contact happened in 2012, with 53 percent of the victims being male.

Juliet Beyer, director of officer and enlisted personnel management at the Defense Department, was asked at a House Armed Services subcommittee hearing this week whether the integration of women into roles where mostly men served was increasing the risk of sexual assault.

“As we go forward, the more we treat servicewomen equally, the more likely they are to treat each other with respect. So, again, this is no different than any other effort across the department with regard to the issue of sexual assault,” Beyer said.

“As far as expanded roles of women in the service, the Army, that’s part of our cultural examination that’s ongoing as we speak,” said Lt. Gen. Howard Bromberg, deputy chief of staff of the Army. “It’s part of the continual assessment. There’s the whole piece on the cultural side, not just for sexual assault but inclusive of that, with a clear focus on sexual assault being examined in detail.”

The Senate tussle over how to handle sexual assault cases has been going on for months, with Gillibrand charging at a June hearing that not every military commander can distinguish between “a slap on the ass and a rape” and Chambliss saying “the hormone level created by nature sets in place the possibility for these types of things to occur.”

Gillibrand’s proposal is opposed by the Joint Chiefs and Defense Secretary Chuck Hagel.

“Soldier discipline is the foundation of any well-trained force capable of winning our nation’s wars,” Army Chief of Staff Gen. Ray Odierno said. “The commander is necessarily vested with the ultimate authority because he or she is responsible for all that goes on in a unit.”