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Five Ways Congress is Trying to Curb Rape in the Military

A breakdown of the key proposals, and the debate they’re stirring on Capitol Hill.

Sen. Kirsten Gillibrand (D-NY) shakes hands with Army Chief of Staff Gen. Raymond Odierno following the Senate Armed Services Committee hearing on sexual assaults in the military. (Win McNamee/Getty Images)

When the Senate Armed Services Committee held a hearing on the U.S. military’s sexual assault crisis, lawmakers grilled Army, Navy, Air Force and Marine officials on the alarmingly high number of rapes and other sexual abuses in their ranks.

Political momentum to address the problem has been building since the Pentagon released statistics last month showing that sexual assault increased by 35 percent between 2010 and 2012. The outcry grew louder when a string of scandals came to light, including alleged sexual assaults by Army and Air Force officials who were in charge of preventing sexual abuse.

Senators have rushed to draft legislation to hold attackers accountable and provide support for victims. But at the Senate hearing, officials steadfastly opposed most major changes in the way sexual assault cases are prosecuted. “It will undermine the readiness of the force ... [and] will hamper the timely delivery of justice,” said Army Chief of Staff Ray Odierno.

Here’s a rundown of key congressional proposals and what the military is saying about them.

1. Stop giving military commanders the final say on rape convictions

Under the military’s criminal procedures, commanders have clemency powers, which means they can dismiss military court convictions “for any reason or no reason.” The policy came under fire this spring when Air Force Lt. Gen. Craig Franklin overturned a jury's ruling that Lt. Col. James Wilkerson, a fighter pilot, was guilty of aggravated sexual assault. Another official, Air Force Lt. Gen. Susan Helms, was blocked from a promotion in May for throwing out a captain’s sexual assault conviction without any public explanation.

In April, Defense Secretary Chuck Hagel voiced support for stripping commanders of this power. Under Hagel’s proposal, commanders could still reduce someone’s sentence but would have to submit a reason in writing. Sens. Claire McCaskill, D-Mo., and Barbara Boxer, D-Calif., have called for similar changes. Rep. Jackie Speier, D-Calif., introduced a House bill that goes further, removing a commander’s authority to overturn or reduce a judge’s sentence.

Military officials are open to reforming the policy, though they say the Wilkerson case inflated outrage over a rarely-used power. Sen. Lindsey Graham, R-S.C., a member of the Armed Services Committee and former Air Force lawyer, has been the only lawmaker to speak out against the proposed change in policy.

2. Have lawyers determine which assault cases are credible — not the defendant’s boss

Sen. Kirsten Gillibrand, D-N.Y., has called for the most major shift in how the military tries sexual assault cases. Now, commanders decide which cases are investigated and prosecuted, and which are thrown out. Gillibrand’s bill proposes giving independent military prosecutors that power for sex crimes and other serious charges. Commanders have an incentive to ignore rape allegations, advocates of the change say, because it reflects poorly on their leadership.

Military officials are strongly opposed to such a change in authority. “The consequences of such a decision would be ... extraordinarily damaging to the nation’s security,” Army Gen. Martin Dempsey wrote in a letter to the Armed Services Committee chairman, Sen. Carl Levin, D-Mich. The change would “undermine good order and discipline” by sending a message that commanders “cannot be trusted,” Dempsey said.

3. Make sure a sex crime conviction means losing your job

Sen. McCaskill has led a bipartisan effort to require that anyone convicted of “rape, sexual assault, forcible sodomy, or an attempt to commit any of those offenses” be dismissed or given a dishonorable discharge. 

At the hearing, McCaskill argued that a soldier’s job performance shouldn’t be a factor in deciding whether to move forward with sexual assault cases. Currently, commanders may consider it when deciding whether to prosecute. “The facts of a felony are the facts of a felony,” McCaskill said. “I don’t care how good a pilot it is.”

Lt. Gen. Richard C. Harding of the Air Force argued during the hearing that a defendant’s character should be relevant in determining the case but should not have “overriding weight.”

4. Scrutinize officers appointed to prevent sexual assault

In the past month, there have been not one but two instances of soldiers working in Sexual Assault Prevention and Response offices charged with sexual assault. The chief of the Air Force’s prevention office was arrested last month for groping a woman. A week later, an Army sergeant working as a sexual assault program coordinator was arrested on multiple accusations of sexual abuse and for running a prostitution ring.

Hagel immediately demanded that all officers in the services’ Sexual Assault Prevention and Response branches be retrained, rescreened, and recredentialed. Since then, Sens. Jeanne Shaheen, D-N.H., and Deb Fischer, R-Neb., have introduced a bill that would elevate those jobs to a higher status, requiring stricter screening and more certification. In a letter to Secretary Hagel, Shaheen and McCaskill wrote that “In many cases, no interviews are required, and the commander plays a hands-off role in choosing who will perform those duties.” The bill would require a commander to pick someone for the post. 

5. Make it easier for sexual assault victims to access disability benefits

While the Senate was hearing testimonies by military officials, the House unanimously passed legislation to increase access to disability benefits for sexual assault victims in the military. Veterans battling military sexual trauma face a higher burden of proof than those with post-traumatic stress disorder, or PTSD. And because most sexual assaults go unreported, there is often little evidence available. Under the proposed law, veterans would only have to show they were diagnosed with a mental health condition that stems from military sexual assault.

Read our Muckreads roundup of the most important reporting on sexual assault in the military.

Guarding Against Retaliation

June 5, 2013, 12:57 p.m.

What everyone is missing is that (1) it’s not just a peer to peer problem, it’s officers & senior enlisteds preying on subordinates, and (2) when individuals do file complaints, 60+ percent said they feared retaliation and/or experienced retaliation from supervisors just for coming forward.

None of these proposals address the retaliation component.  As Maria Shriver pointed out when she was interviewing Senator Collin/Representative Spears, this situation is just like the situation in the Catholic Church, where priests preyed on children and their colleagues covered up for them. 

Remember when Pat Tillman was killed and the cover up that went on after that?  That’s the culture that is operational here, i.e., protect your career and those of your fellow officers at all costs, even if it means fragging everyone below you. 

You have to understand that to appreciate how dysfunctional the military command structure is ... this is just the tip of the iceberg of problems. I just came off a 3 month consulting assignment with a Defense agency & I was horrified at what I saw.

All these are well and good as band-aid fixes. But they do not remedy what is the greatest shortcoming of our military forces today: as a professional standing military, they are isolated as a community from the country and citizenry as never before. This engenders the notion that they are a power unto themselves and can operate by their own, now perverted rules. If there had been a draft and citizen soldiers, you can be sure the problem would never have been allowed to reach this scale. Values of the larger society would have prevailed; the outcry from families affected and pressure on Congress would have nipped in in the bud way earlier.

THere is a culture of boozing it up…to celebrate, to relax, to be ‘sociable’ to be one of the club….etc..but crossing the line and getting a DUI became a punishable offense…worked fine for those who were not problem drinkers or alcoholics…but the fact is prosecution for criminal behaviors such as assault, drug abuse and sexual harassment or worse would cease to be the explosive issue it has become over the years…IF ONLY the big boys at the top would stop protecting their subordinates, buddies and self image by ignoring ‘boys will be boys’ until it is their own daughter/wife/girlfriend that is assaulted.  PROSECUTE and punish up the chain…just as barkeeps are legally responsible for drunken behaviors ...so too should COs be held accountable..start with Odierno!

Guarding Against Retaliation makes the best and most correct points.  As anyone who has served in combat, especially multiple theaters of war, those who are selected for the rank of general officer are the best cover-up specialists (John McCain’s daddy, Colin Powell, etc.).  Having the top crooks address the problem AIN’T ADDRESSING THE PROBLEM. 

Recall that after the Bay of Pigs, President Kennedy pretty much fired all the crazies making up his Joint-Chiefs-of-Staff, who had originally been appointed by President/General Eisenhower.

Didi Paano (MAJ, USA, RET)

June 5, 2013, 1:34 p.m.

As a retired female military officer (who enlisted in 1964 as an enlisted soldier), we never had this type of problem.  For one reason, we were WACS, and as such, we were basically somewhat separated.  We did not train with the men, we did not bunk in the same barracks as the men, and we didn’t go into combat (which was problematic to me at the time because I thought we had the same skills).  However, now that men and women co-mingle, and based upon the caliber of the recruits that are volunteering nowadays (in some cases), we have problems that had never occurred in the past.  I agree with ALL the ideas that are put forth.  When I was an enlisted soldier, I worked for the Staff Judge Advocate’s office at Ft. Huachuca, AZ, and we never had a case of sexual harassment come before us…..maybe it was handled down the ladder, but we never saw it.  Did it happen then or were we just insulated from it by the commanders?  Hard to tell, but it didn’t seem to be a major problem with me or my fellow WACS at the time.  And, after 23+ years in the military, both active and reserve, I never encountered any problems with my male counterparts…..but that was a different age and time.  Something needs to be done to stop this type of behavior…..not sure what, but the ideas above are a start.

Don’t suppose, do we, that this is all fed by the current craze in the military and the military academies for the Dominionist push for a “Christian” Army and nation? Stay with me here…....

The Military Religious Freedom Foundation spends plenty of its time and effort combating the forced right wing religious practices that academy cadets complain of.

Troops and cadets are punished for objecting to changing their own religious belief or non-belief to suit the crazy version of xtianity.

The religious nuts get to speak at military and academy functions—and the national prayer breakfast ( a political gathering for sure)—unless Mikey Weinstein reaches out to the Pentagon to stop the unConstitutional forcing of fundamentalist beliefs onto others.

Christian army t-shirts under uniforms, bibles w/rifles on them, rifles with anti-muslim words on them, pictures in the mess hall of a US military member paired with a Crusader in costume. Changing a military unit from the Wherewolves to the Crusaders (perfect way to win friends in influence people of the middle east and make the Islamist faction go postal and take it out on our military people, right?) It boggles the mind what goes on in the military and the academies. 
And the COMMANDING OFFICERS have to at least tacitly agree to let this all go on. The whole lot need to be thinned out to those who actually believe and act like we have freedom of religion and the military needs religion that doesn;t negatively affect their ability to do the job we pay them to do.

The fundies want women kept in their places and their place is not on the battlefield, except as spoils of war. The whole ethos is telling the soldiers that women are not due any respect. Even if not mentioned directly, you can bet the atmosphere is thick with anti-female attitudes.

Maybe the Congress should open their ancient eye-lids and see what’s right there in plain sight. Or maybe they do see it and agree with it.
Either way, our country is in deeper doo-doo than many realize.

When is Congress going to do something about the rape of the American public?

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In 1962 one of my friends went to enlist in the WACS and was discouraged by the men at the enlisting office ... there was no respect for women then and there is none now.  Outside authorities should be notified immediately when sexual assault takes place, the military is not policing itself and never will.. One of the ladies above said she had a good experience in the WACS and that was wonderful but not everyone can say the same.  Women and men don’t report it because they will be the ones that will suffer the consequences from their fellow colleagues

Guarding and M. Hooper are right on.  We the people must demand that the culture in the military must change.  That is both the acceptance of the Christian religion as it is accepted now for often if you identify yourself as Christian in the military you are given promotions and praise above others.  It all goes together as the neo-con politicans have proven recently with their crazy comments on rape.  They are much like the catholic church sad to say in the cover-ups and lack of punishments that sometimes occur.  POTUS and SecDef must not only reprimand but fire those in command who are allowing our military to become havens for offenders and the religiously insane.  Bet is, though, that the thinking among the top in the military is that this hoopla will all die away soon and then they can get back to normal.  Cynical I know but I don’t see much change coming.

Can I just point out that our government, which has no problem spying or murdering its own citizens, hides behind made up privileges to protect its wrongdoings, and uses the same torture tactics by which the Inquisition found witches to find terrorists…that this very government wants to figure out why its indentured servants occasionally commit immoral acts.

While I actually respect Gillibrand, and her ideas might help patch over the problem a little, the route to fixing this outright systemic problem starts with reclaiming the moral high ground.  When the civilian government stops prosecuting people for doing the right thing, when it isn’t clear that every politician has been bought and paid for by some special interest, and when we stop blowing villages up to get revenge on leaders who don’t give a damn about who we kill, except to boost their propaganda, when the military (in the form of the NSA) isn’t monitoring every single citizen just because they feel like it, then it’ll be easier to flush out wrongdoing in the military.  Until then, they’re the stereotypical alcoholic parents telling their kids not to do drugs.

The fact that we’re prosecuting the man who brought to attention our indiscriminate and malicious bombing in Iraq speaks volumes to a soldier about to commit any other crime.  We prove every day until we change course that coverups are much more important than preventing crimes.

So, yes, we should institute these changes, but be aware that we’re not treating the underlying problem that we’ve encouraged exactly this culture.

I won’t even touch on the effects of the way media coverage of sexual assault trials of young men always focuses on how the poor boys’ careers will be shattered by a (insert long string of expletives) rape conviction, as if that’s somehow unfair.  If the military would rather cover up problems and the media supports the man, why not attack someone, right…?

Someone should correct me if I’m wrong, but I seem to recall that during the Bush Administration there was so much concern about having enough people in the military that requirements for enlistment were loosened, so that people with criminal records became eligible to serve.  I wonder how much of the sexual assault problem stems from this?  In any case, the whole military culture needs to change, which means the leadership needs to take this seriously and make it QUITE CLEAR that sexual assault will not be tolerated.  And as to the notion that a defendant’s “character” should be taken into account when considering penalties, I say, if a guy commits rape, HE HAS NO CHARACTER.

Gina Genochio

June 16, 2013, 4:20 p.m.

In my view, the problem is being viewed from the wrong direction.  It is seen as a ‘bottom’ problem, and what needs to happen is turn it into a ‘top’ problem.  How to do that?  Simple.  Have the Commander in Chief bring in the members of his Joint Chiefs of Staff and tell them directly that he is going to hold each of them PERSONALLY RESPONSIBLE for finding a solution to this unacceptable situation.  He should demand an ‘action plan’ from each of them and give them 30 days to put it together.  He should remind them that each of them serve at his pleasure, and he will not hesitate to replace any of them that do not commit to taking personal stewardship for this issue.  Stop the talk, stop the excuses, stop the attempt to make it a ‘chain of command’ issue, and make it a simple CRIMINAL issue that needs to be addressed as such by the JCS.