The Concord (N.H.) Monitor, March 17
Politics has a way of reducing complicated matters to easy-to-understand choices: for or against, up or down, weak or strong, good or bad.
That was the unfortunate context in which the U.S. Senate recently debated the epidemic of sexual assaults within the military. Given two bills aimed at making it more likely that victims come forward and guilty parties get punished, lawmakers were inclined to choose sides: this bill or that bill. In fact, it seems likely that the military needs many of the reforms offered in both measures -- and fast.
The Pentagon estimates that there are more than 70 sexual assaults involving military personnel every day. While 3,374 such assaults were reported in 2012, the Department of Defense estimates that as many as 26,000 service members were actually assaulted, based on anonymous surveys. And of those 3,374 reported cases, just 300 were prosecuted.
There have been decades of lip service to the notion of "zero tolerance" for such criminal behavior, but that's clearly been a hollow promise, from military brass and politicians alike. Enter Sens. Claire McCaskill and Kirstin Gillibrand, leaders on this issue who took two different approaches to the problem.
Gillibrand's bill, widely characterized as the more bold of the two, would give independent military prosecutors, rather than commanders, the power to decide which sexual assault cases to try. It would be a radical change to the military culture but would solve two significant problems: First, it would put such decisions in the hands of legal experts, those who know best which cases are likely to succeed and who base their decisions on the facts at hand. Second, it would erase an inherent conflict of interest in the current system: Military commanders who have a pre-existing relationship with the accused or the victim (or both) cannot possibly bring an impartial view to the matter at hand.
The legislation, which had the support of New Hampshire Sen. Jeanne Shaheen, was defeated, in part by lawmakers squeamish about insulting military commanders.
But none of that should diminish the importance of the reforms included in a second bill, pushed by McCaskill and New Hampshire Sen. Kelly Ayotte, both former prosecutors.
Their measure, which was approved unanimously by the Senate after the Gillibrand measure failed, would do away with the so-called good-soldier defense which, for generations, has allowed authorities to consider the service record of the accused and other irrelevant factors when weighing such accusations. Under their bill, if a prosecutor wanted to pursue a case and a commander did not, it would automatically be referred to the civilian secretary of that branch of the military for review. When an alleged crime occurred off a military base, the victim would get a say in whether the case be handled by the civilian or military justice system.
The bill would extend protections to students at the nation's military service academies. It would require that decisions about promotions take into account commanders' record on handling sex assault cases. And it would allow assault victims who were later discharged from the military to challenge the terms of their termination -- to take a retrospective look at possible instances of retaliation.
The McCaskill-Ayotte bill faces an uncertain future in the Republican House. And if it becomes law, its effect on the culture of the military will warrant careful scrutiny. If the measure isn't enough to reform a clearly sick system, the Gillibrand measure may well be called for.
Much has been written about the rift caused among the now 20 women in the U.S. Senate over the competing bills. Perhaps more important is this: The very presence of 20 women in the Senate no doubt made it possible for this issue to finally reach center stage in Washington.