Mr. REED. When sexual abuse occurs in a military unit or when a servicemember is a victim or a perpetrator of sexual abuse, we have failed.
Certainly the military has failed, but Congress with its constitutional mandate to ``make rules for the government and regulation of the land and naval forces'' and to ``provide for ..... disciplining the militia'' shares in that failure.
This is why the efforts of Senator McCaskill, Senator Gillibrand, and indeed all of my colleagues are so important and so commendable. They have elevated this debate and challenged this Congress and our military to act. They have recognized, through their passionate advocacy, that sexual abuse not only is a violation of an individual, but it is a corrosive force that can undermine the trust that is essential for the functioning of any military unit.
The essence of military service is selfless service in which every soldier, sailor, marine, and airman must be prepared to give his or her life for a comrade. Sexual abuse is the antithesis of that ethic. It represents predatory behavior and exploitation, not selfless sacrifice and protection of those you serve with. It has no place in the military, and if not eliminated, it will insidiously destroy our military. No technology, no amount of military resources can assure military success if courage and character fail. Sexual abuse is a cowardly act that betrays the ethic and character of the military.
I believe we are united on this point. This debate is about preventing sexual abuse, a shared goal of every Member of the Senate, of Congress, of the military, and of this Nation. The question is how best to achieve this essential goal.
I believe it requires leadership at every stage: recruitment, training, evaluation, promotion, retention, and punishment. I believe commanders must be involved in every step. They must be responsible and their subordinates must recognize this responsibility and their authority. To remove the commander from any of these responsibilities will, in my view, weaken his or her effectiveness in every one of these dimensions.
I had the privilege of commanding a company of paratroopers in the 82nd Airborne Division. I was responsible directly for nonjudicial company-grade punishment under the Uniform Code of Military Justice. But it was clear to me and to my troops that the battalion and brigade commanders and the division commander had court-martial authority and would necessarily confer with their subordinate commanders in the execution of this authority. This reality, this authority, permeated everything we did and reinforced the policy orders of every commander, including myself.
I will admit that my experience is decades old, and it preceded the integration of women into combat units such as an airborne infantry battalion, but the central role of the commander has not diminished. Moreover, the experiences of the sixties and the seventies also reveal a military struggling with serious and corrosive problems, principally racial integration and drug use. Congress ultimately dealt with these problems, not by bypassing commanders but by holding them, and through them every member of the Armed Forces, to a higher standard.
Today the American military is the first institution anyone points to when noting the progress we have made in racial equality and opportunity. This was not always the case.
Incidents with racial overtones plagued the Vietnam period [and the post-Vietnam era.] Among the most widely publicized were a race riot among prisoners in a stockade in Vietnam in 1968 and several incidents aboard naval vessels in the early 1970s.
In one of these incidents in 1972 on the carrier Kitty Hawk, there was a 15-hour melee between Black and White sailors. Effectively, that carrier, that ship--a capital ship of the Navy--was absolutely ineffectual. They weren't
prepared to fight the enemy, they were fighting each other.
In May of 1971, there were 4 days of rioting at Travis Air Force Base in California ignited by racial incidents on the base; over 100 individuals were arrested and more than 30 Air Force personnel were treated for riot-related injuries. The Marine Corps saw serious racial clashes at Camp Lejeune, NC, and Kaneohe Naval Air Station in Honolulu. In the Army, especially in Germany, there were frequent racial clashes.
In December of 1970, a special investigating team reported to President Nixon on the situation in Europe and declared that black troops were experiencing ``acute frustration'' and ``volatile anger'' because of their treatment.
Interestingly, this report cited as a major cause of this frustration ``the failure in too many instances of command leadership to exercise the authority and responsibility in monitoring the equal opportunity provisions that were already a part of military regulations. ..... ''
The military has made significant progress on racial opportunity. I am sure more can and should be done, but the progress to date has been driven principally by command leadership at every stage, including the enforcement of the Uniform Code of Military Justice.
The point was made by Charles Moskos and John Sibley Butler, two of the utmost authorities on race relations in the military. In 1996 they wrote:
Perhaps surprisingly, no Army regulation deals solely with race relations or equal opportunity. Instead, these issues fall under Army Regulation (AR) 600-20, whose broad concern is ``Army Command Policy.'' This title is more than symbolic. The Army treats good race relations as a means to readiness and combat effectiveness--not as an end in itself. This is the foundation for the Army's way of overcoming race. Racial concerns are broadened into a general leadership responsibility, and commanders are held accountable for race relations on their watch.
Once again, the emphasis is on commanders, not specialized legal procedures that bypass commanders. My best judgment is we will make the most progress addressing the issue of sexual abuse by holding commanders accountable, not by excluding them from a critical aspect of military life.
Under the leadership of Senator Levin and Senator Inhofe, the Armed Services Committee made significant changes to provisions regarding sexual abuse in the military. Moreover Senators MCCASKILL, AYOTTE, and FISCHER will make additional changes in their proposed amendment that will further strengthen our commitment and ability to respond to the crisis of sexual abuse in the military. But it is also important to describe the ongoing efforts by the Department of Defense to deal with sexual abuse in the military.
I am drawing on testimony of LTG Flora D. Darpino, the Judge Advocate General of the Army, and she described policies effective in the Army, but generally there are equivalent procedures in the other services.
The Army began a major effort to combat sexual abuse beginning in 2004 with the creation of the Sexual Assault Prevention and Response Program, the SAPR Program, and the implementation of restricted reporting. This allows victims of sexual assault to confidentially disclose a crime to specifically identified individuals and receive medical treatment and counseling without triggering the official investigative process.
This program has evolved into a comprehensive effort ``fielding a capability of over 11,000 personnel, deployable and available 24 hours a day,'' to respond to the victims' needs.
Included in the procedures available under the SAPR Program are new reporting options for the victim, expedited transfers, access to victim advocates and, most recently, access to victim counsel.
In addition, this program has a significant educational component that ``saturates Soldier training from the first days of initial entry training to senior leader forums.'' The training focuses on bystander intervention and is linked to ``Army values that bond Soldiers as a team.'' It reinforces the military ethic of selfless service over predation and self-gratification.
``In 2009, the Army recognized the need for improved training and resources for the prosecution of these crimes.'' Special Victim Prosecutors were created in the Judge Advocate General's Corps and sexual assault investigators were created in the Criminal Investigative Division, CID. Together, these specially trained and experienced professionals work only special victim cases. They are able to apply unprecedented expertise. In addition, all JAG prosecutors and defense counsels have received enhanced training regarding cases of sexual abuse.
With all of these changes, Lieutenant General Darpino still identifies the commander as the ``critical'' element. In her words: ``The most critical element of this institutional effort, however, is the focus of commanders.''
As such, she points out:
The Army, like the other services, has moved aggressively to hold commanders accountable for setting a command climate that encourages reporting, deplores conduct that degrades or harasses individuals, and provides a safe environment, free of retaliation, for victims after they come forward. To support this effort, officers and commanders are receiving enhanced training at every level. Specifically, ``the officers entrusted with the disposition of sexual assaults, withheld to the 0-6 (Colonel) Special Court Martial Convening Authority, are required to attend Senior Legal Orientation Courses at the Judge Advocate General's Legal Center and School with a focus on the proper handling of sexual assault allegations. General officers, who will serve as convening authorities, are offered one-on-one instruction in legal responsibilities, again with a focus on sexual assault.''
Most significantly, in my view, and most recently, the Secretary of the Army, on September 27, 2013, directed that every officer and noncommissioned officer will be rated on how well he or she ``fostered a climate of dignity and respect and adhered to the Sexual Harassment/Assault Response (SHARP) Program.''
Secretary McHugh and General Odierno have made it clear that commanders and senior leaders are responsible. Their advancement, their retention, their standing in the Army will rest with an annual, explicit, written review of their efforts to combat sexual abuse.
I wish to return for a moment to my discussion of the racial challenges facing the Army while I served. Let me also return to the comments of Charlie Moskos, the most respected academic authority and also an Army veteran. In 1986 he wrote:
More important for blacks than the new race relations curriculum was the revision of the efficiency report, a performance evaluation that carries a lot of weight in all promotions. Starting in the early 1970s, a new category appeared in the official report for officers and NCOs: race relation skills. Filling out this section was mandatory and the requirement was rigorously enforced. More blacks received promotions. Some officers with a poor record on race were relieved of command. All of this set a tone. If for only self-interest, Army officers and NCOs became highly sensitive to the issue of race. Today--
He is talking about 1986.
one is more likely to hear racial jokes in a faculty club than in an officers' club. And in an officers' club one will surely see more blacks.
I think we have made great progress, finally, by focusing on the evaluation and efficiency reports that every officer and NCO must receive each year.
Now in the context of what the military is doing to combat sexual assault and in the context of glaring examples of what it is not doing and what it is failing to do, the Armed Services Committee adopted provisions that should rapidly and dramatically combat sexual abuse within the military. The Secretary of Defense has already taken administrative steps to implement some of these provisions. Senator McCaskill will offer additional provisions with her amendment that I wholeheartedly support.
It is important to recognize the comprehensive and critical nature of these provisions that are already in the National Defense Authorization Act--from improving measures to prevent sexual assault, to protecting victims when it does happen, and strengthening the judicial process to discipline those who commit such heinous crimes.
The bill makes important changes that will improve the prevention of sexual assaults. First, the bill prohibits the commissioning or enlistment of individuals convicted of rape, sexual assault, forcible sodomy, or incest, or attempting to commit these offenses.
Second, the bill requires the Secretary of Defense to report on whether legislative action is required to modify the UCMJ to prohibit sexual acts and contacts between military instructors and their trainees.
The next step is to ensure that all servicemembers understand how they can and must prevent and respond to incidents of sexual assault. Each of the services is conducting a variety of training programs on sexual assault prevention and response. This bill requires the Secretary of Defense to conduct a comprehensive review of the adequacy of this training and to then prescribe in regulations such modifications to address any inadequacies identified by this review. The bill also requires the Secretary of Defense to review the adequacy of the training, qualifications, and experience of individuals assigned to positions responsible for sexual assault prevention and response, to retrain or reassign any individual who does not have adequate training or qualifications, and to improve the requirements for selection and assignment to sexual assault prevention and response billets.
Servicemembers who have been sexually assaulted or raped should have every resource available to report the incident, to receive care, and to see that justice is done. In crafting this bill, the committee acknowledged that many victims do not report such incidents because of a fear of retaliation from their peers and leaders. So this legislation includes a provision that makes retaliation against servicemembers for reporting criminal offenses a punishable offense under the Uniform Code of Military Justice. This will ensure that both victims and witnesses to such crimes are able to report the occurrence without facing retaliatory action or threat of such action. This bill also requires the DOD inspector general to review and investigate allegations of retaliatory personnel actions for reporting a rape, sexual assault, or sexual misconduct.
Next, the bill expands certain existing protections to victims who are members of the National Guard and Reserves, and members of the Coast Guard. First, it requires the service secretaries to ensure that members of the National Guard and Reserves have access to a sexual assault response coordinator not later than 2 business days following the request for such assistance. These coordinators explain the reporting process, address the victim's safety and security needs, and offer expertise and available services, including medical care, counseling, and legal support.
Second, it clarifies that an existing requirement for the expedited change of station or unit transfer requested by a victim of sexual assault also applies to members of the Coast Guard.
The bill requires the service secretaries to provide a special victims' counsel to provide legal advice and assistance to servicemembers who are victims of a sexual assault committed by a member of the Armed Forces. This resource was initially created by the Air Force, in a program that began in January of this year. Since the committee's markup of this bill, Secretary of Defense Hagel has directed each of the services to implement such a program. This provision will codify administrative action that has already been taken.
The bill also authorizes the service secretaries to provide guidelines to commanders regarding their authority to temporarily reassign or remove from an assignment a servicemember on active duty who is accused of committing or attempting to commit a sexual assault offense, not as a punitive measure but solely for the purpose of maintaining good order and discipline within the member's unit. In addition, the bill directs the Secretary of Defense to provide information and discussion of this authority as part of the required training for new and prospective commanders at all levels of command.
The bill also makes several changes to further strengthen the judicial process. First, the bill eliminates the element of the character and military service of the accused--the so-called good soldier defense--from the factors a commander should consider in deciding how to dispose of an offense.
I should add that Senator McCaskill's amendment further limits the defendant's use of good military character as evidence.
Second, the bill requires the defense counsel in courts martial to make requests to interview complaining witnesses through the trial counsel, and, if requested by the witness, requires that defense counsel interviews take place in the presence of the trial counsel, counsel for the witness, or outside counsel. This is to protect against the abuse of this process.
Next, the bill changes Article 60 of the UCMJ to limit the ability of a convening authority to modify the findings of a court-martial to specified sexual offenses. In other words, this provision eliminates a commander's ability to overturn a jury's conviction for sexual assault, rape, and other crimes.
Additionally, the bill requires a mandatory minimum sentence of dismissal or dishonorable discharge of a servicemember convicted of a sexual assault offense.
The bill also eliminates the 5-year statute of limitations on trial by court-martial for certain sexually related offenses, and requires that substantiated complaints of a sexually related offense resulting in a court-martial conviction, nonjudicial punishment, or administrative action be noted in the service record of the servicemember, regardless of the member's grade.
Importantly, the bill maintains and strengthens the role of commanders in the judicial process. During the markup of this bill, the committee adopted an amendment on a bipartisan basis that preserves the ability of commanders to initiate court-martial proceedings. Removing this authority, which some of our colleagues advocate, would weaken accountability and undermine efforts to combat sexual assault. Commanders have the responsibility to train their subordinates, they are charged with maintaining good order and discipline within their units, and they are responsible for the safety of the men and women they lead. The commander is essential to instilling among the members of his or her unit that sexual assault and related behaviors will not be tolerated and will be adjudicated.
The bill includes several provisions that address the role of the commanding officer. First, it requires commanding officers to immediately refer to the appropriate military criminal investigation organization reports of sexually related offenses involving serv ice mem bers in the commander's chain of command. Next, the bill requires automatic higher level review of any decision by a commander not to prosecute a sexual assault allegation, with the review going all the way to the service secretary in any case in which the commander disagrees with the military lawyer's recommendation to prosecute.
If a legal counsel advises prosecution, and the commander does not do it, ultimately it will be resolved by the service secretary. Most commanders do not want their decisions reviewed by the service secretary. I think this will add more sense and more purpose to their efforts to combat sexual abuse.
All of these changes take significant steps forward in addressing these horrible crimes. However, we must remain committed to further improving both prevention and response. That is why the bill includes several provisions related to the review that is currently under way by the independent panel created by last year's Defense authorization bill--the Response Systems to Adult Sexual Assault Crimes Panel. This committee is assessing the systems used to investigate, prosecute, and adjudicate crimes involving sexual assault. The bill we are considering today assigns additional issues to be considered by this panel and requires the panel to produce its report no later than 1 year from its first meeting, which occurred in July, rather than 18 months, as originally laid out in last year's law.
As I mentioned before, Senators MCCASKILL, AYOTTE, and FISCHER are proposing an amendment that further strengthens all of these provisions that are already in the committee's bill. First, their amendment requires the special victims' counsels to advise victims of the advantages and disadvantages of their cases being prosecuted in a civilian court with jurisdiction or through the Uniform Code of Military Justice. The victim may express his or her preference, and this preference must be afforded great weight in the determination to prosecute the offense by court-martial or by a civilian court.
The amendment codifies the decision by the Department of the Army to evaluate the performance of soldiers in adhering to the standards regarding sexual assault prevention and response. It extends this provision to every service in the Department of Defense. As previously noted in the context of race relations, this provision is likely to make a profound and lasting contribution to the prevention of sexual abuse. That is what we are about here--preventing sexual abuse. This could be one of the key drivers in that effort.
The amendment also improves accountability of commanders by requiring that a command climate assessment be performed after an incident involving a covered sexual offense, as defined in the legislation, for both the command of the victim and the command of the accused, if they are in separate commands, or a single assessment if they are in the same command. These assessments will be completed promptly and provided to the military criminal investigation organization conducting the investigation of the offense concerned and to the next higher commander in the chain of command of the affected unit.
You will know, if you are a commander, if there is an incident in your unit that all the details will be known by your battalion commander, your brigade commander, your division commander, and all the way up. That will be another strong incentive to make sure that nothing happens in your unit. That is part of the amendment proposed by my colleagues.
This provision, particularly in conjunction with the requirement to evaluate servicemembers' compliance under the official report, will go a long way to provide the accountability and the emphasis on commanders to do their jobs.
GEN Bruce Clarke, a distinguished officer wounded in the Battle of the Bulge and who was awarded the Silver Star--one of the great heroes of the U.S. Army--famously instructed his units that, in his words, ``an organization does well only those things the boss checks.'' Well, we are checking each individual to make sure commander and noncommissioned officer--they are doing their best. We are checking each unit, if there is an incident in that unit, and we are living up to the advice of General Clarke. It will get done because, finally, it will be checked consistently, thoroughly and appropriately.
The amendment also establishes a confidential process that will enable a victim of a sexual assault who is subsequently discharged to challenge the terms or characterization of his or her discharge in order to correct possible instances of retaliation. This provision will help ensure that a discharge accurately reflects the service of the individual, taking into consideration the effects of sexual assault and also helping to remove the concern that reporting sexual abuse could influence the character of a military discharge. Reporting such a crime should never influence the character of a military discharge.
The amendment strengthens the role of the prosecutor in advising commanders on courts martial. The committee language requires the civilian service secretary review all cases where a commander does not choose to prosecute when his or her legal counsel/judge advocate recommends prosecution. The amendment extends that mandatory review if the prosecutor recommends prosecution and the commander demurs. In effect, if either the prosecutor or the legal counsel/judge advocate recommends prosecution and the commander demurs, the case will automatically be referred to the civilian service secretary. You will have the highest ranking civilian in the uniform service making the final call. Every commander will know that.
The amendment modifies the Military Rules of Evidence to prevent defendants from introducing evidence of good military character as a general defense of a charge. Such evidence may only be admitted if that trait is relevant to an element of the offense for which the accused has been charged. Too often, the good soldier defense has been seen as overcoming specific evidence directly related to a crime. This appearance undermines the essential perception that a verdict is determined by direct evidence supporting the elements of the crime, not the previous reputation of the defendant. This provision builds upon a section of the underlying bill that eliminates the character and the military service of the accused from the factors a commander should consider in deciding how to dispose of an offense.
Finally, the amendment ensures that all of the protections of this legislation are extended to the cadets and midshipmen of our service academies. The McCaskill-Ayotte-Fischer amendment strengthens the committee bill. Through enhanced accountability of commanders and additional changes to the Uniform Code of Military Justice, we will strengthen prevention and prosecution of sexual abuse.
Those who argue for the exclusion of the commander from the judicial process point to the policies of our allies, including Canada, the United Kingdom, Australia, and Israel. These countries have removed commanders as convening authorities and use independent military or civilian prosecutors to make charging decisions. While it can be useful at times to draw comparisons between our Armed Forces and those we serve alongside, there are several points to be made with respect to our military justice system that do not align.
First, none of these countries changed their system in response to a sexual assault crisis among their ranks or to protect rights of victims more generally. In most cases the system was changed to protect the rights of the accused.
Second, none of the allies can draw a correlation between their system and any change in reporting by victims of sexual abuse. Many argue that removing the commander as the decisionmaker will remove a significant hurdle that victims face in deciding whether to report sexual assaults. There is no statistical or anecdotal evidence that removing commanders from the charging decision has had any effect on victims' willingness to report crimes in these judicial systems among our allies.
In materials provided to the Response Systems Panel, the deputy military advocate general for the Israeli Defense Force noted an increase in sexual assault complaints between 2007-2011, attributing no specific reason for the increase but noting that it could represent an increase in the number of offenses or it could be a result of campaigns by service authorities to raise awareness on the issue.
Similarly, the commodore of Naval Legal Services for Britain's Royal Navy has assessed that recent structural changes to their military judicial system had no discernible effect on the reporting of sexual assault offenses.
Third, the scope and scale of our allies' caseloads are vastly different, primarily because of the much greater size of the U.S. Armed Forces. For example, the Canadian military only tried 75 to 80 courts-martial last year, which is roughly comparable to one U.S. Army division's annual caseload. But several of our allies who have changed their military justice system have indicated that the changes have resulted in the process slowing down and taking longer. Frankly, that is one of the issues victims have raised in terms of why they aren't reporting and why they are so terribly frustrated--because of the length and duration of the process.
Furthermore, most allies cannot conduct courts-martial in a deployed environment. BG Richard Gross, the legal counsel to the Chairman of the Joint Chiefs of Staffs, stated in a letter:
One critical feature of our justice system is its expeditionary nature--the ability to administer justice anywhere in the world our forces deploy.
Notably, the Army alone tried over 950 cases in deployed areas over the past 10 years. In one case in Iraq, four soldiers committed multiple crimes in a single night. The commander referred all four soldiers to court-martial, and they were charged with consuming alcohol, breaking into local Iraqi homes, and stealing property and money from the locals. Because the commander in Iraq had authority to refer these cases to trial, the first trial was underway within 2 months of the incident. All of the co-accused and many defense witnesses were in the same unit, and local Iraqis were available as fact witnesses. Because the commander had a fully deployable military justice system at his disposal, he was able to send a strong message to the unit that such conduct would be dealt with swiftly and decisively. Simultaneously, he was able to restore positive relations with the local community.
The Army has also cited instances of allied soldiers committing sexual assault crimes against U.S. soldiers, and because of the allied nation's system removing the authority of the chain of command and removing the process from the battlefield, our commanders would demand but not receive timely information on the status of any prosecution. We had a soldier victim, and they could not find anything about the process that was going on.
Tragically, sexual assault is a crime that historically is underreported, and this is not only with respect to the military. The Rape, Abuse, and Incest National Network cites Department of Justice crime surveys that show that an average of 60 percent of assaults in the last 5 years were not reported to police. However, in numbers released earlier this month, DOD showed that more servicemembers are coming forward to report sexual assaults. From October 2012 to June 2013, 3,553 sexual assault complaints were reported to DOD. That is a 46-percent increase over the same period a year ago. These cases include sexual assaults by civilians on servicemembers and by servicemembers on civilians. A significant number of the reported incidents occurred before the victim had even entered military service.
Another argument for removing the commander's authority is that independent JAGs or even civilian authorities will prosecute more cases. However, statistics show that commanders from all services have exercised jurisdiction and pursued courts-martial for sexual assault cases over the determination of civilian authorities. Over the last 2 years, Army commanders have exercised jurisdiction in 49 sexual assault cases the local civilian authorities declined to pursue, and 32 of those cases were tried by court-martial, resulting in 26 convictions. The U.S. Marine Corps exercised jurisdiction in 28 sexual assault cases, all of which were tried by court-martial, and 16 cases resulted in conviction. This goes on throughout every service.
Commanders also have an interest in pursuing a court-martial as a way to demonstrate the seriousness of the crime and its impact on unit discipline, not merely because of the quantity or quality of evidence that a crime occurred.
On June 4 the Armed Services Committee held a hearing on the legislative proposals to address sexual assault in the military. We heard from four colonels from the Army, Navy, Marine Corps, and Air Force. They all spoke about the importance of seeking legal advice from their command judge advocate and having the responsibility to adjudicate crimes within their command.
COL Donna Martin, commander of the Army's 202nd Military Police Group Criminal Investigation Division, stated:
It is of paramount importance that commanders are allowed to continue to be the center of every formation, setting and enforcing standards, and disciplining those who do not. The commander is responsible for all that happens or fails to happen in his or her unit.
She went on to say:
The Uniform Code of Military Justice provides me with all the tools I need to deal with misconduct in my unit from low-level offenses to the most serious, including murder and rape. I cannot and should not relegate my responsibility to maintain discipline to a staff officer or someone else outside the chain of command.
When asked about whether a commander might be more likely to pursue a court-martial than even an outside independent officer because of the desire to send a message to his or her unit, Marine Colonel King replied that he considers ``achieving justice for whatever crime was committed and also the message that I send to the thousands of Marines that are actively watching what's going on. So I can, even if I fail to achieve a conviction at whatever level, still send a powerful message to them that this kind of conduct, even alleged, even not proven, is completely unacceptable.''
Col. Jeannie Leavitt, commander of the 4th Fighter Wing, stated:
I could absolutely see the scenario where a prosecutor may not choose to prosecute a case or recommend prosecuting a case because of the likelihood of conviction. However, as the commander, I absolutely want to prosecute the case because of the message it sends so that my airmen understand that they will be held accountable. And then we'll let the jury decide what happened in the case and whether or not it will be convicted. But that message is so important, whereas an independent prosecutor may not see the need to take it to trial if the proof is not necessarily going to lead to conviction.''
Additionally, our service JAGs have expressed several concerns about the proposed amendment my colleague from New York is introducing. I will take a moment and talk about the amendment.
I thank and commend Senator Gillibrand because without her persistence and passion, we would not be here today. She perhaps has done more than anyone else to focus our attention on this incredibly heinous crime done to individuals and the threat to good order, discipline, and efficiency of the military.
Her objective--the elimination of sexual abuse in the ranks of our military--must be our objective, and it must be realized. She and her cosponsors have determined, in their view, that the removal of the commander from the application of the Uniform Code of Military Justice for a wide variety of offenses is the best approach to achieve the goal of ending sexual abuse in the military, but, as my previous comments clearly indicate, I disagree. Indeed, given the nature of military service, which is significantly different from civilian life, I believe that without the active involvement of commanders in every phase of military life, this goal cannot be effectively and rapidly achieved.
The approach in the amendment proposed by my colleague from New York poses significant problems in practice that could unwittingly complicate rather than accelerate efforts to end sexual abuse.
The amendment attempts to divide crimes designated by specific articles of the UCMJ into two broad categories: traditional military offenses subject to command adjudication, such as AWOL and insubordination, and a broad category of serious offenses that would typically constitute civilian criminal offenses, such as murder, robbery, and rape and sexual crimes. In fact, here is a chart depicting the division of the articles of the Uniform Code of Military Justice.
This second category of offenses would be removed from command adjudication and would be referred to an independent prosecutor. This independent prosecutor must be at least a full colonel with ``significant experience in trials by general or specific court martial'' and be ``outside the chain of command of the member subject to such charges.''
This bifurcated system--especially considering the scope of crimes excluded from the chain of command--will have profound effects on the ability of commanders and units to function effectively.
Let's take the case, which is not uncommon, of a soldier who writes five checks on five separate occasions for $30 each to the PX knowing he doesn't have the funds to cover his purchases. The Criminal Investigations Division investigates and informs the commander. Under the Gillibrand amendment, the CID must refer this case to the independent prosecutor because it falls under article 123a. These are referred to special prosecutors if they fall under the category. The five separate incidents, although they individually have a maximum punishment of 6 months, would be charged together, leading to 30 months, which exceeds the 1-year threshold for the Gillibrand amendment. As a result, this would be sent forward to the special prosecutor.
I hardly think that charging this soldier for writing bad checks is the intent of the Gillibrand amendment, but it will be the effect. It also raises the very practical questions of how the independent prosecutor will deal with an onslaught of cases like this when the expectation is that he or she will be focused on sexual abuse and other serious crimes, such as murder. There is a practical issue: Are you going to take a bad check case when you have 15 pending attempted murders, assaults, rapes, et cetera? That is a practical issue, and I think the answer is probably no.
Under the amendment, the independent prosecutor has the choice of convening a special court-martial or a general court-martial. A special court-martial consists of a panel of at least three members or, at the servicemember’s election, a military judge sitting alone. There is a prosecutor, referred to as the trial counsel, and a defense counsel. In comparison, a general court-martial is the military's highest level court where servicemembers are tried for the most serious crimes--roughly analogous to a civilian felony court--and the maximum punishments are increased.
Before any charge can be sent to a general court-martial, an Article 32 investigation must be conducted, which is a hybrid of a civilian grand jury proceeding and a preliminary comprehensive discovery proceeding. The Article 32 investigation is intended to be more than a mere formality; it is a valuable right for the accused and a source of information for the commander. The general court-martial may consist of a military judge and not fewer than five members or a military judge alone if the defendant chooses. Capital cases require 12 members.
As we can see, these proceedings are intensive in terms of time, in terms of commitment of military personnel, and in terms of investigatory efforts. In fact, the average length of special court-martial proceedings ranges from 3 to 5 months. General courts-martial can take anywhere from 5 to 8 months. In cases involving sexual assault, both special and general courts-martial take longer--an average of 9 months. Again, this is probably going to delay the process, not accelerate the process.
Given the time and resources involved in a general or special court-martial, in the case of a young soldier writing bad checks and the longstanding practice of reserving general and special courts-martial for the most serious offenses, I seriously doubt that an independent prosecutor would take this case. At some point, the independent prosecutor will inform the commander, which raises another issue. If this notification is delayed extensively, there is a related problem of what to do with the soldier under suspicion. Do you deploy him or her subject to recall? Do you leave him behind? So all of these issues are important.
The independent prosecutor's decision is binding on any applicable convening authority for a trial by court-martial on such charges. It is binding on every commander. The amendment, however, does attempt to preserve authority to punish these types of offenses by declaring that the independent prosecutor's decision ``shall not operate to terminate or otherwise alter the authority of commanding officers'' to employ a summary court-martial or to impose nonjudicial punishment under Article 15 of the UCMJ. But this authority is absolutely an illusion.
Under the UCMJ, every soldier has the right to turn down a summary court-martial or an Article 15.
Once he is informed by counsel that he will not be subject to a general court-martial or a special court-martial, and he can turn down a summary court-martial and article 15, the soldier will invariably refuse the summary court-martial or article 15. Ironically, in doing so he will demand a court-martial. But the commander cannot comply, as he can now, because he has already been preempted by the independent prosecutor.
This scenario will play out over and over again. A unit is plagued by a series of barracks thefts which, if unchecked, erodes good order and discipline. The commander has information that one soldier is boasting about ripping off people but he has no other evidence. During a routine health and welfare inspection, an iPhone valued at over $500 and reported missing is found in the boasting soldier's room. Under the Gillibrand amendment, the commander must refer the case to the independent prosecutor and again you will have the issues of whether the independent prosecutor takes such a case, and if not, the likelihood that the accused will refuse a summary court-martial or an Article 15 and walk free.
Incidents like this--and this is not the intent of the legislation, but this is what will happen--will erode unit cohesion and raise questions at least implicitly: Who is really running the unit? The commander? An unseen and unknown JAG, hundreds of miles away? Or individual soldiers who may appear to be violating the rules with impunity?
This question is important here, but it is critical when a commander has to order soldiers to do dangerous things, and ultimately, that is what commanders have to do and soldiers have to have no doubt that the commander, he or she, is fully in charge.
As I referenced earlier, the bifurcation of the articles of the UCMJ poses significant challenges. The problem with the drafting of this amendment complicates not just cases of common theft, not just issues that you say we could throw out, but the very issue of sexual assault we are trying to address.
Let's take another example of a married couple, both of whom are Active Duty servicemembers, who get into a shouting match in their quarters on post. The husband stabs the wife with a kitchen knife and knocks her unconscious. She provides a statement to CID but later retracts it. They have another argument which results in his assaulting her with an attempt to commit rape. Under the Gillibrand amendment, the first offense of aggravated assault, Article 128, would have to be referred to the independent prosecutor to decide whether to send the case to a court-martial, while the offense of assault with intent to commit rape, which is specified under Article 134, is exempt from the Gillibrand proposal and would be referred to the chain of command. Assuming both the independent prosecutor and the independent commander seek a general court-martial, this particular victim will now have to have two separate Article 32 hearings, two subsequent courts-martial, at least doubling the number of times she must recount her nightmare and prolonging the administration of justice.
The accused will demand and likely get two separate panels for each set of offenses, thus doubling the number of officers unavailable for their duties in the command and more than doubling the administrative, personnel, and witness costs associated with the general court-martial.
This is a situation where, rather than streamlining, reinforcing, and clarifying the military's efforts to deal with sexual assault, we have confused them, we have delayed them, and we have put commanders in the position of competing with independent prosecutors. This is not going to add to the solution on a practical basis of how we deal with sexual assault.
We know so many of the men and women in our Armed Forces serve our nation selflessly. Every day they are prepared to give their lives. Sexual assault is the antithesis of this ethic. It has no place in the Armed Forces, and if not eliminated, it will insidiously destroy our military. I believe preventing sexual abuse requires leadership at every stage and that commanders must be involved in every step. I believe that we will make the most progress in addressing this issue by involving and holding commanders accountable, not by excluding them from a critical area of militarily life.
We have worked extensively to include provisions in this bill that will improve the prevention of sexual assault, the protection of victims, and the prosecution of perpetrators. We must pledge to do more, to continue our oversight of these programs and make further changes if needed. We owe it to all those who bravely and honorably wear the uniform of our Nation.
Madam President, I yield the floor.
