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Questions of independent prosecution hang over sex assault legislation

May. 16, 2013 - 06:00AM   |  
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Lawmakers are wrestling with changes in the military justice system to improve investigation and prosecution of rape and sexual assault cases, with a push toward handling have sex crimes handled outside the normal chain of command.

Sen. Kirsten Gillibrand, D-N.Y., sponsor of one of the proposals and chairwoman of the Senate Armed Services Committee’s personnel panel, said an unfortunate confluence of events — a study showing rising reports of sexual assault in the ranks, and two cases of people in charge of sexual assault prevention programs accused of perpetrating what they were supposed to be stopping — have focused attention to the problem and created the momentum to do something.

“For all of us, we believe enough is enough,” Gillibrand said. “We have to seize cease this opportunity and act now.”

One of the unresolved questions is how much independence is needed to create a culture in which victims feel comfortable reporting incidents without interfering with the military command hierarchy. An answer is likely to come in the next two months as Congress works on the 2014 defense authorization bill, the likely vehicle for sexual assault and abuse legislation.

Getting the most attention is Gillibrand’s Military Justice Improvement Act, a bipartisan and bicameral bill unveiled Thursday that would remove from the chain of command decisions about prosecuting crimes that carry a possible sentence of a year or more in jail. That would extends beyond just sex crimes, and would exclude only crimes of a military-unique nature, such as disobeying orders or unauthorized absence.

It also would codify a decision made last month by Defense Secretary Chuck Hagel to limit the authority of court-martial convening authorities to overturn or reduce guilty verdicts, while adding a provision that would require written justification by the convening authority for any change in the sentence handed down by a judge or panel in a court-martial.

Gillibrand said an independent judicial system for some crimes would give confidence to victims that reported crimes will be investigated and prosecuted.

The bill confronts this issue head-on by removing decision-making from the chain of command and giving that discretion to experienced trial counsel with prosecutorial experiences, where it belongs, she said.

“That is how we will achieve accountability, justice and fairness,” she said.

“This is a sensible bill to stop an epidemic,” said Sen. Susan Collins, R-Maine, one of the bill sponsors, who added that the chain of command has not been responsive in the past when she raised questions about rape and sexual assault in the ranks.

Gillibrand’s position as leader of the Senate panel responsible for personnel policy gives her bill an edge. But there are concerns about it.

A senior congressional aide who asked not to be identified said there is bipartisan concern that Gillibrand’s bill “is overbroad and potentially unworkable.”

“It is written as a large-scale overhaul of the military justice system, instead of being targeted specifically at sexual abuse cases,” said the aide.

This raises questions about how cases would be separated between military-unique and not-unique legal processes, the aide said.

“There are questions about whether the JAG personnel exist to make determinations about the influx of cases they’d see and what it will mean to military commanders’ ability to impose discipline, when many infractions beyond sexual assault are taken out of their purview,” the aide said.

A competing and less sweeping bill, the Combating Military Sexual Assault Act, also bipartisan, is sponsored Sen. Patty Murray, D-Wash.

That measure would require that all rape and sexual assault offenses be considered for a general court-martial.

Presenting the case to a general court-martial convening authority, usually a flag or general officer, is aimed at preventing lower-level commanders from disposing of a case through non-judicial punishment or no punishment, a frequent complaint of critics of the current military justice system.

This is less sweeping than Gillibrand’s measure, while still taking the decision on prosecution away from the accused’s immediate command.

A bill with the same name but different provisions was introduced in the House by Rep. Tim Ryan, D-Ohio. Ryan’s bill creates a special victims counsel to handle sexual assault and rape cases, providing guidance and assistance to any victim, regardless of whether the victim files an unrestricted incident report that would lead to charges against an alleged perpetrator.

Murray said the aim is to provide support and confidence for rape and assault victims. “Not only are we subjecting our men and women to this disgusting epidemic, but we’re also failing to provide the victims with any meaningful support system once they have fallen victim to these attacks,” she said.

Sen. Kelly Ayotte, R-N.H., a cosponsor of Murray’s bill and a member of the Senate Armed Services Committee, said the legislation is clearly needed. “When a service member fails to live up to our values and commits sexual assault, we must ensure the victims have the support they need and the perpetrators face justice,” she said.

Ayotte said Murray’s bill would “strengthen existing laws and policies so that all victims can come forward without fear of retribution and with confidence that they will receive the support, care, and justice they deserve.”

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