Dramatic reform to the military justice system must be measured against the yardstick of protecting victims and boosting prosecutions.
Over the past several days, there’s been an effort to make a partisan issue out of sex crimes in the military—specifically, a proposal by Senator Kirsten Gillibrand to strip military commanders of the ability to launch courts-martial. On Saturday, Michael Langenmayr of Daily Kos sent an email saying that, because I oppose this legislation, I was “caving to pressure from the military and joining Republicans…” in that opposition.
That argument is unhelpful, because trying to make sexual assault in the military into a partisan issue does nothing to improve justice for the victims we’re fighting for. There are Democrats and Republicans on both sides of this controversial bill, even as Congress was united in passing other historic reforms to stem these crimes. And only through a well-informed, fact-driven discussion can we continue our focus on meaningful reforms. So I'm coming directly to the Daily Kos community to make something clear: for me, this debate is about policy, not politics.
This renewed debate comes just weeks after Congress passed and the President signed into law the biggest single overhaul to the military justice system in a generation—one that I was proud to help shape and support—including: stripping military commanders of their ability to overturn convictions, requiring civilian review if a commander declines to prosecute, assigning victims their own independent legal counsel to fight for their interests, mandating dishonorable discharge for anyone convicted of sexual assault, criminalizing retaliation against victims who report a sexual assault, eliminating the statute of limitations in these cases, and reforming the pre-trial “Article-32” process.
For me, this effort is personal. I spent years in Kansas City courtrooms, prosecuting rape cases and putting predators behind bars. And I've battled the Pentagon on issues from wartime contracting, to preservation of evidence in rape cases.
I do oppose the Gillibrand alternative. because I believe it would lead to fewer prosecutions of predators and less protection for victims. And I’m not the only one who recognizes the risks posed by stripping commanders of their court-martial authority:
“I started out with the view that Senator Gillibrand is a very bright and intelligent and committed person… and I thought her proposal sounded right. I’ve changed my mind, because I was just listening to what we heard. I started out… thinking, why not change it and now I am saying, why change it… Just turning it over to prosecutors doesn’t mean you are going to get the results you are looking for…”
- words spoken by a conservative Republican? No, they were spoken by former Democratic Congresswoman Elizabeth Holtzman, author of the federal Rape Shield law.
“… when you hear the facts, [Senator Gillibrand’s legislation] doesn’t hold up… we looked at the proposal, but the evidence just doesn’t hold up… Problems are solved with facts… I was a former prosecutor, I like the independence of a prosecutor. When you hear it at first blush, you go, yeah I want to go with that, but when you hear the facts, like you would in a case, it just doesn’t hold up…”
- a Pentagon insider carrying the water for commanders? No, this was Mai Fernandez, Executive Director of the National Center for Victims of Crime.
“… I have not been persuaded that the removal of a commander as the convening authority is going to have a positive impact. There is no empirical evidence that reporting is going to increase. There is no empirical evidence that prosecutions will be better handled, that investigations even before prosecutions will be better handled. . . . There is no evidence that removing the convening authority is going to improve any of those parts of the system as they exist now…”
- did we hear this from a Republican political operative? No, we heard it from former Federal District Judge Barbara Jones, author of a judicial opinion striking down the Defense of Marriage Act.
These were some of the voices of an independent panel of policy experts created by Congress—majority-civilian and majority-women—who undertook the first comprehensive analysis of the Gillibrand proposal. They considered testimony from more than 150 witnesses, including academics, victims’ advocates, judicial experts, prosecutors, service providers, and foreign military officials. They studied and debated the Gillibrand bill exhaustively, and ultimately voted decisively to reject it. No other panel has done similarly comprehensive work on this issue.
Here's why I believe the Gillibrand alternative falls short:
It would leave a huge number of victims behind. Over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which a commander launched a court martial. And many of those courts-martial resulted in convictions. That's 93 victims who would never have had their day in court if commanders lost the ability to bring a case to court martial. We've also found almost no cases in which a prosecutor wanted to pursue charges but was overruled by a commander.
It hasn't worked where it's been tried. Supporters of this alternative point to a number of our allies that have moved to similar military justice systems. But not one of these countries has seen the increase in reporting that proponents promise here. The same Response Systems Panel that decisively rejected the Gillibrand alternative, also verified that none of America's allies who made this change did so to protect victims, and none saw significantly more victims come forward. In fact, many of our allies changed their systems to better protect the accused.
It would raise the likelihood of retaliation against victims who report an assault. If you're a victim of a sexual assault, agonizing over whether to report your crime, your foremost worry is likely to be whether you'll be retaliated against by your fellow servicemembers. So what system will better protect you from such retaliation--one in which your unit's commander signs off on a case moving forward, or one in which outside lawyers, possibly hundreds of miles away from your unit, do so? Civilian review is needed when a commander decides to not prosecute, but stripping commanders of the ability to move cases forward removes a key tool for protecting victims.
Dramatic reform to the military justice system must be measured against the yardstick of protecting victims and boosting prosecutions. We can’t base consequential and controversial legislation on a hunch. We have to thoughtfully build the strongest possible reforms to protect and empower victims, crack down on commanders’ ability to abuse their authority, and retain a commander’s ability to do it right.
The policy matters.
I recognize this is a tough issue, and members of the Daily Kos community will advocate for what they think is right, just as I will. I'm happy to discuss it with anyone who wants to do so respectfully, so I'll respond to your comments for a bit, then return a few times over the next couple of hours. Thanks for your time.