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Sen. Kirsten Gillibrand meets members of the 106th Rescue Wing, Westhampton Beach, NY.
Sen. Kirsten Gillibrand (D-NY)
Two bills addressing military sexual assault are expected to come to a Senate vote Thursday afternoon. A bill from Sen. Claire McCaskill would eliminate "good soldier" as a legal defense in military evidence rules except where the defendant's character is directly tied to the crime; that bill is expected to pass. But the fate of Sen. Kirsten Gillibrand's Military Justice Improvement Act is still undecided.

That bill, which would take decisions about sexual assault prosecutions out of the hands of military commanders and put them in the hands of prosecutors, needs 60 votes to break a filibuster and currently has 55 public supporters, according to Gillibrand, including 10 Republicans. The New York Democrat continues to actively lobby her colleagues, aided by Sen. Barbara Boxer:

Boxer gave a floor speech Wednesday night challenging opponents not to “filibuster justice.”

“Anyone who does that ought to lose some sleep over it, frankly,” she said. “Because I’ll tell you, if we get very close but can’t have an up-or-down vote, but we get in the high 50s, this change is coming. But why not make the change now?”

This is the rare case where a Democratic bill with 10 Republican votes may well fall short, since some Democrats, McCaskill included, oppose the Military Justice Improvement Act, wanting to leave prosecution decisions within the military chain of command. Similarly, the list of possibly undecided senators Gillibrand is targeting is bipartisan.

Sign and send the petition: Support victims of military sexual assault.

Originally posted to Laura Clawson on Thu Mar 06, 2014 at 06:28 AM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  ... 'cause the military chain of command (9+ / 0-)

    has done such a bang-up job, so far.

    (* not that there's any trace of Cover-Thine-Ass politics afoot among commanders)

    GO, Sen. Gillibrand!

  •  Shame on Mccaskill (9+ / 0-)

    For not supporting this bill. Expected from ignorant, neanderthal republican idiots, but she should be 100% in.

  •  Still havent answered (2+ / 0-)
    Recommended by:
    lyvwyr101, JJ In Illinois

    Every time you write about this I ask about it:

    When has anyone ever cared MORE about something when they are told its not their responsibility?

    How is the military supposed to punish commanders who fail to uphold standards for investigations and trails if they are no longer responsible for investigations and trails?

    How many different kinds of justice are you planning to set up?  If there is one standard for sex crimes and another for everything else where does it end?  Do we have separate systems for every punitive article?

    Since the ability to restrict the liberty of a citizen is clearly spelled out in the Constitution, when are proponents of this change going to amend the Constitution?

    Finally once the "new" system "fails" to achieve perfect results who will get tasked with perfection next?  Given the rate of sexual assault in the military is less than 1% what is the goal other than perfection?

    It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

    by ksuwildkat on Thu Mar 06, 2014 at 07:55:26 AM PST

    •  Does this have a snowball's chance in hell (0+ / 0-)

      of passing the House?

      I don't see how it could.  So, is this one of those bills that "make a statement" but go nowhere?

    •  Perhaps you will also answer a question, or few. (3+ / 0-)
      Recommended by:
      BMScott, BachFan, Militarytracy

      You make several statements as if they were indisputable facts; and then ask rhetorical questions about them.  If you really want answers to FACTS, perhaps you will deal with these questions first, and establish the facts as such.

      Where do you get the information that "Given the rate of sexual assault in the military is less than 1% . . ." ?

      Where do you find the position that anyone is seeking to ". . . achieve perfect results", in efforts to deal with currently troubling problems?

      Since the Military uses a Code that differs greatly from the Constitution in many ways, just what bearing does your remark about " . . . restrict the liberty of a citizen. . ." have on the matter of dealing with that Code - UCMJ, Uniform Code of Military Justice - that is.  This is, already, a  ". . . different kind of justice . . .", which, perhaps, needs some attention concerning, " . . . standard for sex crimes . . ."; since it apparently has little, if any, now.

      And last, but not at all least, are you even familiar with the UCMJ?  If not - as your rhetoric does seem to indicate - perhaps you should begin by learning something about it.

      .

      •  Glad to answer - going to do it in parts (0+ / 0-)

        Here are some stats as briefed the mandatory training I got last week (and will get again next week!):

        FY12 - 3,374 reports
        FY13 -  5,000+
        26,000 anonymous 2012 survey
           14,000 male (Male on male)
           12,000 female

        AF- 45% increase
        Marines- 86% increase
        Navy- 46% increase
        Army- 50% increase

        so while that looks bad, we actually see it as encouraging because our biggest issue is under reporting.  

        Of the 3374 from FY 12 about 750 went to trial.  That is actually high compared to the civilian wold.  Unlike the civilian world, trials dont "cost money" like the do for a District Attorney so there is no issue with budget.  And unlike the civilian world no one has to run for office on their win loss rate like a DA does.  

        Total Department of Defense personnel for FY 12 - 3.23 million.  But that is not the total number either when you take a close look at the FY 12 numbers they break out like this:

        Service member on Service member - 62% (1590)
        Service member on non-service member - 22% (573)
        Non-service member on service member - 5% (124)
        Unidentified on service member - 11% (271)

        Sadly, You have to count the approximately 1.4 million family members in this number too.  

        So if we take the cases that people would generally "blame" the military for its 2163.  Out of more than 4.5 million people.  Now show me a city of 4.5 million that does better.  We are talking about a TINY number of bad actors compared to the population.  Still, one is too many but we do a pretty darn good job.  

        It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

        by ksuwildkat on Thu Mar 06, 2014 at 09:14:43 AM PST

        [ Parent ]

        •  Rape and sexual assault is grossly (1+ / 0-)
          Recommended by:
          BMScott

          under reported in the military, and you know this.

          Because of Sen. Kirsten Gillibrand efforts though, victims within the military feel somewhat safer at this time to report and our reported cases shot up 50%...like magically overnight.

          http://www.huffingtonpost.com/...

          Being raped within the military social structure has also proven to increase the possible long term trauma of the survivors because the system is closed and invites abuse.

          And count me unimpressed after meeting the individuals at Fort Rucker who will be handling the reported cases now.  I found them callous and at the time a little bit about it being all about them.  In order to make the cut they had to have spotless records though, and they were very proud of making the cut but they hardly strike me as people best to handle a traumatized individual.  Just having a spotless record does not make you a good candidate to handle someone who has just been raped, you probably ought to have a skillset for the task too....ability to have empathy for others and not just be feelingless super soldier might be nice.

      •  Ok second answer - perfection (0+ / 0-)

        We really are to the point where this bill is trying to achieve perfection.  Worse, it is trying to achieve the WRONG perfection.

        Humans make mistakes.  That is a given.  We get fooled all the time.  We trust people and get burned.  We choose A when we should have taken B.  Our legal system is full of humans.  

        It wasnt a military judge who gave a guy 30 days for committing rape.  It wasn't a military judge who gave a kid rehab for killing 4 people.  It wasnt a military jury that said the gloves didn't fit so they had to acquit.  So no matter what we do, some cases will get dorked up.  

        Where we should strive for perfection is in REPORTING.  We have a serious reporting problem.  I know because I have been the guy trying to get someone to file a formal report when I KNOW she was raped.  And I failed.  I know because 6 months after finishing her time in the Army my own wife told me about being harassed.  And I KNEW the harasser.  I considered him a friend.  And I knew my wife and couldnt understand why she didnt report it.  I cant tell you how frustrating it is when you KNOW something has happened that was wrong but no matter what you do, no matter what you say, the victim refuses to file a complaint.  And then you see that guy and that smug look and you just want to beat that look right off them.  But you cant.  

        And then of course we have the false reports.  I have dealt with those too.  And they are evil.  I dont get how someone can do that but they do.  But for every false report there are 10 unreported actual assaults.  False reporting is not an excuse for under prosecuting but it is a factor.  

        Still I would rather deal with a hundred false or marginal reports than have one true case go unreported.  I have NEVER had a single case where the perp got caught the first time.  NEVER.  In every case I have been involved with there were multiple reports/rumors that didnt stick previously.  So even if its a bad report, it can go into the memory bank so the next time its a little bit easier.  And every once in a while a guy (yeah, its usually a guy) really didnt know he was going too far and that complaint readjusts his moral compass about right and wrong.

        The military is a reflection on society.  As long as society teaches some people that No means maybe we are going to bring people in who think no means maybe.  We do our best once they are ours but we haven't achieve perfection and of course we never will.  All we can really hope for is to catch them early with the "hey that made me uncomfortable" before it turns into "he raped me."  but we need REPORTING.

        It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

        by ksuwildkat on Thu Mar 06, 2014 at 09:31:19 AM PST

        [ Parent ]

      •  last one (0+ / 0-)

        I kinda got lost in your last part but here is the thing - we follow the constitution almost to a t, just with different people.

        Grand Jury = Article 32

        District Attorney = Commander/JAG
         - Commander decides what to bring to trial (like a DA) and the JAG actually conducts the trial (like the ADAs)

        Judge = Judge

        Jury = Jury

        Post verdict review - here is where everyone gets angry.  We require the commander who brought the case to trial to review the findings.  In 27 years I have never seen a commander reverse or otherwise change the substance of a conviction.  I have seen him move the place of confinement from one prison to another and I have seen some long sentences made slightly shorter by allowing some current time (but we are talking 22 years instead of 30).  What has people up in arms are the cases that have been reversed.  I get that.  it looks bad.  But what most people dont understand is that the civilian system has the exact same thing.  A judge can set aside the verdict of a jury and many do.  In fact if anything military commanders probably put more thought into and get more advice about changing verdicts than judges do.  It jsut that we never hear about judges doing it.  Doesnt mean it doesnt happen.  

        So the systems are the same.  Maybe that needs to change but lets not pretend the system is unique to the military.

        It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

        by ksuwildkat on Thu Mar 06, 2014 at 09:39:32 AM PST

        [ Parent ]

    •  You could begin by reading (4+ / 0-)

      Myths vs. Facts, which answers your first two questions.  Then you could read the MJIA itself; the UCMJ can be found here, and a list of relevant articles by number here.  If you do this, you will find that the MJIA applies to all offences for which the maximum punishment authorized under the UCMJ is confinement for more than a year, save those that are of a peculiarly military nature (e.g., desertion).  Thus, there is not one standard for sex crimes and another for everything else.  

      Your fifth paragraph makes no sense, and your sixth is just silly.  No one is expecting perfection.  The goal is to improve on the present execrable results:

      Of the DoD’s 26,000 estimated cases, only 2,558 victims sought justice by filing an unrestricted report and only an abysmal 302 proceeded to trial.  A chain of command orientated system that produces only 302 prosecutions of 2,558 actionable reports is simply not holding enough alleged assailants accountable under any metric.
      The key SAPRO report findings here should also give you pause.

      (And the estimated rate is actually almost 2%.)

      •  About those 26000 (0+ / 0-)

        Please remember those 26000 include everything from inappropriate jokes to accusations of rape.  

        Those 26000 are a source of frustration to many of use.  We appreciate the GENERAL knowledge of problems but without actual reports - with names and sworn statements - we cant DO anything about them.  

        Think of it this way - every day you see SOMEONE run a red light or make a left from the right hand lane and you think "Where is a cop when I need one?"  Is it the cops fault?  No.  People do bad things and get away with them.  All we can hope is that one day they will make that left and get caught.  No imagine if you have a pretty good idea that there is a guy who doesnt get the meaning of NO but you cant get anything on him.  All you can do is hope that one day he will try it on the wrong person and you will get a report you can do something with.  

        It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

        by ksuwildkat on Thu Mar 06, 2014 at 09:46:12 AM PST

        [ Parent ]

  •  I wish (0+ / 0-)

    They'd stand up like that for unemployment benefits, food stamps and jobs.

  •  I'm also inclined to leave it (0+ / 0-)

    to the chain of command when it comes to discipline and prosecutions. I understand the necessity of that when it comes to keeping good order.

    But, the military has made such a botched job of prosecuting these kinds of infractions it effectively is amounting to a unconstitutional denial of justice to the victims. Therefore it is only right and reasonable that these cases be referred outside the military discipline structure and proceed along a parallel track.

    Lets not forget, however, that good order and discipline starts at the top. The President is ultimately responsible, especially for the officer cadre that he commissions. A broad crackdown from the White House would have made the Senator's bill unnecessary.

    •  Human nature (0+ / 0-)

      Humans make mistakes.  The number of "botched" cases is extremely low.  And without showing my service prejudice too much, most of them are from the Air Force.  

      For better or worse, Officers Air Force rarely command before the O5 level (about 18 years in) and because of the small size of the Air Force and the nature of what they do, they have fewer discipline issues to deal with.  As an example the Air Force base I am stationed on has had about 10 DUIs in the last 2 years.  The Army base 8 miles away averages 5 a week.  Granted it is larger but even accounting for a per capita count, its massively different.  As a result many Air Force Officers get to the general Officer level before having to deal with a significant number of legal cases.  

      Compare that to the Army where  - as is typical - I dealt with my first Court Martial before I hit 4 years.  By the time I was a Commander I had participated in probably a hundred low level cases (Article 15), had one of my soldiers convicted and sent to jail for 5 years, been a character witness in another trial and served as a jury member on three trials.  I was able to see the justice system up close and had people senior to me essentially quiz me on cases that I observed and then give me feedback.

      I will disagree with your last statement.  I joined the Army during the second Reagan administration.  I was commissioned during the first Clinton administration.  I administered my first justice during the first Bush administration.  Who needs to be held accountable if I make a mistake tomorrow?  Me.  Just me.  

      It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

      by ksuwildkat on Thu Mar 06, 2014 at 08:52:17 AM PST

      [ Parent ]

      •  The number of cases (2+ / 0-)

        that come to trial is way too low.  It’s too low as a fraction of the number reported, and it’s shockingly low as a fraction of the estimated number of potential cases.  Even if every case that came to trial had the proper outcome – something that is known not to be the case – there would still be a very large number of botched cases.  As further evidence of botched outcomes, albeit slightly indirect:

        According to a 7 month investigation by the San Antonio Express, a survey of 1,200 service members who sought help since 2003 at the Military Rape Crisis Center found that 90% of victims who reported sexual assault were involuntarily discharged.
        •  Why is trail the standard? (0+ / 0-)

          In fact, if you are doing your job right as an investigator, you never bring one to trial.  

          A trial means a weak case.  I want such an overwhelming case that they plead out.  I want so much evidence they are afraid to go to trial.  I want them to confess and not drag the victim through a trial EVER.

          It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

          by ksuwildkat on Thu Mar 06, 2014 at 09:57:29 AM PST

          [ Parent ]

      •  I was an MP at Camp LeJeune. (3+ / 0-)
        Recommended by:
        BMScott, ksuwildkat, BachFan

        While I was there, we had a number of people, I can't remember how many, but more than a dozen cases where sexual misconduct was prosecuted. Of course, at that time we had a base commander who made it absolutely clear there was zero tolerance. Under him, a lot of these cases were taken right out of NJP and sent for CM, including one company XO. I heard later after I was moved to Pendleton that a new commander wasn't as tough.

        However, I disagree that 'just you' are responsible for what happens under your command. A problem like this, as out of control and disruptive as its become, has to be addressed by the highest civilian authorities when there are so many cases where commanders have let it slide.

        •  correct (1+ / 0-)
          Recommended by:
          brooklynbadboy

          Command climate matters.  But I dont think we hold the President responsible for everything.

          And of course while everyone wants the President to come down as a hard ass all it does is send cases to potential dismissal for "undue command influence."  Its not a myth, its happening every day.  In fact General Sinclair tried it.  he is going to plead to all of the lesser charges against him today.  I have hope that the CG will pound him on sentencing.  

          It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

          by ksuwildkat on Thu Mar 06, 2014 at 10:00:26 AM PST

          [ Parent ]

  •  and it failed yet again (0+ / 0-)

    Great quote from the Senator:

    "It's time to move the sole decision-making power over whether serious crimes akin to a felony go to trial from the chain of command into the hands of non-biased, professionally trained military prosecutors where it belongs," Gillibrand argued.
    I am sure she is going to propose separate justice for murder and other felony charges too right?  Right?  No?

    Unfortunately this is a "play to the cameras" vote in the same way that voting to repeal Obamacare is.  Whats worse it hurts the people really wanting change because they think she cares about them.  You are being played for fools.  

    It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

    by ksuwildkat on Thu Mar 06, 2014 at 02:40:33 PM PST

    •  There wasn’t much doubt before, (0+ / 0-)

      but you’ve just proved conclusively that you don’t know what was in the MJIA and did not pay attention to most of my first comment, despite responding to it.  I suppose that this is not altogether bad: you’ve made it clear that your position is more important to you than the facts, relieving me of any need to respond further.

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