Sen. Kirsten Gillibrand
No one at the Senate Armed Services Committee hearing with the Joint Chiefs of Staff and top military lawyers was saying anything but that sexual assault is a serious matter not to be tolerated and that the military is failing to combat it as effectively as it must do. But Sens. Claire McCaskill and Kirsten Gillibrand stood out in the intensity of their questioning and the extent of the changes they're calling for. McCaskill, the first woman on the committee to speak,
called for the military to improve its reporting of sexual assaults, which currently "doesn’t tell us whether it’s an unhealthy work environment or whether or not you’ve got criminals" by not distinguishing between harassment and rape, for instance.
“Success is going to look like this: more reports of rape, sodomy and assault and less ‘incidents’ of rape, sodomy and assault,” she said. “Everyone needs to be prepared here, that if we do a good job, that that number ... that’s going to go up, if we’re doing well. Overall the incidents are going to go up.”
To fix the problem we need to know what it looks like, in other words, and right now, that's something of a mystery. Bad. But how bad?
McCaskill also had strong words for a policy allowing commanders to weigh military experience in deciding whether or not to prosecute:
"The facts of a felony are the facts of a felony, I don’t care how good a pilot it is, I don’t care how good a Special Ops person it is. Their ability to perform as a soldier or an airman or a member of the Coast Guard is irrelevant to whether or not they committed a crime."
Well, it should be.
Gillibrand focused along related lines, the fact that commanders not trained in law and not necessarily objective when it comes to people under their command have so much sway over the decision to prosecute. While the military leadership is insistent that Gillibrand's bill to remove that decision-making power from the chain of command in serious cases would imply that victims of assault cannot trust their commanders, Gillibrand pointed to several other countries—allies of the United States—that have such laws, seemingly without having destroyed their military function. And, importantly, Gillibrand noted that in fact some commanders can't be trusted on sexual assault:
“You have lost the trust of the men and women who rely on you that you will actually bring justice in these cases,” Gillibrand said. “They’re afraid to report. They think their careers will be over. They fear retaliation. They fear being blamed. That is our biggest challenge, right there.”
Later, she suggested that part of the problem is that “not every commander can distinguish between a slap on the ass and a rape” — a blunt assessment of how well the military is tracking the issue.
Recent cases in which commanders have overturned convictions by juries of high-ranking officers underscore these points dramatically. At the hearing, some of the military leaders did agree that removing this power could be appropriate, with Lt. Gen. Dana Chipman, the Army judge advocate general, explaining that it had originated before the military had improved its system of justice to current levels and so was now outdated. In general, though, the Joint Chiefs of Staff are united in agreement that sexual assault is a serious issue on which the military isn't doing a good enough job—and equally united in their agreement that the people who've been failing at it should continue to be in charge of the issue.