Is Pentagon response to sexual assault broken? Clash over new bill.

A bipartisan group of senators is proposing legislation mandating that instead of military commanders deciding whether a rape charge has merit and should move forward, an independent judiciary will.

The Pentagon disclosed Thursday that there has been a surge in reports of sexual assault this year – an increase of nearly 50 percent compared with the same time period last year.

This could be either good news or very bad news for the Pentagon, depending on how US lawmakers interpret the upswing.

Military officials who have long been grappling with the problem of sexual assault within the ranks – and promising Congress they will do better – no doubt hope that lawmakers see it as a sign of victims’ increased confidence in a system that is encouraging them to come forward.

A number of Pentagon officials have cautioned that such a spike in reports is just what they expect to see as they take steps to protect US troops who say they’ve been raped from what such troops often describe as a brutal military justice process.

But lawmakers say they’re losing patience with the Pentagon, and they may be less inclined to view the spike in reports charitably.

Earlier this week, a bipartisan group of senators gathered to call for a change in the way the US military prosecutes sexual assault. They’re proposing legislation mandating that instead of commanders deciding whether a rape charge has merit and should move forward, an independent judiciary will.

Such a change to the military’s chain of command would be unprecedented. The Pentagon opposes it, saying that taking any authority away from commanders would undermine good order and discipline.

Lawmakers and retired military officers who gathered at a press conference Wednesday on Capitol Hill to announce the Military Justice Improvement Act said they were unimpressed by this argument.

“Commanders hold all the cards as to whether a case will move forward or not,” said Sen. Kirsten Gillibrand (D) of New York, who is sponsoring the legislation. “With 26,000 cases of sexual assaults, rapes, and unwanted sexual contact last year alone, we don’t have the good order and discipline that our military needs.”

The proposed bill does, however, make some concessions to commanders’ concerns. It does not remove from the chain of command 37 crimes that are unique to the military – such as insubordination or going absent without leave (AWOL). It also doesn’t remove all crimes that are punishable by less than one year of confinement.

The legislation is necessary because military commanders have not kept the promises they have made to Congress, says Sen. Lisa Murkowski (R) of Alaska.

“I have heard it, and I think my colleagues have heard it, from every single general that has chosen to visit within the past six months – that 'we’ve had our eyes wide open.' Well, they’ve had their eyes wide open now for 20 years,” she said. The Defense Department’s “time to solve the problem on its own has expired.”

Sen. Rand Paul (R) of Kentucky, who was also at the press conference, said it was an easy decision for him to support the bill. “To me, it’s as simple as this: Should you have to report to your boss when you’ve been abused or when you’ve been a victim of a crime? Nowhere in America would you report that to your boss.”

Senators pointed, too, to comments made by the current nominee to be undersecretary of the Navy, Jo Ann Rooney. In written testimony ahead of her confirmation hearing last month, she addressed the potential changes to reporting sexual assaults.

On Wednesday, Sen. Barbara Boxer (D) of California cited the comments, quoting Ms. Rooney. “Here’s what she said:... ‘A judge advocate outside the chain of command’ – that’s what we call for – ‘will be looking at a case through a different lens than a military commander.’ And she goes on, ‘I believe the impact would be decisions based on evidence rather than the interest in preserving good order and discipline,’ ” Senator Boxer read.

“You know, every once in a while, someone without trying to says something that’s absolutely true,” said Boxer, who called Rooney’s comments “shocking.”

Some lawmakers say they will not support the legislation, including Sen. Carl Levin (D) of Michigan, chairman of the Senate Armed Services Committee. Sen. Lindsey Graham (R) of South Carolina told Politico that he would do “whatever it takes” to block it.

This includes a filibuster, which would mean the bill would require 60 votes to pass, instead of a simple majority of 51. The legislation currently has 45 supporters.

“I’m dead set against taking this out of the chain of command,” Senator Graham said. “You can’t fix any problem in the military where you exclude the commander.”

Graham instead announced Tuesday that he is cosponsoring legislation, which also has the support of Boxer and others, to overhaul a key pretrial process in the military justice system known as Article 32.

An Article 32 hearing is akin to a mini-trial, in which an officer listens to the prosecution and defense to determine whether a case should proceed.

The problem is that there are few restrictions on how military lawyers conduct themselves, Boxer said. “Right now there’s no restrictions.... You can go on a fishing expedition and you can do whatever you want, and there’s no boundaries.”

The new bill would allow victims to file sworn statements, instead of being required to appear in the preliminary trial process.

This would be a helpful development, Eleanor Smeal, president of Feminist Majority, told Politico. “These pretrial hearings are pretty disgraceful,” she said. “It’s another way of wearing down the victim – and basically denying her even a trial if she reports.”

The key, lawmakers and others stress, will be changing attitudes still pervasive in the military.

During the Capitol Hill press conference Wednesday, Ben Klay, a former officer in the Marine Corps, recalled that when he was deployed to Iraq, he was focused on fighting and considered legal issues raised by those under his command a “divisive” distraction that “tore up units.”

Then his wife and fellow officer Ariana Klay volunteered for a deployment to Afghanistan to avoid the climate of harassment that she says she felt on the job at the Marine Barracks in Washington, D.C.

Her request to go to war was denied, because her commanders deemed her too crucial to the command. Six months later, she says, she was assaulted.

“When Ariana reported her assault, I learned how this denial works,” Mr. Klay told reporters. “I read her commander’s conclusions in writing that she deserved ill-treatment for wearing running shorts and makeup.”

The assault trial “put Ariana through over 15 hours of degrading testimony after a year of retaliation and intimidation,” he said, recalling the prosecution’s closing statement, which included the Marine officer reading aloud the definitions of words like “whore” and “slut” and implying that his wife fit the descriptions.

That’s when his attitude changed. Before, legal issues “made me resent those who brought them to my attention,” he said. “I used to feel a commander’s disinterest in the law, too.”