When the United States Senate this week takes up S 1197, the National Defense Authorization Act (NDAA), it will likely vote into law measures that advocates for sexual assault survivors say fall short of what is required to stem the tide of rape and assault in the U.S. military.
Despite the support of such groups as the Service Women’s Action Network and Protect Our Defenders, a measure sponsored by Sen. Kirsten Gillibrand (D-NY) that would remove the adjudication of sexual assault and other serious crimes from the chain of command did not make it into the final bill, having been waylaid by an unrelated procedural dispute between Senate Republicans and Democrats.
Gillibrand’s measure, called the Military Justice Improvement Act (MJIA), is expected to see a vote as a stand-alone measure on the Senate floor after the body reconvenes in January, following the holiday recess. Senate Majority Leader Harry Reid has signed on to Gillibrand’s Military Justice Improvement Act, despite the opposition of the Pentagon.
When Congress repealed the military’s anti-LGBT “Don’t Ask, Don’t Tell” policy in 2011, the vote took place in a similar manner, with Gillibrand leading the charge.
Advocates for sexual assault survivors in the military argue that until commanders are removed from the process, few survivors will come forward to make charges, since victim and perpetrator usually fall under the same command, and perpetrators are often of a higher rank than their victims. A Pentagon report issued earlier this year estimated some 26,000 instances of “unwanted sexual contact” perpetrated service members over a two-year period, but fewer than 3,400 were reported.
Throughout this year, military leaders have had to answer for a barrage of news reports of sexual assaults and other sex crimes conducted by members of the military, often against their own colleagues, all in the wake of an Academy Award nomination last year for the eye-opening documentary The Invisible War, which exposed a culture of retaliation against rape and assault survivors who came forward to report the crimes perpetrated against them.
The NDAA, which will likely receive a vote on Wednesday, does, however, include a provision that expands a special victims’ counsel program for members of the military pursuing sexual assault charges against fellow service members, and makes it a crime to retaliate against those report sexual assaults by their colleagues or superiors. The legislation would also prohibit commanders from overturning a sexual assault conviction (as happened in February, when an Air Force commander, Lt. Gen. Craig Franklin, threw out the conviction of Lt. Col. James Wilkerson), and removes the statute of limitations (currently five years) from sexual assault and rape charges.
The bill also requires that any service member convicted of sexual assault receive a dishonorable discharge, and changes the Article 32 hearing process—the preliminary proceeding held before charges are brought—so that those making sexual assault charges can no longer be subjected to the kind of hostile questioning faced by a woman attending the Naval Academy, who reluctantly brought charges against members of the Academy’s football team, only to be asked on the stand by defense lawyers how wide she opens her mouth during oral sex, and whether she was wearing underwear the night of the party at which the alleged assault took place.
Even with those changes, however, survivors’ advocates say that the culture of assault and retaliation that currently exists in the military will not be turned back until a survivor’s commander is removed from the adjudication process.
Asked for comment on the absence of Gillibrand’s MJIA, which would do just that, from the current defense authorization, Gillibrand’s office sent the following statement to RH Reality Check: “We are confident that we will get a vote. Regardless of what happens, the Senator will not go away, she will keep fighting to protect our brave men and women in uniform and to strengthen our military.”