The U.S. House of Representatives passed its version of the National Defense Authorization Act (NDAA) last week, despite veto threats from the White House over Guantanamo Bay and spending cuts. Now begins the likely long wait until the Senate follows suit, and issues like how to handle military sexual assault may continue to spark heated disagreement. However, there is still some potential good news for women soldiers in the final House version of the bill.
Debate over the Senate version of this “must-pass” defense legislation earlier this year included a tough fight led by Sen. Kirsten Gillibrand (D-NY) over changing how military sexual assaults are prosecuted. Military commanders can influence the outcome of sexual assault prosecutions at three stages: deciding whether to prosecute a case in the first place, selecting the jury, and potentially overturning sentences. Advocates urge that commanders need to have these powers taken away because survivors don’t trust the system enough to come forward, fearing retaliation from commanders or even having been sexually assaulted by a commander in the first place, while defenders of the status quo fear undermining commanders’ authority. Gillibrand’s bill would have stripped commanders of all three powers, for all felonies and not just sexual assault, and instead let a military prosecutor decide whether to pursue the case.
Rep. Jackie Speier (D-CA) sponsored an amendment that only took away the power of deciding whether to prosecute, a more limited version of Gillibrand’s bill, but that amendment failed to reach the House floor.
“Service members should have the expectation and confidence that if they are harmed by a fellow service member they will have legal recourse that is fair,” Speier said in a statement. “The system in place right now falls well below this standard.”
But other amendments Speier introduced to make things easier on military sexual assault survivors did pass, including a prohibition on using “good military character” as a defense in sexual assault cases, and amendments protecting survivors from having their sexual history or conversations with therapists used against them in court.
Amendments sponsored by Reps. Speier and Mike Coffman (R-CO) attempted to address a troubling trend of misdiagnosis that is allegedly causing military sexual assault survivors to be unjustly denied mental health coverage. Many service members who have experienced trauma get diagnosed not with post-traumatic stress disorder (PTSD) but with “adjustment disorders” or “personality disorders” that allow the military to discharge them without benefits. Although these disorders are defined as lifelong from childhood and not a response to a specific trauma, advocates say that the diagnosis is being abused to retaliate against assault survivors. Labeled with a diagnosis that counts as a “pre-existing condition,” survivors can’t get coverage for mental health care related to their trauma.
“It’s a career-ending diagnosis,” Greg Jacob, policy director of the Service Women’s Action Network (SWAN), told RH Reality Check.
Speier’s amendment, which passed, calls for a review by the inspector general of personality disorder diagnoses made following reports of sexual assault. Coffman co-sponsored one successful amendment that would require a mental health professional to be on the board that reviews mental health discharges, and one unsuccessful amendment that would have allowed service members to appeal diagnoses of personality or adjustment disorders.
Other provisions benefit new mothers in the military: an amendment to extend maternity leave for service members from six to 12 weeks, sponsored by Rep. Tammy Duckworth (D-IL), and one to provide breastfeeding support and supplies, sponsored by Rep. Lois Capps (D-CA).
These policy changes, said Jacob, would bring the Department of Defense in line with other federal agencies and “into the 21st century.”