Kirsten Gillibrand, a Democrat from New York, is a member of the U.S. Senate.
Three years ago, during a Senate Armed Services Committee hearing at the height of a contentious debate about sexual assault in the military, one of our nation’s highest-ranking military officials — the vice chairman of the Joint Chiefs of Staff — blatantly misled Congress to defeat a policy reform. The question now is: Does Congress care?
The debate was about the central question related to military sexual assault: When a service member is accused of sexually assaulting someone, who decides whether to prosecute? The Defense Department insists that a commander should decide, even though most commanders have little to no expertise in legal or criminal matters, and may know and socialize with the accused. A bipartisan majority of the Senate agreed with me that this decision should be made instead by a highly trained military prosecutor, outside the chain of command of the victim and the accused.
At the Senate hearing, in an effort to defend the status quo, Navy Adm. James A. Winnefeld Jr., then vice chairman of the Joint Chiefs, told the Senate about 93 sexual assault cases — all involving service members — in which civilian prosecutors “refused” to prosecute and commanders “insisted” on prosecuting the cases. For many of my colleagues, including former senator Carl Levin (D-Mich.), chairman of the Armed Services Committee at that time, it was a compelling argument, which they repeated on the floor of the Senate while successfully filibustering our reform. It was also verifiably false.
Last month, an independent investigation by the nonprofit group Protect Our Defenders, which was further investigated and substantiated by the Associated Press, found that two-thirds of the cases the Defense Department cited in the Senate hearing differed markedly from what was claimed. In a majority of cases, there was no sexual assault allegation to begin with, the military had failed to prosecute for sexual assault or civilian prosecutors did not decline to prosecute. After the news broke about the false testimony, the Defense Department told the AP that the information in the testimony came directly from military lawyers who had dealt with these cases.
This week, I called for another vote on my bill, the Military Justice Improvement Act, because the Senate held its previous votes under the influence of false and misleading information. Not only did the Defense Department skew the debate then by misleading Congress, but it continues to do so by telling Congress that sexual assault survivors’ faith in the system is increasing — despite its own statistics showing the opposite. Fewer victims this year were willing to put their names on reports seeking justice, compared with last year; and the percentage of victims willing to report openly has declined for the past five years.
Even more troubling, the Defense Department reports that 62 percent of service members brave enough to report their sexual assault faced retaliation. According to the department’s most recent data, in 58 percent of retaliation cases, the person accused of retaliation was higher up in the chain of command than the accuser. Our service members are supposed to trust the chain of command to give them a fair shake when they are victims of a crime. It’s no wonder the Defense Department estimates that nearly 8 out of 10 military sexual assault survivors don’t report the crime.
I understand that the military would prefer not to have the interference of Congress or civilian oversight. But that’s not how our form of government works. The Defense Department tells us that if 3 percent of the most senior commanders don’t have sole authority to decide whether a person accused of rape should be prosecuted, we will lose good order and discipline in our military. That same argument was used against integrating the services; against allowing women to serve; against repealing don’t ask, don’t tell; and against allowing women in combat. It wasn’t true then, and it isn’t true now.
For more than 20 years, since Dick Cheney was defense secretary and pledged “zero tolerance” for sexual assault, the Defense Department has been telling Congress: Trust us, we’ve got this. Last year alone, the department estimated that there were more than 20,000 sexual assaults against service members — more than 50 a day, and roughly the same number since 2010.
Congress has a chance to do right by the men and women who serve this country and give them a justice system equal in quality to their service. This time, let’s hope Congress takes that chance.