Fighting Sexual Assaults in the Military: One Bill Passes While Another Fails

  Words by Bridget Foster.

It seems legislators can’t agree on how to reform the process for prosecuting sexual assaults in the armed services. Two measures sponsored by female members of Congress recently came up for votes…one passed; the other missed the mark by 5 votes.  Senator Claire McCaskill, who sits on the Armed Services Committee, prefers to achieve reform from within, while Senator Kirsten Gillibrand would force change from outside of the traditional military structure.

Senator Gillibrand sponsored the Military Justice Improvement Act which would have taken the authority to investigate and prosecute sexual assault cases from military commanders and given it to independent military prosecutors. The intent of Gillibrand’s bill was to increase prosecutions by eliminating the chance for bias as well as making victims more comfortable with reporting assaults. The bill was supported by a majority of Senators but did not have the 60 votes needed to overcome a filibuster. However, the Pentagon and the leaders of the Senate Armed Services Committee strongly opposed the bill and when it came up for a vote last Thursday, Sen. McCaskill voted against it.  McCaskill supported her opposition by saying the reforms that became law last December were designed to increase prosecutions for sexual assault. Her sentiments were echoed by Rep. John Boehner, who also said the current reforms were enough and Gillibrand’s bill would have had a tough time passing in the House.

Last December, Congress passed several reforms to the Uniform Code of Military Justice as part of the National Defense Authorization Act. The reforms included:

  • Providing attorneys to represent the victims
  • Removing from commanders the power to overturn convictions
  • Making it a criminal act to retaliate against a victim
  • Requiring a dishonorable discharge for anyone convicted of a sexual assault

This bill will make several changes to the way military sexual assault cases are handled.  Under this bill the statute of limitations for military rapes would no longer apply, jury convictions could no longer be overturned by military commanders, the “good soldier defense” using a defendant’s record of good military character to work in their favor would no longer be allowed and victims would receive their own special counsel.  This counsel would also be responsible for explaining the pros and cons of the case being pursued in both the military system of justice as well as the civilian venue.  The victims of the case will be allowed to have a say as to which justice system in which they would like the case prosecuted.  It also requires that an environment within the command is established where individuals feel safe and free to report any sexual assault crimes or concerns.  In addition, if a commander makes the refusal to prosecute a sexual assault case, this decision will then be reviewed by a higher civilian authority.  Troops who are convicted of sexual assault crimes will be dishonorably discharged and stiff punishments will be given to any individual retaliating against those who report these assaults and rapes.

The competing bill authored by Senator McCaskill successfully passed by a 97-0 vote on Monday. McCaskill’s bill had several provisions designed to strengthen the reforms passed last December. The new amendment removes the “good soldier” legal defense unless the soldier’s military character is directly related to the charges. This change is designed to remove the bias that typically favors men and senior members of the military.


McCaskill’s bill also gives assault victims the opportunity to say whether they would like their cases heard in the civilian or military justice system and provides a confidential process for victims to challenge the terms or characterization of any discharge that may result from their cases. Additionally, the measure requires an outside civilian review in the event a commander and prosecutor cannot agree on the prosecution of a sexual assault. The amendment includes language clarifying that all of the sexual-assault prevention reforms are applicable to the military service academies as well.  Senator Gillibrand voted in favor of McCaskill’s bill.  

In spite of all the media attention to sexual assaults, actions taken by the service branches and reforms passed by Congress, the Pentagon released data showing a 60% increase in 2013 in the number of reports of sexual assaults and unwanted sexual contact. Senator Gillibrand and advocacy groups for sexual assault victims have vowed to continue the fight.

Statistics regarding sexual assault and the military are alarming and demanded reform.  In 2012, approximately 26,000 occurrences of unwanted sexual contact took place, over a 30 percent increase since 2010, of which only 13 percent or roughly 3000 cases were reported.  Of those 3000 reports only half were pursued in court.  Some critics of the military justice system claim that vindictiveness and indifference and they tendency for victims to be accused of hurting unit moral and readiness are responsible for these high numbers of occurrences with few reports being made.  Veterans groups have long been arguing for changes that would improve the military’s treatment of such reports and provide increased protection for those doing the reporting. 

It is hoped that with the high levels of support shown in the Senate for the bill, that the House will come to a similar conclusion.  House officials appear to be more receptive to the proposed changes with this bill as opposed to previous bills.  As of yet there has been no schedules set for hearings regarding the bill in the House.

Reading next