Sen. Claire McCaskill answered your questions about her bill that would strip military commanders of their authority to overturn jury verdicts in sexual assault cases and make it a crime to retaliate against servicemembers who report assaults, as part of msnbc’s weekly Q&A series. The Missouri Democrat is a senior member of the Armed Services Committee.
Reader questions were edited for typos and remain in their original format.
Here are highlights from the conversation:
Sen. McCaskill: Jody, it breaks my heart to read what happened to you. Sexual assault is a traumatic crime—and the injuries you suffered were likely only compounded by the threats and intimidation you received. You asked me to tell you that our fighting women (and men) aren’t being subjected to the same mistreatment today. In 2011, a change in policy began allowing victims of sexual assault to request an expedited transfer from their units in order to protect victims from having to go back and serve with their attackers. While this was a positive change, there is much more work to be done. The good news is that we’ve taken some huge steps in the right direction—with historic reforms signed into law a few months ago that installed civilian review over commanders, and that made it a crime to retaliate against a victim the way you were retaliated against. Victims can now report outside the chain of command and will be assigned their own independent lawyer to fight for their interests. Monitoring these historic changes and aggressive oversight will be my mission for years to come. There’s more changes that need to be made, but because of folks like you brave enough to share your story, we’ve exerted enough pressure on the system to finally force real and substantive changes to protect victims, and hold these criminals accountable.
@shellytheoracle: I am a Navy Vet who had a good deal of involvement with the “military Justice system.” Unlike Ms. McCaskill I have first hand experience of the unfairness of a system that allows a commanding officer to make unfair and arbitrary decisions based on protecting those he favors. The system as it now exists is arbitrary and often unfair to women who have been sexually assaulted and an independent sytem must be created to assure justice and impartiality. I have first hand experience of the unfairness of the system as it now exists. Why do you as a person who has never served in the military believe those claiming to have been sexually assaulted can now get justice by modicifcations that keeps in place the weakest link in a bad system of justice, allowing commanding officers to be the unquestioned arbiter of “justice”?
Jacquie Barbavian IN REPLY TO: @shellytheoracle #2 Same question here an Air Force Female Veteran who has also experienced this injustice and has been in support groups where other sexual assualt victims from all services have shared their horrific experiences with NO JUSTICE within Chain of Command (often times because of protection for favorites; or favorites of other commanders they are friends with; or the Commanding Officers ARE the perpetrators).
Sen. McCaskill: I’m sorry to hear that you both have experienced the systematic unfairness that we know was a part of the military justice system for far too long. As a former sex crimes prosecutor, I believe you’re absolutely right that a system that allows commanders to make decisions about courts-martial based on who he or she favors goes against every notion of justice we have in America. When it comes to commanders who’ve abused their power in these cases, I have no patience and no sympathy—they should lose their jobs. That’s why I successfully called for the removal of Air Force Lieutenant General Craig Franklin, who I believe abused his authority in a well-known case out of Aviano Air Base—and why I blocked the nomination of another Air Force Lieutenant General who overturned a jury conviction against the advice of legal counsel. Thankfully, in the historic reforms we were able to pass into law just a few months ago, commanders no longer have the power to overturn convictions. And if they choose not to prosecute a case, they must answer to the civilian secretary of their branch. We should also remember that leaving these cases just to lawyers and prosecutors would have its own pitfalls for victims. I know from personal experience that prosecutors are often focused on a “won/loss” ratio, and can be hesitant to pursue charges if there are evidentiary challenges in a case, which often happens in sexual assault cases. In just the past two years, we’ve identified at least 93 cases of sexual assault in which a prosecutor declined to pursue charges, but in which a commander still launched a court-martial. Those are 93 victims of sexual assault who would never have had their day in court if these cases were left solely to prosecutors. Under the major reforms that recently became law, we have effectively eliminated commanders’ ability to abuse their power, but we also retain commanders’ ability to do it right—and we substantially increase the ability to hold them accountable if they fail. Under an alternative proposal by my colleague Senator Kirsten Gillibrand which would strip commanders of all responsibilities in these cases, if a prosecutor declines to pursue a court-martial, then the case is over and that victim has no chance at justice.
@HealthComm100: Communication and Organizational Comm studies on organizational justice (i.e, McComas and others) find that individuals SUPPORT decisions made by officials when the PROCESS is perceived as a fair process that allows all to VOICE their position, opinion, and verifiable facts, even when the decision does not result in their desired outcome. On the other hand, processes that are not perceived as “fair” or transparent are more likely, based on research, to be challenged, mistrusted, and creating an “us vs. them” culture.
Q#1: What actions, if any, have allowed the victims of sexual assault to voice THEIR needs (considering they are the most vulnerable within all of the stakeholders [military leadership, victims, military co-workers, and military families, justice advocates, and the public] )?
Q2: Because sexual assault is such a personal violation that affects a person in many ways, including: (A) physically, (B) mentally and emotionally (thoughts involving fears/anticipation of more violence, fear of retaliation, fear of reputation, fear of effect on promotion potential, fear of speaking publicly about personal issues and violent acts involving sexual assault), (C) socially (reputation, stigma, perception of ability to be a strong soldier in defending self, self identity in groups, self-perception of own sexual preferences (LGBT &/or straight), etc.), (D) economically (effect on promotion, cost of legal fees, cost of publicity to self and family), and (E) culturally sensitive (i.e., cultural norms for victims of violence and sexual assault, cultural expectations for maintaining “purity” & marriage norms, etc.); in what ways is the military currently handling these sexual assault cases – with empathy? with social supports, financial supports, legal supports?
Q3: What are the key objections to the proposal to separate: (A) the disciplinary actions allowed via the Chain of Command in the military; from (B) the legal process, legal knowledge, and due process needed via a 3rd party (i.e., military attorneys).
Q4: Is the current process for handling sexual assaults in the military a “fair and just” process for ALL involved (i.e., alleged perpetrator, victim, military ranks, military families, mothers of soldiers, and the public), based on current US laws?
Sen. McCaskill: Lots of questions, but all good ones. I fully agree with your description of sexual assault as a crime that has deeply personal consequences for the victim. These crimes are also unique, in that we so often rely on the victim to report their assault, in order to investigate and hold the perpetrators accountable. That’s why your point about empowering victims is so important—and that’s why one of the major reforms passed into law recently requires that any military servicemember who reports that they have been assaulted be immediately assigned their own independent lawyer to fight for their interests. That reform alone will make this system the most victim-friendly in the world. In the hundreds of rape cases I’ve prosecuted, the victims—while having access to an advocate who worked for the prosecutor—never had their own lawyer. That independent support and advice could have made a real difference in empowering victims in the civilian system, and I’m confident it will have that impact in the military system. Our reforms also include a provision allowing for the transfer of an alleged perpetrator out of a military unit, at the choice of the victim. More work can be done—which is why I’ve introduced a bipartisan bill that would bolster our already historic reforms, including a policy that would allow victims to have input into whether their cases are pursued in military or civilian court. My key objection to an alternative proposal by my colleague Senator Kirsten Gillibrand which would strip commanders of their ability to launch courts-martial is this: I believe such a move would result in fewer prosecutions of predators, and less protections for victims. As I noted above, it would leave a huge number of victims behind (over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which a commander launched a court martial—that’s 93 victims who would never have had their day in court if commanders lost the ability to bring a case to court-martial). It also hasn’t worked where it’s been tried—supporters of this alternative point to a number of our allies that have moved to similar military justice systems, but not one of these countries has seen the increase in reporting that proponents promise. In fact, many of our allies changed their systems to better protect the accused, not victims. Lastly, I believe this alternative would raise the likelihood of retaliation against victims who report an assault. If you’re a victim, agonizing over whether to report your crime, your foremost worry is likely to be whether you’ll be retaliated against by fellow servicemembers. So what system will better protect you from such retaliation: one in which your unit’s commander signs off on a case moving forward, or one in which outside lawyers, possibly hundreds of miles away from your unit, do so? Civilian review of the decisions commanders make is needed, but stripping commanders of the ability to move cases forward removes a key tool for protecting victims. And we’ve heard no testimony that commanders refused to go forward against the recommendation of investigators or prosecutors. It’s also worth noting that an independent panel of policy experts created by Congress to study these crimes—majority-civilian, and majority-women—recently voted decisively to reject the Gillibrand alternative, citing a lack of any evidence—after hearing from more than 150 witnesses—that this approach would improve the system.
Richard House: Why would we expect different results from the same “keep cases in the chain of command” as it now is and has tragically failed men and women victims of the CRIME of sexual assault?
Sen. McCaskill: I believe we can expect very different results going forward, because we’ve achieved dramatic and historic changes to the military justice system. When President Obama signed our annual defense bill a few months ago, here’s what it meant for change in that system: commanders stripped of the ability to overturn convictions, civilian review required if a commander declines to prosecute, victims assigned their own independent legal counsel to protect their rights and fight for their interests, dishonorable discharge mandated for anyone convicted of sexual assault, retaliation against victims criminalized, the statute of limitations eliminated, and the pre-trial “Article-32” process reformed. I’m confident that these real changes will mean real results.
MCchrist: My partner and I live in Saint Louis, and worked tirelessly for your reelection in 2012. We’re both proud to have voted for you, but we couldn’t disagree more regarding your unwillingness to compromise on the removal of sexual assault from the military chain of command. We are both from military families, and were raised in a military town. We are close friends with a soldier who was sexually assaulted by a superior officer and received no justice through the chain of command. The existing system is an abject failure, and our friend is certain that no fixes within the chain of command will bring justice to the vast majority of victims of sexual assault. You have been unwilling to compromise on this particular issue, despite the bipartisan and overwhelming support that Senator Gillibrand’s proposed changes have received. Please explain to us how you can be so certain that you’re not wrong on this issue: how do you know that all of the sexual assault victims who support Senator Gillbrand’s proposed changes are wrong?
Sen. McCaskill: It’s good to hear from fellow Missourians on this critical topic. I would disagree that there’s been an unwillingness to compromise—in fact, Senator Gillibrand and I have worked very closely together on the majority of the reforms under consideration (the historic changes outlined in the answer above were shaped and supported by both of us, and by the other hardworking members of the Armed Services Committee, including Senators Kelly Ayotte and Deb Fischer). I would argue that bipartisan cooperation has been the norm on this debate, not the exception (click HERE for a diagram outlining areas of agreement and compromise, and areas of disagreement). I’m very sorry to hear about your friend who was sexually assaulted—and I agree that the pre-reform military justice system fell short of protecting victims and promoting justice. But the historic changes made just a few months ago in the annual defense bill—commanders stripped of the ability to overturn convictions, civilian review required if a commander declines to prosecute, victims assigned their own independent legal counsel to fight for their interests, dishonorable discharge mandated for anyone convicted of assault, retaliation against victims criminalized, the statute of limitations eliminated, and the pre-trial “Article-32” process reformed—represent the biggest overhaul to the military justice system in a generation. Those major reforms were widely supported, but the approach advocated by Senator Gillibrand that would make one more significant change remains deeply controversial among both Democrats and Republicans. Ultimately, reform of this scope must be evidence-based, and grounded in hard data. It’s also important to note I’m not the only person opposed to the Gillibrand alternative on policy grounds. An independent panel of policy experts created by Congress to study these crimes—majority-civilian, and majority-women—recently voted decisively to reject the Gillibrand alternative, citing a lack of any evidence that this approach would improve the system. Please take the time to read the comments of highly respected women, lawyers, and former judges, who began their review assuming that the Gillibrand proposal made sense, and then changed their minds when confronted with the evidence and data.
KME1111: I respect and admire you and your desire to keep sexual assault prosecution within the military. However; I stringently disagree due to my experience being sexually assaulted within the military more than once where the perpetrators WERE within the chain of Command. In one case my Commander; in another my direct supervisor. No way was it going to go anywhere without direct retaliation to me, my military service, and my hopes to remain in the military that I loved so much. This is not a rare thing; this is an all too familiar thing. So, my question is will you listen to those of us who have actually had these horrific experiences and find a better solution to stopping and prosecuting sexual assaults within the military? No sexual predator will stop or be afraid of prosecution when they know they are protected; or ARE part of the Chain of Command period.
Sen. McCaskill: Putting protections in place for victims has driven all of my work in this area. I want to make sure that no victim ever has the sense, like you did, that they were powerless. We know that completely stripping our commanders of their responsibilities would not work. Our allies have made this change and none of them have seen the promised increase in reporting of these crimes. Meanwhile as our recent historic reforms are implemented, we are building on the recent spike in reporting over just the past year in the U.S. military. Potentially the most important change we’ve now achieved is that victims who report an assault will immediately be assigned their own independent lawyer to protect their rights and fight for their interests (as you may already know, victims aren’t required to report their crimes to their chain of command, but can file actionable reports to others, including a Sexual Assault Response Coordinator, a Victim Advocate, a minister or member of the clergy, a doctor, or law enforcement outside the chain of command). Unfortunately there is nothing in the Gillibrand proposal or any proposal that would eliminate every possibility of retaliation. But under the new law, a victim will have the choice of either returning to their unit, asking for transfer, or asking to have the alleged perpetrator transferred. We have also added for the first time to the Uniform Code of Military Justice the crime of retaliation, which victims’ lawyers will be empowered to pursue. What happened to you was unthinkable, and I’m sorry that these provisions weren’t in place when you were assaulted. I hope you can find some comfort in the notion that these historic protections will help prevent the same experience from happening to other brave men and women.
JagLaw: The rate of sexual assaults, in the military, is significantly below those amongst the civilian population. I agree that valid claims of sexual assaults should be taken seriously and proseuted vehemently. However I also believe that false claims need to be taken just as seriously and prosecuted just as vehemently and the consequences should be just as serious. Sen. McCaskill: In the discussion of how our military justice system handles sexual assaults, the problem has not been that victims are lying. The problem was a system failing to prosecute predators, and failing to protect and empower those victims. I’ll leave it to the trained investigators, prosecutors, commanders, and civilian service leaders in each instance to examine the facts and evidence—but I plan to remain focused on reforming the military justice system to put more criminals behind bars, protect victims, and hold commanders accountable for stamping out these crimes. It is important to note that under our reforms, and under the Gillibrand alternative, the investigations of these crimes will be handled by investigators independent of the chain of command. Jenny McClendon: Senator McCaskill, I am a long time fan of yours despite the fact that I do not live in your state. I understand the tactical problems with taking reporting out of the chain of command but these problems hardly trump the moral responsibility that we have with regard to not paying service members an annual salary with health and housing benefits while they rape in the military, their families, and in outside communities to include foreign territory. You have offered the military five years to clean their house. That is an estimated 131,000 rapes. The Joint Chiefs of Staff and members of the SAPOR office have represented the military and they have offered the following explanations. 1. My Marines so not rape? 2. We owe these victims better than this. 3. I do not even use power point to train anymore –implying that power point was the training problem. If you were acting as a prosecutor would you have torn those answers apart? My follow up question is a four parter: 1. How are we going to gauge progress? 2. Who is going to train the military and what are the credentials of that training staff? 3. Are we going to make sure that the military is not training it and considering not using power point as progress. 4. As a veteran I received training and what I refer to in my up coming book as “Anti training.” Anti training is the set of paradigms that undermine training mechanisms. Do you plan on applying any mechanisms that address anti training? Sen. McCaskill: Thanks for your questions, Jenny. I’ve answered some of them in the above posts, but you’re right that training and education are certainly an important factor in continuing to change the military’s climate as it relates to these crimes. We now have a much better training protocol for investigators, that was actually developed at Fort Leonard Wood, Missouri, with consultation from civilian sex crimes investigators. I’m also spending a great deal of time with those responsible for training in this area throughout the military. This issue is key, as you identified, and I want to understand all the protocols that are being fused. i.e., no more “Power Point solutions.” You also asked how we’re going to gauge progress as we work to curb rapes and sexual assaults in the military. As a former sex crimes prosecutor, I and many others who’ve examined this issue believe that initial progress will come in the form of an increase in reporting of these crimes. As discussed above, one of the biggest challenges here is that victims don’t often have enough confidence in the system to come forward. I believe our historic reforms that recently became law will start to turn the corner on that problem, and we’re already receiving the first clues that change is on the way—in November, the Pentagon released preliminary statistics on assaults that showed a 46 percent increase in reporting during the first three quarters of 2013. These numbers, while a comfort to no one, represent progress (reporting increased by only 6 percent from 2011 to 2012), and hopefully show that with new protections in place, victims will have the confidence to come forward, without us removing all accountability from commanders. This data suggests that the number of brave men and women choosing to pursue justice is increasing. It also shows that a system that includes a role for commanders, and holds them accountable with historic reforms, will work for victims. And it’s a reminder that while a number of America’s allies have made changes to their military justice systems that mirror the alternative proposal by Senator Gillibrand, not one of these countries has seen the increase in reporting that proponents promise here. We are also going to closely track survey numbers and the number of prosecutions, and we’re hopeful that we will be able to conduct more data analysis of victim satisfaction with the services, including their own independent legal counsel. And we will continue to compare statistics from the civilian system, where under-reporting of these crimes has been a chronic problem, as to reporting, prosecutions, and convictions. Finally I am working on an additional reform that will remove the “good soldier” defense and provide evaluation on every commander on how they handle this issue within their command.
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