Kirsten E Gillibrand

Military Justice Improvement Act - June 16, 2015

Kirsten E Gillibrand
June 16, 2015— Washington, D.C.
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…I rise to urge my colleagues to support my amendment number 1578 – the Military Justice Improvement Act – to ensure that survivors of military sexual assault have access to an unbiased, trained military judicial system.

Last year, despite the support of 55 Senators, a coalition spanning the entire ideological spectrum including both the majority and minority leader, our bill to create an independent military justice system free of inherent biases and conflicts of interest within the chain of command was filibustered by this body. As we said then, we will not walk away. The brave men and women in uniform who are defending this nation deserve a vote. That is our duty.

It is our oversight role. It is Congress’s responsibility to act if the brave survivors of sexual assault are our sons, our daughters, our husbands, our wives who are being betrayed by the greatest military on Earth. We owe them that at the very least.

Over the last few years, Congress has forced the military to make many incremental changes to address this crisis. And after two decades of complete failure and lip service to zero tolerance, the military now says essentially “Trust us this time. We’ve got it.”

They misrepresent data to claim that their mission is accomplished. But when you dig below the surface of their top lines, you will find that the assault rate is exactly where it was in 2010 – an average of 52 cases every single day. And three out of four service member survivors still don’t think it’s worth the risk of coming forward to report crimes committed against them. 75% don’t trust the current system. One in 7 victims was assaulted by someone in their chain of command. And 60% of the cases, a supervisor or a unit leader is responsible for either sexual assault or sexual discrimination.

This is not the climate that our military deserves.

It is no surprise then that one in three survivors believed that reporting would hurt their career. For those who do report, they are more likely than not to experience retaliation.

Despite a much-touted reform that made retaliation a crime, the DOD made zero progress on improve the 62% retaliation rate that we had in 2012.

According to a Human Rights Watch report, the DOD cannot provide a single example of serious disciplinary action taken against those who retaliated against a victim of sexual assault. A sexual assault survivor is 12 times more likely to suffer retaliation than see their offender get convicted of a sex offense. And in my close review of 107 cases from the largest domestic military bases – one from each service – in 2013, I’ve found that nearly half of those who did move forward and report ended up dropping out of their cases.

Survivors still have little faith in this system. Under any metric, the system remains plagued with distrust and does not provide fair and just process that our survivors – our men and women in our military – deserve.

Simply put, the military has not held up to the standard posed by Gen. Dempsey one year ago when he said, “We are on the clock if you will. The President said to us in December, ‘You’ve got about a year to review this thing’, and if we haven’t been able to demonstrate we are making a difference you know then we deserve to be held to the scrutiny and standard.”

I urge my colleagues to hold the military to that higher standard. Enough is enough with the spin, with the excuses and the false promises. And just yesterday, I received a letter from the mother of a survivor of military sexual assault who is serving active duty.

She says, “The reason I’m writing on her behalf is because I fear she will be retaliated against for speaking out. While the military is on the Hill lobbying Senators not to support the Military Justice Improvement Act, I am asking you to take a stand with survivors and their families. These military lobbyists have good intentions. However, I am doubtful any of them will represent my perspective. I have experienced the anguish of a child who has been raped by another service member – a fellow brother in arms whom she should have been able to trust.

Please support the Military Justice Improvement Act, a common sense law that significantly improves the military justice system. Our military sons and daughters who survive these heinous crimes carry high rates of post-traumatic stress disorder and suicide. I believe that if the MJIA is passed it will save lives and will positively affect the lives of survivors, both victims and their families.

No one should have to worry about retaliation from their chain of command when they report these crimes. Retaliations happen so often that a majority of these assaults go unreported. Every military victim of sexual assault deserves due process, professional treatment by a trained military individual, and equal opportunity to seek and receive justice. Our military has promised improvement and has adequate time to which to improve but the numbers show that the military has failed to live up to its promise.

The Department of Defense has admitted that it made no progress since 2012. It’s time for the chain of command to be removed from decision-making in sexual assault cases and replaced by those trained, non-biased military personnel educated in the law and experienced in handling sexual assault cases. Further MJIA specifically carves out sexual assault and other serious crimes with the remainder of military crimes left in the chain of command. Please hold the military to a higher standard by voting yes to an unbiased military system.”

We have to listen to our victims, our survivors, the men and women who will give their lives to this country, who will sacrifice anything for this country.

America’s military if they do these reforms will have fewer dangerous criminals and far more heroes. The brave men and women we send to war to keep us safe deserve nothing less than a justice system equal to their sacrifice. By listening to the victims, we can deliver that! I urge everyone here – listen to our brave survivors, support our bill and do the right thing.

So this statement that somehow commanders are removed from responsibility and that we’re not keeping commanders responsible, that couldn’t be farther from the truth.

Today, commanders are the only ones responsible for good order and discipline at every level. The unit commander is responsible for good order and discipline. Every aspect of the chain of command is responsible. It is their job to train troops, to maintain good order and discipline, to prevent rapes and crimes being committed under their command and to punish retaliation. They have failed in that duty.

In this chain of command, 97% of commanders are responsible and do not have the convening authority that we would like to give to prosecutors. 97% of their job doesn’t change one iota. So to say you are making commanders less responsible is a false statement that has no bearing in fact. They are 100% responsible for good order and discipline, for training their troops, to prevent these rapes and to prosecute retaliation.

And in one year…they’ve been on notice for years about this. 25 years we’ve got this zero tolerance. They’re super on notice now. In one year, not one prosecution of retaliation.

This guy to prosecute retaliation under Article 15 – this guy can do something about retaliation. This guy, this guy, this guy. Only 3% have the right to convening authority, and that 3% needs to be moved to someone who’s actually a lawyer, who’s trained, who knows how to weigh evidence and can make the right decision, and that is not what’s happening today.

So right now, this supervisor and unit leader in 60% of the cases where there’s alleged gender discrimination or sexual harassment is the unit leader committing it. One in seven of the alleged rapist are one of these commanders – chain of command.

So there is a perspective by a survivor that “This chain of command does not have my back”. So I would like to give it to another chain of command – senior military prosecutors – to make this decision so her perspective can be “Someone’s got my back.” This chain of command may well be tainted for her if her unit commander is harassing her and her rapist is in the chain of command.

You need to professionalize the system. We’re trying to make the military the best prosecutorial system in the world and they can do this mission.

We need to give them the tools.

And having this current status quo. The status quo that’s been a charge of no retaliation and no rape for 25 years, it’s failing.

And to have the same rate of retaliation we had two years ago when the commanders said “You must trust us to do this.” Every one of these commanders does not have convening authority but every one of these commanders could have stopped retaliation.

And when you say it’s just peer to peer, it is dishonest. 30% of the cases of retaliation are administrative; 30% of the cases are professional. Only a commander can administer administrative or professional retaliation.

This culture must change. And if Congress doesn’t take their responsibility to hold the Department of Defense accountable, no one will.

I yield the floor.

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