Levin Senate floor statement on military sexual assault legislation

Thursday, March 6, 2014

We will vote today on two bills regarding sexual assault in our military. I believe the strongest, most effective approach we can take to reduce sexual assault is to hold commanders accountable for establishing and maintaining a command climate that does not tolerate sexual assaults. To do this, we must maintain the important authority to prosecute sexual assaults that our military commanders now have, and add greater accountability for those commanders.

The evidence shows that removing this authority from our commanders would weaken, not strengthen, our response to this urgent problem. That is why I believe the bill offered by Senator Gillibrand and others, though offered in the hope that it would strengthen our efforts against sexual assault, would in fact have the opposite effect.

In the last year we have learned that in scores of cases during the period studied, commanders prosecuted sexual assault cases that civilian attorneys had declined to prosecute. We have learned that our military allies, whose policies have been cited in support of removing commanders’ authority, generally made their changes to protect the rights of the accused, not the victims. And we have learned that there is no evidence that their changes resulted in any increase in reporting of assaults.

On January 29, we received the conclusions of a report from the Response Systems to Adult Sexual Assault Crimes Panel – an independent panel of legal and military experts of diverse backgrounds that was established by Congress to advise us on how to respond to this issue. A subcommittee of the panel addressed the role of commanders in prosecuting sexual assaults, the very issue we will vote on today.  

Here’s what that subcommittee concluded: “There is no evidentiary basis at this time supporting a conclusion that removing senior commanders as convening authority will reduce the incidence of sexual assault or increase sexual assault reporting.” The subcommittee reached that conclusion despite the fact that many members began the process sympathetic if not outright supportive of the notion that we should remove our commanders’ authority.

Here’s what one member of the subcommittee, former Congresswoman Elizabeth Holtzman, said: “I’ve changed my mind, because I was just listening to what we heard. I started out… thinking, why not change it and now I am saying, why change it… Just turning it over to prosecutors doesn’t mean you are going to get the results you are looking for…” Congresswoman Holzman is the author of the federal Rape Shield Law. Former federal Judge Barbara Jones, another subcommittee member, said that if you remove this authority from commanders, “There is no empirical evidence that reporting is going to increase. … If I were persuaded that removing the convening authority would encourage victims to report then this would be a different story. But I am not persuaded of that.” Mai Fernandez, the executive director of the National Center for Victims of Crime and a member of the Response Systems Panel, said the following of the proposal to remove commanders’ authority to prosecute: “When you hear it at first blush, you go, ‘Yeah, I want to go with that.’ But when you hear the facts, like you would in a case, it just doesn’t hold up.”

The women making those statements had no stars on their shoulders. They are not Pentagon insiders. They are members of the independent panel that we in Congress tasked with reporting to us on these issues.

Underlying the crisis of sexual assault in our military is a problem of culture: a culture that has been too permissive of sexual misconduct, too unaware that a person who is successful in his professional life may also be a sexual predator, and a culture too prone to ostracize or even act against those who report sexual assaults.

The military has unique tools to address those problems. Foremost among those tools is the authority of the commander to establish a command climate by giving orders and enforcing discipline. At every time in history, when our military has faced such cultural challenges, like the challenge of ending racial discrimination in the 1940s and ’50s or ending “Don’t Ask, Don’t Tell” in our own time, commanders with the authority to initiate courts martial have been essential in achieving change.

But we will not achieve change if, at the same time that we demand of our commanders that they change the military culture to take on the sexual assault problem, we remove from them their most powerful tool to achieve change.

Senator Gillibrand’s bill creates a new, separate disposition authority to deal with sexual assault and other serious crimes. Our focus throughout this debate has been, rightly, on how to improve our approach to sexual assault. But in fact, sexual assault would make up just a fraction of the cases this new disposition authority would deal with. In a letter to me, Acting Under Secretary of Defense for Personnel and Readiness Jessica Wright recently reported that in Fiscal Year 2012, the Department of Defense estimates that it handled more than 5,600 cases that would be referred to this new disposition authority if it were created. But two-thirds of those cases did not involve sexual assault. So, this bill would shift dozens of our top military lawyers to a new authority that would spend only a third of its time dealing with the problem we’re all trying to solve, the problem of sexual assault.

The Defense Authorization Act we enacted just a few months ago provides our commanders with additional tools to meet this challenge, and important new protections for victims. It provides victims of sexual assault with their own legal counsel, specially trained to assist them. It makes retaliation against victims who report a sexual assault a crime. It requires that the Inspector General investigate all complaints of retaliation. It requires that any decision by a commander not to prosecute a sexual assault complaint will have an automatic review by a higher command authority, in nearly all cases by a general or flag officer – and in certain cases by the service secretary, the highest civilian authority in each service.

The second bill we will vote on today, offered by Senators McCaskill, Ayotte and others, provides additional protections to those we just added in the Defense Authorization Act. The McCaskill-Ayotte bill ensures victims have a voice in deciding whether their cases will be prosecuted in the military or civilian justice system. It requires that the special victims counsels established by the Defense Authorization Act advise victims on the pros and cons of those two approaches. It requires that commanding officers be graded on their success or failure in creating a climate in which there is no tolerance for sexual misconduct and in which victims can come forward without fear.

These additional protections in the McCaskill-Ayotte bill help us answer the key question: How can we best strengthen our protections against military sexual assault? We do so by empowering victims and by holding our commanders accountable. But we threaten to weaken those protections if we undermine the authority of the very commanders who must be at the heart of the solution. Powerful evidence should lead us to the conclusion that we should not remove the authority of commanders to prosecute these cases.