After a Decade of Effort, Big Changes Could Be Coming to the Way the Military Handles Sexual Assault

Seven years ago, the military’s top brass argued to Congress that commanders should retain the power to prosecute sexual assault cases to maintain “good order and discipline.”

But now, the idea of stripping commanders of that responsibility is advancing quickly both on Capitol Hill and at the Pentagon.

“I urge that military commanders remain central to the legal process,” Gen. Martin Dempsey, then chairman of the Joint Chiefs of Staff, told lawmakers at a Senate Armed Services Committee hearing in 2013. “The commander’s ability to preserve good order and discipline remains essential to accomplishing any change within our profession. Reducing command responsibility could adversely affect the ability of the commander to enforce professional standards and, ultimately, to accomplish the mission.”

Military law may be on the cusp of one of its biggest overhauls ever, with Sen. Kirsten Gillibrand, D-N.Y., rapidly picking up support in the Senate for a bill that would move sexual assault cases out of the chain of command.

The murder of Spc. Vanessa Guillen, which rocked the Army, has seemingly set the stage to revamp how the military tackles sex crimes, according to multiple legal experts and congressional staff interviewed by Military.com.

Retired Lt. Col. Rachel VanLandingham, a national security law expert and former judge advocate for the U.S. Air Force, said one of the keys to getting more lawmakers on board with the change has been Gillibrand’s willingness to make compromises in her bill, ceding to commanders prosecution power over offenses that are uniquely military crimes.

“That’s her big move. … Some [military crimes] carry the death penalty, such as misbehavior before the enemy,” VanLandingham said in an interview with Military.com. “She is leaving that to commanders. To me, that ignores the structural issues; commanders are not independent or experienced. But Gillibrand is an astute politician, and she’d rather start the move versus continuing to be stuck. She’s reading the tea leaves, willing to compromise, so that’s why you’re starting to see more and more people get on board.”

When Dempsey gave his testimony in 2013, there were dueling bills on Capitol Hill aimed at revamping how the military tackled sexual assault invetigations.

But in early 2014, the Senate rejected Gillibrand’s bipartisan proposal. She had key Republican allies such as Sens. Ted Cruz of Texas and Rand Paul of Kentucky, both of whom were leaders in the Tea Party movement at the time. Yet she faced fierce opposition from the Pentagon and even from within her own party.

A watered-down bill from Sen. Claire McCaskill, D-Mo., directly competed with Gillibrand’s and eventually passed that year. McCaskill scoffed at the idea of removing commanders from the legal process, saying it wouldn’t have an impact on the number of victims reporting attacks, based on other countries that had similar laws already in place.

“There is a theory that if we take this decision away from any command, that would magically have victims come forward. We know this is not the silver bullet. If it were, you would’ve seen an increase in reporting in other countries who adopted this,” McCaskill said on the Senate floor in 2013.

McCaskill’s bill got rid of the so-called “good soldier” defense, making factors such as the accused’s service record irrelevant. It also made retaliating against a victim a crime and expanded special counsel programs for victims. But some veterans advocates and lawmakers said at the time that, while the legislation was a much needed incremental improvement, it generally kept the status quo.

Because commanders often know and work with both the victim and the accused, supporters of Gillibrand’s efforts say victims frequently shy away from reporting abuse, adding that commanders’ inherent bias makes it difficult to trust whether they can properly prosecute a colleague.

In a potentially significant shift at the Pentagon, Gen. Mark Milley, the current chairman of the Joint Chiefs, dropped his opposition to the proposed changes to military law.

“I was adamantly opposed to that for years,” he said, according to The Associated Press.

“But I haven’t seen the needle move,” he added, likely referring to Pentagon data estimating 25,000 service members were sexually assaulted in 2018, up from 14,900 in 2016.