Hearing of the Personnel Subcommittee of the Senate Armed Services Committee - Oversight: Sexual Assaults in the Military

Hearing

OPENING STATEMENT OF SENATOR KRISTEN GILLIBRAND,
CHAIRMAN

Senator GILLIBRAND. Thank you all for joining us.
It is an honor and a privilege to chair this hearing of the Personnel
Subcommittee this morning. I want to thank the ranking
member of the subcommittee, Senator Lindsey Grahahm, for his
support and working with me to move this hearing forward as
quickly as possible.

I know that all of our colleagues on the Armed Services Committee
share our deep commitment to improving the quality of life
of the men and women who serve in our All-Volunteer Force on active
duty or in the National Guard and Reserves, their families,
military retirees, and Department of Defense personnel.
And that is why this hearing today is so important to me personally
and to thousands of servicemembers and their families across
this country.

The issue of sexual violence in the military is not new. And it
has been allowed to go in the shadows for far too long. The scourge
of sexual violence in the military should be intolerable and infuriating
to all of us. Our best, brightest, and bravest join our Armed
Forces for all the right reasons: to serve our country, to protect our
freedom, and to keep America safe.

The United States military has the best in the world and the
overwhelmingly vast majority of our brave men and women serving
in uniform do so honorably and bravely but there is also no doubt
that we have men and women in uniform who are committing acts
of sexual violence and should no longer be allowed to serve.

Too often, women and men have found themselves in the fight
of their lives not in the theater of war but in their own ranks,
among their own brothers and sisters and ranking officers in an
environment that enables sexual assault.

And after an assault occurs--an estimated 19,000 sexual assaults
happened in 2011 alone according to the Defense Department's own
estimates--some of these victims have to fight all over again with
every ounce of their being just to have their voice heard, their assailant
brought to any measure of justice, and then to fight for the
disability claims they deserve to be fulfilled.

Congress would be derelict in its duty of oversight if we just
shrugged our shoulders at these 19,000 sons and daughters, husbands
and wives, mothers and fathers and did nothing. We simply
must do better by them.

When brave men and women volunteer to serve in our military,
they know the risks involved, but sexual assault at the hands of
a fellow servicemember should never be one of them because not
only does sexual assault cause unconscionable harm to the victim,
but sexual assault is reported to be the leading cause of post-traumatic
stress disorder among women veterans. But sexual assault in
the military also destabilizes our military, threatens our unit cohesion
and national security. Beyond the enormous human costs, both
psychologically and physically, this crisis is costing us significant
assets, making us weaker both morally and militarily.

Already this committee and the Pentagon took some first steps
on this issue as part of last year's national defense authorization
bill that President Obama signed. While obviously our work is not
done, I am hopeful that we can build on some of these initial
changes which include: one, ensuring that all convicted sex offenders
in the military are processed for discharge or dismissal from
the Armed Forces regardless of which branch they serve in.
Second, we removed case-disposition authority from the immediate
commanding officer in sexual assault cases, which is one of
the issues we will look into today as to whether we need to remove
such disposition authority entirely from the chain of command and
placed with a trained prosecutor instead.

We pushed the Pentagon to lift the combat ban that prevents
women from officially serving in many of the combat positions that
can lead to significant promotion opportunities. By opening the
door for more qualified women to excel in our military, we have increased
diversity in top leadership positions, improving response
from leadership when it comes to preventing and responding to
sexual assault.

And we passed an amendment that introduced by Senator
Jeanne Shaheen that was based on our legislation, the MARCH
Act, which means that troops who do become pregnant as a result
of a rape no longer have to pay out of pocket for those pregnancies
to be terminated.

Concerning our second panel of witnesses, after we hear from
Senator Barbara Boxer who has extraordinary passion and leadership
on this issue, our second panel will be of men and women who
are going to tell their personal stories. And I want to salute each
and every one of you for having the courage to tell such painful and
personal stories. It is my hope and belief that by committing this
selfless act, you are encouraging others to step forward and are
also helping to prevent crimes going unpunished. We have a duty
to you and thousands of victims that you represent to examine
whether military justice is possible and what is the most effective
and fairest system that it can be.

Despite some very dedicated JAG officers, I do not believe that
the current system adequately meets our standard. The statistics
on prosecution rates for sexual assault in the military are devastating.
Of 2,439 unrestricted reports filed in 2011 for sexual violence
cases, only 240 proceeded to trial. Nearly 70 percent of these
reports were for rape, aggravated sexual assault, or nonconsensual
sodomy.

A system where less than 1 out of 10 reported perpetrators are
taken to trial for their alleged crimes is not a system that is working.
And that is just the reported crimes. The Defense Department
itself puts the real number closer to 19,000. A system where in reality
closer to 1 out of 100 alleged perpetrators are faced with any
accountability at all. That is entirely inadequate and unacceptable.

My view is that emphasizing institutional accountability and the
prosecution of cases is needed to create a real deterrent to criminal
behavior. The system needs to encourage victims that come forward
and participating in their perpetrator's prosecution is not detrimental
to their safety or their future and that it will result in justice
being done because currently, according to the Department of
Defense, 47 percent of servicemembers are too afraid to report their
assaults because of fear, retaliation, harm, or unjust punishment.
Too many victims do not feel that justice is even likely or even possible.

We need to take a close look at the military justice system and
we need to be asking the hard questions with all options on the
table, including moving this issue outside of the chain of command
so that we can get closer to a zero tolerance reality in the armed
services. The case we have all read about, the Aviano Air Base
case, is shocking and the outcome should compel all of us to take
the necessary action to ensure that justice is swift and certain, not
rare and fleeting.

I had the opportunity to press Secretary Hagel on the issue of
sexual violence in the military during his confirmation hearing.
Secretary Hagel responded by saying, ?I agree it is not good enough
to say zero tolerance. The whole chain of command needs to be accountable
for this.? I could not agree more.

I was pleased with the Secretary's public statement earlier this
week that he is open to considering changes to the military justice
system, as well as legislation to ensure effectiveness of our responses
to the crime of sexual assault.

In addition, the Secretary has written two letters to the services
requesting a review of article 60 in light of the Aviano decision to
be made by March 20 and March 27th. This is a useful first step.

After Ranking Member Graham makes his opening remarks, we
will hear the testimony from Senator Barbara Boxer who has been
a leading voice on this issue. In last year's defense bill, she successfully
including an amendment that prohibits any individual who is
convicted of felony sexual assault from being issued a waiver to
join the military.

We will then have the following witnesses who have either been
victims of sexual assault while serving in the military or are very
knowledgeable advocates for addressing the issue of sexual assaults
in the military.

I will now defer to Senator Graham to give his opening remarks.

STATEMENT OF SENATOR LINDSEY GRAHAM

Senator GRAHAM. Well, one, I want to thank Senator Gillibrand
for having the hearing. When 47 or 49 percent--I cannot remember
the number--feel intimidated to come forward because they think
they may face reprisal, something is obviously wrong.

Now, having said that, the purpose of military justice is to instill
good order and discipline in the units so that when they are called
upon to engage the enemy and to train and deploy together, they
can do so in the most effective fashion possible.

The military is a unique place. It is not a democracy. It is a place
where you are asked to do extraordinarily difficult things and you
have to count on the people to your right and to your left to be
there when you need them and vice versa.

In the military we have as a crime for a commander to have a
personal relationship, sexual in nature or otherwise, overly familiar
relationship that would be consensual. It is called fraternization.
And we probably should look at that policy as well to make sure
that we are dealing with fraternization cases in an appropriate
fashion.

And why would you be concerned about a consensual relationship
that you would not be concerned about maybe in the private world?
If your unit is called into combat, the last thing you want to think
about is that the person who has a close relationship with the commander
may get a pass at your expense. So we want to keep professional
relationships between those who order the unit to engage
the enemy so that those who follow the orders will never believe
that there is some special relationship between the commander and
a particular individual in the unit because that will break good
order and discipline apart. So that is one area where human sexuality
can really deal a blow to a unit that is consensual.

But I cannot think of a more devastating blow to a unit than to
have one member assault the other. If you want to break a unit
apart and create a horrible environment to effectively engage the
enemy, allow this to happen because it shows not only physical violence
is the ultimate sign of disrespect. I cannot think of a more
disrespectful measure than taking advantage of someone or physically
violating them. That is just absolutely not only a crime, it is
an ultimate detrimental demise of a unit to have such conduct
break out. And the reason, Senator Gillibrand, we want to prosecute
people who do that is they are destroying the unit's effectiveness.
They are the bad guy.

Now, having said that, I have been a military lawyer for 30
years. Another problem that could hurt a unit is for somebody to
be wrongfully accused and feel like they have no voice, that the
system is going to go from one extreme to the other. So at the end
of the day, military justice is about rendering justice in an individual
case, but always the theme of military justice is to make
that unit as effective as possible to maintain good morale and discipline.

And if you are a female in a unit and you feel like nobody
cares about what happens, you have destroyed morale. Also, if you
are in a unit where people may misunderstand what you are saying
and you feel like you cannot defend yourself, we have got to
find some balance here.

But to the victims, thanks for coming forward. I know it is not
an easy thing to do.

And the numbers are astounding. And if we are going to continue
to be the most effective fighting force for freedom and good in the
world, we are going to have to solve this problem. And as long as
you have human beings, you are going to have problems.

But clearly, the message we are sending to our female members
of the military is that we are way too indifferent and that your
complaints are falling on deaf ears. And to all of our commanders,
how in the world can you lead your unit in a responsible manner
if people in that unit feel like the system does not care about them?
And I will do everything I can within reason to make sure that
that stops and that if you are accused of an offense in the military,
you still get a fair trial.

Senator GILLIBRAND. Senator Boxer.

STATEMENT OF SENATOR BARBARA BOXER, A U.S. SENATOR
FROM THE STATE OF CALIFORNIA

Senator BOXER. Thank you so much, Madam Chairman and
Ranking Member Graham. Thank you both for holding this critical
hearing. It is very timely. And thank you so much for this opportunity
to testify. I am very honored--very honored.

So today I am here to talk about the violent crime of sexual assault
in the military, not about fraternization. I am not here to talk
about disrespect but about vicious crimes. And I am not here to
talk about false charges but about real charges and the way they
are handled.

As you well know, Congress to our great, I think, credit passed
the bipartisan Violence Against Women Act, and I thank everyone
on both sides of the aisle who worked so hard for that to pass. And
I was so proud that President Obama signed it into law just last
week.

That law recognizes that every human being--every human
being, male, female--deserves protection from violence. And it
sends a clear and unequivocal message that wherever a sexual assault
occurs, Madam Chairman, whether on a college campus or on
an Indian reservation or in a religious setting or in our military,
yes, the offender must be punished. Sexual assault is a heinous
and violent crime and it must be treated as such. It is not an internal
matter. It is a violent crime and it must be treated as such.

And I want to thank each and every one of you for supporting
the Boxer-Cornyn Amendment that said, no, the military cannot
take offenders, people who have been convicted of sexual assault,
into the military. That will help us going forward. But we need to
do much more.

We know this crisis is staggering and despite some important reforms
by the Department of Defense--and I thank them for those.
They are trying to improve prevention, investigation, prosecution--
still too many military sex offenders go unpunished and too many
victims do not get the justice that they deserve.

As the chairman said, this is unacceptable and it must stop. And
we are the ones who can stop it. And you particularly are the ones
who can stop it.

Well, in response to a letter that Senator Shaheen and I sent
him last week, Defense Secretary Hagel committed to taking a
hard look at the military justice system. He agrees that much more
must be done to combat military sexual assault.

Now, let me tell you I do not have all the answers. If I had all
the answers, I would tell you that today. But one thing I do know
is that immediate steps must be taken to prevent senior commanders
from having the ability to unilaterally overturn a decision
or a sentence by a military court. And I want to thank Senator
McCaskill, who has introduced legislation to do just that. That is
the first step and only the first step.

Two recent events I want to share with you highlight the urgent
need for dramatic change. The first case involves a decision by an
Air Force lieutenant general to dismiss all charges against a lieutenant
colonel who had been convicted of aggravated sexual assault.
And again, all you had to do was listen to Senator
McCaskill's comments on that to understand how deep this hits us.
Many in Congress, our military, and our Nation were stunned to
read that the general used his discretion as the convening authority
to throw out a military jury's guilty verdict, the jury of highranking
military officers. And I want to say who was on this jury.
Four colonels, a lieutenant colonel had sentenced the lieutenant
colonel to a year in prison and dismissal from the Air Force. That
is a jury of his peers for sure. Under the Uniform Code of Justice,
the general's decision to overturn that verdict is final and it cannot
be reviewed or changed.

Now, the second event I want you to hear because you may not
know of it. It took place in my home State of California. Last
month an Army veteran shot and killed two Santa Cruz police detectives
who were attempting to question him over a sexual assault
allegation. In the aftermath of this shooting, we learned that even
though the former soldier had faced two separate rape charges
while serving in the Army, charges against him were dropped and
he was discharged without a conviction as part of a plea bargain.

Now, what is it going to take to convince the military that sexual
assault is a violent and vicious crime and that those who perpetuate
it are capable of other violent crimes, including murder? What
is it going to take? It is a vicious, violent crime, and those capable
of that vicious crime are capable of other crimes. Yes, murder.

These examples speak for themselves, and there are so many
more. You will hear them today, and your heart will break.

It is time for us to take swift decisive steps to ensure that decisions
in the military justice system do not rest solely in the hands
of one individual. It is not enough that our military says zero tolerance
for sexual assault. You can say anything. I can say anything.
But the facts speak for themselves. The Department of Defense estimates
that 19,000 sexual assaults occur in the military. And I
want to point out to my colleagues here, my friends, that many of
these cases involve men. Only 17 percent of these cases are ever
reported.

I am so grateful to both of you for this hearing. And, Senator
Gillibrand, I am so happy that you chose to hold this subcommittee,
your first, on military sexual assault. I look forward to
working with you on comprehensive solutions to this problem.

Today's hearing is the first on this critical issue in nearly a decade.
A decade. It is high time not only for this hearing but for
changes in the way the military handles these cases. I know we,
all of us, who are touched by this issue, are going to work with our
colleagues, Republicans, Democrats, Independents, and with the
military. The military, most of all, wants this to go away, and we
have to end this terrible tragedy of sexual assault. And just think
of what an amazing legacy it will be for this Senate if we succeed.
And even more important, think about how many men and women
we will rightly protect.

Thank you so much and I am very excited about this hearing.
And I know with your leadership, the two of you, we can get this
done. Thank you very much.

Senator GILLIBRAND. Thank you, Senator Boxer, for your very,
very strong and valuable testimony. We are so grateful for your
leadership.

We are now going to welcome the next panel. You can come up
and I will read a biography that is very brief of each of you while
you get settled.

We have Anu Bhagwati, who is the Executive Director and Co-
Founder of the Service Women's Action Network. Anu is a former
captain and company commander. She served as a Marine officer
from 1999 to 2004. While serving, Anu faced discrimination and
harassment as a woman in the military and has borne direct witness
to the military's handling of sexual violence.

We have BriGette McCoy, former specialist in the U.S. Army.
BriGette served in the U.S. Army from 1987 to 1991. She was just
18 years old when she signed up to serve her country in the first
Gulf War. While stationed in Germany from 1988 to 1991, she was
sexually assaulted by a noncommanding officer.

We have Rebekah Havrilla, former sergeant in the U.S. Army.
Rebekah served in the U.S. Army from 2004 to 2008. She was the
only female member of a bomb squad in eastern Afghanistan and
was attacked by a colleague at Salerno Forward Operating Base
near the Pakistani border during her last week in country in 2007.

We have Brian Lewis, former petty officer third class, U.S. Navy.
Brian enlisted in the U.S. Navy in June of 1997. During his tour
aboard USS Frank Cable, AS--40, he was raped by a superior noncommissioned
officer and forced to go back out to sea after the assault.

I encourage each of you to express your views candidly and tell
us what is working and what is not working. Help us to understand
what we can do to address this unacceptable problem of sexual
assaults in the military.

We will hear your opening statements. Your complete prepared
statements will also be included in the record. Following the opening
statements, we will limit our questions to 7 minutes for the
first round for the Senators.

Ms. Bhagwati?

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