Military Justice Improvement Act

Floor Speech

BREAK IN TRANSCRIPT

Mrs. GILLIBRAND. Mr. President, I had the privilege of listening to my colleagues, Senator Hirono and Senator Blumenthal, who have been addressing this issue of sexual assault in the military. As both of them said so persuasively and articulately, our military justice system is broken. The sense of trust that a man or woman serving in the military today, who has been subjected to rape or sexual assault, has been broken--and not just between them and the assailants in their unit but between them and their commanders. In fact, the trust that their commander will have their back, that they will have these crimes investigated and the perpetrators brought to justice has been broken.

Even General Amos, Commandant of the Marines, said so. He said: I can see why a female marine might not report a case of sexual assault. They don't trust us. She doesn't trust the chain of command.

This is our challenge. We have to reform the system because these are some of the best men and women in the world that make our military as strong as it is. But we are subjecting them to not only these great acts of violence but then the second heartbreak, the second revictimization of having a military justice system that does not have their back or they are convinced not to report these crimes because justice will not be done or nothing will be done or they will be retaliated against for reporting.

The No. 1 reason 23,000 cases last year went unreported was because victims believed nothing would be done. They did not trust their chain of command to have these cases prosecuted. The second reason they didn't report these cases was because they feared or witnessed retaliation. That is not surprising, because of the 3,000 brave survivors who did report their sexual assault or rape, 62 percent were retaliated against. That is a huge number.

There is a failure within our military--our military that has promised for 25 years zero tolerance for sexual assault and rape in the military. As far as I am concerned, all we have had is zero accountability, because of those brave 3,000 survivors who did come forward and 62 percent were retaliated against means those commanders failed to maintain a command climate where retaliation is not taking place.

In our underlying bill we are going to fix that. We are going to make retaliation a crime, giving commanders more tools to go after perpetrators of retaliation. Retaliation has always been against good order and discipline. It has never been acceptable, but still it exists and too many victims do not come forward because they fear it.

So I wish to speak on behalf of these survivors, these advocates, these champions, these leaders in reform. They can't be on the Senate floor right this moment, but I can be here, and I can share their stories. I can tell what happened to them.

Sarah Plummer was raped as a young marine in 2003. She said:

I knew the military was notorious for mishandling rape cases, so I didn't dare think anything good would come of reporting the rape.

Having someone within your direct chain of command just doesn't make any sense, it's like being raped by your brother and having your dad decide the case.

Another survivor, Trina McDonald, at 17 enlisted in the Navy. She was stationed at a remote base in Alaska. Within 2 months, she was attacked, repeatedly drugged and raped by superior officers over the course of 9 months. Can you imagine that being your daughter? Can you imagine this young woman who literally wants to serve our country and even die for our country being repeatedly drugged and raped by her supervisor?

She said:

At one point, my attackers threw me in the Bering Sea and left me for dead in the hopes that they would silence me forever. They made it very clear that they would kill me if I ever spoke up or reported what they had done.

Thank God Trina McDonald survived, because as I read her testimony from the Senate floor, she is being heard in this debate.

Army SGT Rebekah Havrilla, who served in Afghanistan and was raped in 2007, said reporting the crime to her commanding officer was unthinkable:

There was no way I was going to go to my commander. He made it clear he didn't like women.

Listen to AIC Jessica Hinves, who was raped in 2009 by a coworker who broke into her room at 3 a.m. She said:

Two days before the court hearing, his commander called me on a conference at the JAG office, and he said that he didn't believe that [the offender] acted like a gentleman, but there wasn't reason to prosecute.

Breaking into someone's room, not being a gentleman. Obviously, that commander does not understand that rape is a serious crime.

I was speechless. Legal had been telling me this is going to go through court. We had the court date set for several months. And two days before, his commander stopped it. I later found out the commander had no legal education or background, and he'd only been in command for four days.

Her rapist was given the award for Airman of the Quarter. She was transferred to another base.

Many listening tonight may think this is just a crime against women, but one of the most disturbing facts is that more than half of these crimes are against men. It is not a gender issue. The crimes of rape and sexual assault are not of passion but are brutal crimes, crimes of aggression, crimes of dominance, crimes of control. These are not cases of dates that have gone badly.

Blake Stephens, now 29, joined the Army in January of 2001, just 7 months after graduating from high school. The verbal and physical attacks started quickly, he says, and came from virtually every level of the chain of command. In one of the worst incidents, a group of men tackled him, shoved a soda bottle up his rectum, and threw him backward off an elevated platform onto the hood of a car.

When he reported the incident, Stephens said, his drill sergeant told him, ``You're the problem. You're the reason this is happening,'' and refused to take action. Blake said:

You just feel trapped. They basically tell you you're going to have to keep working with these people day after day, night after night. You don't have a choice.

His assailants told him that once he deployed to Iraq, they would shoot him in the head. ``They told me they were going to have sex with me all of the time when we were there.''

If these stories aren't enough, please do listen to some retired generals, commanders, JAG officers, veterans who know from years of experience that the status quo is an injustice to those who serve, and our approach is the right way forward.

This September, three retired generals gave their public support for our proposal, including LTG Claudia Kennedy, the first woman to achieve the rank of three-star general in the U.S. Army; BG Lorree Sutton, formerly the highest ranking psychiatrist in the Army; BG David McGinnis, who most recently served in the Pentagon as the Principal Deputy to the Assistant Secretary of Defense for Reserve Affairs.

Lieutenant General (retired) Kennedy wrote me:

Having served in leadership positions in the US Army, I have concluded that if military leadership hasn't fixed this problem in my lifetime, it's not going to be fixed without a change to the status quo.

The imbalance of power and authority held by commanders in dealing with sexual assaults must be corrected. There has to be independent oversight over what is happening in these cases.

Simply put, we must remove the conflicts of interest in the current system. ..... The system in which a commander can sweep his own crime or the crime of a decorated soldier or friend under the rug, protect the guilty and protects serial predators. And it harms our military readiness. .....

Until leadership is held accountable, this won't be corrected. To hold leadership accountable means there must be independence and transparency in the system.

Permitting professionally trained prosecutors rather than commanding officers to decide whether to take a sexual assault case to trial is a measured first step toward such accountability. ..... I have no doubt that command climate, unit cohesion and readiness will be improved by [these] changes.

BG (retired) Lorree Sutton also wrote to me, saying:

Failure to achieve these reforms would be a further tragedy to an already sorrowful history of inattention and ineptitude concerning military sexual assault.

In my view, achieving these essential reform measures must be considered as a national security imperative, demanding immediate action to prevent further damage to individual health and well-being, vertical and horizontal trust within units, military institutional reputation, operational mission readiness and the civilian-military compact.

Far from ``stripping'' commanders of accountability, as some detractors have suggested, these improvements will remove the inherent conflict of interest that clouds the perception and, all too often, the decision-making process under the current system. Implementing these reforms will actually support leaders to build and sustain unit cultures marked by respect, good order and discipline.

BG (retired) David McGinnis, who also served as a Pentagon appointee, wrote this to me:

I fully support your efforts to stamp out sexual assault in the United States military and believe that there is nothing in [the Military Justice Improvement Act] that is inconsistent with the responsibility or authority of command. Protecting the victims of these abuses and restoring American values to our military culture is long overdue.

Retired Air Force Maj. Gen. Martha Rainville, the first woman in the history of the National Guard to serve as a State Adjunct General and served in the military for 27 years, including 14 years in command positions, wrote:

As a former commander, endorsing a change that removes certain authority from military commanders has been a tough decision. It was driven by my conviction that our men and women in uniform deserve to know, without doubt, that they are valued and will be treated fairly with all due process should they report an offense and seek help, or face being accused of an offense.

When allegations of serious criminal conduct have been made, the decision whether to prosecute should be made by a trained legal professional. Fairness and justice require sound judgment based on evidence and facts, independent of pre-existing command relationships.

That is the crux of the problem. You have commanders who have biases. Maybe they don't want women in the military. Maybe they don't believe gay members should serve openly. Maybe they need or appreciate or like the assailant more. Maybe the perpetrator has done great things in battle. Maybe he is more experienced, more important. Maybe he is more popular.

Those biases color decisionmaking. Because when the decisionmaker actually weighs evidence, one of the fundamental pieces of evidence in these cases is the testimony of the victim and the accused. If that commander doesn't value the victim because she is new, he may not believe her when he sees the perpetrator is a family man with two kids, a lovely wife: How could he possibly do that? He has been in Iraq five times. I don't believe her and I believe him. He has weighed the evidence through a colored lens.

That is not justice. That is not fairness. That is not what our democracy is based on. We believe in justice being blind. We believe in the scales of justice not being weighed for the victim or the accused. Justice is blind. It is fair. It is impartial. It is objective.

If that decisionmaker is not even a trained lawyer, how do we hope they are going to get it right, colored with biases, colored with self-interest. No commander wants to say rape is happening under their command. That is a failure. It is a failure of military readiness. It is a failure of good order and discipline. It is a failure of good command climate. Why would they want to report their own failure? Many times they don't. That is why the deck is stacked against the victims of these crimes in too many cases.

We have had a recent ruling that I think is incredibly important.

The DOD for 50 years has had a panel called the DACOWITS panel. It is a panel of advisers that have been asked by the Secretary of Defense, for the past 50 years, to please tell him what policies and proposals are most important to protect and support women in the military. The whole purpose of the committee is to look at this issue and say what is the status of women in the military, how are they faring.

This panel actually has been studying sexual assault in the military for decades. They have been focused on it, have had hearings on it, opining on it, giving recommendations for a very long time. They have looked at this proposed recommendation, studied it, and they actually recommended every piece of this legislation to be passed by this Congress. They have actually recommended the decisionmaking go outside the chain of command. The vote for that proposal: 10 in favor, 6 abstained, none against. Of the 10 in favor, 9 out of 10 are all former military, 5 of them senior officers. The one nonmilitary was a woman who was head of the Women's Law Center. They want every aspect of this reform put into law. They are the experts. Even Secretary Hagel said he looks at this group with great regard, with high authority. He regards them as the preeminent advisory panel for women in the military.

We also have a lot of support from other retired members of the military, Retired U.S. Army MG Dennis Laich, Retired Navy CAPT Lory Manning, Former JAG officer and Congressman Patrick Murphy, and military legal experts such as Diane Mazur and Rachel Natelson.

When the DACOWITS panel, the Defense Advisory Committee On Women In The Services, voted in support of the measure, they say they believe these are the reforms that will make the difference. They say they must implement these reforms to make sure the status of women in the military is protected. Secretary Hagel places a great premium on this panel.

We also have the support of leading veterans groups, veterans groups who actually have served. They are veterans; they understand what happens. ``We want to be clear, a vote for the Military Justice Improvement Act is a vote for our troops, and a vote for a stronger military.'' We should listen to our veterans.

I think it is time we restore trust. The military has had 25 years to deal with this problem. They have been saying zero tolerance for 25 years. They keep saying: We got this. They keep saying: We can handle this, just give us more time. If this happened to my son or daughter--how much more time do you need? How many more thousands of victims are going to be raped and assaulted in the military and have no hope for justice? How many more good men and women are we going to lose to sexual assault and rape, who are retaliated against and pushed out, being told they are the problem? How much are we going to lose in terms of military readiness, in terms of unit cohesion, in terms of troop morale, in terms of good order and discipline, to the scourge of sexual violence in the military?

I don't think we should wait another day. I don't think we should wait for another panel, another report, another study, another, another, another, another. We have boxes of studies over the last 25 years making recommendations. But until you create a transparent, accountable military justice system, you do not have a hope of solving this problem. Until you give the decisionmaking authority to an actual trained lawyer who is not biased, you don't have a hope.

All of our allies have done this, all of them. The ones we fight side by side with--Israel, UK, Canada, Australia, Netherlands, Germany--are allies. They said if it is a serious crime; let the decisionmaker be unbiased; let the decisionmaker be trained.

Did they have a fall-off of good order and discipline when they let these decisions be made by trained prosecutors? They told us no.

When we tried to repeal don't ask, don't tell, military commanders said you cannot possibly do this; this will undermine good order and discipline. When we wanted women to be able to serve in the military, they said you cannot possibly do that because of good order and discipline. When we integrated the armed services, commanders said you cannot possibly do this; it will undermine good order and discipline. We did it. We did every single one of those reforms.

Congress had an action, elected leaders had a responsibility. We provide oversight and accountability over the Department of Defense. It is an important relationship, and sometimes we may have an idea for reform that can make the difference, that can make our military stronger, that can utilize all of our best and brightest.

Don't ask, don't tell--we lost 10 percent of our foreign language speakers because of that corrosive policy. How many thousands are we going to lose to sexual assault and rape in the military? How many? How many good men and women? Losing one more is too many.

I ask my colleagues to support this bill. It is not a Democrat nor is it a Republican idea. It is a good idea. It is a commonsense reform. It makes perfect sense when people learn about the issue and want a solution. This is what this place is supposed to be about. It is supposed to be people of good will coming together to solve problems, to make a difference.

We need leadership. We do not need followers, we need leaders. We need people who will do that job and provide oversight over the Department of Defense, especially in an area where they failed so much. This reform will make a difference, and I urge my colleagues to support it.

I yield the floor. I suggest the absence of a quorum.

BREAK IN TRANSCRIPT

Source