Senate Advances Ayotte Bill That Adds New Reforms to Stop Military Sexual Assault

Press Release

The Senate voted overwhelmingly today (100 to 0) to advance bipartisan legislation authored by Senator Kelly Ayotte (R-NH) and Claire McCaskill (D-MO) that adds tough new reforms to prevent military sexual assault and better support victims. A final Senate vote on the legislation is scheduled for Monday.

Ayotte and McCaskill, both former prosecutors who serve on the Armed Services Committee, have worked across party lines to strengthen and augment historic legislation that became law last year that puts in place a framework to better protect and empower victims of sexual assault, boost prosecutions of sexual predators, and hold military commanders accountable. Senator Deb Fischer (R-NE), also an Armed Services Committee member, has also worked on the McCaskill-Ayotte reforms.

Senator Ayotte said: "This legislation will make commanders more accountable, not less accountable. It ensures that commanders will be held fully accountable for treating victims with dignity and respect, and that perpetrators will be fully prosecuted under the law. This bill also removes the "good soldier defense,' which will ensure that defendants are prosecuted based on the evidence and nothing else."

The McCaskill-Ayotte-Fischer legislation includes a host of reforms, including:

* Eliminates the Good Soldier Defense: Modifies the Military Rules of Evidence to prevent defendants from using good military character unless it is directly relevant to an element of the crime for which they are charged.

* Allows Victim Input in Prosecution of Perpetrators: Requires Special Victims Counsels to advise victims of the advantages and disadvantages of a case being prosecuted in the military or civilian justice system and provides victims the opportunity to express their preference on where the case is heard, giving a victim a greater degree of control of his or her case.

* Allows Sexual Assault Victims to Challenge Their Discharge or Separation from Service: Requires the services to set up a confidential process that will enable a victim of a sexual assault who was subsequently discharged to challenge the terms or characterization of his or her discharge-in order to take a retrospective look at possible instances of retaliation.

* Strengthens the Role of the Prosecutor in Advising Commanders on Going to Court Martial: In the event a prosecutor recommends a case go forward and the commander disagrees, under the legislation, the case is kicked up for review to the civilian service secretary, providing yet another level of review in these cases when needed. Existing law currently requires the higher-level review only when there is disagreement between the commander and his or her legal counsel/judge advocate.

* Boosts Accountability of Commanders for Addressing Sexual Assault & Setting Appropriate Command Climate: Strengthens evaluations for commanding officers and the command climate they establish as it relates to allegations of sexual assault and the way victims of crimes are treated within the unit following reports.

* Extends Protections to the Military Service Academies: Clarifies that all changes related to sexual assault prevention and response apply to the military service academies.

In December, the Senate passed - and President Obama signed into law - a long list of reforms, including a provision authored by Senator Ayotte and Senator Patty Murray (D-WA) that provides victims of sexual assault in all military branches with a Special Victims' Counsel - a trained military lawyer to assist victims throughout the legal process. Additional provisions include:

* Stripping military commanders of their ability to overturn jury convictions
* Requiring the service secretary, a civilian, to review if a commander declines to prosecute a case against the advice of legal counsel
* Mandating dishonorable discharge for anyone convicted of sexual assault
* Criminalizing retaliation against victims who report a sexual assault
* Eliminating the statute of limitations in rape and sexual assault cases

In voting to not advance a separate proposal (the Gillibrand bill) that would relieve commanders of their responsibility in sexual assault cases and a host of additional, unrelated charges under the Uniform Code of Military Justice (UCMJ), Ayotte noted the recent findings of an independent panel of experts - majority female and majority civilian - who voted overwhelmingly against stripping commanders of their ability to launch courts-martial in sexual assault cases.

On January 29, the congressionally-created "Response Systems Panel's" Role of the Commander Subcommittee released interim findings - including a 7 to 2 vote to reject a proposal from Senator Kirsten Gillibrand (D-NY) that would relieve commanders of their responsibilities in sexual assault cases. The Subcommittee's interim assessment "is that the authority vested in senior commanders to convene courts-martial under the UCMJ for sexual assault offenses should not be changed."

Ayotte said: "I've examined this issue very closely and have drawn heavily on my background as a prosecutor in making my decision. We can't relieve commanders of responsibility and then expect them to change the culture in our military. Upending our military justice system without evidence that it will effectively achieve the results we all desire isn't the right answer."

Ayotte also noted that in the last two years, commanders have used their authority to prosecute 93 cases after civilian prosecutors declined to pursue charges - that's 93 victims who would never have had a chance at justice if the decision to prosecute was left solely with civilians prosecutors. Additionally, Ayotte pointed out that America's allies who made this change did so to protect victims, and cannot attribute any rise in reporting of assaults to removing commanders from the process.

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