Military Justice Improvement Act

Floor Speech

Mr. BLUMENTHAL. Mr. President, tomorrow we will vote on a very
important amendment to the National Defense Authorization Act, the
Military Justice Improvement Act, introduced by my colleague and friend, the
junior Senator from the State of New York. I have worked with her and
have been privileged to help craft this very important legislative
measure, not because sexual assault is a uniquely military problem--in
fact, just the contrary. Sexual assault afflicts our campuses and our
workplaces. The battle against sexual assault is hardly limited to the
military. But we have the opportunity to take a step that will set a
model and send a message to other places where sexual assault is a
problem and where underreporting, because of lack of trust and
confidence in the prosecutorial system or the administrative apparatus,
is a major reason that sexual assault continues. Without confidence,
trust, effective results, and protection of privacy and physical
safety, survivors will simply not come forward. If they do not come
forward, there will be no discipline or prosecution. That is the
fundamental reason why I believe the amendment we will address tomorrow
is so important.

I have held roundtables on campus sexual assault all around the State
of Connecticut--more than 12 or 13 of them--and have worked with a
bipartisan group of Senators, including not only Senator Gillibrand,
who is the major sponsor of this amendment, but also Senator McCaskill,
who has been an extraordinary leader in this area having been a
prosecutor herself, and Senator Heller as well as others on both sides
of the aisle, to devise a solution to campus sexual assault--not just a
single panacea but a set of measures that addresses one of the major
obstacles to effective action against campus sexual assault, which is
the underreporting of this heinous, horrific crime. It is a crime
wherever it occurs, whether in the military or on campus. That is why
we have to combat and conquer it, just as we do an enemy who preys on
our men or women in uniform or on campuses or elsewhere.

We went through this debate last year. We reached a solution last
year, which we hoped would, in fact, be a solution. But the simple,
plain fact is that this insidious, pernicious epidemic of sexual
assault in the military continues unabated or at least unreduced by the
amount that we should regard as minimum for judging this supposed
solution a success.

The fact is that the Department of Defense's own research shows that
52 unwanted sexual contacts occur every day on average across the
military. That is the same rate it was 5 years ago in 2010. The fact is
that in fiscal year 2014, the Department of Defense estimates 62
percent of servicewomen experienced retaliation for coming forward, the
same percentage as 2012. Servicemembers who report assault are 12 times
more likely to experience retaliation for reporting their cases than
seeing the assailant convicted of a crime. Retaliation is more likely
than effective discipline or punishment against the perpetrator.

The amendment we have offered, the Military Justice Improvement Act,
seeks to address this issue through explicit codification of punishment
for any person--any person--deciding to retaliate against anyone who
reports this crime of sexual assault. Explicit punishment for
retaliation will not only send a message, but it will deter what is in
civilian terms one of the most severe crimes, known as obstruction of
justice.

The reason why retaliation or obstruction of justice is so insidious
is it prevents the justice system from reaching a just result. It not
only deters victims and survivors from coming forward regardless of the
crime, it also permits perpetrators and criminals to go free and feel
they can again commit the crime of sexual assault or other crimes. But
in the case of sexual assault, it is particularly pernicious because we
know also from statistics that this crime is recommitted. There is
recidivism at a higher rate than many others. A large proportion of
sexual assaults is committed by a very tiny fraction of members of the
military.

What happens, in effect, on campuses or in the military is there are
serial rapists, serial perpetrators of sexual assault. If they feel
they can do it without consequences, they will continue to commit this
crime.

We have learned from many survivors that the anxiety to come forward
stems not only from the fear of retaliation but from the bias and
inherent conflict of interest entrenched in the chain of command. The
fact is that the Department of Defense estimates that 60 percent of
cases involve a supervisor or a unit leader. Think of that number--60
percent of cases involving alleged sexual assault are committed by the
supervisor or the unit leader in the U.S. military.

The MJIA--the Military Justice Improvement Act--the amendment we will
offer tomorrow and will vote on, will address this obstacle by amending
the Uniform Code of Military Justice to assign the decisionmaking power
regarding sexual assault to an independent, trained prosecutor or,
actually, a team of professional military prosecutors, while leaving
decisions to the chain of command regarding purely military crime.

I recognize there is an argument that good order and discipline
require the chain of command to work as a source of discipline and
punishment and justice. But where retaliation, bias, and conflicts of
interest are so prevalent and so inherent in the process, where the
chain of command is making decisions about the perpetrator, who so
commonly is in that chain of command, these decisions should be made by
independent, trained, military prosecutors.

The type of crime involved here, sexual assault, is one that is very
difficult, excruciatingly daunting to prosecute simply because of the
nature of this crime, the nature of the evidence, and the nature of the
testimony. So trained, professional military lawyers are in a better
position to make these decisions about whether to go forward--not just
decisions about what evidence to introduce but whether the evidence
justifies the prosecution, whether proof can be presented that will do
justice, not just reach a conviction.

Our amendment will entrust military lawyers with specialized training
in prosecuting complex cases to make those prosecutorial decisions.

Removing the commanders from the prosecutorial process will also
protect the privacy of victims when reporting these crimes. Typically,
they involve some of the most intimate of details.

A trained, independent, military prosecutor and removing the
commander from those decisions will protect privacy and encourage
reporting. I believe this step is a critical next step in this effort
to improve the military justice system.

I have immense respect for colleagues who disagree with me. Some of
them are seasoned prosecutors, extraordinarily talented and dedicated
lawyers, and we may differ on these issues.

Many of our allies, including the United Kingdom, Canada, Israel,
Germany, Norway, and Australia, have already taken steps to remove
sexual assault reporting and prosecution from the regular chain of
command. Military leaders there report no particular change in their
ability to maintain good order or discipline. The facts are there to
justify removing these decisions from the chain of command.

But I hope colleagues who disagree with me will continue this
effort--I know they will--to improve our military justice system. We
can agree to disagree on this step. We should agree to move forward on
other steps where we can reach consensus because we have in common much
more than we have in conflict--that the greatest, strongest military in
the history of the world should be rid of this heinous crime. That is
our military. We owe it to the men and women who serve in uniform to
have a system of justice that matches their courage, strength, and
skill.

I yield the floor.

I suggest the absence of a quorum.

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