National Defense Authorization for Fiscal Year 2016

Floor Speech

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Mrs. GILLIBRAND. Madam President, I rise today to speak on my amendment No. 1578, the Military Justice Improvement Act, to ensure that survivors of military sexual assault have access to an unbiased and professionalized military justice system.

Last year, despite earning the support of 55 Senators--a coalition spanning the entire ideological spectrum, including both the majority and minority leader--our bill to create an independent military justice system, free of the inherent bias and conflicts of interest within the chain of command, fell short of overcoming the 60-vote filibuster threshold. But, as we said then, we will not walk away. We will continue to fight to strengthen our military because that is our duty.

It is our oversight role in Congress to act as if the brave survivors are our sons and daughters, our spouses who are being betrayed by the greatest military on Earth. We owe them at least that.

Over the last few years, Congress has forced the military to make many incremental changes to address this crisis. After two decades of complete failure and lipservice to ``zero tolerance,'' the military now says essentially: Trust us. We have got this.

They spin the data, hoping nobody will dig below the top line because when you do, the clear conclusion is that survivors still have little faith in the system and that the military has not actually made a dent in the problem. Even after much-lauded reforms, the estimate for 2014 is 20,000 cases of sexual assault and unwanted sexual contact--the same level as 2010--an average of 52 a day. A much-touted reform made retaliation a crime. That made a lot of sense, but a sky-high 62-percent retaliation rate remains unchanged from 2 years ago.

The system remains plagued with distrust and does not provide the fair and just process the survivors deserve. Simply put, the military has not held up to the standards posed by General Dempsey 1 year ago when he said, ``We are on the clock if you will ..... the President said to us in December, you've got about a year to review this thing ..... and if we haven't been able to demonstrate we are making a difference, you know, then we deserve to be held to the scrutiny and standard.''

So I am urging my colleagues to hold the military to that standard. Enough is enough with the spin, the excuses, and the promises, because throughout the last year, we have continued to see new evidence of how much further we actually have to go to solve this problem.

We have a very simple choice. We can keep waiting, hoping that the reforms we put in place--that we actually forced the military to put in place--will somehow restore trust in the system, while an average of 52 new lives are shattered every day, three-quarters of whom will never come forward because they see what happens around them and they don't trust the system and don't see how justice is possible because commanders hold all the cards, or we can do the right thing and act.

We can accept a system where, according to the DOD themselves, three out of four servicewomen and nearly half of servicemen say sexual harassment is common or very common or we can do the right thing and act.

We can accept a system where women who were sexually harassed were 1,400 percent more likely to be sexually assaulted that same year or we can act.

We can accept a climate where supervisors and unit leaders were responsible for sexual harassment and gender discrimination in nearly 60 percent of all cases or we can act.

My friends, I believe it is time that we provide our servicemembers with an unbiased justice system, one that is professionalized, where the decisionmaker is trained in military justice. It is time to finally listen to the survivors who have told us over and over again that this reform is required to instill long-lost confidence in the system.

It is very much time to do the right thing and act because every time we look at this problem, it seems to get worse. My office just reviewed 107 sexual assault case files from the largest base in each of the services. We requested these files, and that was for 1 year of sexual assaults. We requested the data to understand what actually happens once the reports are filed, how they are investigated, and how they move forward within the military justice system to see if there is any other challenges we have to address. It took the Pentagon a year to respond to my document request. These 107 files are just a snapshot of the thousands of estimated cases that occur annually.

What we found, which was unexpected, was an alarming rate of assaults among two survivor groups who are not represented in the DOD survey. The DOD survey is all servicemembers. But what we found is that civilian women and military spouses are not counted in that survey, and of these 107 cases, in 53 percent of them, the survivor was either a military spouse or a civilian. These two categories of survivors are hidden in the shadows.

According to the DOD themselves, the real scope of this problem, unfortunately, is much larger than the 20,000 that were estimated for last year alone. These obviously aren't just numbers; these are real lives being broken, and they deserve a fair shot at justice.

It should disturb everyone in this Chamber that instead of hope for justice at these four military bases, nearly half of the survivors who initially filed a complaint--some of them going through the medical exam, going through testimony, going through evidence--nearly half who filed withdrew their complaint during the process before trial. What does that tell us? Is there a form of retaliation taking place? Is it just a lack of faith in the system? To have about half of these cases not move forward is very troubling.

Even when a case did move forward, just over 20 percent of them went to trial, and only 10 percent of these cases resulted in sexual assault convictions with penalties of confinement and dishonorable discharge. Ten percent. Only 10 percent ended in conviction. The cases that did proceed to trial but failed to obtain a sexual assault conviction typically resulted in a more lenient penalty, such as reduction in rank or docked pay.

There was a new report published by the Human Rights Watch. They issued a report which told us that servicemembers who reported a sexual assault were 12 times more likely to suffer retaliation than to see their offender get convicted of the sexual offense. Let me repeat that. A survivor who reports a sexual assault is 12 times more likely to see retaliation than to see justice. How can anyone say this is a system our survivors can actually have faith in?

Despite the DOD's reported 62 percent retaliation rate--and this is so troubling--there was not evidence of a single serious disciplinary action against anyone for retaliation. Not one. There was not one disciplinary action for 62 percent of survivors who were retaliated against. That borders on the impossible. But the reality is, without independent review, we are actually relying on commanders to charge themselves with retaliation. It doesn't make any sense.

According to the DOD's own SAPRO report, retaliation remains at 62 percent for women. Over one-third experienced administrative action, and 40 percent faced other forms of professional retaliation. That means your job changes in some meaningful way.

DOD admits they have made zero progress since 2012.

The carefully crafted and widely bipartisan Military Justice Improvement Act is designed to reduce the systemic failure that survivors of military sexual assault describe, in deciding whether to report the crimes committed against them, due to the bias and inherent conflicts of interest posed by the military chain of command's current sole decisionmaking power over whether a case moves forward. This reform actually protects both the victim and the accused. We do not want to see an innocent person convicted any more than we want to see a guilty person go free.

Due process, professionalism, training, equal opportunity to justice is how we restore a broken system. It is time to move the sole decisionmaking power over whether serious crimes akin to a felony go to trial from the chain of command into the hands of nonbiased, professionally trained military prosecutors, where it belongs. And we do this while leaving military crime in the chain of command. So we completely carve-out anything that is military-related, such as missing in action or not honoring a command. In fact, the decision whether to prosecute the vast majority of crimes, including 37 serious crimes uniquely military in nature, plus all punishable crimes that have less than a year of confinement as a penalty, remain in the chain of command.

The brave men and women we sent to war to keep us safe deserve nothing less than a justice system that is actually equal to their sacrifice. We owe that at least to them.
Thank you, Madam President.

I suggest the absence of a quorum.

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