Sen. Kirsten Gillibrand’s (D-NY) year-long campaign to reform the way military sexual assault cases are investigated and handled hit the wall Thursday, when her bill failed to clear the automatic filibuster.
Gillibrand’s proposal won 55 votes, leaving it five shy of the 60 votes needed to pass the filibuster.
Her proposal, which pitted New York’s junior senator against fellow senators Carl Levin (D-MI) and Claire McCaskill (D-MO), as well as the Pentagon, would remove the handling of sexual assaults and other high-profile crimes from the military chain of command and establish an independent investigative office to prosecute such cases.
Gillibrand felt that such a bill was necessary because victims fear reprisal for reporting an assault. Opponents to Gillibrand’s bill argued that lifting the obligation to investigate and prosecute such crimes from the chain of command would dissolve its accountability for failing to prevent such crimes.
“It’s like your brother committing the sexual assault and having your father decide whether to prosecute,” Gillibrand said. “The victims and the survivors of sexual assault have been walking the halls of Congress asking that we do something to protect them.”
The main concern with the chain of command investigating such crimes is that military commanders are encouraged to consider the state in their unit and mission feasibility while making any decision, including judicial ones. Commanders have dismissed such cases, minimized punishments and even attacked victims, saying that such a conviction could impair troop morale or compromise a vital mission.
There is also a concern that those charged with investigating sexual assault crimes are themselves committing sexual assaults. The case of Lt. Col. Joseph Morse, who has been accused of, and suspended for groping a fellow lawyer during a sexual assault legal conference, is one example. Morse was a commander for the Army’s special victims unit, which prosecutes sexual assaults, crimes against children and domestic abuse.
Gillibrand’s argument is also bolstered by the current sexual assault trial of Army Brig. Gen. Jeffrey Sinclair. Sinclair is accused of forcing a junior officer to perform fellatio on him and threatening to kill her if she reported it. The abrupt resignation of the trial’s chief prosecutor has led many to speculate that illegal influence from superior officers led him to abandon the case.
The retirement of Air Force Lt. Gen. Craig Franklin, who received steep criticism for his decision to put aside a guilty verdict of sexual assault against a fighter pilot, has also given support to the senator’s argument.
The 2014 National Defense Authorization Act stripped commanders of their right to change legal verdicts and reduce sentences. The NDAA also prohibits commanders from ending a sexual assault case without the consent of the military branch’s senior leadership.
Gillibrand received the support of three-quarters of the Senate Democrats, as well as unexpected support from Sens. Ted Cruz (R-TX), Rand Paul (R-KY) and Minority Leader Mitch McConnell (R-KY). The breakdown of the vote for Gillibrand’s bill was 44 Democrats and 11 Republicans.
McCaskell led the opposition against Gillibrand’s bill. McCaskell has sponsored a rival bill to Gillibrand’s, which allows victims to have a say in how their cases are heard and prosecuted in the military and civil justice systems. McCaskell’s bill received cloture unanimously on Friday and is cleared for voting on Monday, when many believe it will pass.
“The argument was posed as ‘Victims vs. commander: Whose side are you on?’ and it’s not that simple. If you take the time to really get into the complexities of the military justice system and how these cases are handled, I’m confident that the choice the Senate made today is the right one for victims of sexual assault in the military,” said McCaskill.