[Congressional Record Volume 159, Number 162 (Thursday, November 14, 2013)]
[Senate]
[Pages S8036-S8041]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MILITARY JUSTICE IMPROVEMENT ACT
Ms. HIRONO. Mr. President, since the infamous Tailhook scandal in
1991, every Secretary of Defense has proclaimed that our military has a
``zero-tolerance'' policy for sexual harassment and sexual assault.
Zero tolerance is the policy our military should have, but in reality
it doesn't. We
[[Page S8037]]
know it doesn't because we have heard too many stories from women and
men in the military who have been attacked, assaulted, or raped by
their peers in uniform or by their superiors. We have heard too many
stories in which the assailants go unpunished. We have heard too many
stories about commanding officers using their authority to set aside
court-martial convictions or to decide simply not to have a trial at
all. We have heard too many stories about survivors being drummed out
of the service by misinformed diagnoses of mental illness or by a chain
of command that ignores the assailant and instead turns around and
charges the survivor with bad behavior. We have heard too many stories
about survivors who are so disillusioned by this broken system that
they don't even bother to report these crimes. Instead, these men and
women, warriors all, are forced to live in silence and with an unjust
feeling of shame.
We all agree that commanders are responsible for maintaining good
order and discipline in their units. This includes creating an
atmosphere of dignity and respect for everyone under their command.
Commanders must create an environment where sexual crimes do not occur.
Our proposed changes to the military justice system do not absolve the
commander of these responsibilities. It is still their job to prevent
these crimes. But when these crimes do occur, survivors should have the
ability to seek justice, and the Gillibrand amendment will help the
survivors do just that.
I am glad our civilian and military leaders have committed to helping
the survivors of sexual assault, punishing the predators and ending
these terrible injustices. When the service secretaries and chiefs tell
me fixing the problem of sexual assault is a top priority for them, I
believe them. I believe they care deeply about this problem.
Unfortunately, incremental change has not been and is not good enough.
Commanders bear the responsibility for creating a culture where these
crimes do not happen in the first place.
Congress must also do its part to ensure there is a system in place
that both holds people accountable and doles out punishment that
actually serves as a deterrent against future sexual assaults. Over the
years, Congress has passed a variety of measures intended to fix these
problems, and we have many good provisions in both the House and Senate
versions of the NDAA which we are considering. But I do not believe
these steps are enough. We must make a major change. We owe it to the
men and women who serve our country in uniform. We owe it to the
families and loved ones of those who serve because the trauma of sexual
assault often extends beyond the trauma experienced by the survivor. We
must do all we can to provide an environment where those who put their
lives on the line for our country each and every day are not sexually
assaulted. And if they are, we must provide a fair system of justice
where the survivor is heard and not ignored, is helped and not shunned.
That requires, I believe, vesting the decision about whether or not to
go to trial with an impartial experienced military lawyer and not with
the commander in the chain of command who has an inherent vested
interest in the case.
It is undeniable the current system does not work. According to the
Department of Defense, there were an estimated 26,000 cases of unwanted
sexual contact in 2012. We have heard about trainers at Lackland Air
Force Base repeatedly raping new enlistees. We have heard about
incidents at the Service Academies, Aviano Air Force Base, Fort Greely,
Fort Hood, and too many other bases. It is undeniable that we have a
problem. The incremental steps we have taken are not enough.
The story of Marine 2nd Lt. Elle Helmer is just one example of this
broken system. She told her story in the documentary ``The Invisible
War,'' and it has also been reported elsewhere, including a CNN
interview and in the Houston Chronicle.
I ask unanimous consent to have printed in the Record the Houston
Chronicle article.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Houston Chronicle, May 20, 2013]
After Sex Assaults Inside Military, Women Are Victims Again of Legal
System
(By Karisa King)
Marine 2nd Lt. Elle Helmer woke up on a cold floor, lost
and surrounded by darkness. Her body screamed with pain, her
underwear had been removed and she tasted blood in her mouth.
She could hear someone else in the room with her, breathing
slowly.
Memories from the past few hours flashed through her mind
as she crawled toward a doorway for light. On orders from her
command on March 16, 2006, Helmer had joined her fellow
officers for a St. Patrick's Day pub run, a night of bar-
hopping that ended across the street from the prestigious
Marine Barracks Washington, where she was in charge of public
affairs.
A major followed Helmer out of the last bar and summoned
the 25-year-old to his office. As soon as they entered the
office, he shut the door and kissed her. She pushed him away
and made it halfway out the door when he caught her arm and
yanked her back into the room so hard she tripped and went
flying forward.
The last thing she remembered was her head slamming into
his desk.
Part 1: Sexual-assault victims in military unjustly stigmatized, booted
out
Emerging from the darkened office hours later, she noticed
she was wearing the major's green running shorts. She padded
barefoot down a hallway to her office, where she found
herself locked out. Two Marine guards found her outside the
door, crying and shaking. She was certain she'd been raped.
``Call an ambulance,'' she kept telling them, a plea she
repeated to a captain and a colonel who arrived later.
Instead, the colonel warned that if she went to a hospital,
she would be prohibited from making a sworn accusation of
rape because she'd been drinking. She would be charged with
public intoxication and conduct unbecoming an officer, he
told her.
``Dust yourself off. You're tough. You're from Colorado,''
he said. ``Whatever happened, it's because boys and girls and
alcohol don't mix.''
It was her introduction to a military criminal justice
system that frequently grants impunity to offenders and
punishes victims--the outcome of a fiercely guarded power of
commanders who wield broad discretion over the handling of
sex crimes in their ranks, according to a San Antonio
Express-News investigation.
Many drugged first
From the accounts of sexual assault survivors in every
branch of the military, a stark panorama emerges: Many
victims were drugged or forced to drink and were raped,
attacked as they slept, beaten unconscious and coerced into
sex by their superiors. They were strongly discouraged from
disclosing the crimes, or forced to report assaults to
commanders who are closely connected to the accused.
Few suspects face criminal punishment. Of 3,374 reports of
sexual assault last year involving 2,900 accused offenders,
only 302 went to courts-martial and 238 were convicted, the
Defense Department says.
Meanwhile, 286 offenders received nonjudicial or
administrative punishment or discharges, allowing them to
dodge a criminal mark on their record. In 70 cases, suspects
slated for possible courts-martial were allowed to quit their
jobs to avoid charges.
Prison sentences are rare. Only 177 perpetrators were
sentenced to confinement. But the most jarring statistic:
about half of all convicted sex offenders were not
automatically expelled from the armed services.
The military had only recommended discharge for convicted
offenders, but lawmakers cracked down this year and made
expulsions mandatory.
Mishandling of case
For Helmer, the immediate response from her chain of
command foretold the mishandling of her case.
On the night she reported that she'd been raped, the
colonel at Marine Barracks Washington refused to grant her
medical help until she argued that her head injury demanded
immediate attention. He agreed to let her go, but only after
arranging for her to see a doctor he knew at National Naval
Medical Center in Bethesda, Md.
``Don't say anything else and come straight back,'' he told
her.
She was put into a car with a captain who was supposed to
drive her there. But she insisted he take her to a different
hospital at Andrews Air Force Base, where no one connected to
the colonel would be awaiting her arrival.
The attack in the major's office was a betrayal by a
superior she had trusted. But she eventually would regard the
response from her chain of command and the military justice
system as the biggest betrayal of all.
For all the public outrage sparked by sexual abuses at the
Navy Tailhook convention in 1991, the Army's Aberdeen Proving
Ground in 1996 and the Air Force Academy in 2003, the
military criminal justice system has failed to stem an
epidemic of sexual assaults, reaching an estimated 26,000
last year.
Basic training assaults
Against that backdrop last year came explosive details of
young recruits who were sexually assaulted by their basic
training instructors at Joint Base San Antonio-Lackland. So
far, the Air Force has identified 33 instructors suspected of
illicit conduct with 63 trainees.
An Air Force general's decision to throw out a jury
conviction of aggravated sexual
[[Page S8038]]
assault ignited an uproar on Capitol Hill. Lt. Col. James
Wilkerson, an F-16 pilot at Aviano Air Base in Italy, was
sentenced in November by a jury of officers to dismissal and
a year in jail for sexually assaulting a party guest as she
slept in a spare bedroom of his house.
But in February, Lt. Gen. Craig Franklin, Wilkerson's
former commander, concluded the evidence was insufficient.
Against the recommendation of his staff attorney, Franklin
overturned the conviction, vacated the jury's sentence and
reinstated Wilkerson to full duty.
The case underscores the unchecked legal power of
commanders. Although they typically have no background or
training in the law and may not be impartial arbiters, senior
officers like Franklin who are endowed with ``convening
authority'' determine which cases go to trial, and they have
the ability to overturn verdicts and vacate sentences before
cases enter the appeals process.
No reason at all
According to military law, commanders can dismiss verdicts
for any reason, or no reason at all.
For Kimberly Hanks, who testified she woke up as Wilkerson
was assaulting her, it was a lesson in the conflicts of
interest posed by the military justice system. Hanks, a 49-
year-old physician assistant from California, was a civilian
contractor at Aviano when she told military authorities she'd
been assaulted.
After the verdict, she discovered that Franklin and
Wilkerson had once flown together in Iraq and shared friends.
Even so, Franklin's decision to throw out the conviction
shocked her. ``I think the message is loud and clear. I think
it tells victims: Don't bother (to report),'' Hanks said.
Air Force officials said only five verdicts have been
overturned in sexual assault cases in the past five years.
In response to the case, Defense Secretary Chuck Hagel in
April proposed that commanders be stripped of their ability
to toss out trial convictions. But Hagel and military brass
oppose efforts to remove authority over sex crimes from
commanders. At the Senate hearing in March, top military
attorneys argued that sexual assault cases must remain within
the chain of command, and nothing less than the military's
ability to wage battle is at stake.
Kelly Smith had seen enough in her first three years in the
Army to know that soldiers who can't tough out physical pain
and personal difficulties--no matter how agonizing--are
viewed not only as troublemakers but as a danger to the
safety and cohesion of the unit.
That's why she had no intention of telling anyone in
February 2003 after she woke up in her bed at Fort Lewis,
Wash., as a man attempted to rape her. But Smith, whose
screams drove off her attacker, said she was forced to report
it to military authorities because Army guards identified the
man as he ran from her room.
Although her assailant admitted the attack, the case was
dropped without explanation, she said. She was sent to a
psychiatric unit for therapy. Days later, she was dismayed to
discover Army counselors sent her assailant to join the same
therapy group. She protested, but was told she was being
unreasonable.
``I sat next to him in group therapy for a week,'' Smith
said. ``At that point, I shut down.''
While the soldier who assaulted her was allowed to retire,
Smith, who was a Korean code breaker, soon was diagnosed with
bipolar disorder, a pre-existing mental illness that prompted
the Army to kick her out.
``I knew it would be the end of my career, and it was,''
Smith said.
Other priorities
For Elle Helmer, even those assigned to help her seemed to
have had other priorities.
She met the victim advocate assigned to her case at Malcolm
Grow Hospital at Andrews Air Force Base. The advocate arrived
with instructions to drive Helmer back to the Marine Barracks
because the colonel and executive officer wanted a word with
her.
Helmer was adamant that she wanted to make a statement at
Naval Criminal Investigative Services, which had jurisdiction
over crimes at the barracks. The advocate warned against it.
``These cases never go anywhere,'' she told Helmer.
``And she's the sexual response coordinator!'' Helmer now
says. ``It felt like walking backward in time.''
Eventually the advocate reluctantly took Helmer to NCIS to
make a statement.
Up all night
It was roughly 8 a.m. and Helmer had been up all night. She
entered the NCIS offices, about two blocks from the barracks,
and learned the colonel and executive officer were there
waiting to speak with her. Again, Helmer refused. She tried
not to make eye contact with them as she walked past the
office where they waited.
She spent the morning in a conference room with five
investigators who questioned her credibility. In what seemed
like an endless cycle, she wrote out her statement, they
questioned her, and then asked her to rewrite the statement.
They decided to open an investigation but said they couldn't
accept her statement because she had been drinking the
previous night.
It wasn't until that afternoon that investigators arrived
at the barracks to collect evidence from the major's office.
By that time, the major had been left alone at the scene for
hours. Eyewitness statements show he was spotted making trips
back and forth from the office carrying cleaning supplies and
towels.
Helmer was taken back to the barracks to be interviewed by
the colonel. When she returned to work the following Monday,
he informed her that the Marine command had opened an
investigation against her for public intoxication and conduct
unbecoming an officer.
The NCIS investigation lasted three days. Investigators
closed Helmer's case on the grounds she could not recall any
sexual assault.
``Her statements did not constitute an allegation of
criminal activity,'' the NCIS report stated.
Investigators held out the possibility of reopening the
case, depending on the results of the rape kit.
Military records show the major told a commander at the
barracks that he had no sexual contact with Helmer. He said
she came into the office, laid down on the floor and vomited.
He left the room to retrieve cleaning supplies, and when he
came back, she was gone.
Eyewitness statements contradict his account. Two Marines
who saw the major wearing green shorts and cleaning up vomit
had peeked through the partly open office door and reported
seeing a woman's bare leg sprawled on the floor.
``This looks bad but I'll take care of the lieutenant,'' he
told them.
It wasn't until about two hours later that guards
encountered Helmer locked out of her office and wearing the
major's green shorts. The captain who took Helmer to the
hospital told investigators he went into the major's office
to retrieve Helmer's ID card and found the major asleep on
the couch, ``wearing a Saint Patrick's Day t-shirt and
nothing else.''
No rape kit results
Helmer waited four months with no results from the rape
kit.
Frustrated by inaction, she told her command that she was
speaking to a reporter in Washington about her case. Although
nothing was published, she was fired from her job and charged
with conduct unbecoming an officer and fraternization.
She was dismissed from the Marines for unacceptable conduct
in January 2007 with a ``general under honorable conditions''
discharge.
While she waited for her final dismissal papers, military
authorities told her the rape kit had been lost.
Ultimately, the major faced no criminal or administrative
punishment. He was allowed to remain in the Marines and later
received a promotion.
``All they did was give him expertise in how the legal
system works,'' she said. ``Now he knows he can get away with
it.''
Ms. HIRONO. Mr. President, the Houston Chronicle article tells the
following account:
Lieutenant Helmer was stationed at Marine Barracks Washington in
2006, just a few blocks from the Senate Chamber. One night, after she
was ordered to go bar hopping with her colleagues, a superior officer
called her into his office and attacked her. She remembers him slamming
her head into his desk, and then she blacked out. When she woke up she
was wearing her superior officer's shorts, and she knew she had been
raped. Two guards found her outside crying and shaking. She asked a
colonel to call an ambulance and, instead, the colonel warned her she
would be charged with public intoxication and conduct unbecoming an
officer if she reported the attack. When Lieutenant Helmer finally made
it to a military hospital, the sexual assault victim advocate warned
her, ``These cases never go anywhere.''
Lieutenant Helmer pressed her case anyway. But after many months,
here is the only thing that happened. Lieutenant Helmer was charged
with fraternization and conduct unbecoming an officer, and the superior
officer who attacked her received no punishment. In fact, he was later
promoted.
This story should outrage us all. This story shows that when sexual
assault occurs, the current system does not work. It is time to make
fundamental changes to how sexual assault cases are handled in the
military.
The amendment of Senator Gillibrand would be a big step in the right
direction. Her amendment would take the decision to go forward with a
trial out of the chain of command and place it in the hands of an
experienced military lawyer. This change would improve the judicial
process by increasing transparency. It would also eliminate potential
bias and conflict of interest because, unlike a commanding officer, the
military lawyer would be unconnected to either the survivor or the
accused. Just the perception of such bias or conflict of interest could
[[Page S8039]]
discourage a survivor from reporting a sexual assault and thereby allow
the attacker to prey on others again and again.
Many survivors of sexual assault tell us the main reason they do not
report these crimes is because they think nothing will happen. The
current process often does not work. It is unacceptable to allow this
situation to continue.
The problem of sexual assault is a scourge on our military for which
there is no silver bullet. But at the very least what we need is a
military justice system where a survivor feels confident that his or
her case will be fairly examined and, if deemed to have sufficient
evidence, be sent forward to trial.
Sexual assault in the military is something that most people don't
want to talk about. We don't want to think the men and women whose
service we honor on Veterans Day are being preyed upon by their
colleagues or, even worse, that they themselves may be sexual
predators. There is no doubt in my mind that the overwhelming majority
of our military men and women serve our country valiantly and with
honor, and we should take care not to tarnish them with suspicion. In
fact, we owe it to them to act.
It is for these reasons that I am a proud cosponsor of Senator
Gillibrand's Military Justice Improvement Act. I urge my colleagues to
support it, and to my colleagues who are opposed or undecided, I want
to say again that keeping disposition authority within the chain of
command has not worked. One of the arguments I have heard against
making this change is that doing so would interfere with the
commander's ability to maintain good order and discipline. Good order
and discipline should not rest upon a commander's ability to decide
whether or not to prosecute a sexual crime.
The time has come to make a significant change, and I believe this is
a change that needs to be made. I want to commend our colleague Senator
Kirsten Gillibrand for her tireless efforts and courageous leadership
in this effort to help survivors of sexual assault in the military.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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
[[Page S8040]]
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?
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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.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. SHAHEEN. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. SHAHEEN. Mr. President, I am pleased to be here to join my
colleague Senator Gillibrand in expressing my concerns about how we
address sexual assault in the military.
For the past several years, we have all become increasingly aware of
the prevalence of sexual assault in our military. Personally, I know I
share the outrage of all Americans that one of our Nation's proudest
institutions is afflicted by this level of criminal violence. In 1989,
Secretary of the Navy H. Lawrence Garrett III established a policy of
zero tolerance for sexual harassment and sexual assault. Two years
later, the Tailhook scandal happened at a convention attended by the
Secretary and the Chief of Naval Operations.
On June 2, 1992, Secretary Garrett wrote a memo to his military
leaders that said:
While each individual must be accountable for his or her
own actions, commanding officers have a unique responsibility
for leadership in ensuring appropriate behavior and attitudes
of those under their command.
In the end, the Tailhook scandal resulted in 90 victims--83 women and
7 men--140 officers facing possible punishment and zero criminal
prosecutions for incidents of assault. All of these events occurred
under the same zero tolerance policy that military leaders espouse
today.
The Tailhook scandal was only the beginning of our awareness of the
silent crisis within the military. Since that time, there have been
numerous scandals in every service. Yet 20 years later we are not only
told that the system works but that the status quo, maintaining the
chain of command on this issue, is vital to solving the problem. This,
of course, ignores the reality of the sexual assault crisis.
In fact, according to the Department of Defense Sexual Assault
Prevention and Response Office, 26,000 cases of unwanted sexual contact
and sexual assault occurred in 2012, and that was an increase of 37
percent since 2010. Clearly, something must change and it must change
now.
Thanks to the hard work of Senators Gillibrand, Boxer, Blumenthal,
and Hirono, along with so many supporters on both sides of the aisle,
this issue is back at the forefront of our national debate. We now have
a historic opportunity not only to make additional meaningful
commonsense reforms to our military criminal justice system, but I
think the Defense authorization bill that we are going to take up
before the end of this year, hopefully, has a number of very critical
proposals to address sexual assault in our military, and I certainly
support those. I was pleased those provisions got unanimous support
within the committee. But I do not think we went far enough in that
bill.
We also need to send a powerful message to the tens of thousands of
victims, many of whom have been suffering quietly for decades, that
what happened to them in our military is unacceptable. In too many of
those cases it is criminal. And it will no longer be tolerated.
The Military Justice Improvement Act of 2013 addresses what victims
tell us is the No. 1 problem in the current system. Victims decide not
to report sexual assaults because they fear their commanding officers
will not take the issue seriously and they will be retaliated against
or nothing will be done.
According to the Department of Defense Sexual Assault Prevention and
Response Office, 50 percent of female victims said they did not report
the crime because they believed nothing would be done with their
report. And 25 percent of women and 27 percent of men who received
unwanted sexual contact indicated that the offender was actually
someone in their own military chain of command.
Our legislation addresses the chain-of-command issue. It removes the
decision of whether to go to trial from the chain of command and puts
it into the hands of experienced prosecutors. This is a straightforward
change. It is designed to promote transparency and accountability in
the prosecution of these crimes.
It would also ensure that impartial individuals specifically trained
to handle these cases determine whether they move forward, which
permanently eliminates the conflicts of interest that exist in the
current system. We need all victims to know that if they come forward,
their cases will be handled fairly and impartially.
Several days ago in America, we celebrated Veterans Day. Many of us
went home to our home States to honor the men and women who, throughout
our history, have served in our military. Our military's traditions of
honor and respect are too important to continue to be plagued by the
issue of sexual assault. That is why I urge my colleagues to support
the Military Justice Improvement Act, because we strengthen our
military when victims of sexual assault have the confidence to come
forward and report crimes, and when we remove fear and stigma from the
process. We strengthen our military when we create a process to deliver
fair and impartial justice on behalf of the victims of these crimes.
Every man and woman who wears the uniform deserves these rights, and
after more than 20 years of waiting, it is way past time we come
through for them.
I yield the floor.
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