[Congressional Record Volume 160, Number 37 (Wednesday, March 5, 2014)]
[Senate]
[Pages S1306-S1309]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    MILITARY JUSTICE IMPROVEMENT ACT

  Mrs. BOXER. I rise in strong support of the Military Justice 
Improvement Act. I am so proud to stand with 17 of the 20 women Members 
of this Senate on both sides of the aisle and with a large number of 
colleagues from both sides--a majority--to fight for real change in the 
way our military addresses the epidemic of military sexual assault.
  When one is in Washington for a while--and I have been in Washington 
for a while. Thanks to the good people of California, I was elected to 
the House in 1982 and took my seat in 1983. I have seen this issue get 
worse and worse. The issue of sexual assault in the military is not 
new. Unfortunately, it is decades old.
  It was 23 years ago that dozens of women and men were sexually 
harassed and assaulted in the halls of a Las Vegas hotel during the 
Tailhook Association's annual convention. The 1991 Tailhook scandal 
focused a national spotlight on the issue of military sexual assault, 
and then-Secretary of Defense Dick Cheney declared after it was over a 
zero tolerance policy.
  I have to be completely blunt with everybody who may be listening to 
this. The fact is, after Tailhook and all of these promises from 
everybody, I thought we would never see this epidemic grow as it has. I 
thought we stopped the epidemic of sexual assault in the military 
because it was heinous to see what they did when everyone said it would 
be over.
  Let's take a look at how many Secretaries of Defense made a pledge. 
We will start from the bottom and work our way up to the top.
  Secretary Cheney in 1993 said:

       Well, we've got a major effort underway to try to educate 
     everybody, to let them know that we've got a zero-tolerance 
     policy where sexual harassment's involved.

  So a real commitment from then Defense Secretary Cheney.
  The next year it was Secretary William Perry. In 1996, he said:

       For all reasons, therefore, we have zero tolerance for 
     sexual harassment.

  Then it was Secretary William Cohen. In 1997, he said:

       I intend to enforce a strict policy of zero tolerance of 
     hazing, of sexual harassment, and of racism.

  Now we move to Donald Rumsfeld in 2004:

       Sexual assault will not be tolerated in the Department of 
     Defense.

  These are beautiful words. But I say to those listening: Nothing has 
stopped this epidemic--Democratic or Republican Secretaries of Defense, 
it doesn't matter.
  Then Robert Gates, who served both Republican and Democratic 
Presidents, what did he say.

       This is a matter of grave concern. I have zero tolerance 
     for sexual assault.

  Leon Panetta, under President Obama:

       We have absolutely no tolerance for any form of sexual 
     assault.
       I take sexual assault allegations very seriously. We have 
     no place in the military for sexual assault.

  Currently, Secretary Chuck Hagel, under President Obama:

       It's not good enough to say we have a zero tolerance 
     policy. We do.

  But what does it mean? How does it translate into changing anything? 
I want to know.

       These crimes have no place--no place--in the greatest 
     military on earth.

  We all agree with that. But here is what this shows you: Seven 
Secretaries of Defense, Republicans and Democrats, all these years--the 
first one being Dick Cheney in 1992--have all promised zero tolerance, 
and the problem of sexual assault in the military gets worse.
  So Senator Gillibrand has issued a call to action. She has written a 
terrific bill, working with Republicans and Democrats, and we are 
getting a vote on the bill tomorrow--assuming we can break a 
filibuster, because there is a filibuster and we have to file cloture 
and we need a supermajority of 60 in order to get to an up-or-down 
vote.
  So these promises to me ring hollow. I like so many of these people. 
I have worked with so many of them. They are good people. They care. 
But these words are hollow. We have to change the way we deal with 
sexual assault in the military, and that is what this vote is about 
tomorrow. But we have to break a filibuster.
  Here is what has happened to those who have come forward: Instead of 
justice, sexual assault survivors have faced retaliation, 
revictimization, and further abuse. Instead of justice, survivors have 
been kicked out of the military while their attackers go unpunished.
  I will share some deeply troubling statistics which speak to the 
scope of this problem: 26,000 cases of sexual assault occurred in the 
U.S. military in 2012 and 1.2 percent were prosecuted.
  Mr. President, I know how deeply you care about this. You were 
responsible for protecting justice for the people of Connecticut. What 
if you had a range of cases and only 1.2 percent were prosecuted? I am 
sure you would admit that something was very wrong. Of course, your 
record speaks for itself.
  The point I am making is this: How can anyone defend the status quo? 
Yet we have a group of people here in the Senate who are defending the 
status quo. Yes, they are making changes around the edges. I give them 
that, and I am very happy with that. But they are not getting to the 
root cause of the problem, which is who decides whether these cases go 
forward. Who is the decider? That is why the Gillibrand amendment is so 
critical.
  So I want people to keep this chart in their minds. These are all the 
assaults. The number prosecuted is 1.2 percent. That means that of the 
estimated 26,000 sexual assaults, only 302 were prosecuted. Keep that 
in mind--26,000 sexual assaults in the military and only 302 were 
prosecuted.
  Let me give another troubling figure. One in five female 
servicemembers reported experiencing unwanted sexual contact while 
serving in the military. One in five female servicemembers reported 
experiencing unwanted sexual contact while serving in the military. 
There is something wrong with the culture there. These women are 
putting their lives on the line, and what do they get for it? One in 
five is experiencing unwanted sexual contact. And by the way, many of 
the men are too. But we have this statistic we wanted to share.
  What is this misconduct that these women--one out of five women--in 
the military are facing, unwanted sexual contact? This means they are 
experiencing rape, sexual assault, and unwanted sexual contact while 
serving in the military. But they don't report it because they are too 
scared, and that is why the Gillibrand bill is so critical, and that is 
why we need to make sure we defeat that filibuster--because you cannot 
and should not filibuster justice. Let's get an up-or-down vote. How 
many more women and men will become victims of these heinous crimes

[[Page S1307]]

before we take action? For 20 years the military has had to deal with 
this.
  I am a fairly patient person. Before I got into politics, I was not a 
patient person. When I got into politics, I realized, yes, change takes 
time. You have to be patient, you have to work hard, and you have to 
make the case. You have to pile up your statistics. You have to make 
sure you have the facts and then take action.
  But 20 years of doing nothing, 20 years of commitment from all of 
these people--Richard Cheney, William Perry, William Cohen, Donald 
Rumsfeld, Secretary Gates, Secretary Panetta, Chuck Hagel; it doesn't 
matter whether they are Republican or Democratic--all saying the same 
thing; they are going to stop this heinous situation. And they don't 
because they cannot.
  We need to listen to survivors--survivors who are going to solve the 
crisis of sexual assault in the military because they are going to 
speak up, and they have. Survivors are telling us that the only way to 
stop this horrible epidemic of sexual assault is to take the decision 
about whether to prosecute serious crimes such as sexual assault out of 
the hands of the commanders. Give it to the professional, trained 
military prosecutors outside the chain of command.
  There are many people who misconstrue this. They think we are going 
to take it completely outside the military structure. That is not what 
we do. What we do is we say the professionals should deal with this. 
Right now you have to report to your commander. We never would allow a 
CEO of a corporation to make the decision about whether one of his or 
her employees should be prosecuted for rape. If something happened in 
our office and someone came to the Presiding Officer or to me and said: 
Something horrible has happened upstairs, and we think somebody raped 
someone else. We wouldn't decide whether to prosecute. We would go 
right to the police--right to the police. And that is what we are 
saying when supporting the Gillibrand amendment. We are saying these 
legal decisions should be made by independent, experienced legal 
experts so the decision to go to trial is a fair one, objective, and 
based on the evidence.
  By the way, that helps all sides--the accuser and the accused. As a 
matter of fact, we have some people who are worried that the accused 
may not get a fair trial if we don't change things because there has 
been so much publicity about this.
  There has been a defense advisory committee on women in the services 
that has advised the Secretary of Defense for over 60 years. That 
commission overwhelmingly supports this reform, arguing that the 
authority of commanders to decide whether to prosecute these cases 
``poses an inherent conflict of interest.'' It is obvious. Of course it 
is a conflict of interest. If the commander is faced with a situation--
remember, we are talking about people who put their lives on the line. 
If the commander is in a circumstance where he does not want to lose 
one of these guys who is, let's say, a very good fighter, he has a 
conflict right there. He may be friends with the guy or the gal, 
whoever the accused is. We have to take this away from the commander 
and let them focus on what they need to do.
  We have been told by many commanders that they would welcome this 
even though the top brass is quashing it and fighting hard against 
them. Why? Why are they fighting against this when for 20 years they 
have claimed they want to solve the problem? Let's listen to retired 
military officers such as LTG Claudia Kennedy, the first female three-
star general in the Army. This is what she said:

       If military leadership hasn't fixed the problem in my 
     lifetime, it is not going to be fixed without a change from 
     the status quo. The imbalance of power and authority in 
     commanders dealing with sexual assaults has to be corrected. 
     There has to be independent oversight over what is happening.

  Then we have a situation where a woman was put up for a position. 
This is amazing. Dr. Jo Ann Rooney was nominated to be the Under 
Secretary of the Navy. She was asked:

       In your view, what would be the impact of requiring a judge 
     advocate outside the chain of command to determine whether 
     allegations of sexual assaults should be prosecuted?

  Mr. President, do you know what she said? This is what she said would 
happen if the Gillibrand bill passed:

       I believe the impact would be decisions based on evidence 
     rather than the interest of preserving good order and 
     discipline.

  And she is against the Gillibrand bill because she put good order and 
discipline over justice.
  Then she said:

       I believe this will result in fewer prosecutions and 
     therefore defeat the very problem I understand it seeks to 
     address.

  Many of us have said we are not going to let a vote come up on this. 
We have been very open about it. She is complaining that if we pass the 
Gillibrand bill, the decision will be based on the evidence rather than 
on the good old boy system. I don't get it.
  We need to listen to our allies, such as Israel, Canada, the United 
Kingdom, Australia. They have successfully made this change.
  I want to say very clearly that none of us in this body should 
filibuster justice. And I have a very strong chart here. I am going to 
keep this up: ``Don't filibuster justice.'' That is what we are facing. 
We have people who are going to filibuster the Gillibrand bill and not 
allow a vote on it, while they would vote not to filibuster the 
McCaskill bill. I say don't filibuster either of these bills. Vote yes 
on both. Both are good. But it is only the Gillibrand bill that will 
make sure the system that is resulting in a disastrous record of 
prosecutions and a disastrous record of people--90 percent of the 
people don't report. Isn't that true? Ninety percent of the people 
don't report because they are scared. These are men and women. If you 
don't report, you cannot have justice.
  For over a year survivors of military sexual assault have been 
walking the halls of Congress and calling for these vicious crimes to 
be decided outside the chain of command. In other words, they support 
S. 1752. They don't want us to filibuster S. 1752. They don't want us 
to filibuster justice. These brave men and women deserve an up-or-down 
vote on the Gillibrand bill. They don't deserve the filibuster. That is 
wrong. They don't deserve two more decades of broken promises. We 
should be humble in their presence--humble in their presence.
  You know, I hear people stand and say: Oh, this is terrible. It would 
be terrible. It would be awful.
  Wait a minute. Why not ask the people who have been raped? Why not 
ask the people who survived that? Why not ask the people who did not 
report because they are frightened to death of the commander? We need 
to give these brave survivors what they deserve--an up-or-down vote on 
legislation that will fix our broken military justice system.
  I want to tell a couple of stories if the numbers are not convincing 
enough. I want to put a face on it. This is the story of Stacey 
Thompson, who is a Californian. I stood next to her, and I literally 
held her hand when she first told the story publicly.
  Stacey was drugged and brutally raped by a male sergeant in December 
1999 while she was stationed in Okinawa, Japan. She did what she was 
supposed to do: She reported the rape to her superior. Her allegations 
were swept under the rug. Her attacker was allowed to leave the Marine 
Corps without ever facing trial. Do you hear what I am saying? He was 
allowed to leave the Marine Corps, where he went home and probably 
continued his activities of raping.
  But what happened to Stacey? She became the target of a drug 
investigation, extending from the night of her rape because her 
attacker drugged her--drugged her that night and molested her on the 
ground. She was forced out of the Marine Corps with an other-than-
honorable discharge. Stacey told me she still struggles with the 
emotional and psychological effects of being raped. She is fighting to 
have her discharge upgraded so she can access the benefits she earned.
  So let me just synthesize this story. Here she is. She was raped. She 
was drugged. She was left on the ground. As a result of the drugging by 
her attacker, they began an investigation and she was drummed out of 
the military and denied any benefits. She is appealing, and she hopes 
to make progress on that appeal. Her accuser gets out of the military 
scot-free. Right?

[[Page S1308]]

  I want to point out that half of the estimated 26,000 victims of 
military sexual assault are men, so I would like to share the story of 
Amando Javier.
  Amando was serving in the Marine Corps in 1993 when he was raped and 
assaulted by a group of fellow marines. Ashamed and fearing for his 
life, he kept his rape a secret for 15 years.
  When Amando finally found the courage to share his story with a 
friend, he decided to write it down. I would like to read some of his 
words at this time.

       My experience left me torn apart physically, mentally, and 
     spiritually. I was dehumanized and treated with ultimate 
     cruelty, by my perpetrators. . . . I was embarrassed and 
     ashamed and didn't know what to do. I was young at that time. 
     And being part of an elite organization that values 
     brotherhood, integrity and faithfulness made it hard to come 
     forward and reveal what happened.

  Now it is two decades later and no one has been held accountable for 
this heinous crime. The perpetrators are still out there able to commit 
these crimes again and again.
  Ninety percent of the assaults are not reported. We think 26,000 is a 
conservative number. Think of how many perpetrators there are in the 
military, and then when they get out of the military they continue to 
commit these crimes.
  I also want to share the story of Ariana Clay. Ariana graduated from 
the U.S. Naval Academy and joined the Marine Corps. She deployed to 
Iraq in 2008. Following her return Ariana was selected to serve at the 
Marine Barracks in Washington, DC, which is a very prestigious post 
down the street.
  At the Marine Barracks Ariana was subjected to constant sexual 
assault, and when she tried to report it to her chain of command, she 
was told to ``deal with it.''
  In August 2010, Ariana was gang raped by a senior Marine officer and 
his friend at her home. Ariana bravely reported the assault, but a 
Marine Corps investigation determined she had welcomed the harassment 
because she wore makeup and exercised in shorts and tank tops.
  Finally, the Marine Corps did court-martial one of her rapists but 
failed to convict him of rape. Instead, he was convicted only of 
adultery and indecent language.
  Ariana's husband is a former Marine Corps officer. He joined her at 
the recent press conference about the importance of changing how the 
military handles sexual assault. Here is what Ariana's husband said:

       The first step to addressing sexual assault in the military 
     is to remove its prosecution from the chain of command. It is 
     unfair to expect commanders to be able to maintain good order 
     and discipline as long as their justice system incentivizes 
     and empowers them to deny their units' worst disciplinary 
     failures ever happened.

  That was from a former Marine Corps officer who said that the first 
step is to remove the prosecution of these crimes from the chain of 
command. So we now see the whole story, and we are going to go through 
these charts again.
  Sadly, Senator Gillibrand's bill--which will finally take the 
prosecution of these assaults outside the chain of command, keep it in 
the military, and give it to the trained prosecutors--is being 
filibustered by my colleagues. Don't you think we should have a vote on 
justice without having to set up a 60-vote threshold?
  I say to my colleagues--none of whom are here now, and I understand 
since it is very late--don't filibuster justice. If you want to vote 
against the Gillibrand approach, vote against it but allow us an up-or-
down vote. Don't filibuster justice. That is wrong. Frankly, anyone who 
does that ought to lose some sleep over it. I will tell you, if we get 
very close--somewhere in the high fifties--this change is coming, so 
why not make the change now.
  I will put these charts back up to remind everyone of what I said. 
These magnificent men and women in the military are innocent. They 
joined the military out of love and devotion to country. They put their 
lives on the line. One in five women is either getting assaulted or 
harassed and many men--50 percent of the 26,000 cases are men. Men have 
an even harder time of stepping to the plate and admitting this 
happened.
  The commanders are making these decisions. They are choosing between 
two people in their unit. It is akin to a CEO determining whether he or 
she is going to prosecute a case for a Senator and saying: You know 
what. It is a he said, she said, and I will decide who is telling the 
truth. Wrong. That is not justice in America. That should not be 
justice anywhere on our streets, and it should not be justice in the 
military.
  Look at that face. This is a woman who was destroyed. I stood next to 
her and had to hold her hand so she could actually get the words out. 
Because of Senator Gillibrand's bill, she is empowered to speak out. 
Because of a movie called ``Invisible War,'' which focused on people 
coming forward and telling the truth, she is empowered.
  We have to change the way the military handles this or we are just a 
bunch of folks who come out here and sound great. No, it is time to 
change.
  There were 26,000 cases of sexual assault in 2012. Of those 26,000 
cases, 1.2 percent were prosecuted. This is an absolute disgrace on its 
face and anyone who will not make the changes required is accepting 
this because all they are doing is tinkering around the edges. It 
doesn't help because that is all we have done for years.
  The moment of truth is coming in the Senate--and it is coming 
tomorrow around 2 p.m.--and Senators will have to stand here and decide 
if they are going to filibuster the Gillibrand bill and filibuster 
justice. They are going to have to decide that.
  We have been listening to words and promises and baloney for 20-odd 
years. I was here all that time, so I know. I was here after Tailhook. 
Oh, this will never happen. Dick Cheney said: it will not happen. Then 
we heard from William Perry, William Cohen, Gates, Panetta, Chuck 
Hagel. I think they meant it when they said no more and zero tolerance, 
but they will not step up and support the change that needs to be made.
  We made a lot of changes in the military. Many years ago they would 
not allow Blacks and Whites to fight side by side. Those days, thank 
God, are over. Gays in the military--oh, my God, that was going to be 
horrific and hurt morale. Thank God that is over. The military fought 
tooth and nail, day in and day out, and this is just part of the 
pattern. They protect the status quo.
  Put this in your mind: There is no place for a filibuster when it 
comes to justice. If you don't like the Gillibrand bill, then vote no 
on it, but give us a chance to vote up or down. I am going to vote to 
allow a vote on the Gillibrand bill, and I am going to vote to allow a 
vote on McCaskill's bill.
  I ask that the McCaskill people please join us. Let us have an up-or-
down vote. Honestly, I know in my heart that these opportunities to 
make change don't come along very often, and this is our moment. We 
have all the facts on our side. We have every victims' rights group and 
every survivor group on our side. We know status quo is dangerous.
  I just want to say about my colleague Senator Gillibrand how proud I 
am to stand with her. What an amazing Senator she is. She listens to 
advice from both sides of the aisle. Her bill reflects comments that 
were made by myself, Senator Paul, Senator Hirono, as well as other 
Senators on both sides of the aisle. People were so happy to sit and 
work with her and her staff.
  Now we are down to the wire. To have people tell me to my face: Oh, 
yes. I am going to filibuster this because I don't like it--if you 
don't like it, then vote no, but give us a chance to vote up or down.
  It is interesting because many of the same people who are going to 
filibuster this tell me they want to do away with the filibuster 
altogether. It is odd. They want to do away with it but not on this 
one.
  We are at the moment of truth, and tomorrow Senator Gillibrand will 
lead us in the hour of time that we have. Senator McCaskill will offer 
her views of negativity on the Gillibrand bill. Senator Gillibrand will 
support both bills, as will I.
  I truly pray tonight that people will think about this and will think 
about Stacey and the men and women who have come forward in such a 
difficult situation to open their hearts to talk about things that have 
been kept a secret for so long because they honestly think it will help 
bring about change.
  If we don't allow a vote on that change, then I am afraid this Senate 
will not look very good when we awaken the next morning.

[[Page S1309]]

  I thank the Presiding Officer, yield the floor, and note the absence 
of a quorum.
  The PRESIDING OFFICER (Mr. Heinrich). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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