[Congressional Record (Bound Edition), Volume 159 (2013), Part 12]
[Senate]
[Pages 17115-17120]
[From the U.S. 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 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

[[Page 17116]]

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 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

[[Page 17117]]

     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 
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.

[[Page 17118]]

  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 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

[[Page 17119]]

     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?
  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.

[[Page 17120]]

  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.

                          ____________________