[Congressional Record (Bound Edition), Volume 161 (2015), Part 7]
[Senate]
[Pages 9565-9566]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    MILITARY JUSTICE IMPROVEMENT ACT

  Mr. BLUMENTHAL. Mr. President, tomorrow we will vote on a very 
important amendment to the National Defense Authorization Act, the 
Military Justice Improvement Act, introduced by my colleague and 
friend, the junior Senator from the State of New York. I have worked 
with her and have been privileged to help craft this very important 
legislative measure, not because sexual assault is a uniquely military 
problem--in fact, just the contrary. Sexual assault afflicts our 
campuses and our workplaces. The battle against sexual assault is 
hardly limited to the military. But we have the opportunity to take a 
step that will set a model and send a message to other places where 
sexual assault is a problem and where underreporting, because of lack 
of trust and confidence in the prosecutorial system or the 
administrative apparatus, is a major reason that sexual assault 
continues. Without confidence, trust, effective results, and protection 
of privacy and physical safety, survivors will simply not come forward. 
If they do not come forward, there will be no discipline or 
prosecution. That is the fundamental reason why I believe the amendment 
we will address tomorrow is so important.
  I have held roundtables on campus sexual assault all around the State 
of Connecticut--more than 12 or 13 of them--and have worked with a 
bipartisan group of Senators, including not only Senator Gillibrand, 
who is the major sponsor of this amendment, but also Senator McCaskill, 
who has been an extraordinary leader in this area having been a 
prosecutor herself, and Senator Heller as well as others on both sides 
of the aisle, to devise a solution to campus sexual assault--not just a 
single panacea but a set of measures that addresses one of the major 
obstacles to effective action against campus sexual assault, which is 
the underreporting of this heinous, horrific crime. It is a crime 
wherever it occurs, whether in the military or on campus. That is why 
we have to combat and conquer it, just as we do an enemy who preys on 
our men or women in uniform or on campuses or elsewhere.
  We went through this debate last year. We reached a solution last 
year, which we hoped would, in fact, be a solution. But the simple, 
plain fact is that this insidious, pernicious epidemic of sexual 
assault in the military continues unabated or at least unreduced by the 
amount that we should regard as minimum for judging this supposed 
solution a success.
  The fact is that the Department of Defense's own research shows that 
52 unwanted sexual contacts occur every day on average across the 
military. That is the same rate it was 5 years ago in 2010. The fact is 
that in fiscal year 2014, the Department of Defense estimates 62 
percent of servicewomen experienced retaliation for coming forward, the 
same percentage as 2012. Servicemembers who report assault are 12 times 
more likely to experience retaliation for reporting their cases than 
seeing the assailant convicted of a crime. Retaliation is more likely 
than effective discipline or punishment against the perpetrator.
  The amendment we have offered, the Military Justice Improvement Act, 
seeks to address this issue through explicit codification of punishment 
for any person--any person--deciding to retaliate against anyone who 
reports this crime of sexual assault. Explicit punishment for 
retaliation will not only send a message, but it will deter what is in 
civilian terms one of the most severe crimes, known as obstruction of 
justice.
  The reason why retaliation or obstruction of justice is so insidious 
is it prevents the justice system from reaching a just result. It not 
only deters victims and survivors from coming forward regardless of the 
crime, it also permits perpetrators and criminals to go free and feel 
they can again commit the crime of sexual assault or other crimes. But 
in the case of sexual assault, it is particularly pernicious because we 
know also from statistics that this crime is recommitted. There is 
recidivism at a higher rate than many others. A large proportion of 
sexual assaults is committed by a very tiny fraction of members of the 
military.
  What happens, in effect, on campuses or in the military is there are 
serial rapists, serial perpetrators of sexual assault. If they feel 
they can do it without consequences, they will continue to commit this 
crime.
  We have learned from many survivors that the anxiety to come forward 
stems not only from the fear of retaliation but from the bias and 
inherent conflict of interest entrenched in the chain of command. The 
fact is that the Department of Defense estimates that 60 percent of 
cases involve a supervisor or a unit leader. Think of that number--60 
percent of cases involving alleged sexual assault are committed by the 
supervisor or the unit leader in the U.S. military.
  The MJIA--the Military Justice Improvement Act--the amendment we will 
offer tomorrow and will vote on, will address this obstacle by amending 
the Uniform Code of Military Justice to assign the decisionmaking power 
regarding sexual assault to an independent, trained prosecutor or, 
actually, a team of professional military prosecutors, while leaving 
decisions to the chain of command regarding purely military crime.
  I recognize there is an argument that good order and discipline 
require the chain of command to work as a source of discipline and 
punishment and justice. But where retaliation, bias, and conflicts of 
interest are so prevalent and so inherent in the process, where the 
chain of command is making decisions about the perpetrator, who so 
commonly is in that chain of command, these decisions should be made by 
independent, trained, military prosecutors.
  The type of crime involved here, sexual assault, is one that is very 
difficult, excruciatingly daunting to prosecute simply because of the 
nature of this crime, the nature of the evidence, and the nature of the 
testimony. So trained, professional military lawyers are in a better 
position to make these decisions about whether to go forward--not just 
decisions about what evidence to introduce but whether the evidence 
justifies the prosecution, whether proof can be presented that

[[Page 9566]]

will do justice, not just reach a conviction.
  Our amendment will entrust military lawyers with specialized training 
in prosecuting complex cases to make those prosecutorial decisions.
  Removing the commanders from the prosecutorial process will also 
protect the privacy of victims when reporting these crimes. Typically, 
they involve some of the most intimate of details.
  A trained, independent, military prosecutor and removing the 
commander from those decisions will protect privacy and encourage 
reporting. I believe this step is a critical next step in this effort 
to improve the military justice system.
  I have immense respect for colleagues who disagree with me. Some of 
them are seasoned prosecutors, extraordinarily talented and dedicated 
lawyers, and we may differ on these issues.
  Many of our allies, including the United Kingdom, Canada, Israel, 
Germany, Norway, and Australia, have already taken steps to remove 
sexual assault reporting and prosecution from the regular chain of 
command. Military leaders there report no particular change in their 
ability to maintain good order or discipline. The facts are there to 
justify removing these decisions from the chain of command.
  But I hope colleagues who disagree with me will continue this 
effort--I know they will--to improve our military justice system. We 
can agree to disagree on this step. We should agree to move forward on 
other steps where we can reach consensus because we have in common much 
more than we have in conflict--that the greatest, strongest military in 
the history of the world should be rid of this heinous crime. That is 
our military. We owe it to the men and women who serve in uniform to 
have a system of justice that matches their courage, strength, and 
skill.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. 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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