Sen. Kirsten Gillibrand, D-N.Y., speaks at a Nov. 19 news conference supporting passage of the Military Justice Improvement Act in Washington. Also pictured are, left to right, Sen. Richard Blumenthal, D-N.Y.; former Marine Sarah Plummer; Sen. Dean Heller, R-Nev.; and Army veteran Kate Weber. (Win McNamee / Getty Images)
WASHINGTON — Military commanders no longer will have the ability to toss out jury convictions for sexual assault cases under an agreement reached by congressional leaders.
The deal includes several changes to the military justice system regarding sexual assault but stops short of the fundamental change of putting those cases in the hands of military prosecutors. That provision, pushed by Sen. Kirsten Gillibrand, D-N.Y., would have wrested authority from commanders to decide whether a case is prosecuted.
Gillibrand has been assured by Senate leaders that her measure will receive a vote, according to her spokesman, Glen Caplin.
“The senator will not go away,” Caplin said. “She will keep fighting to protect our brave men and women in uniform and to strengthen our military.”
The package of changes was folded into the National Defense Authorization Act, the annual bill that sets policy for the military. It still must be approved by the House of Representatives and Senate and signed by President Obama.
Top brass has labeled sexual assault in the military a crisis. A report in May estimated that there were 26,000 instances of unwanted sexual contact in the military in 2012, an increase of 35% compared with 2010. In a recent interview with USA Today, Defense Secretary Chuck Hagel said fixing the problem is a top priority. But he said Gillibrand’s proposal would not solve it.
“If you disconnect the commanders from this, you absolve them of any knowledge, responsibility or accountability for what’s going on in their very command,” Hagel said in the interview. “Commanders need to know about their people. They are responsible for their people. They are accountable for their people. That’s why I think it would be counterproductive in every way to disconnect the commanders from this.”
An advocate for victims of sexual assault blasted Congress for not adopting Gillibrand’s approach.
“Congress has chosen to sidestep the most important military justice reform to come across its desk in history, once again leaving sexual assault victims devastated and betrayed by inaction,” Anu Bhagwati, executive director of Service Women’s Action Network, said in a statement.
Among the other proposed changes in the act:
■ Service secretaries would review a commander’s decision not to prosecute charges of sexual assault.
■ Victims would be assigned an independent counsel to advocate for them.
■ Initial military hearings would be held to decide if probable cause exists that a crime occurred. Currently, these Article 32 hearings can be used by defense attorneys to challenge the credibility of alleged victims.
Sens. Claire McCaskill, D-Mo., and Kelly Ayotte, R-N.H., had proposed another set of changes. They called the agreement a “huge win for justice,” in a joint statement, but expressed frustration that more reforms weren’t included.
One of them, eliminating the so-called “good soldier defense,” was not. That allows a defendant to argue for lighter punishment because of good military character.
McCaskill will continue to advocate for that and other changes, according to her spokesman Drew Pusateri.