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)
The compromise defense authorization bill nearing completion in Congress includes sweeping changes in the military justice system, many aimed at rape and sexual assault cases — but stops short of the complete overhaul sought by Sen. Kirsten Gillibrand, D-N.Y., and 53 other senators.
Gillibrand’s Military Justice Improvement Act, which aimed to create an independent military justice command to handle prosecution of all serious crimes not directly related to military duties, was abandoned on the Senate floor without a vote.
That happened after work on the broader defense bill ground to a halt before Thanksgiving under the weight of more than 500 amendments and no agreement on how to proceed.
Gillibrand’s plan remains a freestanding bill that could be taken up by the Senate in the future, the same way Congress handled the 2010 repeal of the military’s ban on open service by gays.
“We are confident that we will get a vote,” said Gillibrand spokeswoman Bethany Lesser. “Regardless of what happens, [Gillibrand] will not go away, she will keep fighting to protect our brave men and women in uniform and to strengthen our military.”
Anu Bhagwati, executive director of Service Women’s Action Network and a strong supporter of Gillibrand’s bill, expressed disappointment.
“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,” said Bhagwati, a former Marine Corps captain.
But she agreed with Lesser that “the fight is not over. The majority of the American people and justice are on our side.”
Even without Gillibrand’s provision, the House and Senate Armed Services committee leaders said the compromise 2014 defense bill they produced on Dec. 9 includes many sexual assault and military justice provisions that have bipartisan support.
“That was probably one of the biggest issues that we addressed this year,” said Rep. Buck McKeon, R-Calif., the House Armed Services Committee chairman, who said he has a personal interest in the issue because his granddaughter serves in the Army.
While text of the bill is not yet available, summaries providing by the armed services committees show significant revisions in law, including changes in the military’s Article 32 pre-trial hearing process that would apply to all offenses.
Among those changes is one that would prohibit an accused person’s good character and military service from being considered in deciding whether to move ahead with charges, and another that would make the Article 32 process more like a civilian grand jury where the primary purpose would be to determine if there is probable cause to prosecute a case.
Article 32 boards also would be conducted by a judge advocate, something not required under current law.
Another change to Article 60 of the UCMJ would limit the authority under of courts-martial convening authorities to modify convictions or sentences. Such officers no longer could dismiss a finding or reduce a conviction to a lesser offense. Minimum sentencing guidelines also would apply, something that now exists only for murder and espionage.
Other provisions touch on victims’ rights and protections, including requiring sex crime victims to have a legal representative present during interviews, making retaliation against anyone for reporting a crime illegal, and requiring any military treatment facility with a 24-hour emergency room to have a fulltime sexual assault nurse examiner available.
Sex crime victims also would be able to apply for transfer to another unit or another base if they wish, and commanders would have authority to reassign service members accused of sexual assault to another unit or another base.
There also are changes in basic law. The five-year statute of limitation on prosecuting sex crimes is eliminated, a move aimed at making it easier to investigate and charge people suspected of being serial rapists. Also, anyone convicted of a felony sex-related crime would be barred from enlistment or commissioning in the military.
Two senators who opposed Gillibrand’s reform as too radical said the final bill contains “historic reforms.” The changes “will mean a new day for justice for American servicemembers,” said Sens. Claire McCaskill, D-Mo., and Kelly Ayotte, R-N.H. , in a joint statement.
Still, there is a sense of disappointment because Gillibrand had a majority of the Senate behind her plan that would have mostly eliminated command influence as a factor in courts-martial.
Nancy Parrish, president of Protect Our Defenders, said Congress “has decided to stand with the status quo and the hollow Pentagon promises of zero tolerance.”
“We see this as a minor setback on the road to fundamental reform,” Parrish said. “Service men and women deserve a professional and unbiased justice system equal to the system afforded to the civilians they protect.”