Senate Majority Leader Harry Reid, D-Nev., announced Monday that he is backing an plan from Sen. Kirsten Gillibrand, D-N.Y., to reform the way sexual assault is prosecuted in the military. Reid will become the 50th senator to back Gillibrand, giving the bill a critical boost but leaving it short of the 60 votes it will need to become law as an amendment to the 2014 defense authorization bill.
Gillibrand is leading the charge to take the decision to prosecute sexual assault out of the chain of command and into the hands of military lawyers. In doing so, she has become pitted in a battle against Sen. Claire McCaskill, D-Mo., Senate Armed Services Committee chairman Carl Levin, D-Mich., and top brass at the Pentagon.
"Congress' job is to provide oversight and accountability over the Department of Defense. They must create an independent unbiased military justice system that is deserving of the sacrifice that the men and women of the armed services make every single day," Gillibrand said at a press conference Tuesday. She was joined by colleagues and supporters including Sen. Dean Heller, R-Nev., who, along with Sen. Cory Booker, D-N.J., are the latest lawmakers to join her effort.Gillibrand: Military sexual assault legislation begs complete cultural overhaul
McCaskill has put forth her own set of reforms, which were advanced by the Senate Armed Services Committee, that would keep the decision to prosecute within the chain of command but take away commanders' ability to overturn a conviction. It would also require the dishonorable discharge or dismissal of any individual convicted of committing a sexual assault and create a civilian review process to review cases that commanders chose not to prosecute. McCaskill, along with Sens. Kelly Ayotte, R-N.H., and Deb Fischer, R-Neb., also beefed up their legislation to eliminate the "good soldier" defense, give sexual assault victims input in the prosecution process and allow any victim of an assault who was subsequently discharged the ability to challenge that order. Additionally, a review process would be triggered if a prosecutor recommended that a case go forward and the commander in charge disagreed.
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"I think we have fashioned historic and amazing changes that are going to forever change the successful prosecution of rapists in our military and go further to protect victims," said McCaskill, who has previously said that taking the decision to prosecute out of the chain of command would is a "recipe for disaster."
But Gillibrand insists that isn't enough. "None, not one of those steps will go far enough. not one of those reforms go to the root of the problem...the breach in trust between a victim and a survivor and her chain of command. We have to create a system where victims can believe, truly believe that justice is possible," she said.
The fight over the correct set of reforms has divided the Senate by both party and gender lines, though 16 of the chamber's 20 women have backed Gillibrand. She has also been joined by conservative lawmakers like Sens. Rand Paul, R-Ky., and Ted Cruz, R-Texas, while other Republicans, including Sens. John McCain, R-Ariz., and Lindsey Graham, R-S.C., have sided with McCaskill, Ayotte and Fischer.
Senate Minority Leader Mitch McConnell, R-Ky., said that the Republican conference has heard from several female generals on both sides of the issue and that he is among those members still trying to decide who to support. "I think every knows this is a very serious problem, the question is what's the best way to address it," he said.
Several of the Senate's women held the floor Tuesday morning to discuss the need for reform to address the overall problem of sexual assault. The Pentagon estimated that 26,000 service members may have been sexually assaulted last year based on an anonymous survey of service members.
Though the lawmakers did not dwell on their differences in which approach was the best, the divide is not far from the forefront of debate. Last night, 11 senators who are all members of the Armed Services Committee sent a letter to their colleagues arguing against Gillibrand's amendment.
"We believe strongly that this would create a system that would actually be worse for victims and significantly undermine the military system of justice and discipline," the senators wrote. "We also believe strongly this alternative is deeply structurally flawed. It could lead to constitutional hurdles for military prosecutions; undermine the ability of prosecutors to execute plea bargains that can spare victims a difficult trial process; and dismantle the military's non-judicial punishment system that relies upon the ability of a commander to threaten court marital in order to carry out successful non-judicial punishments to ensure good order and discipline among those he or she commands" the letter said.
It was signed by the committee's chairman, Levin, the committee's top Republican, James Inhofe, along with McCaskill, Ayotte, Fischer and a handful of others.