The campaign to fight sexual assault in the military will reach a major milestone on Thursday, when the Senate considers legislation that would change the way alleged crimes are prosecuted. But the lawmakers must choose between two rival bills that have pit a pair of prominent Democrats against each other—and made one of them, Claire McCaskill of Missouri, the object of strong criticism from progressives and victims' advocates.
At issue is one key question: When a member of the military reports a sexual assault, who should have ultimate say over whether to prosecute it? Historically, the military has left that decision to unit commanders. Critics charge that this can discourage victims from coming forward, and leads to fewer prosecutions. Representing that way of thinking is Kirsten Gillibrand, the Democratic Senator from New York and author of the Military Justice Improvement Act. Her measure would give prosecutors, outside the chain of command, the power to decide which cases go to court.
McCaskill wants to leave the authority with unit commanders, but mandate some additional review. Under her system, a commander's decision not to move forward would automatically be reviewed by a higher-ranking officer; if the commander does not want to prosecute and the unit's legal advisor or the prosecutor disagrees, the case would be sent up to the secretaries of the armed services, the military's senior civilian officials. The bulk of this system, and many other changes that McCaskill and Gillibrand agree on, was already put into place this winter when the annual defense authorization act was signed into law. McCaskill's new bill contains the last of those checks and balances along with some other reforms. For example, it would prevent service members from using the “good soldier defense,” which allows them to introduce records of good conduct as evidence of innocence.
Critics say McCaskill's approach won’t fix some of the basic problems that have come to light in recent months, like the fact that over a quarter of victims are assaulted by someone in the chain of command. As McCaskill has lobbied for her ideas, and won supporters, advocates for more aggressive reforms have called her "a roadblock" and accused her of being "unwilling to compromise."
McCaskill, a former sex crimes prosecutor and vocal progressive on the Senate Armed Services Committee, bristles at such suggestions. On Wednesday, we talked about why she thinks her approach is better—and what she thinks of the criticisms leveled against her. The charges are “unbelievable,” she told me. “This has been one of the most difficult moments in my public life.” And while she stresses the areas of agreement between herself and Gillibrand, she’s convinced that only her approach will increase the number of prosecutions. Gillibrand "is advocating that prosecutors be the only judge as to whether or not a case should go to trial," she said. "I want to make sure that we are not going backwards by allowing these cases to go away without any checks and balances on the prosecutor whatsoever."
Here’s a full, lightly edited transcript of our conversation:
Nora Caplan-Bricker: In your view, what’s the most important reform you have proposed?
Sen. Claire McCaskill: I think the most important reform, which is one that I have frankly fantasized about since I was a courtroom prosecutor of these cases, is the victims having their own counsel. I watched as cases disintegrated in front of my eyes because victims did not get enough support and good information. This reform is going to make the military the most victim-friendly institution in the world. It’s the most important reform we’ve accomplished, and it’s already been signed into law.
NCB: Many of the reforms you wanted were signed into law with the 2013 National Defense Authorization Act (NDAA). What’s the most essential thing in the amendment you are still trying to pass?
CM: We’re hopefully going to get the votes to remove the “good soldier defense.” It’s irrelevant how good a soldier you are as to whether or not you’re a rapist. It shouldn’t be admissible in a determination of your guilt.
NCB: The policy you and Gillibrand disagree on—who decides whether prosecutions move forward—has been portrayed as the make-or-break issue. Do you see it that way?
CM: I think the other reforms we agree on, in the practical day-to-day, are going to have a much bigger impact. If we can get the victims to come out of the shadows, the vast majority of these cases will go forward under either scenario. This policy difference, while important, is not nearly as important as all the other reforms we have done.
I think it is of more interest because there are two women who disagree. She and I agree on the vast majority of issues. There is one difference and that has gotten way too much outsized attention.
NCB: How will your proposals bring victims “out of the shadows”?
CM: Giving the victim the power to decide, in terms of her career, if she stays in the unit or is shipped—or whether the defendant, the alleged perpetrator, is forced to move—could have a very positive impact. One of the things that really weighs on women is, “What’s going to happen in terms of my job?"
Making retaliation a crime is huge, and by the way, there’s nothing in the Gillibrand proposals that does anything about retaliation.
Removing the right of commanders to fool around with verdicts after the fact is going to make a big difference.
NCB: A Huffington Post article claiming you had vowed to filibuster Gillibrand’s bill caused a stir last month. What do you say to critics who argue you should at least support your colleague’s bill in getting a vote?
CM: I can assure you, I am not filibustering Senator Gillibrand’s bill. There is a requirement in the Senate that for controversial things and major issues, 60 votes are required. I spent a day on the floor arguing for these votes [to occur on both military sexual assault bills]. I have never stood in the way of these votes going forward.
For people supporting Senator Gillibrand to try to make me out as the bad guy on this is unfair. We are united in our passion and purpose to protect victims and bring perpetrators to justice.
NCB: Some people have hypothesized that you, having been on the Armed Services Committee for a number of years now, are more sympathetic to the Pentagon’s position, while Senator Gillibrand and some of the younger lawmakers supporting her bill are less so. What is your response?
CM: That’s one of the silliest and the most unbelievable things to me, that people are saying that with a straight face. Anyone who’s saying that hasn’t watched me on the Armed Services Committee. No one has been tougher on the military, and in a lot of different ways. From contracting in Iraq, to suicides, to this issue.
[The bill’s co-sponsors] Senators Kelly Ayotte and Deb Fischer are new members of the committee. Senator Joe Manchin is a new member; Senator Angus King is a new member; Senator Tim Kaine is a brand-new member. These are all members who listened to all of the testimony. These are not crusty old “let’s support the military” types.
This has been one of the most difficult moments in my public life. Until you’ve actually felt the weight of advocating for a victim of this kind of crime in the courtroom, until you have felt the pressure of being the one who is responsible for making sure someone who did horrific things to her goes to prison, I don’t think you can fully appreciate how much I care about this. I can recall the cases I lost as vividly now as 30 years ago. I can recall the faces of the victims and the anguish of having to tell their stories.
It’s been very hard to be characterized as having any motive other than what I truly believe will best protect anyone who has been a victim of this horrendous crime. I’m going to stay on it, or I’m going to die trying.
NCB: In the ongoing trial of a high-ranking officer, Brig. Gen. Jeffrey Sinclair, a military prosecutor resigned—allegedly because members of senior command were pushing him to pursue serious sexual assault charges that he wanted to drop. You say this is evidence for your position: that prosecutors should not decide which cases go to trial. But Gillibrand’s supporters say it’s evidence that these cases need to leave the chain of command, which exerts undue influence. What is your response?
CM: [Gillibrand’s] argument seems to have shifted to saying that this is about making sure no defendant is brought to trial unfairly. With all due respect, that is not our problem in the military right now. Our problem is these victims believe these cases aren’t going to court. A commander saying, "I want to get to the bottom of a brigadier general that’s been accused of sex assault"—I don’t think there’s anything that’s undue influence about that. I think that sends the right signal in the military that these cases aren’t going to be swept under the rug.
NCB: On that topic, you have cited 93 cases that prosecutors wanted to drop, but commanders pushed forward, as evidence that Gillibrand’s proposal could diminish prosecutions. She takes issue with your number, saying it refers to civilian prosecutors, not military ones, and therefore “says nothing about the willingness of a military prosecutor to prosecute.” Who’s right?
CM: There were some of both [military and civilian prosecutors] in that number. But this is the point: She is advocating that prosecutors be the only judge as to whether or not a case should go to trial. I saw this firsthand has a prosecutor. Many of these are he-said-she-said cases. Those consent cases are challenging, and there are many prosecutors that think if it’s just a he-said-she-said, it’s a wash. Let him plead to something little and take a demotion. I want to make sure that we are not going backwards by allowing these cases to go away without any checks and balances on the prosecutor whatsoever.
[Under the McCaskill-Ayotte-Fischer bill, disagreements between prosecutor and commander go to the Defense Secretary’s deputies—the Secretary of the Army, the Secretary of the Navy, or the Secretary of the Air Force—for review.] We have a new set of checks on the commander to make sure, if people have the sense that these cases are not going forward because of commanders, then there’s accountability there.
I think [the NDAA] is going to make a difference. I really do. If it isn’t, it’s because it isn’t being implemented appropriately, and I’m going to pay close attention. And I think Senator Gillibrand will, too.