Senators Claire McCaskill and Roy Blunt Co-Sponsor Military Sexual Assault Legislation
The majority of senators seem to agree that Article 32 hearings need to change, but that's where the easy part ends. McCaskill and Gillibrand have proposed opposing
solutions for what happens after the pretrial hearings.
McCaskill's approach -- supported by the Pentagon and Senator Carl Levin, chairman of the Armed Services Committee -- keeps court-martial proceedings within the military chain of command but prevents commanders from overturning jury verdicts. Her proposal also strengthens consequences for perpetrators, mandating dishonorable discharge or dismissal for anyone convicted of sexual assault.
Gillibrand's measure goes further, taking sexual-assault cases out of the hierarchy and
assigning them to independent military prosecutors, not the accuser's commanders.
Victims' groups have tended to side with Gillibrand. One took out an ad in the St. Louis Post-Dispatch, quoting a military rape survivor asking McCaskill to support "meaningful, fundamental reform."
The debate keeps McCaskill in the spotlight for this complex legal issue and pits two powerful Democratic women in an ideological battle of their own -- one other senators aren't in a hurry to jump in to.
"I come down on the side that is against sexual assault," Senator John Barrasso, a Republican from Wyoming, told the New York Times while racing away from a reporter.
McCaskill sent out this press release about the Article 32 forms legislation:
Missouri U.S. Senators Roy Blunt and Claire McCaskill today introduced bipartisan legislation that would open a new front in the battle to curb sexual assaults in the U.S. military.
The Senators' legislation-cosponsored by colleagues including Senators Barbara Boxer (D-Calif.), Lindsey Graham (R-S.C.), and Kirsten Gillibrand (D-N.Y.)-would amend Article 32 of the Uniform Code of Military Justice (UCMJ) to help prevent abusive treatment of sexual assault survivors in a pre-trial setting. Recent media reports detailed the case of a female Midshipman at the U.S. Naval Academy who was subjected to roughly 30 hours of intimidating and invasive questioning by attorneys representing her alleged assailants during an Article 32 proceeding-a pre-trial investigation required under the UCMJ before a case can be referred to a general court-martial.
"Sexual assault in the military is simply intolerable, and there's no reason these victims should be re-victimized during pre-trial investigations," Blunt said. "This bipartisan legislation will help to ensure that Article 32 hearings focus on determining whether there is probable cause as originally intended, while protecting alleged sexual assault victims from becoming the target of unwarranted and abusive questioning."
"Everyone who's looked at the Article 32 process agreed that it's unnecessarily harsh for survivors and that it has become an overly broad tool that has expanded beyond its original function." said McCaskill, a former courtroom prosecutor of sex crimes. "These aggressive, commonsense reforms will ensure that the process does not discourage survivors from coming forward, and that survivors' rights are also strengthened and solidified. I'm delighted to have Senator Blunt's help as we move to institute these historic reforms."
"Article 32 preliminary hearings should not subject victims to hours of questioning in an attempt to degrade, humiliate and discredit them," said Anu Bhagwati, Service Women's Action Network executive director and former Marine Corps captain.
"It is time to abolish the practice of allowing defense attorneys to conduct a mini-trial before they ever get to a court-martial," said Nancy Parrish, President of Protect Our Defenders, "We need to reign in the Article 32 process and restore it to its appropriate role as a hearing to determine whether there is probable cause to recommend proceeding to General Courts-Martial."
The Article 32 Reform Act would make meaningful reforms to ensure that victims who bravely come forward to report sexual assault are not harassed and intimidated during Article 32 proceedings.
Specifically, the bill would limit the scope of Article 32 proceedings to the question of probable cause to help prevent abusive and unwarranted questioning of sexual assault survivors. It would also require Article 32 proceedings to be presided over by a military lawyer whose rank is equal to or higher than the trial counsel and the defense counsel. In addition, the bill would require Article 32 proceedings to be recorded and a copy of the recording and a transcript to be made available to all parties, and the survivors and survivors' counsel, upon request. The bill also includes a provision that would prevent crime victims from being forced to testify at Article 32 proceedings.
According to the Department of Defense, an estimated 26,000 cases of unwanted sexual contact occurred in the military last year, but only 3,374 sexual assaults were reported. Equally concerning is that many sexual assault survivors who do report these crimes drop out of the process before their cases even make it to trial. In fact, the Judge Advocate General for the U.S. Air Force, Lieutenant General Richard Harding, told the Senate Armed Services Committee in March that nearly 30 percent of sexual assault survivors who had originally agreed to help prosecute their alleged offenders changed their minds before trial.