Congress Moving to Prevent Victimizing Military sex Assault Victims

By Daily Editorials

November 15, 2013 6 min read

For a nation that loves and honors its military, there is no way to justify what sometimes happens once the uniform is off.

Whether the problem is military sexual assaults, physical and mental health problems, unconscionable delays in awarding benefits due or denying benefits for trumped-up reasons, our nation is engaged in an undeclared war against its veterans.

Missouri's U.S. Sens. Roy Blunt and Claire McCaskill are waging a bipartisan effort against the U.S. military complex itself to help secure better treatment for military sexual assault survivors. While it won't cure all the problems facing military personnel and veterans, it may help this one unconscionable problem.

Ms. McCaskill, a Democrat, and Mr. Blunt, a Republican, introduced legislation to amend Article 32 of the Uniform Code of Military Justice to help prevent abusive treatment of sexual assault survivors in a pre-trial setting.

The legislation's co-sponsors include Sens. Barbara Boxer, D-Calif., Lindsey Graham, R-S.C., and Kirsten Gillibrand, D-N.Y. While Ms. Gillibrand and Ms. McCaskill are allies on this bill, they have taken different tacks on another aspect of military justice.

Ms. McCaskill supports legislation to strip commanders of the ability to overturn jury verdicts and mandate dishonorable discharges or dismissals, but to keep control of courts-martial within the military chain of command. Ms. Gillibrand wants to take prosecution of sexual assault cases outside the chain of command and to allow military prosecutors, not accusers' commanders, to decide which cases to try.

An Article 32 proceeding is a pre-trial investigation required under the UCMJ that helps determine whether cases are sent to courts-martial.

Sounds innocent enough. But it isn't, according to the senators.

"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 its original function," Ms. McCaskill, a former sex crimes prosecutor for Jackson County, Mo., said in a statement.

The effort to reform the article follows media reports of a U.S. Naval Academy female midshipman being subjected to some 30 hours of questioning by attorneys in a pre-trial investigation over several days.

The woman accused three former football players at Annapolis of rape. Defense lawyers for the men grilled the woman about her sexual habits and, in a public hearing, asked provocative and invasive questions about her personal life.

The aggressive cross-examination tactics are a classic example of victimizing the victim.

Jonathan Lurie, a professor emeritus of legal history at Rutgers University and the author of two books on military justice, said of the Article 32 proceedings: "These have become their own trials."

Mr. Lurie told the New York Times, "If this is what Article 32 has come to be, then it is time to either get rid of it or put real restrictions on the conduct during them."

Sexual assault in the military is a problem that the Pentagon had been dealing with, not always aggressively, for years. Efforts to get more people to report assaults and to reduce the fear of retaliation have met with mixed success.

On the plus side, more cases are being reported, scrutiny has increased and a greater number are going to courts-martial. The Defense Department says 68 percent of cases went to courts-martial last year, compared with 30 percent in 2007.

The downside is that some of the cases that have been publicized, such as the Lackland Air Force Base case in which more than 40 female trainees were abused by their instructors, depict an environment in which it seemingly is permissable to sexually assault women.

And then there was Lt. Col. Jeffrey Krusinski, the director of the Air Force Sexual Assault Prevention and Response Unit, who was accused of groping a 23-year-old woman he did not know in a parking lot. This kind of incident makes it difficult for women to know who to trust if they want to report an assault.

The Article 32 Reform Act would limit the scope of proceedings to the question of probable cause. The senators say that would help prevent abusive and unwarranted questioning of sexual assault survivors.

The legislation also would require a military lawyer who outranks both the trial counsel and the defense counsel to preside over an Article 32 proceeding; require that proceedings be recorded and a copy and a transcript be made available to all parties and prevent crime victims from being forced to testify at these pre-trial proceedings.

This is the minimum that should be required of the Pentagon if it is legitimately trying to combat sexual assault in the ranks. The Defense Department estimates there were 26,000 cases of unwanted sexual contact in the military last year, but that only 3,374 sexual assaults were reported.

Any and all obstacles to reporting and prosecuting sexual assaults in the military must be eliminated. Fear of the enemy is acceptable. Fear of their own is not.

REPRINTED FROM THE ST. LOUIS POST-DISPATCH

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