McCaskill & Ernst Take Next Step to Curb Sexual Assault in the Military, Aiming to Protect Survivors from Retaliation

WASHINGTON – A bipartisan pair of U.S. Senators today took the next step to continue curbing sexual assaults in the military, introducing legislation to build on the historic reforms of recent years, and better protect survivors who report such crimes from retaliation.

Senators Claire McCaskill (D-Mo.) and Joni Ernst (R-Iowa)—both members of the Senate Armed Services Committee—introduced the bipartisan Military Retaliation Prevention Act, targeting stubbornly high rates of survivors who report that they have been retaliated against by their peers after coming forward. Those rates of experienced retaliation remain high, even as the number of assaults has dropped and reporting by victims has gone up, following a slate of historic reforms overhauling the military justice system.

“Sexual predators thrive when victims are too scared to come forward—and while we’ve taken big steps to get more survivors out of the shadows and empowered, a fear of retaliation in the military remains one of our most stubborn obstacles,” said McCaskill, a former prosecutor of sex crimes. “This bipartisan bill represents our next step in our shared, sustained effort to stamp out these heinous crimes.”

“I strongly believe there should be no tolerance for sexual assault and abuse of any kind in the military, which is why I’m proud the Military Retaliation Prevention Act takes concerted efforts to improve military response and empower these tenacious survivors to report the attack,” said Senator Ernst. “We must work to change the culture surrounding sexual assault in the military, and make clear that any retaliation against a sexual assault survivor is unacceptable. Combatting and preventing sexual assault in the military is a bipartisan issue, and we absolutely must provide the support and care these brave survivors deserve.”

The Senators’ bipartisan bill (summary available online HERE, and full bill text available online HERE) would target retaliation in a number of ways:

• Strengthen the military response by making retaliation its own unique offense under the Uniform Code of Military Justice (where retaliation is currently punishable under Article 92 of the UCMJ, a broader article to punish failure to obey an order or regulation)

• Increase transparency by requiring victims be notified of how their complaint was decided—and requiring the Pentagon collect and publish data on retaliation complaints, including: whether a victim claims professional or social retaliation; the narrative and date of the allegation; the recipient of each complaint; the gender of the victim of retaliation and the retaliator; the relationship between the victim of retaliation, victim of the sexual assault, and the retaliator; the relationship, if any, between retaliator and the alleged perpetrator of the underlying crime; whether the alleged retaliation is actionable under the UCMJ; the organization investigating report of retaliation; the outcome of the retaliation report, or current status of a pending investigation; and whether the outcome of the retaliation report was shared with the victim of retaliation

• Require specific training for investigators, including all military criminal investigators, IG investigators, or any personnel assigned by commanders to investigate the complaints

• Ensure each of the services adopt best practices by establishing metrics for measuring the outcomes of their efforts to prevent and respond to instances of retaliation

The Senators’ plan was informed by recommendations made by the Judicial Proceedings Panel (which is chaired by former Congresswoman Elizabeth Holtzman, author of the federal rape shield law and former member of the Response Systems Panel) and the Military Justice Review Group. The Military Justice Review Group specifically recommended that retaliation be made its own UCMJ offense—but proposed to apply this new article only in cases in which an individual has reported or intends to report a crime. The Senators’ legislation builds on that recommendation to also protect military whistleblowers who report any violation of law, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

Initial data has demonstrated concrete progress in curbing sexual violence in the military as a result of reforms passed by Congress over the past few years. The Fiscal Year 2014 Annual Report on Sexual Assault in the Military shows that incidents of unwanted sexual contact dropped by 29 percent from 2012 to 2014. The total number of reports (restricted and unrestricted) are up 11 percent from the previous year (5,518 in FY13 compared to 6,131 in FY14) and up 70 percent from FY12. About 1 out of 4 survivors reported in FY14, up significantly from 1 out of 10 survivors reporting in FY12, and the highest reporting rate ever. Increased reporting occurred in all categories—unrestricted reports, restricted reports, and reports that survivors converted from restricted to unrestricted. And 82 percent of survivors surveyed agreed that their unit commander supported them, 73 percent were satisfied with their unit commander’s response, and 73 percent said they would recommend others report if they were a survivor of a sexual assault.

However that same data found that 62 percent of the women who reported an incident of unwanted sexual contact reported experiencing some form of retaliation. The majority, 53 percent, categorized their experience as “social” retaliation. 32 percent indicated they experienced professional retaliation.

Among the more than 30 reforms already passed into law over the past few years:

• Commanders have been stripped of the ability to overturn convictions, and are now held accountable under rigorous new standards.
• Every survivor who reports a sexual assault now gets their own independent lawyer to protect their rights and fight for their interests—a reform that has no parallel in the civilian justice system.
• Civilian review is now required if a commander decides against a prosecution in a case in which a prosecutor wants to go to trial.
• Dishonorable discharge is now a required minimum sentence for anyone convicted of a sexual assault.
• The pre-trial “Article 32” process, which came under scrutiny following a case at the Naval Academy, has been reformed to better protect survivors.
• The statute of limitations in these cases has now been eliminated, a particularly important development in a sustained battle against sexual assaults.
• The “good soldier” defense for servicemembers accused of sexual assault has been eliminated under most circumstances.
• Survivors are now allowed formal input on whether their case is tried in military or civilian court.
• Sexual assault survivors are now allowed to challenge their discharge or separation from service.
• The role of the prosecutor in advising commanders on going to court-martial has been strengthened.

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