WASHINGTON — Sen. Claire McCaskill’s bill to overhaul — yes, overhaul — the way sexual-assault cases are handled in the military has routinely been described as more modest, conservative, watered-down and incremental than her Senate colleague Kirsten Gillibrand’s measure.
The legislation pushed by Gillibrand, D-N.Y., which would have taken the prosecution of sex crimes in the military out of the chain of command and put it in the hands of military prosecutors, was narrowly defeated Friday.
McCaskill’s bill is expected to pass today, a result widely seen as an affront to victims by a Congress still too male and overawed by military commanders to meaningfully challenge them.
But occasionally the first draft of history is written by the losers, and that’s certainly the case for Gillibrand, whose defeat was headlined in The Washington Post as “How Kirsten Gillibrand won by losing.”
McCaskill, meanwhile, has just as clearly lost by winning, with far less attention paid to either her bill or her view.
The supposed nothing-burger of the bill put forth by McCaskill, D-Mo., would get rid of the “good soldier” defense that takes irrelevant factors such as the service record of the accused into account. In cases where there is a dual jurisdiction because the crime occurred off a military base, the victim would get a say in whether the case would be handled in a civilian or military court. It would extend protections to students in service academies.
And it would require that in every decision on every promotion in the military, that commander’s record on the handling of sexual-assault cases would have to be taken into account.
“The most frustrating thing about this,” McCaskill said in a phone interview Friday, “is the narrative that, ‘Whose side are you on, the victim’s or the commander’s?’ That’s offensive. If I didn’t care so much about this,” she said, she would have let Gillibrand’s bill go to a vote, although convinced she would be harming the victims.
A former prosecutor, McCaskill said she spent her legal career supporting sex-crime victims at a time few others would. “The guys in my office used to laugh at the cases I’d take to court,” she said. “I took three guys who took a stripper home to court, and got them all three convicted.”
McCaskill said taking the prosecution of sex crimes in the military out of the chain of command would have resulted in fewer prosecutions, not more, because prosecutors, she said, “get seduced by a win-loss record, and don’t want to take a loser to court.”
Under Gillibrand’s bill, if a prosecutor doesn’t want to take the case to trial, that’s the end of it, whereas under McCaskill’s, if the prosecutor wants to take the case and the commander does not, it’s automatically referred to the civilian secretary of that branch of the service for review. In cases where neither the prosecutor nor the commander wants to bring the case, it’s also referred to the secretary.
McCaskill points out that the military sexual-assault cases in the news would not have been brought if Gillibrand’s bill were law. After an Army captain accused Brig. Gen. Jeffrey Sinclair, it was the commander, rather than prosecutors, who insisted the case go to court.
Similarly, in the case involving the Naval Academy midshipman who three former football players were accused of assaulting, prosecutors initially chose not to take the case — a decision overturned by the commander, instead of the other way around.
The commander decided the case against two of the players should go forward, but prosecutors later dropped the case against a second player. The case against the one player who will go on trial next week would not have gone forward under Gillibrand’s bill, McCaskill said.
And the kind of brutal public questioning the woman at the center of that case endured at a preliminary military hearing known as an Article 32 hearing can no longer occur because of changes that Gillibrand and McCaskill pushed for as part of the defense reauthorization agreement at the end of 2013. Now, the victim does not have to appear publicly. The accused, McCaskill said, “still has the right to discovery but through affidavits with their own lawyers.”