WASHINGTON — The Senate overwhelmingly approved a bill late Monday making big changes in the military justice system to deal with sexual assault, including scrapping the nearly century-old practice of using a “good soldier defense” to raise doubts a crime was committed.
On a vote of 97-0, the Senate rallied behind a bipartisan plan crafted by three female senators — Democrat Claire McCaskill of Missouri and Republicans Kelly Ayotte of New Hampshire and Deb Fischer of Nebraska — that would impose a half-dozen changes to combat the pervasive problem of rape and sexual offenses that Pentagon leaders likened to a cancer within the ranks.
“Unanimous agreement in the U.S. Senate is pretty rare — but rarer still is the kind of sweeping, historic change we’ve achieved over the past year in the military justice system,” McCaskill said after the vote.
Still, that unanimous support was in sharp contrast to last week, when military leaders vigorously opposed a measure by Sen. Kirsten Gillibrand, D-N.Y., that would have stripped commanders of their authority to prosecute cases and given that power to seasoned military lawyers outside the chain of command. The Senate voted 55-45 for that farther-reaching bill, but that was five votes short of the necessary 60.
Though expressing certain reservations, the Pentagon had been generally accepting of the new bill.
The House could act on the legislation as a stand-alone measure or incorporate it into the massive defense policy bill it pulls together in the spring.
This “is not the end of this,” Ayotte said in brief remarks on the Senate floor after the vote. “We will make sure reforms that have been passed are implemented, that commanders are held accountable for a climate within their unit of zero tolerance and that victims of sexual assault are treated with dignity and respect.”
The new legislation would change the military rules of evidence to prohibit the accused from using good military character as an element of his defense in court-martial proceedings unless it was directly relevant to the alleged crime. The “good soldier defense” could encompass a defendant’s military record of reliability, dependability, professionalism and reputation as an individual who could be counted on in war and peacetime.
McCaskill described it as “the ridiculous notion that how well one flies a plane should have anything to do with whether they committed a crime.”
Under the bill, the defense could still be used in the sentencing phase. The Pentagon indicated it is crucial as commanders adjust sentences to allow for plea agreements.
The measure also would give accusers a greater say in whether their cases are litigated in the military system or civilian and would establish a confidential process to allow alleged victims to challenge their separation or discharge from the military. In addition, it would increase the accountability of commanders and extend all changes related to sexual assault cases to the service academies.
In cases where a prosecutor wanted to move ahead with a case but a commander disagreed, the civilian service secretary would be the final arbiter.
The Pentagon has reservations about this provision, suggesting it could have a chilling effect on majors and captains if they think every decision gets kicked up to the service secretary.
The Senate bill now goes to the House, where Michael Steel, a spokesman for Speaker John Boehner, R-Ohio, said Monday, “The entire House is proud of the bipartisan reforms on this important issue ... and we will review this legislation to determine the best way to consider additional reforms in the House.”