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Gillibrand loses bid to strip military sex assault cases from chain of command

The crisis of sexual assault in the military set up a political clash Wednesday that challenged allies and raised new questions as to how or if change can happen in the military. NBC's Kelly O'Donnell reports.

The Senate’s staunchest advocate for transferring military rape cases to independent prosecutors to contain a rape epidemic in the ranks said Wednesday she was distressed by the rejection of her proposal, saying, "The victims’ voices aren’t being heard."

“To reverse this crisis, I do not believe it will be enough if we do not seize the opportunity and embrace the kind of systemic reform that will truly increase accountability," said Sen. Kirsten Gillibrand, D-N.Y., during a hearing of the Senate Armed Services Committee to consider amendments to the proposed fiscal 2014 military budget.

For weeks, Gillibrand led what appeared to be rising movement on Capitol Hill to strip the investigations and prosecutions of serious military sex assaults from the military chain of command and instead hand such cases to independent military prosecutors. Her amendment had 27 co-sponsors, including four Republicans. But it was openly opposed at a hearing on June 4 by every branch commander, all of whom argued that unit leaders would consequently lose their authority to discipline sex offenders under their watch.

"This is not a radical idea. It is a common sense proposal," Gillibrand said Wednesday. "... It is simply the right thing to do." 


However, the chairman of the Senate Armed Services Committee, Sen. Carl Levin, D-Mich., on Wednesday replaced Gillibrand’s amendment to the National Defense Authorization Act of 2014 with his own plan: If unit commanders decide not to prosecute service members for alleged sex assaults, those cases would be required to undergo "an independent review by the next higher level of the chain of command." Further, Levin's amendment would make it a crime for service members to retaliate against victims who claim they were sexually assaulted.

Levin's alternative plan — leaving sex-assault prosecutions in the chain of command — was approved by the committee in a 17-9 vote. 

"We all know that we have a serious problem with sexual assault in the military. We have a problem with the under-reporting of sexual assaults," Levin said. "... However, I do not support removing the authority of command to prosecute sexual assault cases and putting that decision in the hands of military lawyers ...  

"It is the chain of command that can and must be held accountable if it fails to change an unacceptable military culture. It his harder to hold someone accountable for their failure to act if you reduce their power to act." 

The committee also accepted an amendment from Sen. Claire McCaskill, D-Mo., to prevent commanders from overturning jury verdicts.

Sen. Kirsten Gillibrand, D-N.Y., says punishment should be harsh for those who commit sexual offenses while serving in the military.

The clash between Gillibrand and Levin — and eight other senators who co-sponsored Levin's amendment — is not emblematic of a party-vs.-party split or a divide between genders. The co-sponsors of Levin's proposal included four Democrats and two women: Sen. Kelly Ayotte, R-N.H. and McCaskill. 

"I know there will be those who think that Senator Gillibrand and I don't agree," McCaskill said. "But we agree on one thing: We are not giving up on focusing on this problem. We are not going anywhere.

"One word of advice to the military: Don’t think this is over … because we‘ve just begun. We have just begun to monitor. We have just begun to hold your feet to the fire. We have just begun to hold you accountable. We have just begun to make sure this is a new day in the United States military when it comes to these horrific crimes."

Levin's measure follows numerous calls for military-justice reform amid a recent barrage of sexual misconduct allegations in the ranks — including separate sex-assault charges against two branch leaders tasked with preventing rapes. In May, the Pentagon released an annual report estimating as many 26,000 military members faced unwanted sexual contact in 2012 — an increase from 19,000 cases the previous year. The numbers were based on an anonymous survey of military personnel. 

Last week, a female midshipman who accused three U.S. Naval Academy football players of raping her last year said her client was actually disciplined for drinking while her alleged attackers went unpunished.

Navy veteran Trina McDonald, who said she survived three rapes while serving in Alaska in 1989, called Levin's move "proposterous." In an interview Wednesday with NBC News, she predicted the military's sex-assault crisis will deepen because Gillibrand's plan was spiked and replaced by Levin's amendment. 

"He’s not changing anything. He’s perpetuating the problem," McDonald said. "I’m just absolutely disgusted that, after all the (congressional) hearings that have taken place on this, he would come up with this decision — and that what Gillibrand is trying to do is going to be swept away."

McDonald said that after the 1989 sex assaults she survived at age 18 — one allegedly carried out by a male Navy member and two more by a second male Navy member while a female Navy member held McDonald down — she felt she could not report the crimes. The reason: She would have been forced to file those complaints with the offenders — her superiors. (She left the Navy in 1990).

For that reason, McDonald ardently supported Gillibrand's push to remove all such cases from the victims' chain of command. 

"I think the number of assaults are going to increase as a result of this because it's sending a message to the perpetrators that you can do what you want to do because we are going to keep it in the chain of command," McDonald said. "It's telling them: Hey, see, you can get away with it." 

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