Michigan lawmakers back push to reform military prosecution of sexual assault

Melissa Nann Burke
The Detroit News

Washington — After years of debate, Congress appears poised to remove military commanders from decisions about whether to prosecute sexual assault cases in the armed services, giving that authority instead to independent military lawyers outside the chain of command.

The move has bipartisan support among members of the Michigan's congressional delegation, who say they've lost confidence in the military leaders' ability to rein in the prevalence of sexual assault and harassment in the ranks. 

"It just hasn't worked. We haven't seen the improvements," said Sen. Debbie Stabenow, a member of the Senate's Democratic leadership.

But lawmakers aren't united behind a broader push to expand the list of crimes that are taken out of the chain of command from not just sexual assault but all non-military felonies, including murder, manslaughter, fraud and extortion. 

That's the aim of a proposal by New York Sen. Kirsten Gillibrand, a Democrat who has worked to overhaul the system for military prosecutions for nearly a decade.

Veronica Carbajal places a candle at a mural for Army Spc. Vanessa Guillen in Austin, Texas on Monday, July 6, 2020. Guillen went missing from Fort Hood in April, and is believed to have been killed by another soldier. The mural was created Saturday and Sunday by artists Fili Mendieta and Arturo Silva. After years of debate, Congress appears poised this year to remove military commanders from decisions about whether to prosecute sexual assault cases in the armed services, giving that authority instead to independent military lawyers outside the chain of command.

"That's a very big step. A very big step," said U.S. Rep. Elissa Slotkin, a Holly Democrat and a former top Pentagon official in the Obama administration. 

"At a minimum, I support taking sexual assault out of the chain of command. The data is there beyond dispute. But I am trying to educate myself and have not made a final decision on supporting the more expansive bill."

Last week, she organized a briefing for her colleagues to hear from senior Pentagon officials about why they oppose the broader proposal.

Gillibrand's legislation, which would also boost training and prevention efforts, recently gained a supermajority of 66 supporters in the Senate — including 21 Republicans — an indicator that it could pass the narrowly divided chamber where most legislation needs 60 votes to advance.

Michigan Sen. Gary Peters, a member of the Armed Services Committee, also supports the measure, which the panel added Wednesday to the Senate's annual defense policy bill. If it's removed, Gillibrand has said she'll seek a standalone floor vote after the August recess.

"Having these cases go to trained military prosecutors is very important," Stabenow said. "Of course, they would remain under military oversight but be handled outside of the chain of command. I think that's going to give more confidence for other victims of assault and create more credibility in the system." 

Austin backs effort

Departing from the Pentagon's longstanding position, Defense Secretary Lloyd Austin last month backed the proposal to take decisions about pursuing legal charges in sexual assault and related crimes away from commanding officers, following the recommendations of an independent commission.

President Joe Biden also endorsed the position, and Austin promised to work with Congress to revise the Uniform Code of Military Justice to make the changes.

The secretary stopped short of endorsing Gillibrand's broader legislation. Military leaders and some top legislators, including leaders of the Armed Services committee, have opposed repealing commander's authority to prosecute serious crimes beyond sexual assault. They say doing so would harm military readiness, undermine command authority and erode discipline.

Gillibrand and her allies argue that commanders lack the legal training for this role and are too biased and conflicted to make objective decisions on whether to pursue legal charges against their co-workers. They say victims too often are not believed, face retaliation or other consequences for reporting sexual misconduct and related crimes.

The Defense Department has acknowledged the number of sexual assaults reported over the years has grown. At the same time, the rate of convictions has generally declined.  

Data released by the Pentagon in May showed 6,290 service members reported sexual assault in 2020, an increase of about 1% from the previous year. Annual climate surveys by the Defense Department suggest the prevalence of sexual assault is much higher but goes unreported.

A commission set up last year after the killing of Fort Hood soldier Vanessa Guillén in Texas, allegedly by a fellow soldier, examined three years of court-martials, including 65 trials involving sexual assault charges. Those cases had a conviction rate of 22%.

"Both victims and the accused deserve better," Alabama Rep. Mike Rogers, the ranking Republican on the House Armed Services Committee, said at a Tuesday hearing.

Rogers added "the time has come" to move the prosecution of rape, sexual assault and related crimes outside of the chain of command to dedicated, uniformed special prosecutors. Rogers said commanders should retain "full authority" over other offenses.

'Freedom to come forward'

Slotkin was at the Pentagon when Gillibrand began her fight. She recalled sitting through meetings where three- and four-star generals spoke "adamantly" against taking sexual assault cases out of the chain of command. 

"More than a decade later, I think the data really reinforces what many people felt anecdotally, which is that the survivors of these crimes are not getting 'their day in court,'" Slotkin said. "Prosecutions are down. Reporting is down. The data is not going in the right direction."

Slotkin noted that members of Congress are responsible for sending young men and women to the military service academies. At this juncture, she said she would not be able to reassure them that the military has a handle on sexual assault in the ranks.  

"This is a very personal one for me because my stepdaughter is a young woman in the military," Slotkin said. "If she were sexually assaulted, do I want it to be based on the judgment of her commanding officer who has no legal training? No."

Republican U.S. Rep. John Moolenaar of Midland also views the issue through the lens of a military parent. Three of his children have served in the Army, including two daughters who graduated from West Point. 

He has co-sponsored legislation that would take prosecution authority away from military commanders in cases of sexual assault and related crimes, calling the death of Guillén a tragedy. 

"Any of us who are parents of service members would want to have trust that whoever the people they're serving with or serving under is going to treat them with respect. And if they aren't going to, they shouldn't be in the chain of command making decisions on justice," Moolenaar said. 

"It's important that people have the freedom to come forward if something happens to them, and that the best way to address this is in the light of day and in transparency. I think that is best done outside of the chain of command."

Stressing the broad support for this approach, Moolenaar wants to move ahead with the narrower bill, rather than getting "bogged down" in a debate about what other offenses should or shouldn't be moved out of the chain of command. 

Republican U.S. Rep. Peter Meijer, an Army veteran from Grand Rapids Township, said he "strongly" supports efforts to reform the military prosecution of sexual assaults, saying he doesn't believe the chain of command is well-positioned as an objective body to investigate serious crimes within a unit and ensure that justice is served.

"Military sexual trauma has been a huge concern. It's been a demonstrated deficiency, that the military has not been able to address this issue and get their hands around it, despite decades of congressional and public outcry and concern," said Meijer, who sits on the Committee on Veterans' Affairs.

"Any bureaucracy is going to take the path of least resistance, and oftentimes when it comes to military sexual trauma, that path of least resistance isn't a full, impartial investigation. It's trying to move past it as quickly as possible, and often that represents an injustice on behalf of the victims."

Meijer, who served in Iraq, also backs the legislation to remove all non-military felonies from the chain of command, citing examples of unprofessional culture within tight-knit units such as the Navy SEALS and the inherent conflict of interest or potential favoritism at play in commanders' authority over decisions to prosecute. 

GOP Rep. Lisa McClain of Bruce Township serves on the House Armed Services Committee, which heard testimony this week from members of the independent commission on military sexual assaults. 

"What we’re doing right now isn’t working. I don’t know how anyone can really argue that point," McClain said. 

She is still evaluating the existing proposals to reform military prosecutions, saying she wants to be cautious to ensure the changes are the best solution to deliver results. She raised the case of a woman in her district who was sexually assaulted in the military and committed suicide as a result, she said. 

"I'm not 100% sure what the root of the problem is. ... Is it the chain of command? Is it that the consequence doesn't match the action? Is that because we don't have proper representation in terms of experienced prosecutors?" McClain said. "All these things came out at the hearing. To me, I would rather focus on problem identification, and then focus on solutions."

Gillibrand has said her proposal to handle all felonies the same way would make the military justice system more fair and should also address racial disparities in prosecutions in the armed forces. 

Last week, she cited a 2020 survey by the Air Force inspector general that found 1 in 3 Black service members believe the military discipline system is biased, and 3 in 5 service members who said they wouldn't get the same benefit of the doubt as their white peers if they got into trouble.

A Government Accountability Office report determined last year that Black and Hispanic service members were more likely than their white counterparts to be tried in a courts-martial, though investigators concluded that race was not a "statistically significant" factor in terms of convictions.

"This is across all of the military," said U.S. Rep. Brenda Lawrence, a Southfield Democrat who is vice-chair of the Congressional Black Caucus, referencing the study. 

She called for changes that would ensure military lawyers are both experienced and equipped with the skills needed to properly evaluate allegations and pursue justice.

"This is long overdue," she said "This overhaul, to me, will allow us to get the justice that we need for women and minorities."