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Public Statements

Hearing of the Senate Armed Services Committee - Markup of the National Defense Authorization Act for Fiscal Year 2014

Hearing

By:
Date:
Location: Washington, DC

Senator MCCASKILL. Thank you, Mr. Chairman.

First, let me say with all my heart how much I respect Senator Gillibrand's leadership on this issue. She and I have the same goals and candidly we have the same passion for this issue, and I admire her greatly for the work she has done on this.

We have an honest disagreement on how best to accomplish our shared goal of putting predators in prison and supporting victims during the most difficult moments of their lives.

My years of experience as a courtroom prosecutor handling hundreds of these cases guide my decisions today. No one on this panel has spent more time holding hands of victims, crying with victims, explaining difficult decisions to victims, and no one has more often looked a jury in the eye and asked them to take away the freedom
of someone who has been accused of rape or sodomy.

A couple of points I want to make about the proposal I am supporting today.

First, I think it is very important to note that if the commander disagrees with the lawyers, it does not go to a uniform. It goes to the top person in that branch of the military that does not wear a uniform. I think our military is strong for many reasons, but one of them is that we believe that civilians should be the top decisionmaker in each branch of our military. I think it is very important with this that the ultimate decider, if a commander disagrees, is in fact a civilian.

I think it is important to point out that in this provision there is another review even if the lawyers say no. Frankly, that goes further than I ever dreamt we would be able to go, that when the lawyers say do not go ahead, it gets another review. I think that
is very important.

And the other thing that is different about this provision is the crime of retaliation.

We have heard no evidence that there is data that supports the notion that commanders are refusing to move forward when advised to move forward by their legal advice. That has not been a problem that we have found. In fact, as has been pointed out by
the chairman and others, we heard testimony to the opposite effect that there are times that the lawyers said no and the commander said yes. Under the subcommittee's proposal, it would be over when the lawyer said no. There would be cases that had their day in court that would never see court under the subcommittee's proposal
because we know for a fact that cases have moved forward even when lawyers say no.

And believe me, prosecutors say no all the time to these cases. Many of these cases are ""he said/she said,'' consent defenses. It is who is believable. I cannot tell you how many prosecutors there are in the military system and the civilian system that cannot get their arms around that evidentiary challenge. So there are hundreds of these cases that are being turned down today in this country by civilian prosecutors. And there are a lot of cases that are turned down by civilian prosecutors that will be taken up under these proposals by the military.

We also have heard no data that would indicate that by removing the command completely from any role here, that that is going to have a positive impact on retaliation. If you look at the surveys, a lot of the victims talk about retaliation. In the civil system, it is more that it is painful and personal and private, and the kind of
moment you never want to have to say out loud. In the military, it is all that plus what impact will it have on my career.

So what I really tried to look at is where would the victim be most protected from retaliation. A victim goes back into the unit. Are they more protected from retaliation if this case is going to trial because some outside prosecutors that nobody knows said it
should? Or are they more protected from retaliation when the commander of that unit says we are going to court martial? We are having a trial. I can make a strong common sense argument that the latter is true, not the former.

Not only does common sense tell me this is true. It is also what I have been told in numerous conversations with military prosecutors and with victims. I honestly do not believe that the chain of command at the disposition phase, which in the military means at the beginning not at the end, is not our main problem. Our main problem is the military does not even know how many rapes and sodomies they have. They have no idea because the only anonymous information they are gathering is under the broad title of sexual contact. So people anonymously are saying whether they have had unwanted sexual contact. Well, that could be a lot of things that are not criminal and that are certainly not rape and sodomy.

So first, we need accurate data as to how big the problem is, and then we have to make sure that the mission that the chairman referred to is getting after that. It is a lack of focus on supporting victims that is the problem. It is a lack of resources of high-level investigations. It is an inability to track offenders because of restricted reports. I have news for everybody. It is very unusual for anybody to do this one time. And what a better place to be a roving predator than a military that moves you all the time from country to country, from base to base. If we do not get a handle on tracking these perpetrators in a more aggressive way, we will never accomplish this mission.

And finally, it is a lack of focus on prison for these cowards and long sentences and mandatory dishonorable discharge.

I know that there will be those that think that Senator Gillibrand and I do not agree, but we agree on one thing. We are not going to give up focusing on this problem. We are not going anywhere.

One word of advice to the military. Do not think this is over once this defense authorization bill becomes law because we have 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 that it is a new day in the
United States military when it comes to these horrific crimes.

I have watched our military accomplish missions that I did not think anybody could accomplish. This is a big one. Now it is time to show your stuff. Show that you can get after this problem in a way that supports victims and results in successful prosecutions, and we will get a handle on one of the most embarrassing moments our U.S. military has had in decades.

Thank you, Mr. Chairman.


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