Former courtroom prosecutor and U.S. Senator Claire McCaskill today directly applied her experience as a prosecutor of sex crimes to make the case for historic reforms approved last month by a key Senate panel, and to illustrate the potential risks involved in an alternative plan that could lead to less reporting of sexual assaults, retaliation against victims, and fewer prosecutions of perpetrators.
In June, the Senate Armed Services Committee approved a host of historic, significant reforms to the way the military handles sexual assault cases-including a provision to strip military commanders of their ability to overturn jury convictions for major crimes, including rapes and sexual assaults. The reforms maintain a commander's ability to initiate court martial proceedings against alleged perpetrators, but also mandate a review by the civilian Service Secretary if a commander attempts to overrule legal counsel's advice to proceed with a court-martial.
At an Armed Services Committee hearing today, McCaskill asked the Chairman and Vice-Chairman of the Joint Chiefs of Staff if the systems used by some of America's military allies to prosecute military sexual assault cases-in which commanders have been removed from the decision on prosecuting sexual assault cases-were good models for the United States. Both General Martin Dempsey and Admiral James Winnefeld, who have been renominated for their current positions, pointed to evidence showing that removing military commanders from military justice decisions-as has been done in countries like Canada and the United Kingdom-has had little, if any, effect on increasing reporting or prosecutions. They expressed concern that making similar changes in the U.S. military could potentially reduce reporting and prosecutions of crimes like rape and sexual assault.
"Are you all aware, in any of the research you've done that changing this system has resulted in an increase in reporting, anywhere in the world," asked McCaskill, a senior member of the Senate Armed Services Committee.
"There is no analytical evidence or anecdotal evidence that it has increased reporting-and furthermore, what my counterparts tell me is that it has slowed the (prosecutorial) system down," said Chairman Dempsey.
McCaskill discussed specific reporting numbers in a variety of countries that have already diminished the role of unit commanders in the military justice system, as is being proposed for the U.S. military. None of the countries that have reduced the role of commanders in prosecutions have seen a significant increase in the number of reports of sexual assault after implementation.
Admiral Winnefeld noted that removing commanders from the process could hurt prosecutions-explaining that in the last several years nearly 80 cases that civilian prosecutors had initially declined were advanced by unit commanders to military courts-martial. These prosecutions resulted in over 40 successful courts-martial-with over a dozen cases still outstanding. Sexual predators have, on average, 300 victims in their lifetime, and these cases, which would likely have not been prosecuted in the absence of a decision by a commander, put many sex offenders behind bars, sparing future victims.
Asked what effect completely removing commanders from sexual assault prosecutions might entail, Vice-Chairman Winnefeld said, "I'm concerned we're going to reduce the number of prosecutions."
McCaskill also recalled her personal experiences as a prosecutor in Kansas City, Mo.-noting the often overlooked incentive for prosecutors to pursue only cases which have an excellent chance of achieving a conviction, for fear that losses in the courtroom could impact the prosecutor's career. Such incentives, McCaskill noted, could ultimately undermine efforts to stem military sexual assaults, if decisions on pursuing courts-martial are left entirely to prosecutors.
McCaskill, a former courtroom prosecutor, has relentlessly fought to combat sexual assaults in the military. Last month, a Senate panel voted to approve a number of historic reforms addressing sexual assault, including bipartisan, bicameral provisions by McCaskill that will significantly boost accountability for perpetrators and protections for survivors.