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Border Security, Economic Opportunity, and Immigration Modernization Act

Floor Speech

Location: Washington, DC


Mrs. McCASKILL. Madam President, this afternoon the Senate Armed Services Committee--in fact, in less than an hour--will convene and we will begin working on historic changes, unprecedented changes to the Uniform Code of Military Justice in response to the serious and significant problem of sexual assault in our military.

I come to the floor before we convene to explain why I am supporting significant changes as to how we handle sexual assaults in the military but also why I am not supporting completely removing the role senior military commanders play in ordering these kinds of trials to go forward.

The discussion of this issue takes me back many years when I began prosecuting rape and sodomy cases as a young assistant DA in the prosecutor's office in Kansas City. For years, I handled dozens and dozens of these cases in the courtroom, both as an assistant prosecutor and as the elected prosecutor. I have had the opportunity, the blessing, the challenge, and the scarring that comes from holding victims' hands, crying with victims, feeling their pain, the permanency of the injuries they have suffered as a result of these unspeakable crimes. I would challenge anyone in the Senate to come to this issue with more experience or more understanding of the unique challenges this crime represents in the never-ending quest for true justice.

In my years of experience and the time I have spent with military prosecutors, victims, and civilian prosecutors, I have become convinced that the approach the Armed Services Committee will take today is the right approach to get these predators put in prison.

I believe the provision that I expect will receive a bipartisan majority of the votes in the Armed Services Committee will better empower victims and lead to more reporting. The reason it will empower victims and lead to more reporting is because these changes will lead to more and effective prosecutions.

Ultimately, no woman wants to come forward and talk about this crime, and certainly no man who has been victimized in the military wants to come forward and talk about this crime. It is personal. It is private. It is painful. So it does not matter whether the perpetrator is a member of the military or a civilian; these are difficult cases to bring forward because of the intensely personal nature of the pain involved.

But I believe these reforms will hold the chain of command more accountable and force them to be part of the solution, and it will prevent the unintended consequences of dismantling a system of military justice that has long been a centerpiece of discipline in our military.

Make no mistake about it, the changes we are making are aggressive, historic, victim-oriented, and unforgiving to the predators.

Commanders under these reforms will not have the ability to dismiss a conviction of a jury. That is the first and most important reform that is occurring. Never again will a commander who has not heard the testimony be able to say ``never mind'' to that victim. Most importantly--and this is very important because the reporting on this issue has not been accurate--most importantly, under these reforms, if the lawyers, the prosecutors, say the case should go forward, and the commander disagrees and says no, that will go straight up, not to a man in uniform, but to the Secretary of the branch of the military where the crime occurred. So no longer will you have the uniforms making the ultimate decision.

I would argue we are taking in many ways the convening authority out of the equation because we are allowing that lawyer, if the commander disagrees with them, that prosecutor, if the commander disagrees with them, to go straight up to the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force for the ultimate decision by a civilian, not by a member of the military.

If the commander decides not to order the court-martial, not to order the trial, the final decision will go to the civilian Secretary. The ultimate authority is with the civilian.

This is even a greater level of scrutiny than in the reforms proposed by Senator Gillibrand because you have another level. We heard of cases where the prosecutors did not want to go forward and the command did. There are instances where prosecutors in the civilian world will not file these cases and the military prosecutors will. I am sure there will be cases where military prosecutors will not want to go forward.

So the good news is there is someone above the prosecutors who is a civilian who can, in fact, pass judgment also. We know that many cases are not filed in the civilian courts when they are ``he said, she said'' consent defenses in rape cases. I have painfully explained that decision to victims when the evidence simply was not going to meet the burden.

But in the military, we have to make sure that it is not just a line prosecutor who has the ultimate authority. We need that civilian Secretary at the top of this decisionmaking power. We need that ultimate authority, especially in the culture of our military.

The other thing our reform does that Senator Gillibrand's proposal does not do--and I think this is key--it creates a crime of retaliation. So if this victim comes back to the unit and retaliation occurs, the people who are committing the retaliation are now subject to the Uniform Code of Military Justice and they can be prosecuted for the crime of retaliation.

I think this is a very important, direct approach. Because, ultimately, that is what most victims who do not come forward say they are afraid of: their loss of privacy and retaliation and the impact on their career.

The bill also makes many other reforms, giving victims better access to legal counsel, improving the skill of personnel working with victims in the sexual assault response system, making sure victims have a voice in the clemency proceedings, and many others.

Ultimately, at the end of the day, if a victim is sexually assaulted, and they come back to their unit, is it more likely the unit will retaliate against them and make

their life miserable if outside lawyers have said the case should go forward or if the commander has said the case should go forward? We do not have evidence that this is a problem right now, that commanders are refusing to file these cases. Just the opposite. We heard testimony in committee that they are demanding prosecutions in some instances where the lawyers have said no.

I believe these reforms will do a better job of getting predators behind bars and ultimately creating a more supportive environment for victims to come forward.

We are not done with this, even after we pass these reforms in committee today, and even after we pass this Defense authorization bill and it goes to the President. But I think we have the best chance of making real progress with a strong bipartisan reform that will get at the heart of the matter, which these reforms do.

I believe we will continue to monitor this, and as we go forward, if more changes are necessary, I will be the first in line to work for them. But do not let anyone say the reforms we are doing today are not what is right for the victims of sexual assault or for the proposition that anybody, any coward who besmirches our fine military by committing these crimes--that they should not belong in prison. They belong in prison, and that is what these reforms are intended to help happen.

I thank the Chair and I assume I should yield the floor for my colleague from Colorado.


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