Congress was poised late Thursday to pass new legal protections for victims of sexual assault in the military, but victims and their advocates already were looking ahead to a larger battle: the contentious campaign to overhaul the military justice system.
That debate, which is expected to resume when lawmakers return to Washington in January, comes amid rising concern over rape in the ranks. The Pentagon estimates that 26,000 service members, both male and female, were subjected to unwanted sexual contact last year. But only 3,374 reported an assault, and only 594 suspects were sent to court-martial.
Critics say the way to improve those numbers is to take prosecutions out of the chain of command — wresting the authority to send suspects to court-martial from military commanders and giving it to trained lawyers.
That proposal, which is opposed by military leaders and their allies in Congress, was left out of the compromise defense authorization bill that passed the House this week and was expected to clear the Senate on Thursday.
The result, Rep. Jackie Speier said, is legislation that "addresses the symptoms of the crisis but doesn't cure the cancer."
Speier, a California Democrat, authored several amendments to the defense authorization bill that address sexual assault. They include provisions that would require every brigade to have a certified sexual assault nurse examiner, preclude commanders from using a suspect's good military character as a reason for not filing charges, and prevent them from dismissing the findings of a court-martial.
But for Speier and others — including Reps. Elijah Cummings, Donna Edwards, John Sarbanes and Chris Van Hollen of Maryland, who have cosponsored her Sexual Assault Training Oversight and Prevention Act, and Sen. Ben Cardin, who has signed on to similar legislation in the Senate — the goal remains restructuring the process by which suspects are sent to court-martial.
Military leaders say the commander's authority to refer troops to court-martial is an essential tool for maintaining order and discipline — and for holding officers accountable for their units.
Defense Secretary Chuck Hagel, the Joint Chiefs of Staff and the chairmen of the House and Senate armed services committees all oppose taking that authority away.
"We are all very motivated to keep commanders more involved, not less involved in this," Nate Galbreath, the top civilian adviser to the Pentagon's Sexual Assault Prevention and Response Officer, told The Baltimore Sun this month.
Galbreath says efforts already underway — including assigning attorneys to guide victims through the justice system — and the heightened attention now focused on sexual assaults should improve the system.
Female service members are far more likely than males to be sexually assaulted, according to Defense Department data. But because male service members outnumber females, the Pentagon believes the majority of victims are men.
Those men are less likely than women to report an assault. And when they do, The Baltimore Sun reported this week, military authorities are less likely to identify a suspect, refer charges to a court-martial or discharge a perpetrator.
Critics say real improvement will come only if prosecutions are taken out of the chain of command.
They say commanders face conflicts of interest when the accuser and the accused are both under their command. Pentagon statistics show that perpetrators of sexual assault are typically older, have more years in the service and hold a higher rank than their victims — which can make them appear more valuable to commanders whose primary responsibility is the military mission.
Congressional leaders, working to pass the National Defense Authorization Act before breaking for the holidays, chose not to tackle that divisive issue in the legislation.
Speier, who has called her campaign "a marathon, not a sprint," plans to pursue it in 2014.
Democratic Sen. Kirsten Gillibrand of New York, who tried to insert the issue into the authorization legislation, has introduced it as a stand-alone bill under a rule that will allow her to bypass the Senate Armed Services Committee — the same route through which Congress repealed the ban on openly serving gay members known as Don't Ask Don't Tell in 2011.
Cardin says taking prosecutions of sexual assault out of the chain of command would boost victims' confidence that they will get justice — and should encourage more victims to report assaults.
Soldiers "look at their immediate command structure, and it is very intimidating to try to seek a remedy," the Maryland Democrat said. "Getting it out of the chain of command gives, I think, confidence that the matter will be handled objectively, and it has much less likelihood to have the impact on the person's career within the military."
Rep. Andy Harris, the only member of the Maryland delegation to have served in the military, urged caution.
"Those in the military who commit sexual assaults disgrace the uniform and must be prosecuted to the fullest extent of the law," said the Baltimore County Republican, who served 17 years as an officer in the Navy Reserve.
But "one of the unintended consequences of some of the legislative proposals is that changes in evidentiary requirements could protect the perpetrators of sexual assault instead of holding more of them accountable for their actions," he said.
Cardin said "there should be one standard" for evidence, whether prosecutions remain in the chain of command or are taken out.
Rep. C.A. Dutch Ruppersberger, a former prosecutor who tried sexual assault cases in state court, is undecided on the issue — but said "there's no question that more needs to be done."
"The current system in place is failing," the Baltimore County Democrat said. "I think everything has to be on the table."
Cardin called sexual assault "a significant problem in the military."
"This is both male and female," he said. "And historically the military has had a difficult time dealing with it."
The defense bill, which authorizes spending across the military, includes six amendments aimed at combating sexual assault.
In addition to the language on sexual assault nurse examiners, the good military character rationale and the commander's ability to dismiss the findings of a court-martial, it includes provisions that would bar commanders from reducing sentences ordered by military judges or juries, grant victims "reasonable" protection from the accused, and increase protections for whistle-blowers.
Sen. Barbara A. Mikulski urged colleagues to vote for the bill.
"Victims of sexual assault have long been redlined and sidelined at the hands of a justice system that fails to be objective or effective," the Maryland Democrat said. "It's time to put a stop to this now."
The Senate was expected to vote on the bill late Thursday or early Friday, and President Barack Obama was expected to sign it.
In a statement Thursday before the Senate vote, the White House commended lawmakers for their "work to expand efforts to prevent sexual assault and significantly strengthen protections for victims."
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