Gillibrand supporters wary of her changes to sexual assault bill

Some of the supporters of Sen. Kirsten Gillibrand’s (D-N.Y.) sexual assault bill, which would take cases outside the military chain of command, are against changes the senator is now proposing.

Gillibrand said Wednesday that she was weighing narrowing her legislation. In its current form, the bill would take the decision to prosecute major criminal cases away from commanders. She is considering trimming the bill to only cover sexual assault crimes.

Her measure is headed for a vote next week as an amendment to the defense authorization bill, and Gillibrand said the change was being considered so her bill could pass a 60-vote threshold.

{mosads}But some military judicial experts and victims’ advocates who back Gillibrand’s effort to give military prosecutors, and not commanders, the decision to prosecute cases raised concerns about limiting the bill to just sexual assault.

“It’s not a wise idea,” said Eugene R. Fidell, who teaches military justice at Yale Law School.

Fidell has consulted with Gillibrand and several other congressional offices on changes to the military judicial code, and he backs Gillibrand’s push to take cases outside of the chain of command, comparing the current military judicial system to the era of King George III.

But he said that changing the bill to just cover sexual assault would not serve women’s interests and cause major practical problems.

“We don’t have one system of justice to cover counterfeiting and another system of justice to cover rape,” he said. “I just think that it would destroy the integrity of the statute as a whole. The thing is supposed to hang together, and I think that would be a very unfortunate move.”

The Service Women’s Action Network (SWAN), a victim’s advocacy group that has been among Gillibrand’s most vocal supporters, is also raising issues with the potential legislative change.

SWAN Policy Director Greg Jacob said he was concerned that separating out sexual assault would lead to the idea of “pink courts,” where female service members were viewed to have a separate justice system.

That’s a problem, Jacob said, as women are pushing to become fully integrated into all aspects of military culture, like the Pentagon’s recent move to allow them to serve in combat roles.

“Our concern if the military adopts a ‘pink court’ approach to sexual assault is it would create integration issues with women’s inclusion in the military overall,” Jacob said.

Other advocates said they back Gillibrand’s narrower proposal.

“Our mission is to support survivors of sexual assault in the military, and even if this change to the bill were to be made we do not doubt that more survivors would obtain justice, and the system would be far superior to the broken system we have today and it needs to be passed,” Protect Our Defenders President Nancy Parrish said in a statement.

Gillibrand’s measure to take cases outside the chain of command is the most sweeping among dozens of changes Congress is considering this year to grapple with sexual assault in the military.

It has split the Senate in a manner that doesn’t fall neatly along party lines. Gillibrand has 47 public supporters, ranging from Sen. Bernie Sanders (I-Vt.) to Sens. Ted Cruz (R-Texas) and Rand Paul (R-Ky.).  

Gillibrand and her supporters said they were weighing the change in order to reach 60 votes and overcome a filibuster when their measure is considered on the Senate floor. She said that narrowing the measure to only cover sexual assault had been suggested by senators who were still undecided.

Gillibrand told reporters she still preferred her original language, but that the narrowed bill would still be an important first step to change the way the military handles sexual assault.

“Carving out different offenses, whether as felonies or misdemeanors for different forms of prosecutions, is perfectly acceptable in the civilian system,” Sen. Richard Blumenthal (D-Conn.) said Wednesday. “It’s done routinely. There is a precedent of going step by step to take different levels of offenses and prosecute them differently.”

Opponents of Gillibrand’s proposal to remove cases from the chain of command — including Sen. Claire McCaskill (D-Mo.) and Armed Services Committee Chairman Carl Levin (D-Mich.) — said Gillibrand was “moving the goalposts” with the new proposal.

McCaskill said at a press conference Thursday that separating out sexual assault cases would lead to constitutional challenges.

“What she’s doing is saying in my prosecutor’s office I would make decision on all Class A felonies, except Class A felonies that were rape or sodomy, and then there’s somebody else who would make that decision,” McCaskill said. “Nowhere in the world has that been done before. So clearly it’s going to be challenged.”

But Fidell disagreed with her legal contention.

“That’s a frivolous claim,” Fidell said. “The Supreme Court is extremely deferential to Congress in the design of military justice. I cannot imagine that getting any votes on the U.S. Supreme Court.”