Sixty-three senators now support a military justice reform bill that would remove commanders from the decision-making process in determining whether to prosecute serious nonmilitary offenses, including sexual assault. But the effort is now in jeopardy despite overwhelming bipartisan support.
Iowa Republican and 23-year Army Reserve and National Guard veteran Sen. Joni Ernst told the Washington Examiner why she changed her mind and now advocates removing commanders from the decision-making process.
Despite the urgency to create an improved climate for female service members, Senate Armed Services Committee Chairman Jack Reed of Rhode Island may shortchange the bill co-sponsored by Ernst and New York Democratic Sen. Kirsten Gillibrand. Reed indicated his desire to scale it back and shoehorn it into the annual defense policy bill. The approach could limit the widespread reforms senators believe are necessary to root out systemic problems exposed in December’s Fort Hood report, which outlined a climate that led to sexual assault and the murder of a young woman.
“It is our commander’s responsibility to foster a climate of dignity and respect within their chains of command. We’re not seeing that,” Ernst said in a recent phone interview.
DOD RELEASES REPORT ON SEXUAL ASSAULT IN THE MILITARY AMID INTENSIFIED FOCUS
The legislation she now supports would have specially trained military prosecutors make decisions on whether a case should go to trial rather than a service member’s direct commanders.
“Honestly, I think there’s probably many commanders that would say, ‘I actually would rather have a trained prosecutor take a look at the investigation and make that decision,’” she added.
Late Monday, Gillibrand took to the Senate floor to advocate for keeping the bill intact and getting a vote.
“If we brought this bill to the floor today, it would pass. We have the legislation, and we have the votes,” Gillibrand implored. “Reports of sexual assault have increased virtually every single year and remain at record highs, while prosecution and conviction rates have declined.”
The New York Democrat said prosecutions last year declined by 10 percentage points.
More than prosecution
Ernst said the failure to prosecute, and her own experience as a sexual assault survivor, were the reasons why she changed her mind.
“It was something that was very hard for me to do, and I am honest about it,” she said. “I was very torn about taking that decision-making away from the commander, and at the same time, as a sexual assault survivor, I want to know that there would be somebody that would take a look at evidence and make a decision based upon that evidence.”
Ernst said multiple efforts by the Department of Defense and Congress have failed over her six years in Congress.
“We haven’t seen a decrease at all in sexual assaults across the ranks,” she said. “This was my wake-up moment … To do the same thing over and over again, if it’s not working, we’ve got to make changes.”
The bill would professionalize how the military prosecutes all serious crimes and add new prevention provisions, including better training for commanders and increased physical security measures.
Ernst said her input in the bill was to assure the commanders were notified if there was an issue so that they can make changes. If the independent military prosecutor decides not to move forward, the commander would still have the power to “seek justice within the chain of command,” she said.
Ernst added that creating a layer of separation is important for vulnerable, young women.
She described the case of a young woman who told her story about being sexually assaulted by a noncommissioned officer at a training facility.
“She was so scared to come forward because she was afraid of retribution,” Ernst recalled.
The Iowa senator said the young recruit worried she may not finish her class or be thrown out.
“She did a restricted report, and she spoke to me about it,” Ernst said. “While we’ve tried to encourage her to come forward, she was very scared to do that.”
Ernst said it’s more than just the prosecution piece, the bill includes prevention aspects, some of which may be lost in Reed’s proposal.
“Why I’ve pushed this so hard with Sen. Gillibrand is because we just can’t focus on prosecution. By the point you have a survivor and a perpetrator, you know, we failed,” she said.
At Tuesday’s Senate Armed Services Committee hearing for the nomination of Frank Kendall to Air Force secretary, Gillibrand again mentioned her legislation and noted that it was supported by the Pentagon’s Independent Review Commission, a 90-day review ordered by Defense Secretary Lloyd Austin.
Ernst said she, too, wants to see the IRC recommendations, but she said they should not hold up Congress from passing the bill.
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“If we’re going to take bold action, we should be working on it right now, and we should move forward right now,” she said.
“It’s just over and over, you hear those stories,” she said, reflecting again on the case of the young woman who was assaulted. “If we don’t take it seriously, and if they feel that there’s someone within the chain of command that is going to come after them or ridicule them, they’re less likely to come forward. And so, that’s another reason that I do, at this point, think it’s OK to take these intimate crimes out of the chain of command.”
