Two weeks ago, the Senate blocked legislation championed by Kirsten Gillibrand to overhaul the broken process of rooting out sexual assault in the military. The New York Democrat’s bill would have taken away commanding officers’ power to decide when to prosecute, entrusting that authority instead to neutral military lawyers outside the chain of command. Gillibrand won a bipartisan 55-45 majority but was short of the 60 votes needed to avoid a filibuster. The Senate then unanimously passed a bill sponsored by Missouri’s Claire McCaskill that made some good reforms — most notably in eliminating the “good soldier defense,” in which defendants invoke exemplary service records to suggest they could not have possibly committed sexual assault. But the Senate bill still leaves commanding officers with too much influence over these cases. The House should do better.
The dysfunction of the current system has been evident over the last two weeks in the trial of Brigadier General Jeffrey Sinclair. A former deputy commander of the 82d Airborne in Afghanistan, he faced significant prison time and permanent registration as a sex offender after being accused of sexual assault on an Army captain 17 years his junior with whom he was having an affair. The case riveted the Army, as Sinclair was only the third general in 60 years to face court-martial. In the end, Sinclair pleaded guilty to lesser charges, after the case took many confusing turns that left no one satisfied that justice was served.
In this case, there were suggestions that command influence worked to the defendant’s disadvantage: Early last week, the judge publicly questioned whether the prosecution rejected an earlier plea-bargaining attempt because commanders felt politically pressured to prosecute Sinclair to the fullest extent. This winter, President Obama gave the Pentagon a year to show it was attacking sexual assault, and career military officials are coming to understand that they’ll be judged by whether they take such accusations seriously.
Historically, though, complaints about command influence have run in the opposite direction: Accusers fear that defendants who are held in high esteem by a commanding officer are likely to be protected from legal consequences for any misconduct. What’s needed is a more impartial system — as contemplated in Gillibrand’s legislation. As the House takes up the issue, it should learn the lessons from the Sinclair trial — and of many other cases that preceded it.