The proposal from Sen. Carl Levin (D-MI), which he will offer in the committee on Wednesday, would automatically send any general’s decision not to prosecute sexual assault to the next level of command for review. It would also make retaliation against anyone who reports sexual assault a federal crime. Levin’s proposal comes as a direct response to an alternate bill from Sen. Kirsten Gillibrand (D-NY), the Chair of the Subcommittee on Personnel and a leading advocate on the issue.
Levin told reporters on Tuesday that he was offering his alternative proposal “because you’ve got to rely on the chain of command to change the culture, and so I don’t want to take away a club they have, which is the threat of prosecution or going to a court-martial.” The idea of removing authority from the chain of command faced universal pushback from the assembled military chiefs at the Senate hearing on military sexual assault last week.
Gillibrand’s bill, the Military Justice Improvement Act, would remove decision-making authority on serious crimes, including sexual assault, from the alleged victim’s chain of command. Cases would instead be reported to and handled by trained military prosecutors. The bill has gathered 24 co-sponsors so far, including four Republicans and nine of the Senate’s 17 female members. Gillibrand’s subcommittee approved her proposal by a voice vote on Tuesday, highlighting its popularity.
Currently, victims who wish to report their cases must do so up the chain of command, a policy that has proven controversial as military sexual assault has been scrutinized in Congress in recent weeks. The Pentagon estimated that 26,000 active duty members faced unwanted sexual contact in 2012. Twenty-five percent of female victims and 27 percent of male victims said that their assailant was someone in their chain of command. Only 3,347 cases were officially reported.
Current policy also allows the convening authority, the senior official who called the court-martial, to throw out cases for any reason, as was seen in a controversial case in February where an Air Force general overturned a jury’s sexual assault conviction by blaming the victim. Secretary of Defense Chuck Hagel proposed changes that would strip the convening authority of this power in April, which are included in Gillibrand’s bill and a bill passed by the House Armed Services Committee. Gillibrand’s proposal would further remove the chain of command’s authority to decide whether or not the case should go to trial in the first place.
The Armed Services Committee will debate the NDAA markup on Wednesday, during which both Levin’s and Gillibrand’s proposals will be considered. Approval from the full committee is required before the can head to the Senate floor with either proposal included.
At the Senate Armed Services Committee’s markup hearing on Wednesday morning, Sen. Levin removed Sen. Gillibrand’s proposal from the version of the NDAA that will head to the Senate floor and replaced it with his alternative. Aides for Sen. Gillibrand told reporters that she is expected to reintroduce her proposal later in the summer.
Kumar Ramanathan is an intern at ThinkProgress.