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Defense Bill will Include McCaskill-Ernst Military Retaliation Prevention Act

Bipartisan plan builds on recent reforms to curb sexual assault in the military— making retaliation its own unique offense in UCMJ, & boosting transparency, training, best practices

WASHINGTON – Bipartisan legislation from U.S. Senators Claire McCaskill of Missouri and Joni Ernst of Iowa to build on historic reforms to curb sexual assaults in the military and better protect survivors from retaliation today cleared a key hurdle with its inclusion in the annual National Defense Authorization Act.

McCaskill and Ernst—both members of the Senate Armed Services Committee—introduced the bipartisan Military Retaliation Prevention Act, targeting stubbornly high rates of survivors who report that they have been retaliated against by their peers after coming forward. Those rates of experienced retaliation remain high, even as the number of assaults has dropped and reporting by victims has gone up, following a slate of historic reforms overhauling the military justice system. The provision, along with the entire annual defense bill, now heads to the full U.S. Senate.

“This is a critical next step in our sustained effort to curb sexual assault in the military and protect the brave survivors who come forward,” said McCaskill, a former prosecutor of sex crimes. “We’ve worked hard to empower survivors to come out of the shadows and report these crimes, but we’ve got to do a better job of stamping out the stubborn rates of retaliation, whether professional or social, they still face. I’m looking forward to working with my colleagues to get this commonsense proposal across the finish line.”

“I am so pleased that our provision to protect survivors of sexual assault crimes from retaliation is one step closer to being enacted. I applaud Senator McCaskill for her hard work on this important legislation and our colleagues on the Senate Armed Services Committee for their support,” said Senator Ernst, the first female combat veteran to serve in the U.S. Senate. “Any retaliation against a sexual assault survivor within our military is utterly unacceptable and we simply cannot stand idle. I encourage all my Senate colleagues to stand with us in working to change the culture surrounding sexual assault in the military, and focus on preventing this trauma from happening in the first place.”

The Senators’ bipartisan bill (summary available online HERE, and full bill text available online HERE) would target retaliation in a number of ways:

  • Strengthen the military response by making retaliation its own unique offense under the Uniform Code of Military Justice (where retaliation is currently punishable under Article 92 of the UCMJ, a broader article to punish failure to obey an order or regulation)
  • Increase transparency by requiring victims be notified of how their complaint was decided—and requiring the Pentagon collect and publish data on retaliation complaints.
  • Require specific training for investigators, including all military criminal investigators, IG investigators, or any personnel assigned by commanders to investigate the complaints
  • Ensure each of the services adopt best practices by establishing metrics for measuring the outcomes of their efforts to prevent and respond to instances of retaliation

The Senators’ plan was informed by recommendations made by the Judicial Proceedings Panel (which is chaired by former Congresswoman Elizabeth Holtzman, author of the federal rape shield law and former member of the Response Systems Panel) and the Military Justice Review Group.

Initial data has demonstrated concrete progress in curbing sexual violence in the military as a result of reforms passed by Congress over the past few years. The Fiscal Year 2014 Annual Report on Sexual Assault in the Military shows that incidents of unwanted sexual contact dropped by 29 percent from 2012 to 2014. The total number of reports (restricted and unrestricted) are up 11 percent from the previous year and up 70 percent from FY12. About 1 out of 4 survivors reported in FY14, up significantly from 1 out of 10 survivors reporting in FY12, and the highest reporting rate ever. Increased reporting occurred in all categories—unrestricted reports, restricted reports, and reports that survivors converted from restricted to unrestricted. And 82 percent of survivors surveyed agreed that their unit commander supported them, 73 percent were satisfied with their unit commander’s response, and 73 percent said they would recommend others report if they were a survivor of a sexual assault.

However that same data found that 62 percent of the women who reported an incident of unwanted sexual contact reported experiencing some form of retaliation. The majority, 53 percent, categorized their experience as “social” retaliation. 32 percent indicated they experienced professional retaliation. The most recent Report on Sexual Assault in the Military showed that 68 percent of survey respondents indicated that they had experienced some sort of “negative reaction” to reporting a sexual assault.

Among the more than 30 reforms already passed into law over the past few years:

  • Commanders have been stripped of the ability to overturn convictions, and are now held accountable under rigorous new standards.
  • Every survivor who reports a sexual assault now gets their own independent lawyer to protect their rights and fight for their interests—a reform that has no parallel in the civilian justice system.
  • Civilian review is now required if a commander decides against a prosecution in a case in which a prosecutor wants to go to trial.
  • Dishonorable discharge is now a required minimum sentence for anyone convicted of a sexual assault.
  • The pre-trial “Article 32” process, which came under scrutiny following a case at the Naval Academy, has been reformed to better protect survivors.
  • The statute of limitations in these cases has now been eliminated, a particularly important development in a sustained battle against sexual assaults.
  • The “good soldier” defense for servicemembers accused of sexual assault has been eliminated under most circumstances.
  • Survivors are now allowed formal input on whether their case is tried in military or civilian court.
  • Sexual assault survivors are now allowed to challenge their discharge or separation from service.
  • The role of the prosecutor in advising commanders on going to court-martial has been strengthened.