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Pentagon Chief Backs Proposed Changes To How Sexual Assault Cases Are Handled

RACHEL MARTIN, HOST:

A big change could be coming to the U.S. military in terms of how it deals with sexual assault cases. Secretary of Defense Lloyd Austin now says he supports removing these cases from the chain of command so that independent lawyers make the decisions about whether they should be prosecuted, not military commanders. He'll testify before the House Armed Services Committee today. Democratic Senator Kirsten Gillibrand chairs the Senate Armed Services Personnel Subcommittee and has led the push for this change for years. Senator, thanks for being back on the show.

KIRSTEN GILLIBRAND: Thank you so much.

MARTIN: You introduced your bill addressing military justice in the previous Congress back in 2019. You have been at this for a good, long while. What does it mean now to have the secretary of defense come out and show his support?

GILLIBRAND: So Secretary Austin's recommendations are an excellent step in the right direction, but it's not the full reform we need. He was tasked by President Biden to empanel a commission to review one issue - how do we handle sexual assault in the military? And while concluding that taking sexual assault out of the chain of command is a good first step, it's not enough because as we've studied this issue for the last eight years and having data on it for well over a decade, we recognize that there's a lot of bias in the military justice system. And one of the most glaring places of bias is in these issues of sexual assault because the rate of sexual assault continues to grow. It was approximately 20,000 sexual assaults and rapes last estimated by the Department of Defense. But on average, over the last three years, only about 200 cases end in conviction. So you're just talking about not enough cases going to trial, not enough cases ending in conviction.

The second set of data that we have that shows bias in the system is the bias against Black and brown service members.

MARTIN: Let me just clarify. This is separate from the sexual assault cases. You are arguing...

GILLIBRAND: Correct.

MARTIN: ...For all military crimes to be removed from the chain of command.

GILLIBRAND: Not military crimes. So what we're arguing for is a bright line at all serious crimes. So we would like - and the bill for the last eight years has been advocating for - a bright line drawn at crimes that have a conviction penalty of at least a year or more - so the equivalent of felonies, so serious crimes. So we have been advocating that all serious crimes be taken out of the chain of command and given to trained military prosecutors who are professional and unbiased.

And the reason for this is because in the sexual assault cases, we're just not getting better. We're not convicting more predators. We're not taking enough cases. We're not taking the right cases. And in this issue of racial bias, we see that if you are a Black or brown service member, you are more likely to be punished. And in one of the services, it's up to 2.6 times more likely to be punished if you are a Black service member.

And so the answer to this very tough question is how do you improve the military justice system? And the way we recommend is you take all these serious crimes out of the chain of command and give it to trained prosecutors because commanders aren't lawyers. They're not prosecutors, and they may well have bias. And these are hard cases, and these are cases that deserve a professional person reviewing it properly without bias.

MARTIN: Well, let me ask, though - you've got buy-in now from the secretary of defense about the...

GILLIBRAND: Sexual assault.

MARTIN: ...The narrower - sexual assault - I'm sorry - about the narrower question of removing those cases from the military command. So that's a win for you. But in terms of broadening it to include all major crimes, I mean, the chairman of the joint chiefs, Mark Milley, doesn't like this idea. General Austin doesn't like this idea. Democratic Senator Jack Reed on your committee says it will require much more research and deliberation and could hold up the change for sexual assault victims. Are you reaching too far?

GILLIBRAND: No. And let me tell you why. Experts have looked at this - military justice experts, academics, veterans, service members, victims - and every one of them recommends that there's so much bias in the chain of command that you have to professionalize the whole system. And they believe that if you just take one kind of crime, just sexual assault, you're going to privilege or preference just one set of victims and just one set of defendant. And so you're just taking out one group of people, whereas everyone in the military deserves an unbiased, professionalized system, especially if you're a defendant.

And so if we look at our allies, they've looked at this question before over the last several decades. And the U.K., Israel, Canada, Netherlands, Germany and Australia all took serious crimes out of the chain of command with the bright line because they did it for defendants' rights because if you're going to go to jail for more than a year of your life, you deserve a fair process. And so if you privilege just one set of crimes, you're going to create a pink (ph) court that only women service members use, and they will become further marginalized and become further alienated from a system that's supposed to protect them.

And so the people who have looked at this over a long time, who are outside of the military and looking in and saying, how do you fix this - they say, this is how you fix it. And so while I appreciate people getting on board to say, let's take sexual assault out of the chain of command, it's not enough because you want a system that's fair for everyone.

MARTIN: Democratic Senator Kirsten Gillibrand of New York, thank you so much.

GILLIBRAND: Thank you. Take care. Transcript provided by NPR, Copyright NPR.