The Key Differences: Gillibrand’s Amendment and Levin/McCaskill’s Proposal

   

A brief explanation of proposed sexual assault reform of the military justice system

These two proposals are competing for passage in the National Defense Authorization Act (NDAA): 1) the Military Justice Improvement Act (MJIA) by Senator Gillibrand, and 2) Senators Levin and McCaskill’s proposal.

About the process: The NDAA is passed every year and authorizes Department Of Defense funding for the coming year. One way policy reforms can become law is by including them in the NDAA. The Senate Armed Services Committee recently drafted and voted on the proposed NDAA (called the “Mark”). The full Senate will vote on proposed amendments, then the final bill will be voted upon this fall.

Currently, the accused‘s commander is the sole person who decides whether an allegation of sexual assault goes to trial. Sen. Gillibrand’s MJIA would change this.

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The two proposals differ in important ways:

1) Military Justice Improvement Act (MJIA) by Sen. Gillibrand:
  • Gives military prosecutors the authority to decide which sexual assault cases go to trial. This protects victims by allowing a trained, legal professional to properly evaluate their case.
  • Moves the authority to convene courts-martial (trials) for sexual assault cases outside the chain of command. Convening is the process of assembling and authorizing the court-martial, including jury selection. By removing such authority from the accused’s commander victims will be better protected.
2) Senators Levin and McCaskill’s Proposal
  • Leaves the accused’s commander with the authority to convene courts-martial for sexual assault cases.
  • Requires the commander consult with his Staff Judge Advocate (SJA) on sexual assault cases. This already routinely occurs. If the SJA recommends a sexual assault case go to court-martial and the commander disagrees, the case is referred to the Secretaries of the Service for review. If the SJA and the commander agree that a sexual assault case should not go to court-martial, the case is referred to the immediate superior in the chain of command for review. This does not defer to a prosecutor to make the decision and keeps the decision within the chain of command.

Senator Gillibrand’s Military Justice Improvement Act is the only proposal in the Senate that will make a substantial impact on the broken and biased military justice system.

Under the Pentagon backed Levin/McCaskill proposal, commanders – not lawyers who are outside the chain of command – would still have the authority to shut down an investigation or trial. This authority would continue, despite commanders’ potential personal conflicts and frequent biases, and lack of legal training. Victims of sexual assault would continue to rightfully distrust the system and be denied justice. The current proposal by Senators McCaskill and Levin fails to structurally change the way cases of rape and sexual assault are handled, and falls short of fundamental reform.

MJIA’s critical changes to the military justice system will not be included in the NDAA unless the majority of the Senate votes for Sen. Gillibrand’s proposed amendment.

We are standing with Senator Gillibrand and call on every Senator to join us in support of the troops and survivors who have waited too long to fundamentally reform the military justice system.

We continue to support similar measures, including the STOP Act, which is currently stalled in the House.

Some changes already included in the current Senate NDAA Mark that would not be affected by passage of Senator Gillibrand’s MJIA amendment:

  • Limitations on the ability of commanders to overturn a guilty verdict in sexual assault cases.
  • Making retaliation against victims who report sexual assault a specific crime.
  • Creating a Special Victims’ Counsel in each branch of the military to provide advice (but not critically-needed legal representation) to victims of sexual assault. Most branches already offer “advice” in some form.
  • Removing “Good Military Character” from being used as a factor in deciding whether or not to prosecute a perpetrator of sexual assault. (However it does not remove consideration of GMC during trial where it is most frequently used.)
  • Requiring any substantiated complaint of sexual assault to be permanently noted on a perpetrator’s military service record.
  • Eliminating the 5-year statute of limitations on trial by court-martial for sexual assault.

Read our full policy paper on the differences between the proposals

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