Members of Congress Citing the “93 Cases”

Senator Claire McCaskill

Most importantly, we’ve dug into the hard data surrounding these crimes. Supporters of the proposal to strip commanders of their responsibilities promise that their approach will lead to an increase in reporting and prosecutions. But in just the past two years, we found 93 cases of rape and sexual assault that prosecutors declined to prosecute, which were then referred to court martial by commanders. That’s 93 victims who had their day in court because commanders, not prosecutors, had the ability to refer cases for court martial. [USA Today Op-Ed, August 29, 2013]

It would leave a huge number of victims behind. Over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which a commander launched a court martial. And many of those courts-martial resulted in convictions. That’s 93 victims who would never have had their day in court if commanders lost the ability to bring a case to court martial. We’ve also found almost no cases in which a prosecutor wanted to pursue charges but was overruled by a commander. Stripping commanders of the ability to launch courts-martial seeks to solve a problem — commanders refusing to move cases forward — that we just don’t have. [Huffington Post Op- Ed, November 18, 2013]

On the other hand, over the last two years, 93 separate times has the outside lawyer said, ‘you know, this case is too weak… [Senate Floor Speech, November 20, 2013]

It would leave victims behind. In two years, there have been at least 93 cases in which civilian prosecutors declined to pursue charges but commanders launched a court-martial (and almost none where a commander overruled a prosecutor who wanted to proceed). That’s 93 victims who wouldn’t have had their day in court if

commanders lost the ability to bring a case to court- martial. [USA Today Op-Ed by Sen. McCaskill and Sen. Ayotte, December 2, 2013]

The facts show that commanders send many sexual assault cases forward even when prosecutors independently decline to take cases to trial. Ninety- three cases in just the past two years have been taken to trial in the military when a prosecutor has declined. In a recent case at the United States Naval Academy, the Commander with the convening authority similarly directed that the case proceed to trial even as the prosecutors recommended against. The victims in these cases got their day in court because a commander, not a lawyer had the ability to move a case forward. [Statement before the Congressionally-established Response Systems to Adult Sexual Assault Crimes Panel, January 30, 2014]

I know from personal experience that prosecutors are often focused on a “won/loss” ratio, and can be hesitant to pursue charges if there are evidentiary challenges in a case, which often happens in sexual assault cases. In just the past two years, we’ve identified at least 93 cases of sexual assault in which a prosecutor declined to pursue charges, but in which a commander still launched a court-martial. Those are 93 victims of sexual assault who would never have had their day in court if these cases were left solely to prosecutors. Under the major reforms that recently became law, we have effectively eliminated commanders’ ability to abuse their power, but we also retain commanders’ ability to do it right— and we substantially increase the ability to hold them accountable if they fail. Under an alternative proposal by my colleague Senator Kirsten Gillibrand which would strip commanders of all responsibilities in these cases, if a prosecutor declines to pursue a court-martial, then the case is over and that victim has no chance at justice.

As I noted above, it would leave a huge number of victims behind (over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which a commander launched a court martial— that’s 93 victims who would never have had their day in court if commanders lost the ability to bring a case to court-martial). It also hasn’t worked where it’s been tried— supporters of this alternative point to a number of our allies that have moved to similar military justice systems, but not one of these countries has seen the increase in reporting that proponents promise. [MSNBC Interview, February 13, 2014]

Over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which commanders launched a court-martial. That’s 93 victims who would never have had their day in court if commanders lost the ability to bring cases forward. [U.S. News and World Report Op-Ed, February 19, 2014]

Interviewer: On that topic, you have cited 93 cases that prosecutors wanted to drop, but commanders pushed forward, as evidence that Gillibrand’s proposal could diminish prosecutions. She takes issue with your number, saying it refers to civilian prosecutors, not military ones, and therefore “says nothing about the willingness of a military prosecutor to prosecute.” Who’s right?

McCaskill: There were some of both [military and civilian prosecutors] in that number. But this is the point: She is advocating that prosecutors be the only judge as to whether or not a case should go to trial. I saw this firsthand has a prosecutor. Many of these are he-said- she-said cases. Those consent cases are challenging, and there are many prosecutors that think if it’s just a he-said- she-said, it’s a wash. Let him plead to something little and take a demotion. I want to make sure that we are not going backwards by allowing these cases to go away without any checks and balances on the prosecutor whatsoever. [New Republic Interview, March 6, 2014]

This case adds to at least 93 cases in just the past few years in which prosecutors declined to pursue charges, but in which commanders launched a court- martial. That’s 93 victims who would never have had their day in court if commanders lost the ability to bring cases forward. And we’ve found almost no cases in which a commander tried to overrule a prosecutor who wanted to move to trial. [TIME Op- Ed, March 15, 2014]

To bolster her position, McCaskill has said that over the past two years military prosecutors have recommended against pursuing charges in 93 sexual assault cases, only to have commanders reverse those decisions. [Springfield News-Leader, March 19, 2014]

Sen. Claire McCaskill, a Missouri Democrat who led the filibuster against the Gillibrand bill, argued that the Sinclair verdict supports her view that commanders are in the best position to determine whether a case should go to trial.

The prosecutor was willing to abandon the most serious charges despite believing Gen. Sinclair was guilty, a spokesman from her office said, proving that commanders are more aggressive than prosecutors when it comes to getting justice for the victims.

“The prosecutor believes that, as a tactical matter, the charges of sexual assault should be dropped in part because those charges would be difficult to win at trial,” Mrs. McCaskill’s office said in a statement. “If commanders could not launch courts-martial, the brigadier general in this case would likely be off the hook for an alleged sexual assault which both military commanders and prosecutors believe occurred.” [Washington Times, March 27, 2014]

Senator Kelly Ayotte

It would leave victims behind. In two years, there have been at least 93 cases in which civilian prosecutors declined to pursue charges but commanders launched a court- martial (and almost none where a commander overruled a prosecutor who wanted to proceed). That’s 93 victims who wouldn’t have had their day in court if commanders lost the ability to bring a case to court-martial. [USA Today Op-Ed by Sen. McCaskill and Sen. Ayotte, December 2, 2013]

I would also say, if we want justice for victims, what about those 93 victims where the commander said: Bring the case forward, even though the JAG lawyer said no? They would not have gotten justice. So the evidence is the opposite. What would we say to those victims? The evidence shows that actually commanders are bringing cases more frequently than their JAG’s lawyers and over their objections. [Floor Speech, March 6, 2014]

Ayotte also noted that in the last two years, commanders have used their authority to prosecute 93 cases after civilian prosecutors declined to pursue charges – that’s 93 victims who would never have had a chance at justice if the decision to prosecute was left solely with civilians [SIC] prosecutors. Additionally, Ayotte pointed out that America’s allies who made this change did so to protect victims, and cannot attribute any rise in reporting of assaults to removing commanders from the process. [Press Release, March 6, 2014]

Senator Carl Levin

The Senate’s leading Democrat on military issues released two letters from the Pentagon on Wednesday to argue that allowing military commanders to retain their authority over sexual assault cases will protect victims and battle what has been described as a “scourge” of sexual assault across the armed forces.

The senator, Carl Levin of Michigan, chairman of the Armed Services Committee, said Pentagon statistics show that military commanders have pursued 93 sexual assault cases over the past two years after the civilian authorities did not investigate or did not prosecute, but not all have yet reached court martial.

In a conference call with reporters, Mr. Levin said the Armed Services Committee, in rejecting the Gillibrand proposal, “got this thing right” in not removing prosecution authority from commanders. “Fifty defendants were convicted of sometimes horrific crimes who would not have faced justice had commanders not had authority to seek justice,” he said. [New York Times, July 24, 2013]

The evidence shows that removing this authority from our commanders would weaken, not strengthen, our response to this urgent problem. That is why I believe the bill offered by Senator Gillibrand and others, though offered in the hope that it would strengthen our efforts against sexual assault, will in fact have the opposite effect. In the last year we have learned that in scores of cases during the period study, commanders prosecuted sexual assault cases that civilian attorneys had declined to prosecute. [Floor Speech, March 6, 2014]

Senator James (Jim) Inhofe

Commanders are consistently willing to prosecute sexual assault offenders, even when military and civilian prosecutors are not. A recent letter from Admiral Winnefeld, Vice Chairman of the Joint Chiefs of Staff reported our commanders have taken 93 cases that civilian prosecutors declined. To date, 73 have resulted in courts-martial with other cases still in process. There were convictions in 52 cases. These commanders deserve our thanks for taking on these challenging cases! [Statement, July 26, 2013]

Congresswoman Loretta Sanchez

Most importantly, we’ve dug into the hard data surrounding these crimes. Supporters of the proposal to strip commanders of their responsibilities promise that their approach will lead to an increase in reporting and prosecutions. But in just the past two years, we found 93 cases of rape and sexual assault that prosecutors declined to prosecute, which were then referred to court martial by commanders. That’s 93 victims who had their day in court because commanders, not prosecutors, had the ability to refer cases for court martial. [USA Today Op-Ed, August 29, 2013]

The plan under consideration in the Senate would strip military commanders of their responsibility to decide which sexual assault cases go to criminal trial and create a separate prosecutor’s office outside the chain of command. While well-intentioned, this is the wrong option because it is impossible to hold someone accountable for fixing a problem when you relieve them of their responsibility to do so. In fact, removing a commander’s ability to move cases forward removes an important tool for protecting victims. Over the past two years, there were 93 cases of rape and sexual assault that prosecutors declined to prosecute, but were referred to court martial by commanders. 93 victims were given their day in court because their commanders were involved. [U.S. News and World Report Op-Ed, February 19, 2014]

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