An unprecedented effort in Congress for sweeping changes to how the Pentagon prosecutes sexual crimes is nearing the finish line and marks a partial, but nonetheless historic victory for legislators and victims advocates who have been pushing for reform.
In a landmark reform, the proposed bipartisan legislation would remove military commanders from decisions related to the prosecution of certain crimes including rape, sexual assault, murder, manslaughter, and kidnapping, according to a text of the bill published on Tuesday.
“This is a day of victory. People said it couldn’t be done,” said Natalie Khawam, a lawyer representing the family of Vanessa Guillen, the army soldier who was kidnapped from her post at Fort Hood, Texas last year and found murdered two months later. “I am honored that my client’s legacy will live forever. Her tragedy has allowed for a new way, a new system, in our military,” she added.
“Military sexual assault survivors took on the world’s largest employer with the world’s largest budget and won a major victory. The provisions ... are the most transformative military justice reforms in our nation’s history," said Col. Don Christensen (ret.), the former Chief Prosecutor of the U.S. Air Force and president of the victims advocacy group, Protect Our Defenders.
“The clarion call of sexual assault survivors has been heard," said Congresswoman Jackie Speier of California, one of the champions of the legislative push. "The new, independent prosecutors, known as Special Trial Counsels, will be under civilian control," she added.
Others were less happy with the outcome. U.S. Senator Kirsten Gillibrand, one of the main sponsors of the reforms, said the language of the bill had "gutted" by Congressional leaders to placate conservative military interests. As a result she was unconvinced that the reforms would in practice remove the military commanders from critical decisions.
“This bill represents a major setback on behalf of service members, women and survivors in particular," she said.
Guillen’s death sparked national outrage, leading to the calls for legislative reform to end a shocking “toxic culture” of sexual abuse at Fort Hood, and pattern of cover-ups by military commanders of cases of sexual assault and harassment. Her family lobbied Congress and the military for months, and won the support of celebrities including Salma Hayek, Eva Longoria and Gloria Estefan.
Another reform would also for the first time criminalize sexual harassment under the Uniform Code of Military Justice, the military’s own justice system that is independent of the civilian courts. All claims of sexual harassment will be required to be investigated by an independent investigator outside the chain of command, which was a key demand of the Guillen family.
The reforms, which were included in the massive annual defense spending bill, known as the National Defense Authorization Act (NDAA), ran into some stiff resistance on Capitol Hill from some military leaders, according to some legislators and victim advocates. But it was largely supported by Defense Secretary Gen Lloyd Austin and the White House.
Military leaders have for decades insisted that the chain of command have the final say in all matters, including military law, arguing that it was essential to maintaining discipline, morale and combat readiness. They worry that accusations of sexual abuse could create divisions and disloyalty, while victims' advocates argue that nothing hurts morale more than tolerance of abuse and impunity.
“When we took this on everybody laughed at me and said you will never get them to agree to remove the chain of command. It’s the military code that’s how it been for decades,” said Khawam.
Khawam credited the unstinting efforts of Senator Kirsten Gillibrand of New York and U.S. Representative Jackie Speier of California to keep the bill alive. “We had the best of the best on our side to do this. They are incredible proponents of our soldiers’ rights,” she said.
But there was some disappointment as several key elements the Guillen family had pushed for were left out of the bill, including a proposal to allow claims for damages against the military for negligence in cases where complaints of abuse from victims were ignored by commanders.
“Without that how can you really have relief. Everyone knows you can’t just leave your job without any kind of a bridge. Civilians have that right, but it seems we treat our soldiers like second class civilians,” said Khawam.
The bill would authorize extra funding and personnel for the military’s Special Victim Counsel, and requires the Department of Defense to track allegations of retaliation by victims of sexual assault or sexual harassment. It would also create an Office of the Special Trial Counsel within each branch of the military and ensuring their independence by requiring they directly report to the civilian head of each of the armed forces; Army, Airforce and Navy.
It would also establish judge-alone sentencing and defines the role and responsibilities of these prosecutors and including their required experience.
Speier also lamented what she said was "a fatal flaw" in the legislation, saying it failed to provide independent prosecution of sexual harassment cases. "The lack of accountability in this regard is unacceptable and must be addressed, and I will not stop until that is achieved. Not only do the sheer numbers of sexual harassment victims demand that we do this, the research shows that sexual harassment begets sexual assaults and other serious crimes," she added.
She also said it was "utterly baffling" that crimes of child abuse and child endangerment were taken out of the Special Trial Counsels’ purview and will remain within the chain of command.