defense. It passed just days after a more robust version failed to
receive sufficient support amid opposition from the Pentagon.
military sexual assault legislation Monday just days after a more
robust version of the bill that had elicited strong opposition from
the Pentagon fell short of the necessary support.
Nevertheless the bipartisan bill, sponsored by Sen. Claire McCaskill
(D) of Missouri, portends some considerable changes for U.S. troops
accused of sexual assault, for victims of the crime, and for Pentagon
prosecutors should it be passed by the House as well.
So what will these changes mean for the Pentagon?
Most notably, the bill largely prohibits the accused from using the
time-honored “good soldier” defense and hammering home instead the
idea that a US military service member can be good at a job and be
well-liked, but also capable of sexual assault.
Or, as Senator McCaskill described the “good soldier” defense,
upending “the ridiculous notion that how well one flies a plane should
have anything to do with whether they committed a crime.”
The bill also criminalizes retaliation against victims of sexual
assault, requires that any service member convicted of a sexual
assault face a dishonorable discharge or dismissal from the military,
and includes a provision that if a military prosecutor wants to take a
case to trial and a commander does not, it goes to the civilian
secretary of the service branch for review.
In cases in which neither wants to prosecute the case, it can also be
referred to the service secretary. Some Pentagon officials have argued
that this process is cumbersome and could encourage prosecutions
without merit to move forward.
While victims advocates groups said that some of the provisions in the
McCaskill bill marked “important change” and were “absolutely
necessary,” there are some criticisms as well.
For starters, the legislation follows the defeat Thursday of a bill by
Sen. Kirsten Gillibrand (D) of New York that would have stripped
commanders of their power to prosecute — or to exercise their
prerogative to choose not to prosecute — sexual assault cases.
Pentagon officials opposed that bill, warning it would undermine good
order and discipline in the military by stripping commanders of key
McCaskill said that she opposed Senator Gillibrand’s bill not because
of any particular loyalty to commanders, but for more mercenary
In many cases, she said, commanders had chosen to move forward with
cases that prosecutors had dropped.
Still, victims advocates say they would like to see more far-reaching
changes. McCaskill’s bill, for example, prohibits the use of the “good
soldier” defense “unless a defendant’s character is directly tied to
the alleged crime.”
But this language “is not specific enough” and could give military
judges “too much wiggle room to essentially ignore the rule,” argues
Nancy Parrish, president of Protect Our Defenders, an advocacy group.
The bill will next move to the House of Representatives, where Speaker
John Boehner (R) of Ohio said through a spokesman Monday that he will
“review this legislation to determine the best way to consider
additional reforms in the House.”