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New bill would give rape victims more say on trial venue

Nov. 14, 2013 - 03:38PM   |  
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With less than a week to go before a Senate showdown over the military’s handling of sexual assault and rape cases, three senators have unveiled another package of proposed changes that would give alleged victims more input in prosecutions, and increase accountability for unit commanders in how they treat victims.

The six-part initiative, unveiled Thursday, is the latest skirmish in a battle that will decide whether the military chain of command should have any role in the investigation, prosecution and sentencing of service members accused of rape and sexual assault.

The fight will come to a head next week, during Senate debate on the 2014 defense authorization bill, with a lot of advance maneuvering.

In this case, the package is not controversial, although it might diminish some support for radical reform. It is cosponsored by Sens. Claire McCaskill, D-Mo.; Kelly Ayotte, R-N.H.; and Deb Fischer, R-Neb. All three senators, members of the Senate Armed Services Committee, support keeping the chain of command involved in investigations and prosecutions of sexual assault and rape, but they want to strip commanders of their ability to overturn jury convictions.

Under their plan:

■ Victims would be given the opportunity to express a preference other than having their case investigated and prosecuted in military or civilian courts, although their preference would not necessarily be final because an accused service member could be prosecuted without the cooperation of the victim.

McCaskill said the victim’s options might not be as useful for crimes occurring outside the U.S. But special victims counsels already being appointed by the services could advise victims of the advantages and disadvantages of the military and civilian justice systems, she said.

■ Commanders, already evaluated on a variety of factors including the command climate toward racial diversity, would be evaluated on the command climate related to how allegations of sexual assault are handled and the treatment of rape or sexual assault victims who report crimes.

■ Defendents for all crimes, not just sex crimes, would be prevented from using “good military character” as a defense against charges unless that is directly relevant to the crime. The so-called “good soldier defense” could still be used in the sentencing phase of a court-martial to reduce the severity of any punishment.

■ In response to fears of reprisal, the package would let a sexual assault victim who is discharged from the service challenge the terms or characterization of the discharge. This would be a confidential process, aimed especially at victims who are discharged for mental health or bad conduct reasons that might be the result of retaliatory action.

■ An automatic review by a higher civilian authority would be required in any case in which a staff legal counsel recommends charges, but is overruled by a commander. The Senate version of the defense bill contains a slightly weaker version of this measure that would require legal counsel to state that they disagree with their commanders’ move to have the decision reviewed, something that could leave a prosecutor subject to command pressure.

■ All sexual assault prevention and response programs that apply to the military services also would specifically apply at the service academies, a provision viewed as a clarification.

McCaskill said she considers the changes to be uncontroversial and likely to be easily approved by the Senate.

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