On Monday, March 10, the Senate passed by a unanimous vote a bill that would change criminal prosecutions regarding sexual assault cases against military members, including whether a member of the Armed Forces could use a good service record as a defense when charged with a crime.
The bill, sponsored by Senators Claire McCaskill, Kelly Ayotte and Deb Fischer, passed in a rare 97-0 vote. The Pentagon accepted the new measure with some reservations.
A competing bill by Senator Kirsten Gillibrand, who proposed stripping military commanders of their authority to prosecute cases, was defeated by filibuster. Sen. Gillibrand's proposal would have given prosecution of military sexual assault cases to the Judge Advocates General Corps.
The Pentagon publicly opposed Sen. Gillibrand's bill, arguing that it would harm the military's chain of command. Sen. Gillibrand has vowed to keep fighting for her bill. Currently, military commanders must sign off on whether to pursue a sexual assault case before it can move forward.
It is still unclear whether the House will pass Sen. McCaskill's bill, despite its bipartisan support in the Senate.
“Good soldier” defense threatened
Currently the military allows the use of the “good soldier defense,” in which the accused can use a good service record as a defense to a sexual assault charge. Sen. McCaskill had harsh words for the defense, stating shortly after the vote that the good soldier defense is “the ridiculous notion that how well one flies a plane should have anything to do with whether they committed a crime.” The U.S. military justice system has traditionally allowed the use of evidence of good character as a defense for a wide variety of offenses under the Uniform Code of Military Justice.
Congress focusing effort on military justice reform
The newest proposal comes after several reforms addressing the issue of sexual assault accusations in the military passed last year. These 2013 reforms included:
- Removing the ability for military commanders to overturn convictions
- Providing attorneys to alleged victims
- Criminalizing retaliatory behavior against an alleged victim
- Requiring a dishonorable discharge for service members convicted of sexual assault
The Senate bill would also allow victims to bring their case to a civilian court if the alleged crime occurred off-base. Men and women enrolled in service academies would also receive equal protections should the measure pass the House. Finally, for every promotion in the military, the candidate would receive scrutiny on his or her handling of sexual assault cases.
The Senate bill has yet to become law. Yet, if the current Senate bill and Sen. Gillibrand's statements are any indication, the military may face more reforms in coming years.
Criminal defense attorneys vital to a case
The military has been under extreme pressure to vigorously prosecute sexual assault cases. For service members accused of sexual assault, the consequences can be severe, including dishonorable discharge and a military prison sentence. Service members accused of a charge of improper sexual conduct should contact an experienced military criminal defense attorney to discuss their legal rights and options.