A reader passes on this article from defenseone.com, in which Senator Kirsten Gillibrand (D-NY) fires another broadside at the military justice system:

It is long overdue to fundamentally change the system to strengthen our military readiness and give victims of sexual assault a fair shot at justice.

I did not come to this conclusion lightly. I came to this conclusion because I listened to the voices of the too many brave survivors who wanted nothing more than to serve our country honorably, but have been left twice betrayed by the system that failed them. A system where 62 percent of those who report a crime say they have been retaliated against, 50 percent of women think nothing good will come out of reporting, and 25 percent of the assailants are directly within the victim’s chain of command.

Survivors like Sarah Plummer, who was raped as a young Marine. She said, “Having someone within your direct chain of command just doesn’t make any sense, it’s like getting raped by your brother and having your dad decide the case.”

The Senator continues to push to remove commanders from the process of deciding which cases go to trial:

In September, three retired flag officers joined other former commanders and legal experts and announced their public support for the Military Justice Improvement Act – a broadly bipartisan proposal to move the decision-making authority of whether serious crimes akin to felonies should go to trial into the hands of independent, trained, military prosecutors where it belongs.

11 Responses to “Senator Gillibrand’s newest pitch to put the lawyers in charge”

  1. Ed says:

    Her suggestions will only lead to a smaller percentage of prosecutions. Be careful what you wish for.

  2. Russell Shinn says:

    In the “for what it’s worth department,” I heard Ms. Plummer say that quote during her testimony at a subcommittee hearing of the Response Systems Panel, Friday 8 Nov. She’s said that several times and it has become her go-to quote during interviews. 
    What’s also important from Friday’s hearing is the chorus of experienced prosecutors who said that they disagree with the idea of a “Special Victims Counsel” or “Victims Legal Counsel” and experienced defense attorneys who said the same thing, along with the strong admonition against changing Article 32 and disrupting the Convening Authority’s role under Article 60.  
    Instead, we get a one-sentence snippet from testimony that was primarily about the importance of yoga and an elevator pitch for her start-ups. What is also worth knowing is that her alleged rape didn’t occur while she was on active duty, despite the claim of Sen. Gillibrand, it was while Ms. Plummer was still at college. It also was not committed by someone who was subject to the UCMJ – he was a fellow ROTC cadet prior to commissioning. So, taking Ms. Plummer’s allegations at face value, her case – if reported to proper authorities – would have been handled by a civilian jurisdiction, not a convening authority. 

  3. ResIpsaLoquitur says:

    “Having someone within your direct chain of command just doesn’t make any sense, it’s like getting raped by your brother and having your dad decide the case.”
    I dunno.  Some dads might beat the #^&@! out of their sons if one of them raped his sister.  What she appears to be getting at in her analogy is “men are inherently sexist and will always side with other men over women.”  Tell that to Lt Gen Helms….

  4. Advocaat says:

    A truly odd simile from Ms. Plummer…although after seeing what commanders are doing in my neck of the woods (e.g., recommending and then referring a clear non-rape to a GCM), I can’t say that I disagree with removing the power to prosecute from individuals who don’t understand it.

  5. Bill Cassara says:

    For those not in the know, they consistently beat the drum that non-lawyers are making these decisions. When is the last time that a TC/SJA recommended that a case be referred to trial, but the CA disagreed?  It has never happened to me.  I have had times when the TC/SJA recommended that a case not get referred, but the CA did it anyway.  These people are clueless.

  6. John O'Connor says:

    Judges are not given the task of running the Army.  Neither are lawyers.

  7. Phil Cave says:

    Echo BB as to the realities of referral making.

  8. SomeDC says:

    Bill Cassara–The somewhat flip side of your example just occured.  The IO and SJA (and I believe TC) all recommended against going forward on the USNA sexual assault cases and the CA disagreed.  So some CAs are not following their lawyer’s advice.

  9. Bill Cassara says:

    Some DC: That is exactly my point. This will lead to less, not more trials.

  10. Phil Cave says:

    I talked to a jounalist earlier today about the USNA cases.
    Without seeing the IO report and 34 advice it’s unclear to me how this case would have turned out with any of the new 32 variants.
    If the IO found no reasonable cause (read probable cause, because while that’s not the language in the RCM, we all sorta view it that way) – then the cases would have stopped there if the IO makes a decision rather than a recommendation.
    However, I’m under the impression that — the IO found RC, but did not recommend proceeding for various reasons (such as a list of 35 specific and substantial reasons to doubt the CW’s credibility), then that leads to a different situation.  Then that leaves the issue open.  Whether the CA bowed to political pressure, threats of a IG complaint (see IG complaint against AFTJAG), or he was effectively in the Type III accuser category, or UCI, that’s for the parties to litigate and the courts to decide.  If the IO did not in fact find RC/PC . . . . so far the circle remains unbroken.

  11. stewie says:

    I think change is inevitable.  it’s coming.  What I wonder is whether an emphasis on a jack of all trades model is going to hurt things 3-4 years down the line when we all of a sudden are going to need a slew of folks with a decent amount of MJ experience to fill these new positions/roles, whether it’s as an SJA or it’s as an O6 with MJ experience if they decide to separate those two positions out, or it’s folks to fill other positions to be named later.
    But the pitch to put the lawyers in charge is going to at some point make some headway, just like the changes to the 32s will have some headway.  It may not be this particular bill, but something like it will eventually pass.