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Old Guard Senators Defy Changes in How Military Treats Sex Assault Cases

Fact checked by Brain Bartell

old guard senators defy changes in how military treats sex assault cases

Sexual assault has long been a problem in the military. One in every four service women reports being sexually assaulted during their time of service. And yet, it continues to exist like the elephant in the room. Why?

Many say it is because of the system. More specifically, the role and involvement of commanders in the prosecuting process. Kirsten Gillibrand is one of the many holding this stance. And on various headlines, she is among the old-guard senators that defy changes in how the military treats sexual assault cases.

In this article, we will dive deeper into the topic so you can get a better understanding. Thus, continue to read and do not stop until you reach the end.

Background Context

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Who is Kirsten Gillibrand?

Gillibrand is the second female senator in New York, after Hillary Clinton. She became a senator in 2009, and in 2010 she won a special election to keep the seat. In 2012 and 2018, she was re-elected to full terms.

Even though Gillibrand was originally a “Blue Dog Democrat,” she has become a ‘leftie’ during her Senate tenure. She spoke on sexual harassment and sexual assault in the military. Specifically, she criticized her fellow democrats: President Bill Clinton, Senator Al Franken, and Governor Andrew Cuomo, outspokenly for alleged sexual misconduct.

In 2013, Gillibrand proposed a bill to remove sexual assault cases from the military’s chain of command. It did not gain enough votes in March 2014 to break a filibuster. However, in June 2021, it was revealed that the bill just has a few remaining hurdles to pass.

The notable article delivering this information was the New York Times’ “Old Guard Senators that Defy How The Military Treats Sexual Assault Cases.”

What is the Bill That Kristen Gillibrand Proposed?

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Now it is called the Military Justice Improvement and Increasing Prevention Act (MJIPA). It is a bill meant to reform the disposition of charges and convening of courts-martial for certain offenses under the Uniform Code of Military Justice (UCMJ) and raise the prevention of sexual assaults and other crimes in the military. It includes 10 sections, and we will look at one of them below.

More On Old-Guard Senators Defying Changes in Military Sex Cases

Sect. 2 – Improvement of determinations of disposition of charges for certain offenses under UCMJ with an authorized maximum sentence of confinement of more than one year

First, for “improvement of determinations”

  • Military Departments

For charges under Chap 47 of Title 10 in the UCMJ, an offense in subsection (b) and not excluded under (c) the Secretaries of the military departments shall provide for the determinations:

(A) Determinations under sect. 830 of article 30 of the UCMJ on the preferral of charges

(B) Determinations under sect. 830 of article 30 of the UCMJ on the disposition of charges

(C) Determinations under sect. 834 of article 34 of the UCMJ on the referral of charges

  • Homeland Security

For charges under Chap 47 of Title 10 in the UCMJ, an offense in subsection (b) and not excluded under (c) against a Coast Guard member, the Secretary of Homeland Security shall provide for the determinations:

(A) Determinations under sect. 830 of article 30 of the UCMJ on the preferral of charges

(B) Determinations under sect. 830 of article 30 of the UCMJ on the disposition of charges

(C) Determinations under sect. 834 of article 34 of the UCMJ on the referral of charges

Next, for “covered offenses”

Any act specified is an offense:

  • Offenses under sections 893a, 917a, 918, 919, 919a, 919b, 920, 920a, 920b, 920c, 921, 921a, 921b, 922, 924, 924a, 924b, 925, 926, 927, 928(b) and (c), 928a, 928b, 930, 931, 931a, 931b, 931c, 931d, 931e, 931f, 931g, and 932 (articles 93a, 117a, 118, 119, 119a, 119b, 120, 120a, 120b, 120c, 121, 121a, 121b, 122, 124, 124a, 124b, 125, 126, 127, 128(b) and (c), 128a, 128b, 1230, 131, 131a, 131b, 131c, 131d, 131e, 131f, 131g, and 132 of Chap 47 of Title 10 in the UCMJ.
    • In which the maximum punishment authorized under the chapter includes confinement for more than one year.
  • Child pornography, negligent homicide, indecent conduct, indecent language communicated to any child under 16 years old, pandering, and prostitution
    • As punishable under the general punitive in article 934 of the UCMJ.
  • Conspiracy to commit an offense in the first bullet point
    • As punishable under section 881 of Title 10 in the UCMJ.
  • Solicitation to commit an offense in the first bullet point
    • As punishable under section 882 of Title 10 in the UCMJ.
  • Attempt to commit an offense in the first bullet point
    • As punishable under section 880 of Title 10 in the UCMJ.

For “excluded offenses”

  • An offense under sections 883 to 917 of Title 10 in the UCMJ
    • But not an offense under section 893a of article 93a of the UCMJ.
  • An offense under sections 922a, 923, 923a, or 928(a) of Title 10 in the United States Code
    • Which are articles 122a, 123, 123a, and 128(a) of the U.
  • An offense under sections 933 or 934 of title 10, United States Code
    • Which are articles 133 and 134 of the UCMJ
    • But not the offenses punishable under the general punitive article in section 934 of article 134 of the UCMJ.
  • A conspiracy to commit an offense specified above, as punishable under section 881 of Title 10 in the United States Code (Which is article 81 of the UCMJ).
  • A solicitation to commit an offense specified above, as punishable under section 882 of Title 10 in the United States Code (Which is article 82 of the UCMJ).
  • An attempt to commit an offense specified above, as punishable under section 880 of Title 10 in the United States Code (Which is article 80 of the UCMJ.

For “requirements and limitations”

The disposition of charges covered above shall be subject to:

  • The decision of whether to
    • cause charges to be preferred or to refer charges for trial to a court-martial shall be made by a commissioned officer with authority and who:
      • are available for detail as trial counsel under article 27 of the UCMJ
      • have significant experience in trials by general or special court-martial
      • are outside the chain of command of the member subject to the charges

If the decision is to refer charges to a court-martial, the officer making the decision shall decide whether to:

  • refer for trial to a general court-martial (under article 22 of the UCMJ) or a special court-martial (under article 23 of the UCMJ)

Also, under this decision, all known offenses, including lesser included offenses, will be covered for trial and shall be binding on any applicable authority for the referral of such charges.

Plus, the officer making the decision shall not be subjected to coercion or unauthorized influence or coercion.

If the decision is to not to refer charges to a general or special court-martial, it shall not be to terminate or alter the authority of commanding officers to refer charges for trial by special court-martial or summary court-martial, or to impose non-judicial punishment in connection with the conduct covered by such charges.

Finally, the decision to refer charges for trial to a general or special court-martial shall not be subjected to article 34 of the UCMJ if the officer making the decision determines that:

  • The specification alleges an offense under the UCMJ
  • There is probable cause to believe that the accused committed the offense charged
  • A court-martial would have jurisdiction over the accused and the offense charged

For “construction with charges on other offenses”

Nothing above shall be construed to alter or affect the preferral, disposition, or referral authority of charges under chapter 47 of Title 10 in the UCMJ.

For “policies and procedures”

  • The Secretaries of the military departments and the Secretary of Homeland Security shall revise policies and procedures to comply with this section.
  • The General Counsel of the Department of Defense and of the Department of Homeland Security shall review the policies and procedures revised together to ensure that there is no lack of uniformity in the policies and procedures.
  • The Secretary of Defense shall recommend such changes to the Manual for Courts-Martial to ensure compliance.
  • The Secretary of Defense shall revise policies and procedures to improve the specialization of criminal investigators and increase the efficiency and effectiveness of sexual assault and domestic violence investigations.

The bill is supported by 66 senators, who the New York Times calls “old-guard senators.” On July 20, 2021, it passed as an amendment to the Senate Armed Services Personnel Subcommittee markup of the National Defense Authorization Act.

Here is Gillibrand’s statement on it:

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Conclusion

Now you know all about the topic, “Old-guard senators that defy changes in how the military treats sexual assault cases” and the Military Justice Improvement and Increasing Prevention Act (MJIIPA) bill at the heart of the matter. If you support this bill, you will be glad to hear that it passed on July 20, 2021 as an amendment to the National Defense Authorization Act.

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