Senator Kelly A. Ayotte-Senate Floor: Analysis

Senator Kelly A. Ayotte (R-NH) on Military Sexual Assault November 20, 2013

Courtesy of Flikr

Courtesy of Flikr

  • Ayotte spoke on Nov.19 and Nov.20 on the same issue, which is eliminating sexual assault in the military.
  • She highlighted some of the most recent reforms to aid sexual assault victims in the armed forces as evidence of progress including the Special Victim Counsel Program, which provides attorneys for victims of sexual assault and Military Whistleblower Protection, which prevents military personnel who legally report crimes (including sexual assault) from being retailed against by their superiors. This protection makes it illegal for superiors to withhold benefits or even make threats of withholding benefits.
  • All these measures are in fact in place and do provide the protections that she described. In particular according to the Special Victims Counsels (SVCs) are specially trained to provide “zealous representation” for their clients. “Constrained only by ethical limits, SVCs shall represent the best interests of their clients as appropriate even when their client’s interest do not align with those of the government of the United States. A SVC’s primary duty is to his/her client and no other person, organization or entity.”
  • Ayotte called these measures bi-partisan. The Special Victims Counsel bill, that Ayotte sponsored passed in the senate with a 97-0 vote.
  • She said that she joins Senators Claire McCaskill (D-Mo.) and Deb Fischer (R-Neb.) in introducing an amendment to hold the military accountable for handling sexual assault cases. She is referring to Amendment 2170 for the National Defense Authorization Act for Fiscal Year 2014. She is among 6 co-sponsors for the bill. All of them are Republicans and three of them are women. In her speech, Ayotte only mentioned the female co-sponsors by name and did not refer to the three male co-sponsors.
  • This amendment expands the authority of the Special Victims Counsel, including advice on whether to take a case through military or civilian court. The victim’s choice on how they want the case to proceed is not binding, but has great weight.
  • It also has provisions for performance reviews of commanding officers on how they handle cases of sexual assault. These reviews will take into account how sexual assault cases are managed and whether victims feel like they can report without fear of retaliation.
  • The amendment also outlines the process that the case moves up the chain of the command as necessary, ending with the civilian secretaries of each branch of the military.
  • Ayotte cited her background as a criminal prosecutor to show her qualifications for reviewing the amendment for fairness. She was in fact a prosecutor in New Hampshire in the Attorney General’s office for 5 years before becoming the Attorney General herself in 2004. She served in that office for 4 years.
  • Her amendment is in opposition to Senator Kirsten Gillibrand’s (D-NY)  and Senator Barbara Boxer’s (D-CA) proposed amendment 2081, which would take sexual assault cases out of the chain of command and handled by independent prosecutors. The military would only be allowed to conduct preliminary hearings in exceptional circumstances to determine probable cause if an assault has been committed . In most cases, a judge advocate will hold the hearing. If probable cause is determined, then the case will proceed in civilian court. The commander of the victim’s unit will not be involved in the process.
  • The Boxer amendment has support from a significant amount of people. According to one poll done by Langer Research Associates, 6 in 10 Americans support the shift to having independent prosecutors handling cases of sexual assault instead of the commanders. Two thirds of liberals and moderates and 48 percent of conservatives support it.
  • Ayotte outlined the current method for handling sexual assault to show how commanders are currently involved. She said victims do not have to go through the chain of command to report a sexual offense, but can also report through their health provider, or 911.
  • She is referring to the military’s policy of restricted reporting. This allows victims to receive care and counseling without disclosing their personal information. It gives them time to get help and decide how they want to proceed before bringing the case to trial. However this type of reporting does not give victims protection from their assailant and does not get them a unit transfer.
  • The other option is unrestricted reporting, which allows the victim to proceed with the legal process. Upon report, the victim gets access to the SVC and can decide how they want to proceed. The independent investigation begins after the findings goes through the chain of command. This reporting allows victims to get protection and a unit transfer.
  • Ayotte said that commanders help the process because there are cases that the Judge Advocate General (JAG) lawyers do not recommend to proceed with a case, but the commander overrules them and takes the case to trial anyway.
  • She cited 52 cases when this occurred and the defendant was ultimately convicted. This number could not be verified on any independent source.
  • The Department of Defense’s Task Force Report on Care for Victim’s of Sexual Assault (2004) found that commanders potentially corrupt sexual assault investigations by investigating on their own before other authorities are involved. This can lead to a lower rate of conviction.
  • There were 2,949 reported sexual assaults in 2012 according to the Department of Defense Annual Report on Sexual Assault in the Military. Of this 2,558 investigations were opened and 1,627 were completed. Commanders had enough evidence for 1,124 cases to take action. They pursued sexual offense action in 880 cases and non-sexual offense action in 244 cases. They declined to take any action in 81 cases.
  • The senator pointed out that countries that removed military sexual assault cases from the chain of command including: Australia, Great Britain, Canada and Israel did not have higher reporting rates. The Response Systems to Adult Sexual Assault Crimes Panel Role of the Commander Subcommittee concluded that they could not find a significant relationship between removing the commander and increased reporting of sexual assault. They said they could not make any recommendations on how to alter the U.S military justice system based on the data they received from the four countries.
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