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Senators split on military crime topic

New Hampshire Union Leader

July 26. 2013 7:45PM

New Hampshire’s delegation to the United States Senate remains divided, much like the rest of the Senate, over whether reports of certain crimes, including sexual assault, in the military can be reported outside the chain of command.

U.S. Sen. Kelly Ayotte, R-N.H., has sponsored several measures that were included in a defense bill approved last month by the Senate Armed Services Committee. Her proposal calls for several changes to how reports of sexual assault and other serious crimes are handled, but aims to maintain the military’s chain of command by continuing to have unit commanders decide whether cases will be prosecuted.

“We want the chain of command to be held accountable,” she said. “We don’t want to let commanders off the hook for this responsibility.”

Meanwhile, her counterpart, U.S. Sen. Jeanne Shaheen, D-N.H., continues to support a proposal by U.S. Sen. Kirsten Gillibrand, D-N.Y., that would give military Judge Advocate General attorneys the final decision on whether to move forward with prosecuting certain serious crimes, including sexual assault, rather than unit commanders. Currently, JAG officers make recommendations to commanders, who have the final say on whether to move forward.

Shaheen held a roundtable discussion earlier this month at the University of New Hampshire, where she said 50 percent of sexual assault survivors surveyed said they did not report the assault against them because they did not believe anything would be done about it and that 47 percent said their assault went unreported because they feared retaliation.

Ayotte said the two proposals are nearly identical, in that neither keeps “the status quo,” but differ primarily on whether to keep the chain of command involved. Confusing Gillibrand’s proposals are inaccurate reports that she has suggested having the prosecution of serious crimes handled by local civilian prosecutors, Ayotte said.

The disagreement among senators is unusual, in that it doesn’t feature any of the usual partisan divide.

Ayotte’s proposals were cosponsored by Democratic U.S. Sen. Patty Murray of Washington and are backed by Democratic U.S. Sens. Claire McCaskill of Missouri and Jon Tester of Montana.

Meanwhile, Gillibrand’s proposal has Shaheen’s support and is backed by several Democrats, but is also supported by numerous Republicans, including Sen. Rand Paul of Kentucky, Sen. Chuck Grassley of Iowa and Sen. Ted Cruz of Texas. She is planning to offer her measure, which was not approved by the Armed Services Committee, as an amendment to the National Defense Authorization Bill when it reaches the full Senate floor.

“It’s just a legitimate argument,” Ayotte said.

The Gillibrand proposal took the decision-making authority out of the chain of command based on a belief that victims of crimes such as sexual assault do not report incidents because of a “systemic fear that numerous victims of military sexual assault have described in deciding whether to report the crimes committed against them due to the clear bias and inherent conflicts of interest posed by the military chain of command’s current sole decision-making power over whether cases move forward to a trial,” according to Gillibrand’s website.

However, Ayotte said her proposals introduce a host of new checks on a commander’s power to alleviate that fear. For example, she said, should a commander not accept a JAG officer’s recommendation to prosecute an alleged crime, that case would be immediately appealed to the civilian Secretary overseeing that branch of the armed forces. Should both the JAG officer and unit commander agree that a case is not worth pursuing, that commander’s commanding officer or a general court martial would have to review the case as a final check against bias.

“We can hold them to greater accountability,” she said of commanders. The new automatic appeal measures “are a serious piece of oversight for a commander. We’ve got a review (of a unit commander’s decision) either way.”

Ayotte’s proposals would also make retaliating against a victim a crime and would provide a Special Victims’ Counsel to provide legal advice and assistance to service members who are victims of a sexual assault committed by a member of the armed forces.

Crime, law and justice Politics

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