Military sexual assault bill clears Senate: what it could mean for troops

The military sexual assault bill largely prohibits the 'good soldier' defense. It passed just days after a more robust version failed to receive sufficient support amid opposition from the Pentagon.

Charles Dharapak/AP
Sen. Claire McCaskill (D) of Missouri (l.) and Sen. Kelly Ayotte (R) of New Hampshire speak at a news conference on Capitol Hill in Washington, March 6.

With a commanding 97-to-0 vote, the Senate passed major military sexual assault legislation Monday just days after a more robust version of the bill that had elicited strong opposition from the Pentagon fell short of the necessary support.

Nevertheless the bipartisan bill, sponsored by Sen. Claire McCaskill (D) of Missouri, portends some considerable changes for US troops accused of sexual assault, for victims of the crime, and for Pentagon prosecutors should it be passed by the House as well.

So what will these changes mean for the Pentagon?

Most notably, the bill largely prohibits the accused from using the time-honored “good soldier” defense and hammering home instead the idea that a US military service member can be good at a job and be well-liked, but also capable of sexual assault.

Or, as Senator McCaskill described the “good soldier” defense, upending “the ridiculous notion that how well one flies a plane should have anything to do with whether they committed a crime.”

The bill also criminalizes retaliation against victims of sexual assault, requires that any service member convicted of a sexual assault face a dishonorable discharge or dismissal from the military, and includes a provision that if a military prosecutor wants to take a case to trial and a commander does not, it goes to the civilian secretary of the service branch for review.

In cases in which neither wants to prosecute the case, it can also be referred to the service secretary. Some Pentagon officials have argued that this process is cumbersome and could encourage prosecutions without merit to move forward.

While victims advocates groups said that some of the provisions in the McCaskill bill marked “important change” and were “absolutely necessary,” there are some criticisms as well.

For starters, the legislation follows the defeat Thursday of a bill by Sen. Kirsten Gillibrand (D) of New York that would have stripped commanders of their power to prosecute – or to exercise their prerogative to choose not to prosecute – sexual assault cases.

Pentagon officials opposed that bill, warning it would undermine good order and discipline in the military by stripping commanders of key powers.

McCaskill said that she opposed Senator Gillibrand’s bill not because of any particular loyalty to commanders, but for more mercenary reasons: In many cases, she said, commanders had chosen to move forward with cases that prosecutors had dropped.

Still, victims advocates say they would like to see more far-reaching changes. McCaskill’s bill, for example, prohibits the use of the “good soldier” defense “unless a defendant’s character is directly tied to the alleged crime.”

But this language “is not specific enough” and could give military judges “too much wiggle room to essentially ignore the rule,” argues Nancy Parrish, president of Protect Our Defenders, an advocacy group. 

The bill will next move to the House of Representatives, where Speaker John Boehner (R) of Ohio said through a spokesman Monday that he will “review this legislation to determine the best way to consider additional reforms in the House.”

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