Advocacy groups are concerned that the stance of Sen. Martha McSally, who revealed last week at a congressional hearing that she was sexually assaulted in the military, will sink their chances of passing a bill that would fundamentally change how sexual misconduct is enforced in the armed services.
The proposed bill strips high-ranking military officers of the power to enforce numerous aspects of military law, including sexual assault, and hands it to a group of independent government lawyers.
McSally, R-Ariz., who was the first woman to command a fighter squadron in the Air Force, told a stunned congressional hearing on Wednesday that a superior officer raped her while she was in the service. And yet, she said, commanding officers should retain their ability to enforce the law.
“I don’t take this position lightly. It has been framed often that people are advocating for the victims while others are advocating for the command chain or the military establishment,” she said. “This is clearly a false choice.”
Dr. Ellen Haring, a retired Army colonel and CEO of the Service Women’s Action Network, said that she believes that McSally’s powerful testimony may have permanently derailed any chance of passing the legislation.
“It’s so disappointing for Sen. McSally to reveal that and then say she stands by commanders,” she said. “That indicates to me that there’s no hope to push this along. She was an important voice in this discussion.”
Sen. Kirsten Gillibrand, D-N.Y., a 2020 presidential contender who introduced this legislation again after failing to pass it in 2013, invited two servicemembers to the hearing to share their stories of sexual assault while in the military. They both said they were stunned by McSally’s testimony, but noted how they admired her bravery.
“She explained exactly how I felt and how others I know felt: That you think you are strong but you’re really powerless,” said Angela Bapp, a chiropractor from Florida who graduated from the U.S. Military Academy before later having her military career upset after she said her commander chose to investigate Bapp for adultery rather than another soldier for assaulting her.
Lt. Commander Erin Elliott, who still serves in the Navy, said she also identified with and was moved by McSally's testimony but disagreed with the senator's position.
“I feel that some crimes are so bad, so heinous they need to be elevated to a trained military judge," she said. "As commanders, we get a three-day legal course, so we have no business deciding whether a case should go to trial or not.”
Col. Don Christensen, a retired Air Force prosecutor and president of Protect Our Defenders who testified immediately after McSally on Wednesday, said he was puzzled by the Arizona senator's stance when she said the command structure had failed her after her sexual assault.
But Christensen said that he had spoken to McSally after the hearing and she agreed some kind of reform was necessary. They plan to meet to discuss avenues forward, he said.
“I have also spoken to Sen. Gillibrand since,” he said. “I think she is still optimistic. I think she saw what Sen. McSally went through really demonstrates and shows that this is a widespread problem.”
Gillibrand and McSally did not respond to requests for comment.
Regardless of differences on how best to resolve the issue, all sides appear to agree that there is a problem of sexual assault in the military.
Reported cases of sexual assault increased by nearly 10 percent in fiscal year 2017, according to the Department of Defense. The military academies also reported an increase of sexual assault cases in the last academic year. Meanwhile, the Department of Veterans Affairs recently came under fire for improperly denying post-traumatic stress disorder claims related to military sexual trauma.
"They don’t realize that no commander makes the decision whether a case gets prosecuted or not without consulting thoroughly with a government lawyer."
McSally, however, showed on Wednesday that there is still debate over how to combat the problem and focused on a necessary cultural shift within the military.
“We cannot command change from the outside alone,” McSally said, refuting the idea that oversight by government lawyers could solve the issue of prosecuting sexual assault. “It must be deployed from within. It must be built and constantly maintained and expertly managed by commanders who are themselves educated, conditioned and given the tools to ensure that what you survived and I survived happens to no warrior under their command.”
Retired Gen. John Altenburg, the former chairman for the standing committee on armed forces law at the American Bar Association, testified on this issue multiple times before Congress.
He said the military has a severe sexual assault problem, but that there is a major misconception about how the command structure operates when making decisions about prosecuting cases. Altenburg noted that lawyers have already gained a greater control over the enforcement of military law and that only a small percentage of commanding officers hold the power whether to prosecute — and they do not tend to be immediate superiors.
“Many people don’t understand the role of the commander and the lawyer together, and they don’t realize that no commander makes the decision whether a case gets prosecuted or not without consulting thoroughly with a government lawyer who must provide the advice to the commander in writing with specific legal findings,” Altenburg said.
Former Sen. Claire McCaskill, who left Congress this past year and is now an NBC News analyst, worked closely on the issue of sexual assault in the military when she served in the Senate.
McCaskill said the issue is more complex than many think, especially as the military must remain combat-ready and carry its judicial system with it across the world. Though the former senator helped pass several laws that directly impacted the enforcement of military law, she did not support this bill when Gillibrand first brought it to the Senate in 2013.
“But the problem we have to work on is retaliation. While that’s a problem, it’s not retaliation from commanders."
She initially thought it was a great idea, McCaskill said, but after researching more about the issue she decided that removing commanders from enforcing military justice could cause a greater problem and isn't backed up by data, as there were only few instances of documented retaliation from commanders.
"It’s a scary thing to put yourself out there as a victim in a tight-knit military unit,” said McCaskill, a former prosecutor. “But the problem we have to work on is retaliation. While that’s a problem, it’s not retaliation from commanders. It’s the problem from peers, and you’re not going to solve that without the commander involved.”
Still, Haring disagrees. To her, the only way to make soldiers take sexual assault and other felonies seriously is by reforming the conditions surrounding prosecution and putting additional pressure points on military culture.
"There’s still an attitude that this is not a crime, that it’s not a felony," she said. "If we change the attitude, then maybe people will take it seriously.”
CORRECTION (March 11, 2019, 4:45 p.m.): An earlier version of this article misstated the name of the organization of which Col. Don Christensen serves as president. It is Protect Our Defenders, not Protect Our Vets.