Senate approves military rape bill

OK'd on unanimous vote, measure would overhaul rules of sexual assault evidence

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WASHINGTON -- The Senate overwhelmingly approved a bill late Monday making big changes in the military justice system to deal with sexual assault, including scrapping the nearly century-old practice of using a "good soldier defense" to raise doubts that a crime has been committed.

On a 97-0 vote, the Senate rallied behind a bipartisan plan crafted by three female senators -- Democrat Claire McCaskill of Missouri and Republicans Kelly Ayotte of New Hampshire and Deb Fischer of Nebraska -- that would impose a half-dozen changes to combat the pervasive problem of rape and sexual offenses that Pentagon leaders have likened to a cancer within the ranks.

"Unanimous agreement in the U.S. Senate is pretty rare -- but rarer still is the kind of sweeping, historic change we've achieved over the past year in the military justice system," Ms. McCaskill said after the vote.

Still, that unanimous support was in sharp contrast to last week, when military leaders vigorously opposed a measure by Sen. Kirsten Gillibrand, D-N.Y., to strip commanders of their authority to prosecute cases and give that power to seasoned military lawyers outside the chain of command. The Senate voted 55-45 for that bill, but it was five votes short of the needed 60.

Missing Monday's vote were Sens. Mark Kirk, R-Ill.; Tom Harkin, D-Iowa, and John McCain, R-Ariz.

Though expressing certain reservations, the Pentagon had been generally accepting of the new bill. The House could act on the legislation as a stand-alone measure or incorporate it into the massive defense policy bill that it pulls together in the spring.

The new legislation would change the military rules of evidence to bar the accused from using good military character as an element of his defense in court-martial proceedings unless it was directly relevant to the alleged crime. The "good soldier defense" has encompassed a defendant's military record of reliability, dependability, professionalism and reputation as an individual who could be counted on in war and peacetime.

Ms. McCaskill described it as "the ridiculous notion that how well one flies a plane should have anything to do with whether they committed a crime."

Senate Armed Services Committee chairman Carl Levin, D-Mich., said Monday that the "military culture has been slow to grasp the painful truth that even a successful professional can also be a sexual predator."

That defense could still be used in the sentencing phase. The Pentagon has suggested it is crucial as commanders adjust sentences to allow for plea agreements.

The measure also would give accusers a greater say in whether their cases are litigated in the military or civilian system, and it establishes a confidential process for alleged victims to challenge their separation or discharge from the military. In addition, it would increase commanders' accountability and extend all sexual assault case changes to service academies. In cases where a prosecutor wanted to proceed with a case but a commander disagreed, the civilian service secretary would be the final arbiter.

Meanwhile on Monday, at Fort Bragg, N.C., Army Brig. Gen. Jeffrey A. Sinclair was on trial on sexual assault charges. In his court martial, begun last week, the 51-year-old former deputy commander of the 82nd Airborne Division is accused of twice forcing a female captain to perform oral sex in Afghanistan in 2011 during a three-year extramarital affair. He has admitted the affair but denied assaulting her.

The case was thrown into jeopardy Monday, as the judge said the military may have improperly pressed ahead with a trial to send a message about its determination to curb rape and other widespread misconduct.

The judge, Col. James Pohl, refused to dismiss the charges against Gen. Sinclair but offered his defense another chance to plea bargain with military officials not previously involved in the case. Gen. Sinclair's attorneys have until this morning to decide whether to submit a plea-bargain proposal again or proceed with the court-martial.

The judge reviewed newly disclosed emails and said he found the appearance of "unlawful command influence" in Fort Bragg officials' decision to reject a plea bargain with the general in January. Under the military code of justice, the decision was supposed to be made solely on the evidence, not broader political implications. Col. Pohl said the emails showed that the military officials who rejected the January plea had discussed a letter from the accuser's lawyer. The letter warned that letting the general avoid trial would "send the wrong signal."

The Pentagon has estimated that as many as 26,000 military members may have been sexually assaulted in 2012, based on an anonymous survey. Many victims are still unwilling to speak up, despite new oversight and assistance programs aimed at curbing abuse, the military says.

Some changes already have been made in the Uniform Code of Military Justice. Outraged lawmakers rewrote parts of it last year, stripping commanders of authority to overturn military jury convictions. That law also requires a civilian review if a commander declines to prosecute a case and mandates that any individual convicted of sexual assault face a dishonorable discharge or dismissal.

The law also provides alleged victims with legal counsel, eliminates the statute of limitations for courts-martial in rape and sexual assault cases and criminalizes retaliation against victims who report a sexual assault.

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