Off the Sidelines

by Kirsten Gillibrand

  “There’s no way we’re watching this without the guys here. This is ridiculous,” I said, walking out to find Jess and Glen. When I found them at their desks, on their cellphones, I explained to them that this was not an invitation; it was a requirement. So they shuffled into the conference room with me, and we all watched together in horrible stillness as a string of service men and women told stories of being raped by their peers and superiors and how afterward the military had disregarded them or blamed them for the crimes.

  Nothing in my life—not sitting on the Armed Services Committee, not even the anguish of watching 9/11 first responders dying from diseases caused by their work at Ground Zero—prepared me for what I saw in that film. These men and women were violated in the worst possible ways by their own brothers and sisters in uniform, then they were betrayed again by our military leaders. Crimes could be reported to anyone, but all power rested with the commanders, as the commanders had sole authority to decide whether to prosecute a case or not. Commanders even had the authority to throw out a jury verdict after a perpetrator was convicted. These commanders had no legal training or objectivity, but they did have many possible biases. They had asses to cover, reputations to maintain, favored service members to protect. Military justice for sexual-assault survivors was a farce. I knew that I had to fight for men and women like Stacey Thompson. A sergeant spiked her drink, raped her, and left her on the street at 4:00 A.M. When she reported the attack, the sergeant’s friends retaliated against her, telling investigators that Stacey used drugs. The investigators then called her a liar and reassigned her and eventually kicked her out of the military with an other-than-honorable discharge. Brian Lewis was a twenty-year-old fire technician on the USS Frank Cable, a submarine tender out of Guam. He wanted to have a long naval career, so when a superior officer offered to give him some advice over dinner, Brian said yes. After dinner, the officer raped Brian. Brian was ordered by a commander not to report the crime. Instead, he was forced to go back out to sea with his rapist. Trina McDonald, a navy veteran from Kentucky, served on a remote base in Alaska, the only woman among ten men. She was brutalized and raped repeatedly by military police and men in her chain of command; at one point she was thrown into the Bering Sea.

  Whatever it took, I had to help bring justice to these survivors, and I needed to work to prevent future crimes. I told my staff to start making a plan to fight for change. Top priority: Get survivors’ stories heard.

  The next week, in a stroke of excellent timing, I was offered the opportunity to choose a subcommittee chairmanship. The Personnel Subcommittee on the Armed Services Committee was still available, and I jumped at it. I knew exactly what I was going to do first: hold a hearing on military sexual assault and ask the victims to testify. All Americans, but especially those of us in government, needed to understand the problem, however upsetting the stories might be. We needed to recognize that we were allowing a climate to exist in which many thousands of service men and women are raped each year, and then we are turning our backs on them.

  The scale and depth of the problem were unthinkable. When I first started advocating on this issue, the latest Department of Defense report on sexual assault was from 2011, and it indicated that an estimated nineteen thousand men and women in uniform were subject to rape, sexual assault, and unwanted sexual contact each year. Of that huge number, only about one in ten cases was reported. Half of the female victims who filled out the Department of Defense survey said that they didn’t report the crime because they feared their commanders would do nothing with their case, and almost half said they did not report because they feared or witnessed retaliation. Even if a victim summoned the courage to report a sexual assault, the chances of justice were slim, as only one in ten of the reported cases resulted in conviction, partly because each commander, despite the lack of legal training, had the authority to toss out a case before it went to trial. What if the commander was involved in the crime? What if he wanted to protect the accused because they were friends? He could just declare the case closed. Of the one percent of sexual-assault cases that made it all the way to a conviction, only three-quarters of that one percent led to a perpetrator serving time, as at the very end of the process the commander still had absolute power. He could say, “This jury verdict doesn’t seem right to me,” and toss the sentence out.

  In March 2013, at the first hearing I held as chair of the Personnel Subcommittee, I did my best to get out of the way and let the survivors speak. I even slotted the survivors to speak at the beginning so the military brass would have to hear them. (Normally the commanders testify first, then leave.) One brave woman, Rebekah Havrilla, told Senators Carl Levin, Lindsey Graham, Barbara Boxer, and the others assembled that for the first year and a half after she was raped, she didn’t tell anybody—it didn’t seem worth it, because she had such a slim chance of receiving justice and such a high one of being retaliated against. Then she found out that the man who raped her had posted online some explicit pictures of her being violated. That made reporting it seem worth it, whatever the cost, so she brought the crime to the attention of the Army Criminal Investigation Command (commonly known as CID). As she hoped, a formal investigation commenced. This involved Havrilla spending four hours with a male CID agent going over in minute detail the explicit pictures of her being raped. After that meeting, Havrilla did not hear from the CID for four months. Then an investigator called and asked her to come back and go over the pictures again. She did. Six months after that, the case was closed.

  Also at that hearing, BriGette McCoy testified that she was raped on her first assignment in the military when she was just eighteen. Later that year, she was raped again by another soldier. A third soldier who repeatedly harassed her repositioned McCoy to work with him in a locked, windowless space. McCoy, traumatized and terrified, wrote a formal complaint, which the commander never pursued. Instead, she was threatened with prosecution under the Uniform Code of Military Justice, and so she chose to leave the military instead of facing judgment for a crime committed against her. When she returned home, she was so depressed and unstable she tried to commit suicide.

  Unbelievably, in that hearing, Lieutenant General Richard Harding and Major General Vaughn Ary both tried to defend the status quo, saying it was essential to maintaining “good order and discipline” to keep all legal decisions within the chain of command, including the decision to overturn a jury verdict. This made me furious. By what accounting were nineteen thousand sexual assaults a year good order and discipline?! I was irate—and I could also see that I had a long, hard battle ahead. Day one, and the good ol’ boys were closing ranks.

  My team got right to work on legislation to take the decision to prosecute sexual assault out of the military’s chain of command. This is what the victims said they needed. I didn’t believe this was the radical reform that its opponents argued it was. Many of our allies had taken decision-making on whether to prosecute serious crimes out of the chain of command, and their commanders’ abilities to control, train, and deploy effective troops had not suffered. Israel made the change in 1955; England, Canada, Australia, Netherlands, and Germany all changed during the last decade. All of their militaries were stronger because of the reform.

  Adding fuel to my fury, within a few weeks the Department of Defense issued a new report, estimating twenty-six thousand cases of military sexual assault in 2012, up seven thousand from 2011. Worse, the percentage of people willing to report crimes perpetrated against them had gone down. At our next hearing, in May 2013, when the generals again tried to argue that commanders needed the authority to decide which crimes to prosecute in order to maintain good order and discipline, I did my best to contain my rage. How could nineteen thousand or twenty-six thousand sexual assaults a year represent anything other than a total breakdown of discipline and accountability? Did the generals even understand what sexual assault meant?

  Thankfully, along with my anger, my legal training kicked in.

  “Now
, General Welsh,” I found myself saying, “you said you didn’t know what we’d be fixing by removing the authority from the chain of command.… Do you have a sense as to why, if there are nineteen thousand or twenty-six thousand or some unknown number of sexual assaults and rapes within the military every year, why such a fraction are reported?”

  Back in my law days, I’d done a lot of depositions. In them, my job was to ask probing questions. If someone gave a vague or implausible answer, I then kept asking one question after another, hammering for clarity until I got to the truth.

  “Could you surmise that it may well be that a victim has no faith in the chain of command on this issue, on sexual assault?

  “Do you think, perhaps, that a victim does not believe he or she will receive justice because the chain of command is not trained, does not have the understanding of what sexual assault and rape actually is?

  “Imagine you are the assaulted victim who has just gone through a trial. And because a commanding officer has said, ‘Let’s overturn the jury’s verdict,’ you then have to salute the person who assaulted you.”

  I really lost my patience that day—I was furious. Afterward, I worried that I was too aggressive and might have appeared unhinged. My staff tried to reassure me. Yes, that was intense, maybe right near the line, but it was effective. I hoped to God they were right.

  The Senate Armed Services Committee met again in June to further discuss the problem of sexual assault in the military and how we might create more accountability and justice. This time, when the generals sat before me in a row and started saying that same ridiculous line, that we needed to keep decision-making about whether to prosecute sexual assault in the chain of command for the sake of “good order and discipline,” I lost it, for real.

  On the surface I was calm and collected. But I’d had it with their bullshit and their condescension. My voice started to rise as my argument started to form. “You have lost the trust of the men and women who rely on you, that you will actually bring justice in these cases,” I said. “They’re afraid to report. They think their careers will be over. They fear retaliation. They fear being blamed. That is our biggest challenge right there.” My argument was growing with urgency. An expert on nonverbal communication later analyzed my rate of speech and my body language, calling out a bunch of gestures that I never even knew had names: pseudo-prayer hand-chop, conventional steeple. He declared that my out-of-body experience up on the panel behind the microphone must have been authentic. “Not all commanders are objective,” I continued, gathering strength and momentum with each point. “Not every single commander necessarily wants women on the force. Not every single commander believes what a sexual assault is. Not every single commander can distinguish between a slap on the ass and a rape, because they merge all of these crimes together.”

  People often remark that it’s hard for women to get angry in public and still be taken seriously. On that day, and on many days after it, I didn’t care. These generals were protecting the status quo and their power, not the most important asset our country has: the men and women who serve it. One of the victims who had come forward to tell the story of her rape looked like a sixteen-year-old girl. She entered the armed services a virgin, and after everything she suffered in the attack, she hated to have to call her dad and tell him why she wasn’t a virgin anymore. Still the commanders sat at that table, defending the system that looked the other way from tens of thousands of sexual assaults each year. That was how little they valued the men and women who suffered among their ranks. Adding to their cruel failure to protect their people, the military undermined the survivors’ credibility. If a woman was raped, it was her own fault. She’d been drinking, maybe, or she’d walked back to the barracks alone at night.

  Over the next few months, through the summer of 2013, the issue was regularly in the national headlines, and I started to meet with my fellow senators one by one, seeking their support for legislation to take prosecuting sexual assault in the military out of the chain of command. Some of my peers had experience with the issue. (For example, Senator Richard Blumenthal was a former attorney general and was on board from day one; Senators Boxer, Collins, and Mikulski had long histories of fighting these battles.) Others didn’t. When I spoke to newcomers, I’d ask them to think like a father, a brother, or a husband, someone who feels a duty to care for others.

  Most Democrats quickly understood the need for reform. And about half the time, Republicans did, too. But the other half of the time, I’d find myself talking to someone who was taking the Department of Defense’s position at face value and not delving any deeper. I started every meeting with the basic facts and then listened to questions and concerns, taking care to be patient, forthcoming, and frank. I think it helped to be a woman, with a lot of experience talking about personal topics. Comfort with verbalizing an issue is a real asset when trying to steer a colleague toward compassion.

  I’ve worked relentlessly to bring every senator who would hear me out over to our side. So much so that after approaching Senator Bob Corker, an old-school conservative from Tennessee, on the Senate floor a couple of times, he started our first meeting in his office by saying, “I don’t want you to take this the wrong way, Kirsten, but you’re what my family would call a honey badger.” I went back to my office and watched the hilarious YouTube clip about this crazed creature that will stop at nothing to get its prey. I decided to take it as a compliment.

  The fight was exhausting. On days when I met with survivors, I felt motivated to push on and press until justice was done. But unsuccessful meetings with other politicians and procedural hurdles took their toll. Through the summer and fall of 2013, I spoke regularly with Senator Carl Levin, the longtime chairman of the Armed Services Committee, someone whose insights I value. He’d been a key ally in repealing Don’t Ask, Don’t Tell, so I knew he was willing to take on the Department of Defense. But I felt my heart sink one day when we were discussing the distinction between allowing commanders to decide when to prosecute and giving them the ability to overturn a jury verdict. In my mind, commanders shouldn’t have either right, since both allow for bias and untrained decision-making, which we would never allow anywhere else in society. But when Carl said to me, “I see the issue differently,” my hope of having his support was lost.

  Still, we made progress. Defense Secretary Chuck Hagel agreed that no commanders should overturn a jury verdict. The Department of Defense itself agreed that that authority is a vestige of pre–World War I military law. Numerous commanders have been caught behaving badly, which of course undermines the argument that commanders should have this sole authority. And while they didn’t go far enough, some really good reforms were passed by Congress.

  The support from across the aisle was tremendous, too. Senator Susan Collins, who has always been a strong voice for victims’ rights and is not afraid to take on the status quo, liked our idea of reform from the start. Senator Lisa Murkowski also wanted to help, though her motivation was more personal and her commitment more emotional. Earlier in her career, she’d recommended a young woman to a service academy and, once there, the young woman was raped and did not receive justice. Lisa became determined to make the military safe for other young women like her. A few senators with libertarian streaks have also rallied to our side. One day, Senator Chuck Grassley, who is well respected among Republicans for his years of service and his willingness to take on powerful interests, walked up to me on the Senate floor and said, “I read about your bill, Kirsten, and I think what you’re doing is important. Count me in!” Senator Rand Paul supported us, too, and, perhaps most unlikely, so did Senator Ted Cruz. Cruz is a former Supreme Court lawyer, and after listening to my argument in a committee hearing, he announced right there that he agreed with my position. Afterward, he spoke on our behalf at his caucus meetings to make our case to his undecided colleagues. The New York Daily News was so shocked by his support that they ran the headline WHEN HELL FROZE OVER!

  More tha
n occasionally, I’ve thought that if more women served in Congress, this issue would have been a no-brainer (seventeen of the twenty female senators supported our reform) and so much time and energy would not have been burned on this fight. Recently, The Buffalo News ran a political cartoon of me approaching a general, again, with a caption of the general saying, “Ever hear the expression, ‘No means no’?” But I believe we’re getting there, one step at a time. One hearing that gave me hope was the Defense Advisory Committee on Women in the Services. I had the privilege to testify and made the most impassioned plea I could muster, telling the personal stories of service men and women who were raped and then disregarded or retaliated against when they tried to report the crimes. The panel voted ten in favor of reform, six abstaining, none against. That vote didn’t move Senator Levin, Secretary Hagel, or President Obama. But I know in my heart we will win their support someday, and when we do, they will cite that Defense Advisory Committee on Women in the Services vote.

  The first setback we suffered happened just before Thanksgiving in 2013. A vote was finally scheduled, with a full day of debate on the Senate floor. Senator after senator made arguments for and against. My allies spoke strongly and eloquently. Momentum and urgency were on our side. Then the Republicans decided to obstruct Senate business. Democrats had just enacted limited filibuster reform (a totally separate issue), so Republican leadership decided to respond by objecting to all amendments, including ours, and that canceled our vote. It was a blow to the advocates, the survivors, and to me. We picked ourselves up and kept fighting, but we’d been ready for the vote that day.

  The vote finally came in March 2014. For procedural reasons, we knew we’d need sixty votes to overcome a filibuster, and by then fifty-five senators had declared their support. At least a half dozen more were undecided, including Mitch McConnell, the Republican leader, and Mike Enzi, who’d supported me on the 9/11 healthcare bill and who I believed was on our side again. Marco Rubio, Thad Cochran, and Tom Coburn had also expressed grave concerns about the status quo, but we didn’t know how they’d swing. That morning I met with both Mike Enzi and Chuck Grassley, to further brief the issue for Mike. Another senator who had co-sponsored the bill asked for an emergency meeting—never a good sign. After a half hour of dissecting the fine points of the bill, he let me know he could not vote with us. I was crushed.