tv Sexual Assault Amendment CSPAN July 9, 2019 4:16am-5:08am EDT
of the chief prosecutor would be created making biting referrals on special victims of offenses in our military service academy to the superintendent. academies are placing a sexual assault crisis. and we are asleep at the wheel. this is not a new crisis, we just tricked ourselves into believing it was getting better. it has not. what you see on this order in the back of me is a series of articles that have appeared over the last four to five years of one tragedy after another, one scandal after another at the academy. the number of sexual assault at the military service academy has more than doubled, i repeat more than doubled from 327-2747 from 2013 - 2018. over that time reporting rates decreased from 60% - 12%.
last academic year, one in six women at west point and the naval academy are victims of unwanted sexual contact. as were one in summit at the air force academy. last year half of all the females cadets and midshipmen at the academy were severely or pervasively harassed. none of them, none of them reported it. surprisingly only 45% of all female cadets and midshipmen trust that their academy leadership would treat them with big ultra dignity and respect if they were to experience sexual assault. when the military released its latest report of familiar patterns, headlines played out in alarm, congress expressed concern in the academy testified
in front of this committee to say there is a real problem, one assault is too many. i don't know how many times we must go around before we realized we are stuck on it. i don't doubt for second the commitment of the superintendent of combating sexual assault. but they don't necessarily have the right tools. my mma creates a four year pilot program as an experiment, tool potentially to create accountability, improve the accountability of the justice system and increase reporting. the superintendent was still be in charge of combating assault at the academies of the military justice and of sexual assault trials specifically. the superintendent would make prosecutor determinations in assault cases. last february general williams told the subcommittee that is most important tool in fighting assault were its expectations.
he still hasn't. but instead of the superintendent making prosecutions decisions, effective, independent would make a biting recommendation to them. as a superintendent as agreed he could appeal the decision to the department of defense general counsel. this change would make the system more just, the managers often time have conflict of interest between the survivor in the unit. even when they handle the responsibility well, the fact that commanders have the power and conflict of sexual victim cases undermine the credibility of the system. commanders have judge advocate and i've heard from one that the lawyers will cover the interest of the client. when making recommendations and not the fairness of the system. on state he believed based on research and conversations from survivors is objective, prosecutors made decisions instead of commuters, more survivors would come forward and
test the military justice system. this amendment offers a bold step to address the problem of the academy. again, it creates a four year pilot program so we can observe, learn and inform your policy. the academies are not operational, educational institutions there be no impact on readiness but since cadets and midshipmen are in the age group of the highest assault privileged we test the model. . . . .
i want to take a brief recess until we can figure out the amendment and if people in opportunity to make an informed discussion on what it is. apparently the amendment isn't showing up on people's compute computers. pretty sure whatever you are showing me is not going to -- we are going to distribute but what is wrong with our wonderful computer system?
[inaudible conversations] we are going to come back to order so i can ask the staff some questions. i'm sorry if you can sit down in front of me so i can see the staff. when the substitute amendment offered, is the author supposed to give you enough copies for all the members, or how does that work, i thought it was part of the requirement of the amendment. >> this seems like a summary of the amendment and not actual legislative text.
sorry about the procedural issues we are trying to get technology to work i want to first begin by thanking the chairman for her dedication and commitment it's a difficult issue and emotional as we do deal with how to assist victims, sexual assault violates the very nature of someone's human rights. we focused on three different areas prevention, prosecution, protection to give you a little history. what we did is we tried to form
a bipartisan sexual assault prevention caucus for the purpose of embedding and working and continuously trying to strive on this issue. over the past ten years working with the congresswoman, the bills we have passed in the past ten years include the strong act, to be safe act, the military act out the support act, the protect act and every year we have done in a bipartisan group of legislation on some of the things we've accomplished together since we worked diligently on this issue we raised the profile of the sexual assault prevention and required the data collections we created the victims advocates for counsel and did special training for sexual assault
victim advocates. we allowed for the unit transfer in all of these we worke will wn conjunction with the senate taking this out of the chain of command is something that has been studied since 2014 we have the criminal justice system and prevention prosecution protection. prosecution is the toughest one because it is the criminal code so you start changing the criminal code and have cascading effects down to how even an accused is handled in a perpetrator is handled its
raising the bar of our consciousness. we shouldn't do this on anecdotal issues. we have been thoughtful and substantive and we have studied this in every way that we have moved forward. there are a number of provisions in the bill that are bipartisan and this wouldn't be one of them. with my amendment does, it takes virtually the provision in the senate bill this year they took up and debated this issue everything done on a bipartisan basis all adopted and became law with support from the senate. so we haven't done this with just one house or one party. bipartisan and bicameral. what i've done as a substitute amendment that allows us to adopt the same provision that the senate has said that when we
go to conference, we will take up this matter together and what it says is just recently in the legislative changes that we've made some of them went into effect on january the 2,019th we would b2,019th ofthe would-be cy without giving an opportunity with some of the changes to take affect. let's get an empirical understanding on a bipartisan basis and substantively what do we need to do in the criminal justice system with respect to this issue rather than making a surgical pilot program that could affect and those that are accused so i would ask for the support for this amendment. i certainly want to just one more time tell you how much i appreciate the chairman's commitment to the issue of assault in the military.
we have this one we should adopt on the substitute. >> the underlining amendment is that correct? anyone want to take a quick stab at the difference between the report language an in the bill language? that is not encouraging. i'm trying to see if the staff can give me a shot of. >> it is to actually execute the direct report language that has been doing a study. it was a direct report language. >> the bill is passed and they have to do it. the direct report language directs them to do something and they do with 99% of the time but it's a report and it hasn't stopped long. >> let me say this committee has
done a great deal of work we've had debates on it before and another here and it's bipartisan in terms of how people feel about it. i think she made the point that what we've done in the course of the last ten years or so i have heard taking it out of the chain of command is potentially problematic and on the other hand doing this as a pilot project to see if it does improve things given the problems we have mike makes a. so all the members are clear, we worked together on this and this is when there was not agreement, and that there hasn't been she
does have the right to speak again, but who seeks recognition? >> mr. brown. >> thank you mr. chairman. i speak in opposition to the substitute amendment because i support the underlining amendment. first of all, i commend the committee long before i got on the committee, and in the efforts are taken to address this is our family in the emotional, physical, spiritual and otherwise. we have a problem in the family. we've taken steps to addressing that as mentioned, they were not moving in the right direction. in a larger force, sexual
assault is up 37% in the last 35 years. they've more than doubled at the service academies. i like the substitute amendment and the fact that the senate has tested, and i hope that we adopt it in conference because the will have an opportunity to have both the substitute amendment coming to us from the senate and the pilot program. if the amendment before us was saying let's take it away from all commanders, i would have some problems and concerns, because i have. maybe we should study more of the impact. i disagree, but the pilot program would have a cascading effect. i'm sympathetic and tha that ist what this underlining amendment does. it addresses three to six convening authorities that the superintendent and, bonds and three academic institutions. one of the reasons it is often offered as to why we shouldn't
take court-martials convening authority for the sexual assault cases away from commanders is because the commanders have these large responsibilities by units are about to deploy to afghanistan to if he doesn't got though i may lose ten people in afghanistan. this isn't what we are talking about. this is more akin to the relationship that you as a student have through the university president or the dean of college. this is for the service academy. and while they train on things
like how we create unit cohesion and impose and enforce discipline it is what they looked like when you graduated from the service academies. also in the underlining amendment, the only thing that it takes away from the superintendent and comment on is the decision whether to go to court-martial or not. if the position by the prosecutor is we are not going to go to court-martial on this, the superintendent can still superimpose on the amendment. postconviction if it does go to court-martial, first of all the superintendent can appeal it and that is in the pilot program. the postconviction, all of the rights if you will be authorities and superintendents
continue to have it stressed the decision whether or not to go to the court-martial or not. the favorite fighter wing and marine group are not being impacted. that's why it is important to look at the substitute amendment when it comes over to us from the senate, but why not pilot its? we have a problem in the family. and we've got to fix it. to me it is even more egregious in its committed by someone in the family come and we have servicemembers on service members and this case the deaths armed cadets. in the last five years there've
been two cadets in boulder and something is wrong at the academies we can fix this and begin to address it with the pilot program. she is very admirable in taking us on. as i've been one for five different times, i think that our common bonds are superintendents and need to have the court-martial authority. this is part of command. and my experience underlies this. the frequencies in the military
and we've got to fix it so i came up with a game plan and we were able to lower the untold one of the best rates in the force and we were recognized as having the best sexual assault program in the entire air force. the commercia commercial authore key to that and the central key that i used. i don't want to give that to someone else to tell me what i can do or what i can't as a commander. the chain of command involves commanders, not lawyers and i respect you, mr. brown, but deciding to court-martial authority is the decision of a commander. it's not something you rent out or lease out to someone else. commanders are responsible for the discipline of their units and their academies, not a lawyer. so, i know that they have been most of the academies. there is no one more dedicated to fighting than he is.
one is too many. we have a problem with our candidates and services and a problem in our society. sexual assault is the evidence to be convicted and we need to put them on trial. we do not take the authority out of the commander. it undermines the command authority of the superintendent and, bonds and they are the ones responsible for the discipline of their units, not a lawyer. i yield back. >> i seek to separate the underlining amendment. i want to thank you for the leadership and addressing the supporting survivors and i appreciate the importance of good order and discipline for the commanding officer to
maintain it. for the good order and discipline. there is research out there that says women cadets would be more likely to come out to report incidences of sexual assault if there were somebody outside of the chain of command that they could talk to. it allows us to test that. it creates an office of the chief prosecutor that will test the ability to enable the service academies to vigorously and appropriately investigate allegations of sexual assault without implicating commanding authorities, i'm sorry, the commanders authority and good order and discipline. this is a pilot program in something that needs to be tested to see if it can work.
that's why i'm in favor of it and support it. we need to do something differently because what we are doing right now isn't working. i support this amendment and encourage my student sticking te thing. >> i suppose the substitute amendment. >> mr. bishop. >> procedurally to adopt the senate language, it means it's gone. it's guaranteed i would like to yield up the remainder of my time to mr. turner. thank you mr. bishop and mr. chairman. the chairman asked a question about the report language versus non- report language and i think that we need to report language on a study they are going to do
the same. it's not like compulsion or not compulsion. they are not free no enough to o the study. the compulsory aspect is a report aspect and correct me if i'm wrong it actually changes criminal justice code. i'm going to yield back to why this is important. for all of us pause for a moment, separate from the debate and clear your head and think. i'm going to make a change to the criminal justice code, what would i like? how about the opinion of an attorney or the opinion of the department of defense, how about an opinion of those people that actually do those things. with respect to the chairwoman because we both have such great passion on this issue and i have strong records that they don't have any of this. this is the subcommittee
chairman's perspective on what needs to happen to the criminal justice code editors huge danger here. if you try to prosecute me under a pilot program, the first thing i'm going to argue is equal protection under the constitution why am i being treated differently than somebody else? we could undermine the basis of the prosecutorial aspect because we've not studied this or looked at what the impacts are. they don't even look if you can carve out from criminal justice a pilot program. i told you there are three things we tried to do it again, great legislation that has huge impact prevention, prosecution and prevention. do a pilot program on prevention country pilot program on protection, but a pilot program on the criminal justice system, it is absolutely fraught with danger. the other aspect of the data
shows for the criminal justice system and the military with the increase of the sexual assault and reporting or actuality is one that you should focus on prevention. does anyone in the room believe somebody is going to be prevented from perpetrating a sexual assault because there is a pilot program. one of the things we try to communicate to people is not only is it such an ultimate violation the third parties will come forward and report it so
other people will protect others. we shouldn't look at just an anecdotal response on this, we need to look for actual substantive advice as to what to do and for this, we do not have the requisite information we would need to do the privilege program in the criminal justice system. with that, i will yield back. >> i speak in opposition to the support of the underlining measure. this one hits close to home for a number of reasons. there's been a lot of talk of the legislation that has been passed. initiatives that have been put forth and have made recommendations to congress, but the evidence and reports that we continue to seek him out year after year and showed that the systeshow that thesystem we havt working. the reports that the acting secretary recently talked about
but there have been a 38% increase in sexual assault in the military from 2016 to 2018 alone. one thing i want to know is the commissions that are being referenced to my recollection, they represent general officers, retired officers, time and time again we see a lack of representation coming from anyone in the enlisted. no command sergeant major's is coming forward and yet who is the number one target of sexual assault in the military? enlisted female troops aged 17 to 24 e3 and e4 time and time again we hear abou about to prot command authority. i agree with that and i serv sed as an enlisted soldier for five years until being and e4.
commissioned and served as the company commander i respect the need for command authority but i also understand what it's like to be an enlisted soldier where you don't feel comfortable going into speaking to the commander. i've spoken to those that have done the right thing and i've also served under commanders that have not, who abused their power or have it .-full-stop the responsibility to protect their own troops under their command. the point here is we are looking for solutions and other opportunities to make sure that the justice system we have in place protects victims of sexual assault in the military. congresswoman spiers talked about a day have no faith they
have no faith in the transparent justice system that will not result in retaliation an and ret in them being sequestered from their comrades or print it out and saying she is one of those, watch out, staye stay away from, she's a troublemaker it causes problems. she's ruining about cohesion in the u.s. when in fact the opposite is true i as a perpetrator of the crimes who are violating that unit cohesion that is necessary in every single one of our units. small units and large units. i can't speak strongly enough for the congresswoman's efforts to look at other avenues to begin to get at the heart of making sure we have a justice
system that works for us. i yield back. thank you mr. chairman. this is a very serious issue and we have to address it. this isn't the right way. i speak in support of mr. turner's substitute amendment. i've been blessed and fortunate to be able to see this problem from a perspective that very few people have because i've commanded that the level come at the court-martial level both in the military and i've also been a district attorney so i've prosecuted on the civilian side. it is a very unique skill set and have some value to add to the discussion, but i also kind of an undergrad in business one thing i know about the marketing statistics and those things is
if you want to get a good representation or representative sample, you have to have that start with. you can't use the academies and prepare them to the e3 and e4 and e. five of my fellow member on the other side talked about because they are not the same. the units are not the same so this is a resource with a false premise. we start with a faulty sample that is not representative of the military as a whole. there is a lot different i than the college type of environment where the top of the top ar that are all selected by members of congress there's a lot of different from those that go to basic training and so i would say if you are trying to use this as a pilot program, at least get a representative sample and of the academies are not that. let me just say the army, navy,
ththenavy, the marines, the dodt is not a social experiment, it is not a social experiment. these men and women deserve the best of everything we can give them because they are going down the rank and we'vrange and we'vt them and that is whether they are male or female we've got to protect. what i can tell you as a prosecutor, as a da who's been inside of the grand jury, they would not invite many of these sexual assaults that we now are prosecuting on the commander's orders. they would not take the case up because prosecutors don't like to lose. they care about getting reelected or stacked with her next job. let me tell you, unless you try a sexual assault case as a prosecutor, it's difficult. it's difficult to try.
even in the best set of circumstances, especially -- but our military does them and we convict at a higher rate than the civilian side and that is because of the role of the commander. it is absolutely necessary that we not change the law to do something that is going to hurt all of our soldiers including those that we are trying to protect. aas more college they teach us when you do something you don't just look at what you are doing now. what are the second or third order effects? doing this program without properly studying it, we are not properly looking at the second or third effects and the people that we may hurt maybe the people we are trying to protect so i would go with the substitute amendment lets look at the language in to see if i can yield the balance of my time. >> i have one thing i want to add.
this is an emotional issue and attempt to support victims and it's about our service members but this isn't a gender issue and if it were, all studies show coming up in looking at the one from 2018, more men than women are assaulted while serving in the military. to make this an issue it is a service member issued a study in 2012 came out the same. this is a service member issued and victims and human rights. okay. the important issue i think we have a pretty good chunk of it, but further debate. >> i yield my time. >> i'm not a constitutional lawyer, i do spend two years clerking of the u.s. court of appeals for the armed forces which is the highest court in
the military justice system, so i do want to just address the issue of constitutionality. the military justice system already differentiate between different types of soldiers, sailors, airmen and marines. for example, enlisted or somebody's court-martial to not available to officers there is no constitutional challenge to that. enlisted have certain rights in terms of jury selection that officers don't have. there is no constitutional objection to that. even in our civilian justice system, we treat juveniles differently than we treat adults. the key thing being are they subject to the same substantive offenses, and they are. this doesn't change the elements of sexual assault will be the same for him academy cadets as it would be for a soldier and a troop units, and at the end of the day, do they get processed, due process that is fair under the constitution. and this just doesn't change
that. i appreciate that the issue was raised, but we failed to address there isn't a constitutional issue here. thank you mr. chairman. i yield back. >> further debate mr. conaway. i had the pleasure and honor of serving in the last several years the topic has been front and center at every single word speech. workpiece. superintendents and the dean's this is a top priority of theirs. they are sincere about it. the frustration is the students at the academies are the best this nation has to offer they are screened for all kinds of things. there's an overabundance of eagle scouts in the academies. these are the best we've got, and yet we are still having the issue, and it's stunningly frustrating that we can stop this. they don't have the discipline to not be able to let this this
happen and it is frustrating. i worry though that a pilot project will be a self-fulfilling prophecy in that for whatever is communicated, that is what will happen. and it may be a little distasteful to say this, bu but you're innocent until proven guilty. if someone is guilty of assault, put them in jail but there are those that will be caught up who are not guilty, and i very special pilot project will overrun their rights to due process and the request to deal with something that doesn't have one shred of difference of opinion on the importance of getting this done and getting it fixed. everyone shares that. i just don't know but this is the solution that makes sense. with that, i will yield back. >> is there further discussion on the substitute amendment lack?the least complex and don't be shy.
if you know some members to be shy? >> let me know. >> a brief comment as we go to take five minutes. we actually made changes to the current justice system and people expect evenhanded treatment of the system, both the accuser and the accused to pilot i separate the substitute because it is a process that we look at all the factors involv involved.
we can't simply pilot for changes tchanges tosee if it wot put the nation is about. thank you mr. chairman. one of the seven habits is begin with the end in mind. i believe that everyone on the committee knows what we want to get to is the elimination of sexual assault. morally, ethically and legally wrong, pure and simple. as someone who has exercised the command over a 40 year period, i know what it's like to utilize the uniform code of military justice to do the right thing for the right reasons and what that means fewer innocent for those that may not have had experience with death, you can take someone that is a perfectly
good person who just maybe had a bad day and you can scare them to the point they are on the straight and narrow. they did do anything wrong they just did something based on their experience is basically scare them straight. you can really hammer the bad actors, and we do. that is the command authority and the latitude that the commanders are given and exercise every day. as a commander we had staff officers and legal officers and we got all of the advice and counsel that we wanted, and if we didn't get enough, we ask for more. so, the system as it is for up-to-date to make that pander effective we want to give them more tools, not less. i would suggest to you kind of
like the parents in the unit they are the unit commanders and the command sergeant major they set the tone for all levels who's just come in the door or whether you are the senior general officer about ready to go out the door. but that relationship and that command climate that is sent by the leaders it goes all the way down to the bottom because everybody looks at who the leakers are. i believe to go down the road of a pilot program would no not enp and go towards the end in mind of eliminating central assault another fo therefore i rise in opposition. >> is spear to close the debate. thank you mr. chairman. this has been a very heartfelt debate i think on all and send all sides.
to mr. turner, i know you have deep passion on this issue. i know that you've done a lot of work on this issue. i guess i would have appreciated iappreciate it ifhe would have e and told me about your amendment area to be that as it may, i want you all to think for a moment of your academy appointees, the ones that you have appointed this year. the brilliant young people with extraordinary talent with the expectation that they are going to become the next leaders there's something going on in the academy culture that has to change it is growing and it's almost a 30% of the air force academy. so it's growing at almost all of the academies. this year my three appointees were women.
there are far more women than men at the academy for being sexually assaulted. it's different in the military system, but at the academies there are more women that are being assaulted than men. they talk about prevention and prosecution. only 13 cases were filed as criminal action, and only four of the markeof them are currentg in conviction. so, what about prosecution? that would suggest there's not much prosecution going on at all. and let me remind everyone that all the studies that have been done show 93 to 97% of those that come forward to report are
telling the truth. most don't even come forward because they fear retaliation if they have the guts to come forward, 93 to 97% are telling the truth. so, let me remind everyone this is a private. it's a four-year pilot. if the commandant does not like the recommendation of the commandant can appeal it to the general counsel of the department of defense. let me end by this. with all the improvements that we have made in the law, let me tell you what happened at west point just a few weeks ago one of the court-martials that took place at remind you that only
four convictions recently the one that went on at west point where there was a sexual assault but there was penetration were the actual jury came back with a verdict the is that the perpetrr was guilty. it was appeal and for the code of military justice, the appellate court has the power to reverse the lower court decision not based on due process grounds, but by looking at the evidence again. when you haven't actually been there to observe the evidence that you are reading it from a document, this particular west point cadet is going to be reinstated. let me end by saying like
mr. turner, i've worked on this issue for a very long time. i've listened to every superintendent who has said to me one sexual assault is too many. i have believe that they are working with all good intentions, but it isn't working. when i see cadets and i've worked with so many of them that have been assaulted and/or valedictorians of their class who were sexually assaulted at one of these academies and then they absolutely dissolve to the point where grades suffered and they were having all kinds of emotional issues and we have wen an incredible talent that has truly been destroyed, these are the best and the brightest in
noting the time i will be brief i was privileged to work with representative brown and offer a very simple amendment that reclaims the congress's constitutional role. the amendment says there can be no funds used to go to war with iran unless the president first comes to the united states congress to seek authorization to do so or if there is a threat of attack on the united states consistent with the president's use of his powers under the war powers act. this amend s