Sens. McCaskill, Ayotte: Keep Military Sexual Assault Cases in Chain of Command

The debate continues over the best and most effective ways to curb rampant sexual assault in the military. Sen. Claire McCaskill, D-Mo., and Sen. Kelly Ayotte, R-N.H. , back a plan that includes reform but keeps the adjudication of assault cases within the military chain of command. They join Gwen Ifill to discuss their stance.

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JEFFREY BROWN: And finally tonight: It's been called an epidemic, the ongoing problem of sexual crimes within the U.S. military.

An estimated 26,000 troops were sexually assaulted last year.Just 3,400 of those attacks were reported.And, statistically, a female soldier is more likely to be raped by a fellow officer than she is to die in combat.

Gwen Ifill picks up our look at the issue.

GWEN IFILL: The debate continues on Capitol Hill over how to end rape and sexual assault in the military. We spoke recently with Democratic Sen. Kirsten Gillibrand of New York, who wants to take the power to launch prosecutions away from military commanders.

But the Senate Armed Services Committee voted to keep the process in the chain of command, while stripping commanders of the authority to overturn verdicts.

Democratic Sen. Claire McCaskill of Missouri and Republican Kelly Ayotte of New Hampshire support that approach.They join us now from Capitol Hill.

Welcome to you both.

You are both former prosecutors. You both agree that this is a major problem that has to be solved.How does your proposal, Sen. McCaskill, differ from what Sen. Gillibrand is proposing?

SEN. CLAIRE MCCASKILL, D-Mo.: Well, I think proposal that we are supporting does a better job of protecting the victims and a better job of holding commanders accountable, and ultimately it will result in more prosecutions and putting more perpetrators behind bars.

And I think, as former prosecutors, that's what motivated both -- I think I can speak for Kelly -- that this is about -- I mean, frankly we don't care whether the commanders are in it or not. The important issue is, how can we protect victims and get more successful prosecutions?

GWEN IFILL: Sen. Ayotte, Sen. Gillibrand said when she talked to the NewsHour that this is what victims have asked for, her approach, which is to take it out of the chain of command for various reasons. How do you respond to that?What have victims told you?

SEN. KELLY AYOTTE, R-N.H.: Well, certainly, victims have varying views on this issue.

And what we want to do is make sure that we make sure that victims are protected. That's why we made retaliation a crime under the UCMJ, but also to make sure that the chain of command and the commanders take responsibility and aren't let off the hook for creating the best supportive environment for victims. And that's why I support this approach.

And in fact, what we have found is that if you compared the amount of prosecutions brought by commanders, they have actually brought more prosecutions than if you just left it with the JAG lawyers. So I'm worried for victims that less cases will be prosecuted if we take it out of the chain of command. So, to me, as a former prosecutor, if we prosecute less cases, then it's going to put victims in a very difficult position.

GWEN IFILL: UCMJ being the Uniform Code of Military Justice.

SEN. KELLY AYOTTE: That's right.

GWEN IFILL: I wanted to ask Sen. Gillibrand to follow up on that point about -- two points. Then I will come back to you, Sen. Ayotte, as well.

But, Sen. McCaskill, that is, tell me what is it about accountability that makes your approach better? If all these years these problems have persisted, what about your approach would change the accountability?

SEN. CLAIRE MCCASKILL: Well, here's the problem.

Imagine you're a victim and you're going back into your unit and there are lawyers 200 miles away who have decided this case goes forward vs. the commander deciding whether the case goes forward. In which environment do you think the victim has more protection from retaliation? I think it's fairly obvious. She gets more protection from retaliation if the commander has signed off.

And that has not been the problem. They have not been able to bring us any cases where the commanders have refused to bring prosecutions when the prosecutors have recommended it. Just the opposite is, in fact, true, as Kelly said, that many times, prosecutors, maybe because it's a hard case, maybe because they're worried about their won-loss record, say this case is not a winner.

And the commanders have insisted, no, let's get to the bottom of it. So, yes, the commanders need to get out of the business of overturning juries. Yes, we need to change the rules so that victims get more protection, more counselors, legal help, they're in control of where they go, whether they come back to their unit or get shipped out or whether the perpetrator gets shipped out.

And another important reform, Gwen, is that we're going to take out of the equation how good a soldier someone has been. That might be relevant to something. It's not relevant to whether or not they're guilty of a crime. So we have really done historic reforms here.

And the countries that have changed their systems, there has not been an increase in reporting. So even that premise that they're basing this on that report willing increase, the other countries that have changed this, they have not seen an increase in reporting.

SEN. KELLY AYOTTE: And, by the way, Gwen, the other count these have changed this, the changes were actually made as a result of -- to protect defendants, not to support victims.

So it's important for people to understand that, when we have a difference with our allies, that was actually done because defendants were driving that, not further protection for victims, and what we're about is making sure that we have further protections for victims.

GWEN IFILL: Sen. Ayotte, I want to start with you and then go back to Sen. McCaskill.

But why will this be different? Why will commanders have more incentive to act to protect people if, indeed, in that chain of command -- someone in the chain of command may have been the one who raped or assaulted you?

SEN. KELLY AYOTTE: Well, first of all, Gwen, you do not have to report at all within the chain of command.

There are multiple avenues you can report to.Now we're also going to have special victims counsel, so victims have their own lawyer to represent them to bring a case forward. But, in addition to that, our proposal does have incredible accountability for the commanders, because if there's a disagreement between JAG attorney and the commander in terms of bringing a charge, that's going to go all the way up to the civilian secretary of the force, whether it's the secretary of the Air Force, the Army, to make the call.

And even if both say that we're not going to bring a case, it still goes up for another level of review to make sure that victims know that there is accountability within the chain of command.

GWEN IFILL: Sen. McCaskill, at your press conference on this matter not too long ago, you had a member of -- a retiree, a Navy retiree, who said part of the problem here is that the investigations just take too long, that their hands are tied, there's nothing they can do. What about your approach to this would resolve that problem?

SEN. CLAIRE MCCASKILL: Well, the good news is that in our approach these victims when they report outside the chain of command, they're going to get their own legal advice.

And that is going to be a pressure point in the system, because they're now going to have somebody advocating that this case be handled quickly.And if you take the commanders out, that removes even more pressure from these cases going as quickly as they should, because now the commanders are going to be accountable under ours.

If they're not accountable anymore, then that's a problem for the JAGs.That's a problem for the JAGs.That's a problem for the criminal investigators.That's not our problem.That's an unintended consequence that would in the long run hurt victims, not help them.

And it's important to know, Gwen, that, as Kelly said, the victim community is not monolithic on this. We have had victims call our office, victims that have been featured in some of the documentaries about this subject that have said, we think your approach is better. They're feeling, I think, marginalized because -- as sometimes we have felt marginalized, because the other side wanted to make this argument about victims vs. uniforms.

That's a false premise. This argument is about how we can protect the victims the best.

GWEN IFILL: And, Sen. Ayotte, finally -- finally, how do you get to zero tolerance on something like this, no matter what your approach is? It's one thing for commanders, it's one thing for presidents to say, we won't tolerate this or for members of the Senate, but how do you make that happen?

SEN. KELLY AYOTTE: I think we make that happen, first of all, within the chain of command. If you condone this within your unit or you don't support victims, you should be fired and that piece of accountability coming from the top flowing through every level of the chain of command.

And also I can tell you, Gwen, the reason we're going to push towards zero tolerance, in addition to training and the other provisions, the lawyers, the counsel that the victims will get in our bill, is that Claire and I are not going to let this go. We serve on the Armed Services Committee. And we will be asking people not every year, but every few months, what is happening and please report back to the committee to make sure that we hold people's feet to the fire on these important provisions.

And you should know there is a lot of agreement between us and Sen. Gillibrand on so many of these provisions. And I know, whatever we report out, it will be strong and it's not the status quo.

GWEN IFILL: Sen. Kelly Ayotte of New Hampshire and Sen. Claire McCaskill of Missouri, Republican and Democrat, good to see you working together. Thanks a lot.

SEN. KELLY AYOTTE: Yes. Thank you.

SEN. CLAIRE MCCASKILL: Thanks, Gwen.