Sen. Kirsten Gillibrand, appointed to fill Hillary Clinton’s New York seat in 2009, had been a rising star for a decade before her messy 2020 run for president, overplay of the woman card, and reluctance for nearly three months to join calls for Gov Andrew Cuomo to resign over serious charges of sexual misconduct—even though Ms. MeToo had led the march to force out Minnesota senator Al Franken of SNL fame over significantly less troubling charges.
But if hypocrisy held a person back forever, the Senate would be a lonely place. Now Gillibrand’s about to light up the sky. After years of challenging the defense establishment for its failure to control sexual assault in the military, she’s poised to succeed this year with her solution: remove sexual assault cases from the chain of command, where they go to die, and put them in the hands of trained military prosecutors where military justice could prove less of an oxymoron.
What’s changed, other than patience with the Pentagon, is a surprising convert to the cause in Republican Sen. Joni Ernst. She, who came to Washington to castrate pigs at the trough, has jumped into Gillibrand’s foxhole at the same time Sen. Claire McCaskill, an old ally turned skeptic, has departed. McCaskill, a former prosecutor and powerful member of Senate Armed Services, agreed wholeheartedly with Gillibrand’s take on the problem but broke ranks with her on the solution of stripping commanding officers of their authority. Many members shared her reservations, and they, joined by others who would rather eat glass than challenge the military with bases in their states, killed the bill.
Fast-forward to this Congress. McCaskill is now legislating on MSNBC (she lost to Biden-denier Josh Hawley in 2018). The Pentagon, after years of “there, there Senator Gillibrand, we got this” has moved closer to the analysis of former Joint Chiefs of Staff Chairman Gen. Martin Dempsey, that someone accused of sexual assault “with a rack of ribbons and four deployments and a Purple Heart, there is certainly the risk that we might be a little too forgiving of that particular crime.”
Not just a little. An ugly report out of Fort Hood in Texas last year shows how dire the situation is. “Vulnerable and preyed upon” female soldiers exist in “survival mode,” afraid to report attacks, ostracized when they do, officers ignoring or covering up crimes, including an appalling number of suicides and murders.
Fort Hood is a chilling example of what the Pentagon finds when it takes the trouble to look. Every two years, the Pentagon conducts an anonymous survey to learn what’s really going on. In 2018, it found that more than 20,000 service members experienced some from of sexual assault, but only a third filed a formal complaint, an alarming lack of faith in the system. On top of that, of the 7,825 cases actually reported in 2019, a mere 7 percent ended in conviction.
Enter Ernst, with a haversack of cred to speak to the problem: a conservative, a gung-ho combat veteran—she calls herself the first female combat veteran elected to the Senate—a survivor of sexual abuse with a daughter at West Point texting her what it’s like on the ground. No wonder Gillibrand told the New York Times this week that “Adding Joni Ernst to this bill is the defining moment for passing it.”
Not a moment too soon. It’s been a long hard slog since Gillibrand first held eye-opening hearings on the epidemic of sexual crimes in the military, one soldier on another, on bases, in military towns, even in the Pentagon parking lot. Sexual assaults among the troops don't get the attention of those in Hollywood but the men with stripes flashing their power differential night and day is a pervasive, extenuating circumstance. Imagine one of Harvey Weinstein’s victims having to salute in the morning, drop, and give him 20. The setting for the attacks isn’t a hallway in a restaurant or an office, however menacing. The most dangerous place for a private, Gillibrand said, isn’t the battlefield but the path to the latrine at night.
But report that encounter and a service member is abused twice: first by the assault and then by friendly fire, official and unofficial; she is shunned by bunkmates drilled in basic training to respect their superiors. Gillibrand had to convince the military she wasn’t accusing COs of being bad people but of being naturally biased, far more likely to have a drink at the officers’ club with the perpetrator they can’t believe would do such a thing than the victim, usually junior to her (or sometimes his) attacker. Until recent adjustments, a commanding officer could, with the swipe of a pen, overturn a guilty verdict in a court martial. Even the Secretary of Defense couldn’t reverse it.
Changes have been made at the margins. A commanding officer has to jump through more hoops to undo a verdict, a victim is entitled to an attorney, a conviction means an automatic dishonorable discharge, and there’s an effort to move a victim to another post while charges work their way slowly up the chain.
But to solve the problem at the heart of sexual assaults—with ramifications domestic and foreign, for wars, hot and cold—it will take an act of Congress, namely inserting Gillibrand’s 2013 bill into this year’s National Defense Authorization Act. A New York Times survey of lawmakers found that those who hesitated to inject an independent judge advocate into the process have waited long enough for the military to come around. They are set to vote with Gillibrand.
And that’s the making of a supernova. A member of Congress, if wise and dogged and lucky enough, might get one big piece of legislation per lifetime. It’s fortunate that Gillibrand’s presidential race went nowhere and she returned to her unfinished work in the Senate. Not since gays were allowed to wear the uniform has institutional change of such magnitude been possible. Maybe not tomorrow but someday, the generals will salute her.