The nation's top military leaders have told Congress they have reservations about legislation that would remove commanders from the process of prosecuting sexual assault cases because, they say, it could ruin order and discipline in the ranks.
It's a highly contentious issue: Recent high profile-incidents and new statistics indicating that sexual assault in the military is on the rise have increased support on Capitol Hill for legislation that would remove the chain of command from the prosecution of sexual assault cases.
The most controversial legislation, proposed by Sen. Kirsten Gillibrand, D-N.Y., has garnered bipartisan support. Deciding whether serious crimes, including sexual misconduct cases, should go to trial would be made by seasoned legal officers.
At Tuesday's hearing, Gillibrand noted the importance of commanders' setting the tone for a unit, but argued that not all commanders are qualified to deal with serious sexual assault cases. "Not every single commander necessarily wants women in 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," said Gillibrand.
Appearing before the Senate Armed Services Committee, the members of the Joint Chiefs of Staff acknowledged that efforts to curb sexual assault in the military have not been successful. They welcomed discussion of legislative efforts but, said chairman of the Joint Chiefs of Staff Gen. Martin Dempsey, "Reducing command responsibility could adversely affect the ability of the commander to enforce professional standards and ultimately, to accomplish the mission."
Gen. Raymond Odierno, the Army chief of staff, said, "Legal reform can and should continue to be part of our campaign to end sexual assault" and called some of the current legislation "reasonable."
But Odierno said removing the authority of commanders to handle assault cases could affect unit discipline and lead to other effects. "We cannot legislate our way out of this problem," said Odierno.
Adm. Jonathan Greenert, chief of Naval operations, explained that Naval commanders often have to make difficult decision when they are at sea, adding, "I believe it is essential that our commanders be involved in each phase of the military justice process."
Marine Commandant Gen. James Amos laid out his concerns saying, "Commanding officers never delegate responsibility. They should never be forced to delegate their authority."
Gen. Mark A. Welsh III, from the Air Force, labeled sexual assault in the military a "cancer " and said that "none of us will be standing still" in trying to end it. However, Welsh added, "Commanders shouldn't just be part of the solution. They must be part of the solution or there will be no solution."
In his opening statement committee chairman Sen. Carl Levin, D-Mich., and the committee chairman, said, "The problem of sexual assault is of such scope and magnitude that it has become a stain on our military." He added that real progress would not be seen without a cultural change in the military from the top down."
Sen. James Inhofe (R-Okla.), the ranking Republican on the committee, opposes Gillibrand's bill, saying, "No change is possible without commanders as agents of that change."
On Tuesday, Gillibrand told the panel of military officers, "You have lost the trust of the men and women who rely on you." She added that the biggest challenge is that sexual assault victims are wary of stepping forward because they are "afraid to report, they fear their careers are over – they feel they are being blamed ."
Last month the Pentagon's most recent report on sexual assault in the military estimated that as many as 26,000 military members may have been sexually assaulted last year, up from an estimated 19,000 assaults in 2010.
Sen. Claire McCaskill (D-Mo.) said that number was confusing because it describes incidents of "unwanted sexual contact" which includes sexual harassment, an unwelcome work environment, touching and rape.
Sen. John McCain (R-Ariz.) a strong military supporter and former Naval officer who was held as a prisoner of war during the Vietnam War, said he is concerned how sexual assault could affect recruitment and retention in the military.
"Last night a woman came to me and said her daughter wanted to join the military and could I give my unqualified support for her doing so," said McCain. "I could not."
"I cannot overstate my disgust and disappointment over the continued reports of sexual misconduct in our military," he said. "We've been talking about the issue for years and talk is insufficient."