UNDISTRACTED: June 24, 2021

Sen. Kirsten Gillibrand on finally fixing the military’s sexual assault problem

Please note: This transcript has been automatically generated.

Brittany Packnett Cunningham Hey y’all, it’s Brittany. So it seems the streets have been calling all of our names, child. I get it, being trapped inside for over a year is not exactly most folks’ idea of a good time. I mean, the weather is nice and many of us aren’t vaxxed up. Folks are ready to get back outside and have some fun in the sun. But I will be that annoying auntie that tells you to hold on just a sec. And it’s not just because the Delta variant is playing in all of our faces and threatens to put us right back where we started if we don’t keep masking up when necessary. It’s really because I don’t want us to miss what certain politicians would love for us to be too busy to notice, because baby they are passing these voter suppression bills and these anti-trans bills and these abortion restrictions. And they’re now blaming a rise in crime on the concept of defunding the police. And let me just pause here for a moment since I got dragged all over Fox News for making this point. And I want to be extremely clear. There is, in fact, a rise in crime that we have to deal with. Everyone deserves safe streets, but crime is not rising because the police are being defunded because they haven’t been defunded. Look, studies show us that number one, police forces in the 50 largest cities have maintained the exact same share of public spending they have for years. And number two, the police have never actually been very good at preventing crime, which is literally the point we’ve been making this entire time. It is a wasted and harmful investment. 

But anyway, back to the sunshine and back to the beckoning patios. I highly encourage us all to safely seek every bit of joy we can this summer. But let’s also make sure we keep paying attention to the forces that seek to oppress us. We can have our hot girl summers and our hot call summers. We’re going to twerk in the park and tap in on the Senate phone lines. Okay, we can do this y’all, I know we can. 

We are UNDISTRACTED. 

On the show today, Senator Kirsten Gillibrand. I will be talking to the New York Democrat about her campaign to change the way the military handles accusations of sexual assault and other serious crimes. 

Sen. Kirsten Gillibrand When I sit down with service members who have been brutally raped and then denied justice by either being disbelieved or being directly retaliated against, it truly breaks my heart because these are men and women who will die for this country. 

Brittany Packnett Cunningham That’s coming up, but first, it’s your “UNtrending News.”

First off, I want to give some shouts to the women who’ve been doing so much in these U.S. Olympic trials. I’m talking about 100 meter hurdler Christina Clemons, who secured her spot on Team USA while wearing Cool Ranch Dorito earrings. Because if we can’t express ourselves everywhere, then what is the point? I’m talking about swimmer Katie Ledecky, who broke an Olympic trials record in the 800 meter freestyle. She completely smoked her competition by more than five seconds, which doesn’t sound like a lot to us, but in swimming is actually quite a lot. And then, of course, there is our girl, Sha’Carri Richardson, who ran the news cycle this weekend.

Sports Announcer Here comes Sha’Carri . Richardson’s going to Tokyo, 10.87.

Brittany Packnett Cunningham Sha’Carri won the women’s 100 meter finals, of course, in full lashes, nails and flowing orange hair. And after winning, Sha’Carri immediately hugged her grandmother, then also thanked her girlfriend and took a moment to honor her mother, who recently passed away. The U.S. has not won the women’s 100 meters at the Olympics since 1996, and Sha’Carri is trying to change that. 

Sha’Carri Richardson I just want the world to know that I’m that girl. That every time I step on the track I’m going to try to do what it is that me, my coach, my support team believe I can do, and the talent that God blessed me to have. 

Brittany Packnett Cunningham Sis’ we are rooting for you. In your words, you are that girl. Thanks to each of you for dominating your sport and for lifting our spirits. 

In other groundbreaking sports news, Carl Nassib of the Las Vegas Raiders just became the first active NFL player in history to come out as gay. On Monday, the defensive lineman made the announcement in a video on Instagram. 

Carl Nassib What’s up people I’m Carl Nassib. I’m at my house here in Westchester, Pennsylvania. I want to take a quick moment to say that I’m gay. I’ve been meaning to do this for a while now, but I finally feel comfortable enough to get it off my chest. 

Brittany Packnett Cunningham Carl also says he is donating one hundred thousand dollars to the Trevor Project, which is a suicide prevention organization for LGBTQ plus youth. And for sure, there are a lot of courageous folks who chipped away at this ground for a long time. Multiple NCAA footballers have come out and Michael Sam, a Black Mizzou defensive end, was the first openly gay player drafted to the league, though he ultimately didn’t make the season’s roster. I have my qualms with the NFL for sure, but hopefully Carl’s courage will inspire other young LGBTQ athletes to live in their truth, especially at a time when state lawmakers are trying so hard to ban trans youth from participating in sports. 

And finally. Here’s a name maybe we haven’t heard in a while. 

Macy Gray Singing Games, changes and fears / When will they go from here? 

Brittany Packnett Cunningham Macy Gray wrote an op ed this past week advocating for a new American flag in her piece for MarketWatch. Macy wrote, quote, “The American flag has been hijacked as code for a specific belief. Like the Confederate, it is tattered, dated, divisive and incorrect. It no longer represents democracy and freedom. It no longer represents all of us.” Macy makes some valid points, like if D.C. and Puerto Rico are going to be affected by U.S. policy making, then they should have statehood if that’s what the people of those places self-determine. And there should be then fifty-two stars on that flag. Macy proposes a new flag that looks similar to the old one, except that the stripes would be off-white. She says there’s no need to uphold the myth of purity. And she says the stars could be various shades of skin tones. Now, I don’t know about that particular proposal, but updating Old Glory sounds like an interesting idea. Most importantly, we have to make sure that we’re not just focused on the symbols of this democracy, but the functioning of this democracy. 

Coming up, I’ll be talking to Senator Kirsten Gillibrand about her mission to combat sexual assault in the military right after this short break. 

And we are back. A content warning for those who may be sensitive to topics of sexual assault, because that’s what we’ll be talking about. Look, I don’t actually think this is news to anybody listening, but the military has a pervasive sexual assault problem. Every year, thousands of service members are raped and sexually assaulted. And in many of those cases, the assailant is someone in this survivor’s own chain of command. This means that very few of these alleged crimes get reported and only a small fraction of perpetrators are held accountable. My guest today, U.S. Senator Kirsten Gillibrand, has long been on a mission to change the way the military handles sexual assault cases. She wants to move cases out of the chain of command and instead over to trained military prosecutors. It looks like her bipartisan bill, the Military Justice Improvement and Increasing Prevention Act, might finally hopefully be on the verge of passing. It has the votes. It just needs to be voted on. Senator Gillibrand, thank you so much for joining us. 

Sen. Kirsten Gillibrand Oh my pleasure. It’s so good to be on your podcast. 

Brittany Packnett Cunningham So before we get into the specifics of your bill, I’d love for you to just give us the bigger picture. How big of a problem is sexual assault in the military? 

Sen. Kirsten Gillibrand Unfortunately, it is a huge problem and I have been working on it for nearly a decade. And unfortunately, it persists. The last estimate from the Department of Defense was there were about 20 thousand sexual assaults estimated against service members and unfortunately, only about seven thousand come forward, as are reported, and only about two hundred end in conviction. So we have done a terrible job in actually prosecuting these cases. And the percentage of cases moving towards prosecution is going down. The percentage of cases that are ending in conviction is going down. And so under no measurable is the military getting this right. And so we’ve been asking to take the decision making of whether to prosecute these crimes out of the chain of command and give it to trained military prosecutors who are unbiased and professionalized. And we believe that system will create more justice because I think they’ll choose different cases to go forward. More cases will go forward and arguably more cases will end in conviction. 

Brittany Packnett Cunningham So help me understand how it works now. When a person reports a sexual assault or a major crime in the military, what type of process is currently in place? 

Sen. Kirsten Gillibrand So today, if you are raped in the military, if you choose to report, you have two ways to report; one, openly where you name the person who raped you or in a restrictive way, which means you don’t say who your assailant was, but you’re eligible for health care services, mental health services and other support. Unfortunately, that system has been broken and the military police will typically do an investigation. It could take anywhere from three weeks to a year. And they make a recommendation. The recommendation goes to the commander and the commander’s attorney and they make a judgment. The commander’s attorney’s a generalist. He’s not a criminal justice lawyer. And the commander has no legal background. So instead of having that case file after it’s been fully developed, go to the commander’s desk, we want to go straight to the prosecutor’s desk. The prosecutor can look at it fairly and have no skin in the game. Right now commanders sometimes know the accused, sometimes they know the accuser. These cases are typically he-said she-said, and they’re not trained in the nuances of looking at that testimony and being able to assess who has credibility. And unfortunately, if it’s he-said she-said they typically don’t prosecute. And the only ones they actually do prosecute in some cases is just if he’s admitted to it. So, there’s — the standards are just so low and we’re just not seeing justice done. 

Brittany Packnett Cunningham And I mean, to your point, the commanding officers get to determine what penalties, if any, are imposed on a soldier accused of sexual assault. I mean, it’s a classic situation of the fox guarding the henhouse. 

Sen. Kirsten Gillibrand Exactly. It’s unfortunate because sometimes this lack of military training results in bias, in decision making. Bias against survivors of sexual assault, but also bias against Black and brown service members who are accused of crimes. And so when we looked at this reform, we decided we wanted the bright line to be at all serious crimes, all felonies equivalent to a felony with a year or more of jail time if convicted. And so we know there’s bias in which cases go forward on sexual assault. And we know there’s bias in prosecution and punishment of Black and brown service members. They’re up to 2.6 times higher to be punished than a white service member. So you need this reform for both plaintiffs’ rights and defendants’ rights to fix the bias in sexual assault cases and fix the bias against Black and brown service members. 

Brittany Packnett Cunningham And when it comes to the part of your bill that is really about rape culture in the military, what have military members, women in particular, really told you about their fears of being attacked by their own colleagues and and their fears around reporting sexual assault if it were to happen? 

Sen. Kirsten Gillibrand We had a service member who once told her story at a press conference we were at, and she said very, very prophetically, she said it’s the worst thing you can imagine because you are serving with these men and women who are your brothers and sisters and that you depend on them. Your life is held and protected by them. And she said getting raped by someone in her unit was like being raped by her brother. And then having the commander disbelieve her and retaliate against her was like her father deciding the case. And she said, it’s so intimate. These are people you live and breathe and die for. It is so traumatic to not — to not only be raped, but then to be disbelieved by the chain of command that you were sworn to continue to serve is so traumatizing that it’s two betrayals. It’s the first and then the second, and they don’t recover particularly from the second. So it’s hard. Second, the command climate has continued to degrade. Fort Hood just did a report about the command climate there, and that’s where Vanessa Guillén was murdered. And they found that the command climate was so toxic that it was permissible for sexual assault and sexual harassment. 

Brittany Packnett Cunningham I mean, you just talked about Vanessa Guillén, which obviously her case really underscored exactly what you’re talking about. She was a 20 year old Army soldier who was brutally killed last April in 2020 shortly after she had reported that a superior officer had sexually harassed her. And, of course, over the weekend, the Vanessa Guillén Act was signed into law in Texas. How does your bill compare to that one? What exactly do you want to see changed? 

Sen. Kirsten Gillibrand So we want a case like Vanessa Guillén’s to have been taken out of the chain of command and given to a trained prosecutor day one. When her family went to the Army and said, we think something happened to our sister and our daughter and we believe she’s been being harassed. The army denied that and said she — that we have no evidence of her being harassed. Well, it wasn’t until they found her body and they found more evidence and they got more testimony did they then accept that she indeed was harassed and that this was part of a culture and a command climate that was deeply toxic. And so, her story and her case would have never been taken out of the chain of command under the current system and even under the secretary of defense who just said he will now support taking sexual assaults out of the chain of command. Her case, we don’t know whether there was a sexual assault, but her case would not be taken out of the chain of command. So we want to make sure that our bill, this bright-line Bill, takes out sexual assault, sexual harassment, but all felonies, including murder, because a case like this needs to have transparency and accountability. 

Brittany Packnett Cunningham Right. You’ve been working toward this change for, like you said, almost a decade now. And you introduced the first version of this bill back in 2013. Why is this issue so important to you? Why has it, you know, really engaged so much of your commitment over the years? 

Sen. Kirsten Gillibrand So I’ve spent a lot of time talking to men and women who serve in the military. I’ve been to Iraq, I’ve been to Afghanistan, I’ve been to Fort Drum in New York State. And when I sit down with service members who have been brutally raped and then denied justice by either being disbelieved or being directly retaliated against, it truly breaks my heart because these are men and women who will die for this country. And to be so betrayed is just an outrage. And it just fuels me to fight as hard as I possibly can on their behalf so that others do not suffer the way they suffered. And justice is absolutely something that’s part of our constitution, our democracy, and something we believe in. And for them to be denied justice, I think is an outrage. 

Brittany Packnett Cunningham And your main co-sponsor and ally on this bill, Republican Joni Ernst from Iowa. She’s a combat veteran herself and a sexual assault survivor. 

Sen. Kirsten Gillibrand Exactly. So, she — she can speak from both experiences. She knows why the chain of command is important, but she also knows what their strengths are. She also has a daughter who just graduated from West Point. So she knows what’s happening to young service members today. And she just decided this was — it was time. And we’ve created a coalition now that we have sixty-six co-sponsors broadly. And how many bills in the US Congress have Ted Cruz on it and Liz Warren, have Mitch McConnell voting for it and Chuck Schumer? It’s very rare, but we have the support and now we’re just fighting against the DOD itself who does not want this change. 

Brittany Packnett Cunningham Yeah, I want to ask you, what is the status of this proposed legislation right now? 

Sen. Kirsten Gillibrand We just introduced it in the House with a very broad coalition with a number of Democrats and Republicans. Jackie Speier, as the leader. If we do get a floor vote on this bill, then I believe it will pass overwhelmingly and we can get it to the Senate and that’s how we’ll get a vote on it. 

Brittany Packnett Cunningham So I know you said that you believe that it will pass if it hits the floor. We also know that Senators Jack Reed, a Democrat from Rhode Island, and Senator James Inhofe from Oklahoma, Republican, both Army veterans, they appear to be standing in the way of this progress. 

Sen. Kirsten Gillibrand They are. But I think the support that we have is overwhelming. So if we can get a floor vote on the House, then that strengthens our hand to get a floor vote in the Senate. And if we do do that, then I believe we will pass this bill into law. Jack Reed insists it go through the Senate Armed Services Committee because he thinks that that committee alone should have the benefit of reviewing it and editing it and changing it. My experience in the committee is that even if I pass this bill in committee, Senator Reid would have the authority to actually water it down or take it out entirely in conference, which is after the House passes it and after the Senate passes it four men sit in a room and they get to make decisions about what stays in and what doesn’t. And to have two of those men be against the bill is highly problematic. So they’ve taken out other reforms on this issue before and they will do it again. So I believe this bill needs to come to the actual Senate floor where all hundred senators get to vote on it. And I think the Armed Services Committee has lost their sole jurisdiction because they’ve been working on this issue for 10 years and failed. And so I don’t think they get to keep jurisdiction on this issue. 

Brittany Packnett Cunningham So we’ve got opposition from some senators. There’s certainly opposition coming from the military. But as you mentioned, you’ve gotten a lot of support, a lot of Republican support. You mentioned Josh Hawley, you mentioned Ted Cruz. Over your career, one of your skills as a senator has really been working across that so-called aisle. I’m curious to know how you resolve the fact that these days your collaborators might be the very same people who genuinely believe that Donald Trump was the legitimate president or, you know, people who have refused to investigate January 6th. Do you trust their motivations or — or even their sense of reality? 

Sen. Kirsten Gillibrand You know, I think they’re very wrong about January 6th. And I was deeply disturbed by their views on that issue. But my job as a US senator is to get things done for New Yorkers and the American people. And so my job is to talk to everybody and reach across the aisle, even if we have deep disagreements on other issues, which I do. But I know that there are areas where we can agree. And so I can do a bill with Josh Hawley and I can do a bill with Ted Cruz and Chuck Grassley and a lot of very, very conservative Republicans. And I welcome their leadership on this issue, even if I can’t get their leadership on other issues. 

Brittany Packnett Cunningham I also know that you’ve pointed out many times that many of the United States allies like England and Canada, they’ve already implemented similar changes to what you’re proposing within their armed forces. So this is not even a novel concept. 

Sen. Kirsten Gillibrand It’s not a novel concept. And they did it for defendants rights. If you look at the U.K., it was an individual who was accused of murder. And because he believed his commander thought he was guilty, he didn’t think he would get a fair trial. And the government of the U.K. agreed and so took all serious crimes out of the chain of command. Israel did it 40 years ago. Canada, Netherlands, Germany, Australia, they’ve all done this. And so these are the men and women we fight side by side with who we have coalition forces across the globe. And so this is not a reform that is scary. This is a reform that is profoundly important because it changes the perspective of the men and women who serve in our military, that the justice system is unbiased and it changes it to make it believe that it’s unbiased and fair, something that they deserve. And so it will result in more cases coming forward in the sexual assault context and I believe more cases ending in conviction. 

Brittany Packnett Cunningham So beyond just catching us up to other nations across the world, what is really at stake if this bill is not passed? 

Sen. Kirsten Gillibrand More women and men will be raped and more women and men will be murdered and more women and men will not get justice because the system isn’t designed to actually mete out justice unbiasedly and in a way that protects both plaintiffs and defendants. 

Brittany Packnett Cunningham Before I let you go, I have long admired the fact that it seems like you have boundless energy, Senator, for trying to make really big changes in politics. You’ve worked on marriage equality and federal paid leave policies. You have worked hard to protect reproductive rights and now this military assault legislation. Do you think that you will ever run for president again one day? 

Sen. Kirsten Gillibrand Well, I certainly hope I get the chance to run for president again someday. I loved it. I had such a wonderful and powerful and inspiring opportunity to learn from people all across the country to develop a different set of skills and — and greater strengths. I think it was a great experience in terms of knowing that a lot of the issues that I fight for in New York are shared around the country. And I’ve used those skills and that knowledge to be a better senator. So I feel like I’m even in a better position to be successful to help New Yorkers because I did have that run. So I hope someday I get to do it again. I don’t know when and I don’t know whether, but I certainly hope so. 

Brittany Packnett Cunningham We’ll certainly keep our eyes peeled for you heading back to that stage. Senator, thank you so, so much for the work that you’re doing and for joining us for this conversation. 

Sen. Kirsten Gillibrand Thank you, Brittany. It’s a pleasure to work with you. 

Brittany Packnett Cunningham Kirsten Gillibrand is a United States senator for the state of New York. The military industrial complex is rife with issues both in how it wields power around the world and as we know how it treats those who are a part of it. BIPOC, LGBTQ and women service members have a long history of enduring serious biases. For so long, the military was seen as a pathway toward the so-called American dream to provide financial stability and job security and safety. But far too often that dream is a nightmare. And as the senator made clear, her bill is not just about protecting women and men, it’s about removing all biases out of the current system, including racial prejudice. The senator said Black and brown service members are up to 2.6 times more likely to be punished than a white service member. This legislation of hers is really about defendants’ rights and plaintiffs’ rights to get rid of bias in sexual assault cases, to get rid of bias when it comes to Black and brown service members, and to make the military a more equitable place no matter your rank. And from the sound of it, that’s the type of transformation we need in all of our institutions. 

 

That is it for today, but never ever for tomorrow. 

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Thanks for listening. Thanks for being. Thanks for doing. 

I’m Brittany Packnett Cunningham. Let’s go get free y’all.