Legislative Update: Proposed Amendment to Military Whistleblower Protection Act
By the C|C Whistleblower Lawyer Team
The House last week approved section 1714 of the National Defense Authorization Act (NDAA), which would revamp what many believe to be the weak and ineffective Military Whistleblower Protection Act of 1998 (“MWPA”). This amendment, if passed, would strengthen the protections afforded to those in the military who report sexual assault, fraud or other misconduct. It was prompted, in large part, by recent reports of the skyrocketing levels of sexual abuse and harassment against both men and women in the military.
The current law offers little protection to whistleblowers that stand up to and report on these kinds of offenses. This has created a “culture of silence” which has contributed to the escalation of sexual misconduct in the military. The proposed amendment is designed to remedy this problem by offering greater incentives and protection to those in the military who witness or are victim to this behavior. Major changes to the existing law would include:
- Expanding the statute of limitations for reporting sexual misconduct from a paltry 60 days to one year.
- Broadening the constituencies to which a whistleblower can report misconduct and keep the disclosures protected. This would include Congress, law enforcement officials, courts, and grand jury and court martial proceedings.
- Broadening the scope of protected speech, such as oral disclosures, off-duty disclosures, and those made “second in time” (those that follow a previously-made disclosure).
- Stronger investigation into allegations of whistleblower retaliation. The reforms would require that cases be investigated by an organization that is higher than and removed from the area of alleged misconduct.
- Providing for due process hearings. The reforms provide the right to an administrative hearing in front of the Board for Correction of Military Records if the whistleblower has experienced reprisal.
The bi-partisan sponsored bill is a huge leap forward in terms of protecting whistleblowers within the military. Senator Charles Grassley (R-Iowa), one of the sponsors, stressed in a public statement the need for reform, stating that “[p]olicymakers can’t afford to allow a culture of sexual misconduct to continue harming our troops and the military’s reputation.” He cited a recent Pentagon survey that found 26,000 out of 100,000 members of the military that were surveyed experienced some form of sexual harassment or assault, yet fewer than 3,400 reported the incidents. Grassley noted that “the survey suggests the chain of command is unwilling or unable to address this sensitive issue when more than one-quarter of respondents experienced sexual misconduct, but less than four percent stepped forward to report it.”
But there is still work to be done. Another sponsor of the reforms, Congresswoman Jackie Speier (D-CA), cautions in her own public statement that while the reforms are a step in the right direction, many important provisions were left out of the final bill. Neither the House nor the Senate allowed a vote on taking military sexual assault prosecution out of the chain of command. Speier says that the bill “ignores problems with the chain of command related to sexual assault. It addresses the symptoms of the crisis but doesn’t cure the cancer.” And Tom Devine, legal director of the Government Accountability Project, stated that “[w]hile this breakthrough is exciting, military whistleblowers still have second class rights compared to civilian employees, even in the restricted circumstances where dissent is legal.”
The Senate is expected to pass the bill when it votes this week.
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