A Defense Department commission has recommended that the decision for prosecuting certain sexual offenses in the ranks be made by personnel outside the accused’s chain of command, a defense official said Friday.
Now Congress is about to step into the conversation — not for the first time.
The recommendation, first reported by the Associated Press, is backed by President Joe Biden but has yet to be endorsed by the military’s civilian and uniformed leaders.
Even so, the proposal from a so-called Independent Review Commission on sexual assault and harassment in the military marks the first time an organization of the Defense Department has advocated a change to a commander’s previously exclusive authority to decide which alleged offenses are sent to courts martial, experts said.
Advocates for victims of sexual crimes have long argued that this tenet of military justice has poorly served rape and assault victims because, the advocates say, commanders are not independent enough to exercise justice.
For years, the leaders of the Armed Services panels have supported the Pentagon’s aversion to the change, and Congress has killed proposals to implement it. That congressional resistance had already begun to melt this year, but now news of the commission’s recommendation, especially if the Pentagon endorses it, is likely to accelerate that process.
“This is the most encouraging news I’ve heard in more than 10 years of fighting to remove sexual assault and sexual harassment cases from the chain of command,” said California Democrat Jackie Speier, chair of the House Armed Services Military Personnel Subcommittee, in an emailed statement to CQ Roll Call. She said she commended the commission “for recognizing that the only way we can restore faith in the military justice system, and encourage legions of survivors who are suffering in silence, is to strike at the heart of the problem, which is the failure of leadership to hold perpetrators and predators accountable.”
Biden’s backing for the change, especially if combined with the Pentagon’s, will strengthen the odds that the change will be put into legislation this year for the president to sign, experts said.
Biden could attempt to make some or all of the change administratively. But putting it in law would make it legally easier to implement and ensure that any future president who might want to upend Biden’s move would have to get Congress to agree, said Don Christensen, a retired colonel and a former top Air Force prosecutor, via email.
“This is a seismic recommendation in that for the first time a Pentagon panel has recommended taking prosecution authority for sex offenses from commanders,” said Christensen, who now is president of Protect Our Defenders, a human rights organization focused on the military. “Biden’s leadership on this issue has been critical to coming to this historic moment.”
‘Special victims crimes’
Defense Department spokesman John Kirby told reporters Friday that the commission’s initial recommendations, the substance of which he would not discuss, are being reviewed by Secretary Lloyd J. Austin III and leaders of the military services.
Biden had ordered in January a review of the military’s handling of sexual assault and harassment cases. Austin subsequently launched the commission study. A defense official, requesting anonymity to discuss a recommendation that was still being debated inside the Pentagon, described the broad outlines of the commission’s key proposal via email.
“Among the recommendations delivered to the Secretary of Defense is the transfer of decision-making authority, for special victims crimes, from commanders to independent judge advocates whether to charge a suspect with a crime, and whether that charge should be tried at court-martial,” the official wrote. “These independent judge advocates would report to a civilian-led Office of the Chief Special Victim Prosecutor.”
Vanessa Guillen case
Word of the Pentagon commission’s recommendation comes one year after the murder of Army Spc. Vanessa Guillen of Fort Hood, Texas, a 20-year-old woman whose story helped galvanize support for changes in how sex crimes in the military are prosecuted.
Guillen, whose body was found last June dismembered and burned, had told those close to her that fellow soldiers were sexually harassing her.
An Army review of Fort Hood after her death found a climate there that was “permissive of sexual harassment and sexual assault,” then-Secretary of the Army Ryan McCarthy said in December.
According to a Defense Department survey conducted in fiscal 2018, the most recent one available, respondents reported 20,500 sexual assaults among active-duty men and women that year. Less than half of those assaults were formally reported. And 108 people were actually convicted of sexual crimes that year — or about 0.5 percent of the number of offenses reflected in survey responses.
Congress ready to roll
Congress has repeatedly rejected previous attempts to legislate a change along the lines proposed by the Independent Review Commission. Several key lawmakers on both sides of the aisle have long argued that commanders need to maintain the decision for prosecuting these and other crimes to enforce good order and discipline within their ranks.
A renewed version of this debate will begin as soon as this week, when lawmakers in both chambers prepare to introduce 2021 versions of legislation to accomplish the Biden goal.
In the House, Speier has proposed a bill that would take decisions on prosecuting sexual crimes outside the chain of command.
The House has not voted on precisely this question in years past. But half the House cosponsored Speier’s legislation in the last Congress. It appears extremely likely that the House will be inclined to approve such a measure this year, probably in the fiscal 2022 defense authorization bill, or NDAA.
In the Senate, the champion on this issue is New York Democrat Kirsten Gillibrand. She has proposed prosecuting all major felonies, not just sexual offenses, outside the chain of command. Gillibrand may introduce the 2021 version of her legislation as soon as this week.
In the Senate, as in the House, this question is all but certain to be part of the NDAA debate — in the Armed Services Committee and possibly on the floor as well.
GOP movement
Senate Republicans have traditionally opposed the change to military legal tradition.
In a 2014 vote on this question, the most recent in the Senate, three-quarters of Republicans affirmed the military justice status quo.
Some of them still do. James M. Inhofe of Oklahoma, the ranking GOP member of the Armed Services Committee, said in February that he remains opposed to the proposed change.
But some Republicans on the committee, including Thom Tillis of North Carolina and Dan Sullivan of Alaska, told CQ Roll Call in February they are considering supporting the change. More GOP defectors on the committee may be coming, particularly if the Pentagon backs the change.
On the Democratic side in the Senate, Biden’s view will be highly influential.
A few Armed Services members who sided with the Pentagon and against changing military law in 2013 and 2014 will soon have to decide whether to change their positions. These senators include three Democrats — Armed Services Chair Jack Reed of Rhode Island, Joe Manchin III of West Virginia and Tim Kaine of Virginia — plus Angus King of Maine, an independent who caucuses with the Democrats. Kaine and King have already hinted they may go with Gillibrand now.
Friday’s news about the commission recommendations “will likely generate a lot of discussion on the Hill of not if — but how — reform should occur,” said Christensen, the former Air Force prosecutor. “We continue to believe that the best solution is to move all felonies to an independent prosecutor system while leaving misdemeanors and military unique crimes with the chain of command.”
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(c) 2021 CQ Roll Call
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