Congress has stripped authority from military commanders to prosecute sex offenses, a move victims’ advocates have sought for more than a decade while the Pentagon has failed to stem sexual assault in the ranks.
The measure, negotiated by the Senate and House and announced Tuesday, would task independent military lawyers with prosecuting sexual assault cases. That would remove the authority that commanders, who are typically not lawyers, have in making decisions on charging and trying their own troops.
The measure is part of the National Defense Authorization Act (NDAA), considered vital legislation that directs Pentagon spending and has passed annually for 60 years. President Joe Biden is expected to sign it before the end of December, and the changes would go into effect in two years, according to a Senate staffer who was not authorized to speak publicly.
“This is a very big deal,” said Don Christensen, the former chief prosecutor for the Air Force and president of Protect Our Defenders, an advocacy group for victims of sexual assault in the military. “Today is the culmination of years of advocacy from military sexual assault survivors, their families and supporters. The provisions included in this year’s NDAA are the most transformative military justice reforms in our nation’s history.”
The changes stem from the Pentagon’s inability to curb sexual assault in the ranks, a scourge that military leaders have failed to defeat despite decades of pledges to do so. The Pentagon’s latest comprehensive survey on sexual assault found an estimated 20,500 instances of unwanted sexual contact in 2018, an increase over the 14,900 estimated in the last major survey in 2016. The military’s definition of unwanted sexual contact ranges from groping to rape.
The measure, however, is not as comprehensive as one championed by Sen. Kirsten Gillibrand, D-N.Y. Her proposal would have gone further in restricting the authority of commanders to prosecute a range of offenses and created teams of independent military prosecutors with discretion to charge 38 serious crimes, including murder, kidnapping and sexual assault.
Her proposal also would have removed commanders’ authority to convene courts and to create the pool of potential jurors. The measure that passed does neither.
Gillibrand, in a statement, blasted House and Senate negotiators for gutting her proposal, which had bipartisan support.
“This disregards the calls of service members, veterans and survivors who have fought for an impartial and independent military justice system,” Gillibrand said.
Under the current military justice system, a commander who is advised by a lawyer, creates or convenes a new court for each trial and makes decisions, such as plea deals. Commanders would retain the authority over crimes particular to the military, such as mutiny, desertion and cowardice.
The difference between the approach by Gillibrand and the version that prevailed is how much authority Congress wrested from commanders.
“Commanders will get a haircut out of this,” said Eugene Fidell, who teaches military justice at New York University. “The question is how much.”
Sens. Jack Reed, D-R.I., and Jim Inhofe, R-Okla., had signaled their support for a more limited approach to reform favored by the Pentagon. Earlier this year, they blocked a vote on Gillibrand’s proposal as a separate piece of legislation and argued that it should be negotiated as part of the NDAA.
Defense Secretary Lloyd Austin voiced support for reform identified by an independent commission that advised the Pentagon. It recommended shifting legal decisions to prosecute sexual assault and related crimes from commanders to military lawyers who serve as special prosecutors. But the Pentagon favors allowing commanders to retain authority in criminal cases not related to sexual assault.
Pentagon officials hoped their concession will appease Congress and allow commanders to keep a portion of their authority, Fidell said.
“I think their position is incoherent,” Fidell said of the Pentagon. “It’s driven by recognition of what may sell than rather than an application of logic.”
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