Final Defense Bill Alters Military Sexual Assault Prosecutions, Disappoints Some Victim Advocates

December 8, 2021Maggie BenZvi
marine corps drill female

A US Marine Corps staff sergeant looks left to right to make sure no recruits need to be corrected before continuing on to the next drill movement on Aug. 29, 2011, at Marine Corps Recruit Depot Parris Island, South Carolina. US Marine Corps photo by Lance Cpl. Aneshea Yee.

Last-minute changes made behind closed doors in Congress will alter the way the military investigates major crimes — including sexual assault — but authority over any courts-martial will still lie with commanders of those accused.

Victim advocates had pushed Congress to remove all aspects of criminal investigations and prosecutions of major crimes outside the purview of a defendant’s chain of command.

The version of the 2022 National Defense Authorization Act finalized Tuesday by negotiators in Congress includes a compromise, in the wake of several high-profile murders and sexual harassment scandals, between advocates for victims and military leaders who viewed traditional justice within the military as being a key component of military life’s rigid chain of command.

Notably, the version of the bill that emerged from the conference dropped provisions that had been in both chambers’ versions of the bill to require women to register for the draft.

DOD Congress sexual assault
Marines, sailors, families, and civilians working at Marine Corps Air Station Miramar, California, walk to raise awareness during the annual Sexual Assault Awareness Month Walk. US Marine Corps photo by Lance Cpl. Christopher Johns.

Advocates for military justice reform in the Senate raised their voices last week in protest because of suspicions that the final bill would end up with a watered-down version of the Military Justice Improvement and Increasing Prevention Act, or MJIIPA.

That appears to be exactly what happened.

The MJIIPA, which was co-sponsored by a bipartisan coalition of 66 Senators and had majority support in the House as well, removed the authority for investigation and prosecution of serious felonies — like kidnapping, murder, and sexual assault — from a defendant’s chain of command and into the purview of independent agencies within each service created specifically to deal with such crimes. 

Those rules made it into the version of the NDAA approved by the Senate Armed Services Committee, though over the objections of Committee Chairman Sen. Jack Reed, who preferred a scaled-down version that limited changes to sexual crimes and left the authority to convene courts-martial in the hands of the commanders.

The compromise announced yesterday is roughly halfway between those bills.

gillibrand-ndaa-letter military sexual assault
Sen. Kirsten Gillibrand has worked for years on her military justice bill, but she expressed anger at the last-minute changes that weakened her proposed changes to military sexual assault investigations. Photo by Senior Airman Christopher Muncy.

In the final version, the change will indeed apply to a broader range of major crimes, but the convening authority for courts-martial remains inside the chain of command.

Sen. Kirsten Gillibrand, a longtime advocate for the Senate legislation, released a statement expressing her anger and disappointment at the changes in the bill.

“[The Department of Defense] successfully undercut Defense Secretary Austin’s proclaimed commitment to removing sex crimes from the chain of command and ignored President Biden’s support for removing felonies from the chain of command,” Gillibrand said. “This bill represents a major setback on behalf of service members, women and survivors in particular.”

Don Christensen, president of the nonprofit Protect Our Defenders, said the compromise bill still keeps too much power with commanders. 

“The convening authority still picks the members of the jury, so it’s not the fairest process for either the accused or the victim,” Christensen told Coffee or Die Magazine. He added that the convening authority would also have control over granting immunity and allowing expert witnesses, as well as potentially circumventing the case by allowing the accused to put in a request for discharge rather than face prosecution.

“It’s massive reform,” Christensen said, “but there’s still problems with it.”

vanessa guillen, fort hood, coffee or die
Spc. Vanessa Guillén’s remains were found near Fort Hood in July 2020. Photos courtesy of Fort Hood Press Center/US Army.

But other advocates for military justice reform said they were pleased with the final legislation. The new policies in the NDAA are seen as a victory by the family of Vanessa Guillén, a soldier who was murdered last year and who became a powerful symbol of the need for major changes in how the military deals with sexual assault and sexual harassment. Natalie Khawam, a lawyer for the Guillén family, told Coffee or Die that the new rules will go a long way to improving victims’ access to military justice.

“This is the first time in the history of our country that victims of sexual misconduct will be able to report abuse outside their chain of command,” Khawam said. “This change in the military system is monumental. We not only changed the law, but we changed history. We not only fought for justice for Vanessa, but we fought for justice for all our soldiers’ lives and rights.”

The NDAA also adds sexual harassment as a specific crime under the Uniform Code of Military Justice, something close to the hearts of Guillén’s family. Guillén told family and friends that she was being sexually harassed by a superior NCO prior to her murder.

The Department of Defense has already started preparations for changes in its justice system in anticipation of the NDAA reforms. The Pentagon expects implementation in 2027 at the earliest. “I have been clear since my first full day as Secretary of Defense that we must do more to eliminate sexual assault and sexual harassment from the ranks,” Austin wrote in a memorandum in September. “I stated from the outset that this is a leadership issue, and we will lead.”

Read Next: Air Force Worst at Sexual Assault Prosecution Standards, IG Finds

Maggie BenZvi
Maggie BenZvi

Maggie BenZvi is a contributing editor for Coffee or Die. She holds a bachelor’s degree in political science from the University of Chicago and a master’s degree in human rights from Columbia University, and has worked for the ACLU as well as the International Rescue Committee. She has also completed a summer journalism program at Northwestern University’s Medill School of Journalism. In addition to her work at Coffee or Die, she’s a stay-at-home mom and, notably, does not drink coffee. Got a tip? Get in touch!

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