Following the release of an independent review commission report on military sexual assault, both Secretary of Defense Lloyd Austin and President Joe Biden have announced their support for a change to the Uniform Code of Military Justice, which would remove the investigation and prosecution of sexual crimes in the military from the chain of command. New, dedicated offices within each military branch would take over responsibility for such cases, according to the proposed changes.
“Special victims — particularly survivors of sexual assault and domestic violence — deserve all critical decisions about their case to be made by a highly trained special victim prosecutor who is independent from the chain of command,” the Pentagon report determined.
“Based on the [independent review commission] recommendations [and] my extensive consultations with the military and civilian leadership of the Services […] I have a strong bias towards accepting the recommendations wherever possible with adjustments made to ensure effective implementation,” Austin wrote in a memorandum for senior military leadership.
Austin stated on his first day in office that the issues of sexual assault and harassment were among his highest priorities. He has given the Department of Defense 60 days to develop a plan for implementing the recommended changes.
The wide-ranging independent review commission, or IRC, report deals with many issues surrounding sexual assault, including prevention efforts, support for victims, and changes in command climate. But an independent special prosecution mechanism would create a monumental change in the military legal system.
“For all those in the ranks who have suffered an assault and its after effects in silence, whether because you felt that you would not receive the support you deserve, or because you feared the repercussions for yourself and your career — I hope this announcement offers some reassurance that the Department of Defense leadership stands with you, starting with your Commander in Chief,” Biden said in a prepared statement.
The report recommended new roles in the Department of Defense, including a senior policy adviser for special victims and a special victim advocate. The new office of the special victim prosecutor, which will fall under the secretary of defense, shifts all legal decisions about special victim cases out of the military’s chain of command.
“Unlike virtually any other workplace in the country,” the report explained, “in the military, the employees’ supervisor is charged with the determination of legal action for sexual harassment and sexual assault reported under their watch. When commanders are placed in the role of truth-seeker in sexual assault cases, Service members perceive their leaders are forced to make the difficult decision of whether to believe victim or accused.”
Sens. Kirsten Gillibrand and Joni Ernst have worked together on a bipartisan bill in the US Senate that would remove not only sexual assault but also other major felonies from the chain of command. The bill has over 60 co-sponsors, and Gillibrand, a Democrat from New York, has called on Senate Majority Leader Chuck Schumer to bring it to the Senate floor for a vote.
“To take biases out of the system across the board, you need a trained military prosecutor to make these decisions about whether it should go to trial,” Gillibrand told CNN in May.
The bill is currently being blocked by Democratic Sen. Jack Reed of Rhode Island, chair of the Senate Armed Services Committee, who is in favor of a more narrowly tailored bill dealing specifically with sexual assault, not any other crimes. A similar measure, the “I Am Vanessa Guillén” bill, has been introduced by Reps. Jackie Speier and Markwayne Mullin in the House of Representatives.
The IRC also recommended providing independently trained investigators for sexual harassment and mandatory initiation of separation in all cases of substantiated harassment allegations. In his memorandum, Austin said sexual harassment should be added as an offense under the Uniform Code of Military Justice.
In addition, the IRC called on the Department of Defense to create specialized career tracks for military justice personnel, rather than using generalist judge advocates for special crimes.
“Outdated human resources practices tied to wartime operational needs of the Services cause unnecessary disruption to professional development, create instability among special victim capable professionals, and contribute to perpetual inexperience among military lawyers and criminal investigators,” the report said. “It is breathtakingly apparent that the Service JAGs’ refusal to allow talented practitioners to remain in career litigation billets harms victims and accused in special victim cases.
“The military must finally commit to placing the right experts in the right billets right now — and permanently.”
Erin Scanlon, an activist and former soldier who for years has called on lawmakers to change the way sexual crimes are managed in the military, called the IRC report “amazing” and a validation of her efforts.
“I was sitting there reading this report, and I almost started crying,” Scanlon told Coffee or Die Magazine. “Everything I’ve been saying for years. People are finally listening.”
The Pentagon’s recent report was unflinching in its take on issues within the command climate of many units that contribute to the problem of sexual assault. According to the IRC report: “After decades of applying Band-Aids to fix a gaping wound, efforts-to-date have done little but maintain the status quo because too many leaders — at all echelons of the enterprise — continue to believe that sexual violence is a distraction from the military’s core warfighting mission, and therefore not something it must take seriously.”
Scanlon agreed with the IRC that this attitude is a problem and that it is wrongheaded. “Sexual assault is devastating among the ranks,” she said. “It’s a waste of money, and it cripples our military readiness to have this high percentage of active-duty warriors placed under this heavy burden. Leadership recognizing that is huge.”
Under a new system, which the IRC report recommended, the chain of command will still have an important role to play in the prevention of sexual assault and harassment. “Commanders can and must continue to set an example, praise good behavior, and quell inappropriate conduct as soon as it occurs,” the report said.
Scanlon thinks that forward movement was made possible by the Vanessa Guillén sexual harassment case at Fort Hood. “It only took the murder of one soldier, but that was the policy window,” she said of the increased attention paid to sexual crimes in the military following Guillén’s death.
“It’s very humbling to be able to have been a part of it,” Scanlon added.
Editor’s note: This article has been updated to correct the legal term regarding separation proceedings.