Secretary of Defense Lloyd Austin ordered the Pentagon to begin preparing for an overhaul of how the military investigates and prosecutes sexual assault, along with other major crimes like murder and kidnapping. Austin’s order, issued Wednesday, Sept. 22, is the most concrete move yet toward a hotly debated reorganization that would move the prosecution of sexual assault outside the traditional military chain of command.
Commanders of accused would no longer have a say in whether an accusation of sexual assault leads to a prosecution, nor would they have any input on punishments.
However, final approval for the switch must come from Congress, which is debating the issue as it prepares the massive National Defense Authorization Act.
“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 announcing the change. “I stated from the outset that this is a leadership issue, and we will lead.”
Austin’s order, which came in the form of a memorandum detailing a four-tiered road map to overhauling the Pentagon system, is meant to lay the groundwork for the move, should it become law. The earliest date of implementation Austin foresees is 2027.
Earlier this year, an Independent Review Commission made multiple recommendations for addressing sexual assault in the ranks, foremost among them the need to remove prosecution decisions from the chain of command and assign them to independent lawyers.
The first round of guidelines will be released by Oct. 13. According to Deputy Secretary of Defense Kathleen Hicks, the first round of changes will cover the three highest priority recommendations: the establishment of offices of special victim prosecutors; of a full-time specialized prevention workforce; and of positions such as full-time sexual assault response coordinator and sexual assault prevention and response victim advocates.
Those offices would eventually replace or supercede the current offices around which the military works to prevent, investigate, and prosecute sexual assault.
“Make no mistake, the department is committed to completing implementation on as fast a timeline as possible while ensuring our efforts take deep root throughout all levels of leadership down to the unit and individual level,” Hicks told reporters at a news conference Wednesday.
However, advocates for the change wondered if the Pentagon wasn’t moving too quickly.
“I think they put the cart before the horse,” retired Col. Don Christensen, executive director of Protect Our Defenders, a nongovernmental organization working to combat sexual assault and harassment in the military, told Coffee or Die Magazine in a conversation about the proposed road map. “There’s just no way for the DOD to say, well, we’re just going to do this. It requires Congress to act. The secretary of defense can’t change law.”
Sens. Kirsten Gillibrand and Joni Ernst, speaking Wednesday at a Politico Women Rule summit, both said their hope was the changes would be included in the NDAA. But if those changes are written out of the massive spending bill, they said they would force an up-or-down floor vote in the Senate on a stand-alone measure implementing the changes, known as the Military Justice Improvement and Increasing Prevention Act.
“We had a stand-alone bill for the repeal of ‘don’t ask, don’t tell,’” Gillibrand said. “We’ve done this before on issues of national importance of grave and serious issues that aren’t handled within the NDAA.” Gillibrand has been trying to shepherd similar legislation through the Senate since 2013, but only this year in the wake of the Vanessa Guillén murder at Fort Hood has it gained serious traction.
Ernst and Gillibrand’s bill, which is in the version of the NDAA that passed through the Senate Armed Services Committee in June, would remove all major crimes from the chain of command, including murder and kidnapping. However, a bill that passed in the House of Representatives on Thursday restricts the changes to only sexual crimes.
“It doesn’t cover murder,” Gillibrand said about the House bill. “It doesn’t create an independent chain of command, an independent review outside of the chain of command. And it doesn’t do a bright line at all serious crimes. It’s an issue of justice.”
Christensen agrees with Gillibrand and Ernst’s wider-ranging bill, but he admits, “I understand the sausage-making of Congress. I think the most important thing is we get a process removing commanders from making prosecution decisions. The House version of that is a smaller bite at that. The Senate version is a bigger bite.
“I’m optimistic that we’re going to get major change,” Christensen said. “I hope it goes as far as Sen. Gillibrand wants. I don’t know if we’ll get there this year, but I’m confident that we’ll get there.”