Congress, DOD Clash Over Sexual Assault Reforms

Potential reforms to the Uniform Code of Military Justice around sexual assault and harassment continue to move at a glacial pace through Congress, as members debate the extent to which the UCMJ should be changed.

At the core is the proposal — embraced by reformers, opposed by the Pentagon — that commanders of a military member accused of sexual assault or other felonies should have no role in their prosecution.

Reformers point to instances of military members who were credibly accused or even convicted of sexual assault being reinstated by commanders.

On one side of the debate is Sen. Kirsten Gillibrand, a Democrat from New York, who has lobbied for wholesale changes to the UCMJ since 2013, pushing through small changes in each of the last four National Defense Authorization Acts. But removing commanders’ role in UCMJ proceedings would be a sea change, one that a Department of Defense study advises strongly against.

“It is neither feasible nor advisable to remove commanders as the central figure of the military justice system,” reads the first conclusion in the 2020 Joint Service Subcommittee Prosecutorial Authority Study, a report Congress asked the Pentagon to prepare on the subject. “The studied alternative system is unnecessarily complex and is not conducive to a justice system that strengthens national security through ensuring justice and preserving discipline.”

According to The Washington Post, all of the military’s current service leaders, including Chief of Naval Operations Adm. Michael Gilday, Army Chief of Staff Gen. James McConville, Air Force Chief of Staff Gen. C.Q. Brown, and Marine Corps Commandant Gen. David Berger, have opposed Gillibrand’s proposal.

In an attempt to force the changes in the UCMJ she wants to see, Gillibrand took the unusual step this week of bringing her bill directly to the Senate floor. However, fellow Democrat, Sen. Jack Reed, who chairs the Senate Armed Services Committee, blocked Gillibrand’s attempt to force a floor vote.

Reed said he wants to get input from a committee that Secretary of Defense Lloyd Austin launched to study the problem. Gillibrand disagrees.

“I understand some members would prefer there be nothing in our bill on this topic, while others feel that the IRC recommendations do not go far enough. This is the nature of compromise,” Reed added, according to The Hill.

According to The Hill, Gillibrand said it would be “irresponsible” to allow the Pentagon to determine changes to the UCMJ surrounding sexual assault. In contrast, Gillibrand’s bill would go much further, completely removing commanders from the role of addressing “serious crimes” starting at the felony level, including acts such as murder, not just sexual assault.

Reed, for his part, has acknowledged the need to address sexual assault in the military. However, his solution doesn’t necessarily involve changing the legal structure. But rather, he said, it is an issue of culture.

“There must be a major cultural shift within the military and society to stop abusive sexual misconduct,” Reed told The Washington Post. “Sexual assault is an affront to the very values our military stands for and defends.”

In terms of mechanics, Reed is proposing the new NDAA incorporate the changes that the Pentagon committee recommends, but he said he would allow Gillibrand to make amendments if she is not satisfied.

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