Military Justice Reforms Are Coming, But Congress Is Conflicted on What They Should Be

The House Armed Services Committee approved a bill this week that would take the decision to prosecute sex crimes away from commanders and hand it to attorneys -- a proposal that matches the Defense Department's current reform plan but falls short of Senate legislation on the issue.

Following a vote Wednesday, the version of the fiscal 2022 National Defense Authorization Act, or NDAA, that will go to the full House for a vote calls for giving prosecutorial decisions on sexual assault, domestic violence, most crimes against children and other special victims offenses to independent military prosecutors.

But the Senate NDAA calls for giving military attorneys the prosecutorial decisions for all serious crimes, including rape, kidnapping, murder and other serious felonies -- a measure that sets the stage for debate when the two bills are reconciled later this year.

California Democrat Rep. Jackie Speier, chairwoman of the House Armed Services personnel subcommittee and one of the most consistent voices in the Capitol for reforming the way the military handles sexual assault and other crimes, previously advocated for the more comprehensive legislation passed in the Senate.

But after continued opposition, she reached consensus with Republicans to advance the sexual assault measure while requiring the Defense Department to form an independent group to study whether other felony decisions should be included.

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"This [bill] is a great first step," Speier said before passage of the proposal Wednesday.

In the Senate, Kirsten Gillibrand, D-N.Y., has worked for eight years to remove prosecution decisions on sexual assault from the chain of command, part of an ongoing effort to eliminate sexual assault in the ranks and hold offenders accountable for their crimes.

Since 2014, Gillibrand has favored removing the decision on prosecuting all serious military crimes from commanders, but the proposals on sexual assault garnered the most attention as reports of that crime among actively serving military personnel have risen by 112% in the past eight years to 6,290 reported incidents in 2020.

The number of reports is thought to be lower than the actual number of assaults, since many victims are hesitant to talk to authorities. A survey conducted in 2018 found that 20,500 service members said they had experienced sexual assault.

Gillibrand and supporters of her more expansive legislation say it is needed to address racial bias in prosecution decisions by commanders for a wider array of cases.

"We have a bright line at all serious crimes. And that is an important bright line," Gillibrand told reporters earlier this year. "We want to make sure that whether you're a plaintiff or a defendant, that you have access to a military justice system worthy of your sacrifice."

Based on recommendations of an independent commission established to study the issue, the DoD plans to implement reforms by 2023, to include removing decisions on crimes such as sexual assault and harassment, stalking, posting photos without permission and domestic abuse from the chain of command.

Deputy Defense Secretary Kathleen Hicks said earlier this year that transferring most felony cases to attorneys could "swamp and diffuse our efforts" on sexual assault prosecution reform.

"The question is around the scope of the set of offenses that would move outside the chain of command, which is, at once, a very large issue and, at the same time, not really related to the sexual assault/sexual harassment scope that we're trying to push," Hicks told the House Armed Services personnel subcommittee.

Military commanders and some military attorneys also oppose the idea, noting that command authority is the foundation of the contemporary military justice system.

The Joint Chiefs of Staff penned a letter in June saying the changes could hurt the military's ability to maintain order and discipline without improving how the services prosecute serious crimes.

Chairman of the Joint Chiefs Gen. Mark Milley said the removal "may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust and loyalty between commanders and those they lead."

Diane Mazur, professor emeritus at the University of Florida College of Law and vice president for legal research at the Palm Center, a public policy think tank, said the decision to remove sex crimes alone from the system "sends a message to military leaders that preventing sexual assault is not a core part of military discipline."

"It tells leaders that 'women's issues' are uniquely outside their ability to manage, and that's simply wrong," Mazur wrote in an email to Military.com.

She added that more must be done to more broadly change how commanders address offenses since most military discipline is conducted below the level of court-martial.

"In a perfect world, I'd rather see military leaders at all levels held accountable for their failure to enforce discipline. But that's the one remedy we've never seriously tried. By the time of a charging decision -- whether for sexual assault or another felony offense -- we're well past the point where actual leadership or 'good order and discipline' could have made a difference. It's time to hand the keys to legal professionals," Mazur said.

The bills are expected to come before the full House and Senate in late September, according to lawmakers. Then, the different versions must be reconciled in conference prior to becoming law.

-- Patricia Kime can be reached at Patricia.Kime@Monster.com. Follow her on Twitter @patriciakime.

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