Defense Secretary Will Back A Seismic Shift In Prosecuting Military Sex Assault Cases

Secretary of Defense Lloyd Austin announced he will support changes to the military justice system that would take sexual assault cases away from the chain of command and let independent military lawyers handle them. Sen. Kirsten Gillibrand, who has long pushed for legislation on the issue, praised Austin's move but told NPR on Wednesday that it doesn't go far enough.

In a statement on Tuesday, Austin said he will present President Biden with a series of recommendations aiming to "finally end the scourge of sexual assault and sexual harassment in the military."

Updated June 23, 2021 at 9:48 AM ET

It's a seismic shift that requires amending the Uniform Code of Military Justice, which no other secretary of defense has been willing to do.

Austin's announcement follows a report by the Independent Review Commission on Sexual Assault in the Military, whose mandate from Biden was to find solutions to improve accountability, prevention, climate and culture, and victim care and support involved in such cases.

Austin noted, "The IRC recommended the inclusion of other special victims' crimes inside this independent prosecution system, to include domestic violence. I support this as well, given the strong correlation between these sorts of crimes and the prevalence of sexual assault."

"As I made clear on my first full day in office, this is a leadership issue. And we will lead," the secretary said.

Austin's endorsement of the changes runs counter to the Pentagon's position

Austin's zeal to revamp the existing military justice system and the speed with which it appears he plans to act come as no surprise.

When he first created the IRC investigation panel in February, the newly appointed Austin made it clear he was intent on creating meaningful change.

"Sexual assault and harassment remain persistent and corrosive problems across the total force," Austin said at the time.

"I expect every member of our total forces to be part of the solution and leaders — both civilian and military — across the Department to take direct accountability to drive meaningful change," he added.

But the Pentagon has long resisted any outside interference, saying that commanding officers, not independent judge advocates, are best equipped to decide whether to pursue legal charges in sexual assault claims.

Gillibrand wants changes to include all serious crimes

The Democratic senator from New York and other lawmakers have been working for years to pass legislation that would enact the types of changes that have been recommended by the IRC and endorsed by Austin.

Under the Military Justice Improvement and Increasing Prevention Act, trained military prosecutors, not the traditional chain of command, would be in the decision-making seat. That would allow the cases to remain under military oversight but would be handled by criminal justice attorneys with relevant expertise rather than commanders who often lack legal training.

Gillibrand is now the chair of the Senate Armed Services Personnel Subcommittee, which has jurisdiction over matters relating to active and reserve military personnel, including military justice. She has been pushing the Defense Department and her fellow senators for a reform bill for eight years. She first introduced a version of her bill in 2013.

On Wednesday, Gillibrand told NPR's Rachel Martin on Morning Edition that Austin's recommendations "are an excellent step in the right direction, but it's not the full reform we need."

The prosecution of all serious crimes, not just sexual assaults, should be removed from the chain of command and given to "trained military prosecutors who are professional and unbiased," the senator said. These are crimes that have a conviction penalty of at least a year, or the equivalent of felonies.

In studying the issue for several years, Gillibrand said, "We recognized that there's a lot of bias in the military justice system." She noted that the rate of sexual assaults in the military continues to grow, but relatively few cases go to trial or end in convictions.

"We're not convicting more predators, we're not taking enough cases, we're not taking the right cases," Gillibrand said. And she said the current system is biased "against Black and brown service members" who are often more likely to be punished.

Last month, Gillibrand touted a breakthrough among her colleagues after she joined forces with Iowa GOP Sen. Joni Ernst.

"We have enormous momentum. I think we are well over 60 votes at this point," Gillibrand said of the legislation's support in the Senate.

Reports of such crimes in the military continue to increase, while prosecutions continue to drop

"Sexual assault in our military is an epidemic and it's clear that the current system is not working for survivors," she said in a statement promoting bipartisan support for legislation. "Despite repeated efforts to protect our women and men in uniform rates of harassment and assault continue to rise while prosecutions decline."

A 2020 report from the Defense Department indicates unrestricted reports of sexual assaults in the military have doubled, while the rate of prosecution and conviction has been halved since 2013. And according to the senator's office, 1 in 16 women in the military reported being groped, raped or otherwise sexually assaulted in 2018, the most recent year data has been published by the Department of Defense.

As NPR noted earlier this year, "The problem reached crisis proportions in 2019 when the Pentagon reported that around 20,500 service members — 13,000 women and 7,500 men — had experienced some form of sexual assault." [Copyright 2021 NPR]