Sexual Assault Prosecutions Should Change in 2023, Commission Recommends

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Secretary of Defense Lloyd J. Austin III answers questions from the Senate Armed Services Committee
Secretary of Defense Lloyd J. Austin III answers questions from the Senate Armed Services Committee during the Department of Defense budget posture in review of the Defense Authorization Request for Fiscal Year 2022, June 10, 2021. (Chad J. McNeeley/DoD)

A Pentagon commission has recommended major changes to how sexual assaults and related crimes are prosecuted in the military that would take effect in 2023.

In the report submitted to Defense Secretary Lloyd Austin last week and released publicly Friday, the Independent Review Commission advised that the Pentagon work with Congress to pass changes to the Uniform Code of Military Justice (UCMJ) this year. The commission recommended taking decisions on whether to prosecute sexual assault, sexual harassment and other special victim crimes out of the hands of commanders, and putting a new independent prosecution system in charge of those cases.

But while the commission is recommending fast movement on passing changes to the UCMJ as part of the National Defense Authorization Act, a senior administration official said in a conference call with reporters Thursday that the changes should not take effect until 2023. The delay would give the military enough time to build the new special victims prosecution system properly, the official said.

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“This is not an area for quick wins or quick fixes, but rather a plan that will result in sustained change over time,” the official, who spoke with reporters on condition of anonymity, said. “We think that investment of time is what will lead to results. We think that’s what will really move the needle.”

Austin generally has accepted all the commission’s recommendations. In the coming months, the White House and Pentagon plan to work together to figure out how to put these recommendations into practice and work with Congress to update the UCMJ where it is necessary.

The changes to the prosecution process could run into opposition from some lawmakers – and some of Austin’s own top generals. Last week, Sen. Jim Inhofe, R-Oklahoma, released letters from seven top generals, including Chairman of the Joint Chiefs of Staff Gen. Mark Milley, opposing a bill from Sen. Kirsten Gillibrand, D-N.Y., that would take prosecutions of all major crimes out of commanders’ hands.

However some generals, including Milley, said they were open to a limited revamp of the military justice system, in which only sexual assault prosecutions were taken out of commanders’ hands.

Last week, Austin released a statement supporting the commission’s recommendations, including placing domestic violence and other special victims crimes in the proposed independent prosecution system. Austin said there is a strong correlation between those crimes and the prevalence of sexual assault.

The military has struggled for years to stem the prevalence of sexual assault and sexual harassment in its ranks, and the problem was brought into renewed focus last year after the murder of Spc. Vanessa Guillen, who had been sexually harassed by another soldier before her death.

The kidnapping, murder and dismemberment of Guillen last year at Fort Hood, Texas, shocked and outraged the military community and accelerated calls to do more to fight sexual harassment in the ranks. After Guillen’s death, allegedly at the hands of a fellow soldier who killed himself as law enforcement closed in, investigations found that she had been sexually harassed by a member of her unit -- although not the soldier suspected of killing her -- before her murder, and that Fort Hood had a command climate that was permissive of sexual harassment and assault.

Despite efforts to improve existing support systems for victims, thousands of troops report being sexually assaulted each year, with the services receiving 6,290 such reports in fiscal 2020, up 1% from the previous year.

In an Associated Press interview in May, Milley acknowledged, “I haven’t seen the needle move” on sexual assault despite years of effort.

The Pentagon in February created the commission, ordered by President Joe Biden, and put leading activist Lynn Rosenthal in charge.

The commission met with more than 600 survivors of sexual assault and harassment, researchers, former service members, commanders, enlisted troops and advocates, and asked troops -- particularly junior enlisted service members -- to submit their experiences and ideas anonymously to the commission online.

The official said there is a “troubling gap” between what senior leaders say about sexual harassment and assault, and what junior enlisted troops have experienced.

“We have heard for many years that there is no tolerance for sexual harassment and sexual assault,” the official said. “But we learned that in practice, there is quite a lot of tolerance.”

The commission made 28 main recommendations, and 54 sub-recommendations, to fix the problem.

All services have serious shortcomings in their workforces when it comes to sexual harassment and assault prevention, the official said, and there is in particular a lack of experience and specialization.

“We often hear that prevention is the key to solving this problem,” the official said. “But we learned that there aren’t actually prevention specialists working across the services to make that happen.”

Among the other suggestions for how to improve how the military cares for and supports victims is to shift sexual assault response coordinators and victim advocates out of the command structure but did not specify to whom victims advocates would report to. The commission also suggested largely eliminating part-time and collateral duty victim advocates, and taking other steps to professionalize the sexual assault response workforce.

The commission also recommended the Defense Department conduct a manpower study on the victim advocacy workforce within three months, and to put changes in effect for victim advocates within six months.

And the commission recommended the military make it easier for sexual assault victims to get help from sexual assault prevention and response programs, as the Army already does. The Defense Department also needs to set up a structure to help services better address sexual harassment.

The military justice system isn’t set up to handle sexual assault, sexual harassment, domestic violence and other sensitive cases effectively, the official said, and there is a strong link between poor unit climate and sexual harassment and assault.

Above all, the official said, better leadership is needed in the military if it hopes to fix all these problems.

“Commanders are the key to improving unit climate, to changing the culture, and to protecting victims from negative consequences related to reporting sexual assault,” the official said. “Indeed, commanders are the key to making it safe for victims to come forward at all.”

The commission made several recommendations for improving units’ climate, including better ways to select, develop and evaluate leaders, better climate survey processes to include more on-the-ground information about sexual harassment, and increased transparency about disciplinary actions.

The commission wants the military to use “narrative and qualitative data” to select and evaluate commanders, to have a clearer picture of how they are addressing climate issues.

The official emphatically rejected suggestions that moving legal prosecution decisions away from commanders diminishes commanders’ role. To the contrary, she said, it enhances their role by putting them in charge of taking care of their people and creating climates that have zero tolerance for sexual assault, sexual harassment and other related crimes.

“The commander is responsible for making sure that victims are protected from retaliation, bullying, all of that that can happen after a report,” the official said.

-- Stephen Losey can be reached at stephen.losey@military.com. Follow him on Twitter @StephenLosey.

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