WASHINGTON – After years of debate, Congress is on track to change how the U.S. military handles sexual assault cases, by taking some authority out of the hands of commanders and instead using independent prosecutors.
Spurred on by a growing number of sexual misconduct cases in the military, and buoyed by support from President Joe Biden and senior Pentagon leaders, the changes were included in a broader defense bill that passed the House late Tuesday and is headed to the Senate for almost certain approval.
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But several senators on Wednesday, led by Sen. Kirsten Gillibrand, D-N.Y., said the measure doesn't go far enough. She said the Pentagon was able to argue successfully against fully removing commanders from the cases.
Still, Rep. Jackie Speier, the head of the House Armed Services military personnel subcommittee, described it as a historic change “the likes of which we have not seen in over 70 years.
“By moving the decision to prosecute a servicemember for rape, domestic violence, murder and other serious crimes out of the chain of command to an independent military prosecutor, we would finally address a gaping wound for sexual assault survivors and provide a pathway to justice,” she said.
The campaign to improve military prosecutions has been struggling for years, but it gained momentum when Defense Secretary Lloyd Austin and other leaders began to publicly acknowledge this year that the military has failed to make progress in preventing sexual assaults and that changes were needed.
Reports of sexual assaults in the military have steadily gone up since 2006, according to Defense Department reports, including a 13% jump in 2018 and a 3% increase in 2019. Reports in 2020 — when much of the military was on lockdown due to COVID-19 restrictions — went up by about 1%, and officials said it wasn’t clear what impact the pandemic or any new programs had on the numbers.
Gillibrand and others who had pushed for a broader overhaul agreed that the changes in the bill represent strides forward. But they vowed to try again to get a separate bill passed that would eliminate commanders from the process and expand the number of crimes that would be handled by the independent prosecutors.
The key problem, Gillibrand said on Wednesday, is that commanders still will play a key role in sexual assault cases.
“Commanders can still pick the jury, select the witnesses, grant or deny witness immunity requests, order depositions and approve the hiring of expert witnesses and consultants,” she said. “When the commander is so deeply involved in a case, there’s no independence for the prosecutor and there’s no perception of independence for the accused or the accuser.”
She added that keeping commanders involved will add layers of bureaucracy and slow the process down, “making it longer for survivors to seek justice and to see justice.” Instead, her legislation would have independent prosecutors handle felonies that call for more than a year in prison.
Other key lawmakers and leaders of the military services, however, balked at including all major crimes, saying stripping control of all crimes from commanders could hurt military readiness, erode command authority, and require far more time and resources.
Victims rights advocates and others have argued that service members don’t trust the system and are often unwilling to go to their commanders with a complaint for fear of retribution. They also worry that commanders may not press ahead with some cases if they know the accused. Using independent prosecutors, they said, would make the process more fair, and make victims more comfortable coming forward.
In his first directive after taking office in January, Austin gave senior leaders two weeks to send him reports on sexual assault prevention programs. He created a commission to study the matter, and that panel — in its first recommendations — concluded that decisions to prosecute service members for sexual assault should be made by independent authorities, not commanders. Austin and Biden endorsed the change, but they stopped short of backing Gillibrand’s bill to strip commanders of oversight of all major crimes.
Gillibrand, however, has pressed for a Senate vote on her bill, which has the support of 65 other senators — a fillibuster-proof majority. She said Wednesday that commanders should not be allowed to continue as the so-called convening authority in each case, with a range of powers to include the ability to grant immunity, approve delays and decide any pre-trial confinement of the accused. She said she believes she has leadership support for a separate vote on her bill.
Others who back Gillibrand’s effort said they were pleased that any legislation is moving forward.
“We really have made some progress,” said Sen. Joni Ernst, R-Iowa, a former Army commander who served in Iraq. “I am disappointed that we did not get every aspect of our bill included and we should have the ability to do that.”
Asked Wednesday about the legislation, which passed the House on a 363-70 vote, Karine Jean-Pierre, the White House principal deputy press secretary, said Biden "believes that this legislation takes groundbreaking steps to improve the response to and prevention of sexual assault in the military.”