Congress Grapples With Military Justice Reform

Legislation seeks to give trained military prosecutors, not commanders, control over how to handle sexual assault and other crimes.

Congress may be on the verge of overhauling how cases of sexual assault, harassment, and other crimes are handled in the military justice system, a goal sought by outside groups and lawmakers for more than a decade. 

High numbers of sexual assault cases in the military underscore these calls for change. Now, some lawmakers are coalescing around a proposal that would remove military commanders’ authority to investigate and prosecute certain crimes, including sexual assault, and give it to trained independent military prosecutors instead.

While such a provision has already cleared the House of Representatives, it still faces serious hurdles to advance in the Senate and land on President Joe Biden’s desk. Some key lawmakers remain holdouts and there are disagreements between the two chambers over how to address the matter.

The Uniform Code of Military Justice currently grants authority to military commanders to choose whether to investigate and prosecute sexual assault cases and other crimes. 

Advocates for change have pointed out that this means the commanders often know both the assailants and the victims, which opens up the potential for bias. Victims have also reported facing retaliation after reporting or their superiors discouraging them to formally file reports.

Sen. Kirsten Gillibrand, a New York Democrat and a member of the Senate Armed Services Committee, has worked on the issue for nearly a decade. She said during an event with Politico last week that her work began after she started hearing story after story of service members who were harassed or sexually assaulted, but when they “tried to come forward they were disbelieved or retaliated against.”

“When I started working on this issue eight years ago, the average estimate for cases of sexual assault was about 20,000,” she said. “Now, literally almost a decade later, it’s still 20,000 estimated cases.”

The U.S. military’s sexual assault problem is apparent and ongoing. The Department of Defense estimated that 20,500 service members were sexually assaulted in fiscal year 2020. However, only a portion of those are reported: The military received a total of 6,290 reports, a slight increase from the year before. 

Meanwhile, only a small percentage of cases ended up producing a conviction—only 50 total cases in fiscal year 2020.

There is also concern that the number of cases could be higher than the Defense Department’s estimate. The nonpartisan Congressional Research Service found that victims’ stigma and embarrassment around being assaulted, lack of trust in the justice system, and fear of reprisal contribute to underreporting.

The advocacy group Protect Our Defenders said that more than 75 percent of the time victims do not report their assault. It also found that retaliation against victims is “the norm” and that 64 percent of women who reported their assault faced retaliation.

The DOD also found in a 2018 sample survey that, in a 12-month span, only about 30 percent of active duty military women and 17 percent percent of men who experienced unwanted sexual contact made the decision to report it.

“It’s highly concerning that we’re going in the wrong direction despite all the effort over many years,” Gillibrand added.

The issue of sexual assault in the military garnered national attention last year after the tragic case of Army Specialist Vanessa Guillén, whose brutal assault and murder at Ford Hood, Texas, resulted in suspensions and firings of 14 officials. Guillén had previously told her family that she was being sexually harassed. She disappeared on April 22, 2020, and her remains were discovered two months later. Another soldier at Fort Hood, who later died by suicide, allegedly killed Guillén and subsequently dismembered and burned her remains.

Iowa Republican Sen. Joni Ernst, a veteran and a sexual assault survivor, has worked alongside Gillibrand on the issue. During the Politico event last week, she called Guillén’s case a “turning point.”

“As a former company commander and a survivor of sexual assault, I understand the traumatic experiences too many of our servicemembers have faced,” Ernst said in a statement to The Dispatch. She added that she will “continue fighting tooth and nail” to ensure the bill passes.

More than 200 lawmakers in the House have sponsored or co-sponsored the standalone version of the legislation, and 66 senators—enough to pass now, if it were brought to the floor by Democratic leadership—have done the same. 

Support for the measure spans ideological boundaries, including Republicans such as Sens. Ted Cruz and Josh Hawley and Democrats such as Sens. Sherrod Brown and Elizabeth Warren.

Don Christensen, former chief prosecutor of the Air Force and president of Protect Our Defenders*, told The Dispatch that the trauma of rape and sexual assault is “particularly bad in the military.”

He said victims are forced to see their offenders, sometimes daily: “Your entire life is on that installation,” he said. “You eat there, you sleep there, you work there. … If [your assailant] is at that installation you basically can’t escape. They're everywhere you go.” He added that in the civilian world, one’s employer is also “not the one making the prosecution decision.”

Christensen said that since Protect Our Defenders was founded 10 years ago to advocate for military survivors of sexual assault, “I’m the most optimistic I’ve been since I started getting involved in this issue.”

Other countries, including Israel, Britain, and Canada, have already reworked their military justice system with similar reforms.

He said the only question is how far the legislation will go. The Senate passed a provision in its version of the NDAA in July to remove prosecutorial decisions from commanders for a wide manner of felonies, including sex crimes, kidnapping, and murder, among others.

But opposition to such a sweeping change is concentrated in powerful places.

Senate Armed Services Committee Chairman Jack Reed, a Rhode Island Democrat, and the top Republican on the committee, Sen. Jim Inhofe of Oklahoma, have both opposed the effort. Despite having enough support for the bill to pass in the Senate, Reed has blocked Gillibrand and Ernst’s legislation from coming up for a vote as a standalone bill. He has shown some support this year for having a version of the provision folded into the larger annual defense authorization package, but he wants it to have a narrower scope.

The House version, which cleared the chamber last week, is more scaled-back: It hands the decision to prosecute sex crimes to attorneys, specifically in cases of sexual assault, crimes against children, and domestic violence. But it leaves out crimes like kidnapping and murder. 

Gillibrand and Ernst have taken issue with the narrower approach, arguing that changing only how sexual assault related cases are handled and not addressing other major felonies could create a “pink court” that would stigmatize victims.

California Rep. Jackie Speier was instrumental in getting the House provision included in the NDAA. “The most important issue is who is really well-qualified to make these prosecution decisions,” Speier’s office told The Dispatch. “Commanders don’t have the background and legal training to make these decisions...there’s a reason we don’t have non-lawyers make prosecution decisions in civilian court.”

While acknowledging that the provisions still face uncertainty in the Senate and are not as expansive as other proposals, the congresswoman’s office emphasized that what the House has already passed would be a “really dramatic change” for the military justice system.

Christensen agreed: “It would be a landmark reform either way and will move the military justice system basically out of the dark ages when it comes to how it prosecutes cases.” 

If any proposal becomes law this year, it’s more likely to mirror the House plan. The military is steadfastly against losing authority over prosecution decisions for a wider range of offenses. In June, Inhofe released letters from high-ranking generals arguing against Gillibrand’s and Ernst’s proposal.

Chairman of the Joint Chiefs of Staff Gen. Mark Milley said removing prosecutorial authority from commanders for a broader range of crimes could “have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust and loyalty between commanders and those they lead."

Without weighing in on any specific legislation, Defense Secretary Lloyd Austin said in June that he supports removing sexual assault prosecution decisions from commanders. His position came after the Ford Hood Review Commission found a permissive culture that tolerated sexual harassment at Fort Hood.

The Defense Department said in September that each of the military branches will create offices to independently deal with sexual assault cases, following recommendations from a separate independent review commission.

And President Joe Biden in July endorsed an overhaul of how sexual assault cases are investigated and prosecuted, though he did not extend it to other major crimes.  

To get across the finish line, the legislation faces the committee markup process. In 2013, similar provisions ended up on the cutting floor during the NDAA markup process. 

Typically, members in each chamber write their own versions of the annual defense bill and pass their respective bills separately. After that, the bill enters a phase called conference committee, where key lawmakers from the two chambers get together to hash out their differences.

“The reality is 90 percent of this is done by the staff, 10 percent by the members … and stuff that can’t get done is kicked up to leadership,” Josh Huder, a senior fellow at Georgetown University’s Government Affairs Institute, told The Dispatch. “If the House bill does not carry [certain] language but the Senate bill does, they will have a disagreement over how to come to a resolution. Stuff that’s sticky like this gets dropped in conference.”

Huder said that the chairs of the committee will often proactively remove anything that “could undermine the support” of the broader legislation: “They don’t want their bill to die. … Because that particular provision doesn’t have support does not mean that the entire bill should die, in their opinion.”

It remains to be seen which version of the provision—if either—has enough support to survive the process this time around. Sen. Richard Blumenthal, a Democrat from Connecticut and member of the Armed Services Committee, expressed optimism in an interview with The Dispatch

“This idea is one whose time has come,” he said. “The roadblocks are there, but they’re much more surmountable. They’re not as high and wide as they were before.”

Correction, October 1: This article initially misspelled Don Christensen’s last name.