Kent Nishimura/Los Angeles Times via Getty Images
With the new bipartisan defense bill working its way through Congress, the military is one step closer to historic changes that will impact how its sexual assault cases are prosecuted.
The move comes after an effort led by New York Democratic Sen. Kirsten Gillibrand for nearly the last decade to force such cases and other serious crimes such as murder and domestic violence out of the chain of command and under the purview of trained prosecutors.
Sexual assault cases in the military have been plagued with concerns from victims who fear coming forward to see prosecutions led by their own commander. Overall, a very low share of such cases go to trial or see convictions.
“This is a historic milestone in our efforts to reform and professionalize the military justice system,” Gillibrand told reporters on Wednesday. “And while it will take time to see the results of these changes, it is still important for us to celebrate this victory and continue our fight.”
The provision is part of this year’s National Defense Authorization Act or NDAA, the annual bill that has drawn bipartisan congressional approval for more than 60 years. It could pass on the House floor this week, followed by Senate action next week, which could send the bill to President Biden’s desk.
Defense bill will introduce other changes
This year’s NDAA also includes the repeal of a mandate requiring all servicemembers to be vaccinated for COVID-19. With the vast majority of the military already vaccinated, Democrats said they reluctantly agreed to the move in a compromise with Republicans.
“We believe it is a mistake,” White House Press Secretary Karine Jean-Pierre said, stopping short of saying Biden would veto the bill as a result.
The measure also directs a 4.6% pay raise for servicemembers.
A senior Democratic aide touted the new changes in the plan, saying it strengthened the fight against sexual harassment in the military by requiring independently-trained investigators to probe such concerns and place it under the jurisdiction of a so-called Office of Special Trial Counsel.
Outgoing California Democratic Rep. Jackie Speier led the fight focused on addressing sexual harassment since the murder of Army Spc. Vanessa Guillén, who faced such concerns while she was based in Fort Hood, Texas.
The brutal murder of SPC Vanessa Guillen made it crystal clear: Sexual harassment begets sexual assault & other horrific crimes. Last year’s NDAA made historic progress, yet failed to remove sexual harassment from the chain of command.
— Jackie Speier (@RepSpeier) December 7, 2022
Gillibrand told reporters she hopes the new Office of Special Trial Counsel will be implemented successfully in the coming years, allowing an expansion of serious crimes that will come under their jurisdiction.
Gillibrand has pushed for the plan since 2013, calling attention to commanders handling cases with little to no legal training.
“My hope is that if we can see if this works over the next five years, we can add the other serious crimes,” she said.
“A system of justice that is worthy of their sacrifice”
For years, Gillibrand’s legislation was met with opposition from the Defense Department, some Republicans and even Democrats. Last year, she saw a major breakthrough, partnering with Iowa Republican Sen. Joni Ernst, a combat veteran to pick enough bipartisan support to approve the plan in the Senate.
However, not everyone was on board. Gillibrand and Rhode Island Democratic Sen. Jack Reed, who chairs the Senate Armed Services panel, openly sparred over several Senate floor sessions last year.
Last year’s effort did lead to some changes that allowed some military court-related decisions to move from the chain of command over to a trained prosecutor. However, some were not, including the ordering of depositions or hiring of expert witnesses, which would still involve a commander.
Now, that’s under the Office of Special Trial Counsel, Gillibrand says. She said it marks a sea change that could help better protect servicemembers.
“They now have a system of justice that is worthy of their sacrifice,” Gillibrand said. “We now have a system of justice that is independent, that is transparent and accountable, that will hopefully reduce or be free of bias.”