Changes Considered on How Military Handles Sexual Assault

It has been one year since the dismembered body of Vanessa Guillen was found near the Leon River in Texas. In the middle of a raging pandemic, the tragedy pushed Americans around the country to join together. They demanded answers on why the U.S. Army mismanages sexual assault and other hate crimes. They pointed to a failed system. 

While nothing will bring the 20-year-old soldier back, U.S. lawmakers, together with military leaders, are at a crossroads as they are actively discussing improvements to the military’s judicial system. However, the direction on where to go from here is not yet clear. 

In 2019, about 20,500 service members — 13,000 women and 7,500 men — experienced some form of sexual assault. According to the Defense Department, the figure was 37 percent higher from the previous full report two years earlier. 

In February, President Biden’s new defense secretary, Lloyd Austin, created the Independent Review Commission on Sexual Assault in the Military to look into such abuses and to make recommendations on whether or not to change the way sexual assault and other hate crimes are prosecuted in the military.

In April, that commission, made up of both current and former military officials, announced its recommendations. They believed that the prosecution of sexual assaults should be shifted from the commanders to a new entity, a civilian-led “Office of the Chief Special Victim Prosecutor.”

The commission recommended that for certain special victim’s crimes, designated independent judge advocates reporting to the Chief Special Victim Prosecutor should decide two key legal questions: whether to charge someone and if that charge should go to a court-martial. The crimes would include sexual assault, sexual harassment, and, potentially, certain hate crimes.

Austin can not enact the changes unilaterally due to the fact it would amend military law. Therefore, there would need to be an act of Congress. However, his commission’s recommendations do run parallel with an effort led by Senator Kristen Gillibrand.

Since 2013, Sen. Gillibrand has been pushing for Congress to make similar changes in the military judicial system, and in April, she and a bipartisan coalition reintroduced her “Military Justice Improvement and Increasing Prevention Act,” which would be legislation that mirrors what the Pentagon panel suggested in April – plus more. Her act would require independent decision-making for not only sexual assaults but for all felony-level offenses. 

At the same time, however, not everyone approves of Austin’s commission recommendations. Once the commission gave him the feedback, Austin asked senior military leaders to share their opinions.

And, according to a June 3 Associated Press (AP) report, Austin has received those opinions through memos from the acting secretaries of the Army, Navy, Air Force and National Guard. Although the memos have not been made public, AP gathered information on what they contained from unnamed officials close to the situation.

According to the AP., the secretaries felt “…change is virtually certain and that they agree more needs to be done to improve and professionalize the judge advocate corps.” However, there were also concerns, including the following: 

• Acting Army Secretary John E. Whitley believes if the commander is removed from the process, there is potential for more cases to be settled “…with administrative discipline” causing harm to the victim’s trust in the system.
• Acting Navy secretary, Thomas Harker has concerns about the implementation of the changes and how the shift may cause delays in prosecutions, particularly since many sailors and Marines are deployed overseas or on ships for monthslong tours.
• Acting Air Force Secretary John Roth cautioned a change could inadvertently harm commanders’ leadership or accountability since “…Air Force commanders play a critical role in prevention, victim support and creating a respectful command climate.’’

Since Austin created the commission, the Army has received a new secretary, Christine Wormuth. She took office after the memos had been finalized. And although Wormuth has not specifically addressed the recommendations, she did address the issue during her Senate confirmation hearing. She said that the Army must focus on improving the command climate at all levels so younger soldiers feel safe and can make complaints if needed.