The Defense Department’s top leaders Thursday signaled an openness to remove prosecutorial decisions on sexual assault from the chain of command. But they voiced reservations about overhauling the military justice system for all serious crimes, as some senators are pushing in a recent bill.
The Defense Department’s top officer, General Mark Milley, said he is open minded to “significant and fundamental change” in the area of sexual assault and harassment but would want to see “some detailed study” before changes to the military justice system are applied to all serious crimes.
The remarks came in response to questions at a Senate Armed Services Committee hearing from Senator Kirsten Gillibrand of New York, who has been pushing for years for changes to the military justice system to address the issue of sexual assault and harassment in the military.
The military’s most recent prevalence report issued in 2018 estimated that about 20,500 service members experienced a form of sexual assault, and the number of reported assaults has increased for the past nine years according to the department’s 2020 report.
Gillibrand’s Military Justice Improvement Act includes removing prosecutorial decisions from the chain of command for all serious crimes, including crimes of sexual assault.
When reintroducing the legislation in April, Gillibrand said it was important to put all prosecutions of serious crimes into the hands of trained professionals in order to eliminate bias and to not create a separate system for sexual assault that could further ostracize victims.
Defense Secretary Lloyd Austin on his first full day in the Pentagon stood up the Independent Review Commission on Sexual Assault and Harassment in the Military to study the problem and offer recommendations on how to fix it that Austin will deliver to President Biden.
Austin in testimony Thursday said he will deliver final recommendations to Mr. Biden later this month, which will include the initial recommendation to remove prosecutorial decisions on cases of sexual assault from the chain of command so there is no potential bias when deciding.
Gillibrand asked Austin if he would keep an open mind to large-scale changes to the military justice system as he reviews data on racial disparities in the system. He said he always has an open mind when faced with tough problems, but this commission is focused on sexual assault.
The recommendation to remove prosecutorial decisions on sexual assault from the chain of command has historically faced resistance from military leaders. Milley, who has opposed the recommendation in the past, appeared to have evolved on the issue, telling reporters in April that he had an open mind because the problem is not getting better, and there’s a lack of confidence in the system.
Austin has received feedback from the service secretaries on the initial recommendations from the commission that include reforming the Uniform Code of Military Justice to remove sexual assault cases from the chain of command, and some service secretaries expressed reservations, noting their concern that it will erode the authority of commanders.
Gillibrand’s legislation now has 66 co-sponsors as more senators of both parties have signed on in recent weeks, but the Chairman of the Senate Armed Services Committee Jack Reed remains hesitant on a massive overhaul of the Uniform Code of Military Justice.
Reed, an Army veteran, has endorsed changing the role of military commanders in prosecuting service members on sexual assault charges but has not supported further changes. In a statement in May, he said the change involving sexual assault charges will be considered in the markup of the committee’s annual defense bill this summer.