Secretary of Defense backs change in military sex assault prosecution

Change would impact prosecution decisions
Sec. of Defense Lloyd Austin
Posted at 9:01 AM, Jun 30, 2021

WASHINGTON, D.C. — Defense Secretary Lloyd Austin, for the first time, said Tuesday he will support long-debated changes to the military justice system that would remove decisions on prosecuting sexual assault cases from military commanders.

In a statement, obtained by The Associated Press, Austin said he supports taking those sexual assault and related crimes away from the chain of command, and let independent military lawyers handle them. The Pentagon has long resisted such a change, but Austin and other senior leaders are slowly acknowledging that the military has failed to make progress against sexual assault, and some changes are needed.

Austin pledged to work with Congress to make the changes, saying they will give the department “real opportunities to finally end the scourge of sexual assault and sexual harassment in the military.” His public support for the shift has been eagerly awaited, sending a strong signal to the military and boosting momentum for the change.

The statement came a day before Austin testifies to the House Armed Services Committee amid escalating pressure from Congress to take concrete steps to address sexual assault. Austin’s memo, however, does not express any view on legislation that would make broader changes to the military justice system and require that independent lawyers handle all major crimes.

Sen. Kirsten Gillibrand, D-N.Y., has the support of 66 senators for a bill that would have independent prosecutors handle felonies that call for more than a year in prison. But other key lawmakers and leaders of the military services have 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.

Until now, Austin has said publicly that he was open to changes recommended by an independent review commission that he appointed to take a look at sexual assault and harassment in the military. The panel said sexual assault, sexual misconduct, domestic violence, stalking, retaliation, child sexual assault and the wrongful distribution of photos should be removed from the chain of command.

In the statement, Austin finally makes public that he supports the change, and says those additional crimes should be included because there is a strong correlation between them and the prevalence of sexual assault. According to a defense official, Austin has reservations about the more expansive change outlined in Gillibrand’s bill, similar to those expressed by his senior leaders. The official spoke on condition of anonymity to discuss private conversations.

In recent weeks military service secretaries and chiefs, in memos to Austin and letters to Capitol Hill, said they were wary about the sexual assault change, and laid out greater reservations on more broadly revamping the military justice system.

Gen. Mark Milley, chairman of the Joint Chiefs of Staff, said removing commanders from prosecution decisions “may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead.”

In a letter to Sen. James Inhofe of Oklahoma, ranking Republican on the Senate Armed Services Committee, Milley acknowledged the military hasn’t made sufficient progress in combating sexual assault. He has repeatedly said, though, he’s open to the sexual assault change.

The independent review panel on Monday presented Austin with an expansive set of recommendations to combat sexual assault in the military, including prevention, command climate, victim care and support.

“Generally they appear strong and well-grounded,” Austin said in his statement. “I have directed my staff to do a detailed assessment and implementation plan for my review and approval.”

Austin said he will present his recommendations to President Joe Biden in the coming days. But he also noted that the changes will require additional personnel, funding and authorities. The ones that can be done under existing authority will be give priority, he said, and other changes may take more time and will need help from Congress.

“As I made clear on my first full day in office, this is a leadership issue. And we will lead,” he said. “Our people depend upon it. They deserve nothing less.”

In a recent interview with the AP, Gillibrand said the wider change is necessary to combat racial injustice within the military, where studies have found that Black people are more likely to be investigated and arrested for misconduct.

Gillibrand has argued against limiting the change to sexual assault, saying it would be discriminatory and set up what some call a “pink” court to deal with crimes usually involving female victims.

“I’m deeply concerned that if they limit it to just sexual assault, it will really harm female service members. It will further marginalize them, further undermine them, and they’ll be seen as getting special treatment,” she told the AP.