Sexual Assault, the Military Justice System and Commanders‘ Authority: Recent Developments

Sexual Assault, the Military Justice System and Commanders‘ Authority: Recent Developments

INSIGHTi
Sexual Assault, the Military Justice System
and Commanders‘ Authority; Recent
Developments
May 25, 2021
Over the past two decades, Congress has taken legislative action to address sexual misconduct in the
military and to improve prevention, response, and accountability through the military justice system.
Despite legislative changes and Department of Defense (DOD) initiatives, sexual assault reporting and
prevalence data indicate continued risk factors and room for improvement across several metrics. A recent
independent review at Fort Hood which found “ineffective implementation” of the Army’s sexual
harassment and assault prevention program, has raised additional congressional concerns.
Bil s introduced the 116th and 117th Congress would require certain changes to the military justice system
with respect to sexual harassment and assault. One proposed change applies to military commanders’
statutory authority, under the Uniform Code of Military Justice (UCMJ; Chapter 47, Title 10 United
States Code), to dispose of certain sex-related cases. Members of Congress, victim advocacy groups,
DOD officials, legal scholars, and other stakeholders continue to debate proposals to transfer this
authority from commanders to career prosecutors.
In a February 26, 2021 memorandum, Secretary of Defense Lloyd J. Austin III ordered the creation of a
90-day Independent Review Commission (IRC) to address sexual assault in the military. According to
DOD reporting, the IRC has four lines of effort: 1) accountability, 2) prevention, 3) climate and culture,
and 4) victim care and support. The commission began work on March 24, 2021, and has provided some
initial recommendations to Secretary Austin, including those related to the commander’s authority. While
some officials have argued against transferring authority from commanders to career prosecutors, a few
senior military leaders recently expressed openness to changing military justice processes.
Current Law and Practice: the Commander’s Disposition
Authority
Military servicemembers are subject to punishment under the Uniform Code of Military Justice (UCMJ,
Chapter 47, Title 10 United States Code). Military criminal investigative organizations (MCIOs) have
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primary jurisdiction over the investigation of serious offenses under the UCMJ, which include al eged
sex-related offenses by a servicemember. Following a sexual assault al egation, the MCIO submits a
report of investigation (ROI) to a military lawyer, cal ed a Staff Judge Advocate (SJA), w ho reviews the
ROI for legal sufficiency. The SJA then recommends to an initial disposition authority whether to take
further action (i.e., judicial, non-judicial, or administrative). Since 2013, the military services have limited
the initial disposition authority for al eged sex-related offenses to the first officer of rank O-6 or higher in
the accused’s chain of command who has the authority to convene special courts-martial (10 U.S.C.
§819). After receiving the SJA’s legal advice, this officer may exercise authority over the matter by
convening a special court martial (10 U.S.C. §818). (For more information, see CRS Report R46503,
Military Courts-Martial Under the Military Justice Act of 2016, by Jennifer K. Elsea and Jonathan M.
Gaffney.) Before referring charges to a general court-martial, a pre-trial hearing is held to determine
jurisdiction, probable cause, and further disposition (also cal ed an Article 32 hearing; 10 U.S.C. §832),
unless waived by the accused.
Proposed Limitations on Commanders’ Disposition
Authority
Legislation in the 117th Congress (S. 1520, H.R. 3224 and S. 1611) and similar bil s in the 116th (S. 1789,
H.R. 8270, and S. 4600) would make certain changes to the commander’s authority. In particular,
provisions in these bil s would remove commanders’ disposition authority for certain sex-related offenses
(some versions of this legislation include other offenses for which the UCMJ authorizes confinement for
more than one year). This authority would be centralized and reassigned under an “Office of the Chief
Prosecutor” for each of the Armed Forces (other than the Coast Guard). The Chief Prosecutor would be
appointed by the Judge Advocate General of the relevant service and would be a commissioned officer in
the grade of O–6 or above who has significant experience prosecuting sexual assault trials by court-
martial. In addition, the provisions would establish Offices of Chiefs of Staff on Courts-Martial for the
Services, to convene and staff general and special courts-martial. The bil s would also prohibit officers in
the chain of command of the accused, or of the victim for a specified offense, from being the convening
authority for a court-martial.
Aspects of the Debate
Those who support removal of the commander’s authority, including victim advocacy groups and some
legal scholars, contend that career prosecutors are better qualified to make legal decisions than
commanders. They also argue that this action may improve victim confidence in the impartiality of the
military justice system and could lead to increased victim wil ingness to formal y report sexual assaults
and participate in the justice process. Supporters also contend that this change to the disposition authority
would not preclude commanders from taking other disciplinary actions deemed necessary to maintain
good order and discipline within their units.
Some, including prosecutors within DOD, argue against this change. The National Defense Authorization
Act for Fiscal Year 2020 (NDAA, P.L. 116-92, Section 540F) required a report on the feasibility and
advisability of an alternative military justice system in which judge advocates in the grade of O-6 or
higher, with significant experience in criminal litigation, refer charges for trial by court-martial rather than
commanding officers. This NDAA provision also requested feedback on the feasibility and advisability of
a pilot program to implement this change.
The resulting report of the Joint Service Subcommittee (JSS) argues that the alternative system presents
legal risks and administrative burdens to the entire military justice system, and could reduce commander

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accountability for good order and discipline. The JSS pointed to a prior study by independent legal
experts that found commanders have reasonably and capably decided 95% of cases under review. They
also noted that there is little evidence from countries that have shifted authority away from commanders
that these changes have had their desired effects. Final y, the authors argue that a pilot program would
“create a system that arbitrarily subjects a subset of a uniform population to a different jurisdictional
scheme. A separate jurisdictional scheme is bound to face significant and credible equal protec tion and
due process chal enges.”
Members of 117th Congress may consider these and other arguments in upcoming deliberations for the
FY2022 NDAA. For additional information, see CRS Report R44944, Military Sexual Assault: A
Framework for Congressional Oversight, by Kristy N. Kamarck and Barbara Salazar Torreon.

Author Information

Kristy N. Kamarck

Specialist in Military Manpower

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