Sexual assault cases are formally removed from the U.S. military chain of command

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Secretary of Defense Lloyd Austin speaks during a media briefing at the Pentagon on Jan. 28, 2022. / AP

A new system that will put independent lawyers in charge of the prosecution of sexual assault cases in the U.S. military took effect on Thursday, marking a significant change to the way the Department of Defense tries those accused of an offense.

As a result of the change, sexual assault and other serious crimes will shift away from military commanders to legal organizations within each military service called the Offices of Special Trial Counsel.

The reform comes after years of efforts by members of Congress and others to counter a troubling rise in sexual assaults within the armed forces.

For fiscal year 2022, the Pentagon's Annual Report on Sexual Assault in the Military showed incidents rose 13% in the Navy, 9% in the Air Force and 3.6% in the Marine Corps. While incidents in the Army fell 9%, there were still 8,942 reports of sexual assault across the entire force.

Last year, Congress passed legislation to strengthen protections for service members, and in July, President Biden approved the system that takes effect today.

In a statement, Defense Secretary Lloyd Austin called the reform a "landmark change to the U.S. military justice system."

"It is the most important reform to our military justice system since the creation of the Uniform Code of Military Justice in 1950," he said. "This reform aims to help strengthen accountability and increase all of our service members' trust in the fairness and integrity of the military justice system."

The offices will be staffed by special trial counsel which will also have the authority to prosecute over a dozen other charges including murder, manslaughter, kidnapping, domestic violence, stalking, child pornography and most sexual misconduct within the military.  

The change aims to ensure decisions are not influenced by the inherent conflicts of interest and political pressures faced by commanders tasked with prosecuting members of their unit.

But Rachel VanLandingham, the president emerita of the National Institute of Military Justice, said it remains to be seen whether the change will be effective.

"While the military lawyers are 'independent' in the sense that they no longer are part of the accused or victim's chain of command, instead working for civilian service secretaries, the entire military justice structure is one that lacks independence and impartiality and disserves service members," she said.

The special trial counsels will now handle over a dozen crimes, but VanLandingham said the majority of offenses in the military code, including disobedience, dereliction of duty and insubordination, will still be handled by those in the chain of command who are no longer trusted to decide whether to charge murder or rape.

"The change, while in the right direction, establishes a two-track justice system depending on the alleged offenses, and thus creates due process concerns," VanLandingham said.

Josh Connolly, a member of the board of directors of Protect Our Defenders, viewed the reform as a step forward, but said it would require truly impartial lawyers to achieve change.

"All this depends on how this is implemented," he said. "If you don't have the right personnel in these divisions and they have bias, then this is all for naught."

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