Momentum in Congress for taking sexual assault prosecution powers away from military commanders, combined with a more flexible view by some military leaders, is pointing to a historic shift in the battle against what Defense Secretary Lloyd Austin calls “the scourge of sexual assault.”
The leading lawmaker voice on this issue, Sen. Kirsten Gillibrand, a New York Democrat, has bipartisan, filibuster-proof support for a bill that would take prosecution decisions out of the chain of command for major crimes, including sexual assault, rape and murder. The legislation is caught in a procedural struggle in the Senate that supporters see as an effort to stall the bill and water down its language.
The Pentagon appears resigned to a new approach. Austin, who has emphasized the importance of the issue since his nomination was confirmed in January, is weighing military service leaders' views, which some or all provided to him in recent days.
For years, military leaders have acknowledged sexual assault is a big problem but resisted taking prosecutions out of the chain of command; they have argued that it would undermine commanders' ability to lead and would not reduce the frequency of assaults. That concern — and others — remains, but some leaders have begun publicly emphasizing their openness to change.
The Biden administration's nominee as Air Force secretary, Frank Kendall, indicated he's prepared for a new approach.
“Change is necessary, and hopefully we can move forward,” Kendall told Gillibrand at his confirmation hearing Tuesday, praising her efforts. He added that he believes the problem of sexual assault is rooted in military culture and leadership flaws, and he's uncertain how broadly her proposed changes in prosecution authority should be applied.
“This is a generational change whose time has come," Gillibrand said Tuesday on the Senate floor in seeking the required unanimous consent to put her bill to a vote.
Reflecting tensions on this issue among Democrats, Sen. Jack Reed, a Rhode Island Democrat and chair of the Senate Armed Services Committee, blocked Gillibrand's procedural move, arguing that her bill must be folded into the broader 2022 defense authorization bill that his committee will take up this summer and fall.
Reed has said he expects the broader defense bill to include “a robust change in the role of the commander in sexual assault cases.”
The shift in attitudes among some military leaders has emerged since President Joe Biden took office. During his campaign, Biden emphatically endorsed removing sexual assault prosecution decisions from the chain of command. He said he would set up a commission to recommend a way forward early in his term.
“We have to change the culture of abuse in this country, especially in the armed services,” Biden said on April 29, 2020.
At Biden’s direction, Austin, the Pentagon chief who is a former Army commander, established an Independent Review Commission on Sexual Assault to study ways to attack the problem. In April, the commission recommended taking prosecution powers out of the chain of command. It said that for certain special victims crimes, designated independent judge advocates reporting to a civilian-led Office of the Chief Special Victim Prosecutor should decide two key legal questions: whether to charge someone and, ultimately, whether that charge should go to a court martial. The crimes would include sexual assault, sexual harassment and, potentially, certain hate crimes.
Austin is weighing the military service leaders' views on this before deciding whether he will support it.
Doubts persist about whether establishing an independent prosecuting authority for sexual assault cases would help reverse a yearslong upward trend in the number of reported sexual assaults in the military.
The acting Army secretary, John E. Whitley, said in an Associated Press interview that the Army is focused more on improving the selection of commanders as a way to change attitudes and improve trust. He said data on the military's prosecution of sexual assault cases indicates that taking it out of the chain of command would not address the crux of the problem.
“Part of my concern is we’re perhaps, we’re in a very fever pitch debate right now,” Whitley said. "And I worry that the data are not perhaps coming through to the extent they should.”
But some military leaders in recent weeks have signaled a willingness to consider new approaches to prosecution, given the failures of the current system and in light of growing pressure from Congress.
“I'm open to the conversation,” the Air Force chief of staff, Gen. Charles Q. Brown, said Tuesday.
Brown did not say whether he believes that taking prosecution decisions out of the chain of command would be a step in the right direction, but his comments suggest a break from the past. His predecessor and other service chiefs had been united in arguing strongly against the move, saying it would send a confusing message to service members about trust in their commander's judgment.
That solid wall of opposition began to crack in early May when the chairman of the Joint Chiefs of Staff, Gen. Mark Milley, previously a prominent opponent, told the AP and CNN that he had changed his mind. Although he no longer opposes the idea, he has not publicly endorsed it, either. He said the time had come to try something different because “we’ve been at it for years, and we haven’t effectively moved the needle.”
Sexual assault has long plagued the military, triggering congressional condemnation and frustrating military leaders who have struggled to find effective prevention, treatment and prosecution methods. The most recent of the Defense Department’s biennial anonymous surveys, done in 2018, found that more than 20,000 service members said they experienced some type of sexual assault, but only a third of those filed a formal report.
Milley said he shifted his thinking in part because he is concerned that junior enlisted service members lack confidence in the fairness of sexual assault case outcomes. He said this amounts to an erosion of confidence in the military chain of command.
“That’s really bad for our military if that’s true, and survey and the evidence indicate it is true,” he said.
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