Sexual assault prosecutions officially out of the chain of command

by Tommy Grant

Military commanders are no longer in charge of deciding whether to prosecute a dozen major crimes, including sexual assault and domestic violence, as each of the services officially opened their offices of special trial counsel on Thursday.

The move upends the traditional chain-of-command-centric military justice system, where commanders have had the authority to make decisions on whether to proceed with criminal cases.

Standing up of these special trial counsels means that, going forward, only trained, designated attorneys will decide whether to press charges or send a case to trial.

The move is the culmination of more than a dozen years of effort by members of Congress, who in late 2021 voted to install independent prosecutors to make decisions about not only sexual assault cases, but murder, manslaughter, domestic violence, child abuse and more, 14 crimes in all.

“This shift should assure a sexual assault victim that if they choose to make an unrestricted report, the case will be handled professionally and consistently with the best practices and procedures of civilian prosecution offices,” a senior defense official, who was not authorized to speak on the record, told reporters on Dec. 21.

It also represents the first time the Defense Department and Congress have been on the same page about independent prosecutions. Defense Secretary Lloyd Austin in 2021 approved a multi-year plan to implement more than 80 recommendations from an independent review commission on sexual assault, including special trial counsels.

That original plan gave the services until 2027 to transfer those authorities, but the 2022 National Defense Authorization Act moved that timeline up to no later than December 29 of this year.

As of Thursday, each of the services has multiple regional special trial counsel offices up and running, which dozens of specialized prosecutors, as well as uniformed and civilian support staff.

“The sort of key difference here for us, going forward, is going to be that we are making decisions based on the facts on the evidence … unencumbered by perhaps some of the pressures or concerns that the senior commanders might feel,” a senior Army official told reporters.

“So I think that’s where, you know, you’re going to see a difference in the in the number or quality of cases getting referred,” the official added, because those decisions no longer lie with commanders who might be concerned about how sexual assault within their units might affect their careers.

While Wednesday marked the official cutoff for new cases to be sent to special trial counsels, policy does allow some overlap.

For example, officials said, crimes committed before Dec. 28 but reported afterward can be handled by the new prosecutors. Or, in a case where a single perpetrator commits multiple crimes before and after Dec. 28, that case would go to the special trial counsel.

Each service’s organization is headed up by an O-7 judge advocate, save for the Army, which is in the process of finding a replacement for Brig. Gen. Warren Wells, who was fired earlier this month for past comments about sexual assaults.

And the prosecutors working in the regional offices have undergone special training to handle these sensitive cases. Policy calls for them to spend at least three years in their positions, both to have consistency in the new offices but also to give each judge advocate corps time to select and train their replacements.

“So in an ideal world, we’d be rotating the office one third every year so that we’re bringing in new people and training them as we come,” a senior Navy official told reporters.

Neither the Pentagon nor the services have made any promises about how many more cases will or won’t go to trial under the new system.

Trained special prosecutors have been advising commanders for years, though they haven’t before had the decision-making power. And in the civilian world, sexual assault prosecution and conviction rates are low, despite the oversight of independent experts: just 16% of rape reports result in an arrest, with 9% leading to a felony conviction, according to the Rape, Abuse and Incest National Network.

But the hope is that independent prosecutions will encourage service members, who as of 2021 are estimated to report sexual assaults only 20% of the time, to report their assaults and have faith that they will be prosecuted properly.

That figure is down from 30% just a few years earlier. At the same time, though instances of sexual assault have continued to rise, rates of prosecution and conviction have fallen.

“So we’re hopeful that in the long run, there may be more cases coming in to the system to to promote greater accountability,” the senior defense official said.

Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members.

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