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Sexual Assaults Will No Longer Be Prosecuted by Commanders

July 2, 2021 | BY C. Todd Lopez , DOD News

Secretary of Defense Lloyd J. Austin III accepted all of the recommendations of an independent review commission that stood up in March and delivered its findings just last week. The commission recommended an array of changes in how the defense department and the services that fall under it will handle sexual assaults.

"On my first full day as secretary of defense, I committed that we must do more as a department to counter the scourge of sexual assault and sexual harassment in our military," wrote Austin in a memorandum published today. "As I stated then — this is a leadership issue and we will lead."

Austin reviewed recommendations made by the IRC and said he agrees with everything submitted.

1:15:11

Chief among the recommendations Austin has agreed with is who will be charged with prosecuting those suspected of committing sexual assault in the ranks. Until now, it's been the domain of commanders to decide how to move forward when made aware of a sexual assault. That is no longer the case.

Based on recommendations from the IRC, Austin has directed that the department will work with the Congress to make changes to the Uniform Code of Military Justice in such a way as to shift responsibility from military commanders for prosecuting sexual assaults and related crimes, as well as domestic violence offences, child abuse and retaliation.

With commanders no longer handling the prosecution of sexual assaults, the department plans to create dedicated offices within each military service to take over the role.

As recommended by the IRC, the secretary is also seeking to have sexual harassment added to the list of offenses spelled out in the UCMJ. Sexual assault is already detailed there as an offense.

A graphic shows the 13 faces of individuals of the independent review commission.
Independent Review Commission
Secretary of Defense Lloyd J. Austin III directed the creation of a 13-person independent review commission charged with looking into sexual assaults in the U.S. military. The IRC kicked off its 90-day investigation March 24, 2021, with an online meeting among the highly qualified experts who will lead the commission's four lines of effort.
Photo By: DOD
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Making those changes to the UCMJ, which is part of federal law, requires congressional approval. But non-judicial punishments are within the purview of the military services. The secretary has directed each service to standardize, across the force, non-judicial punishments and to establish a separation process for service members against whom are substantiated claims of sexual harassment.

The secretary has also directed the military services to create professional career paths within their respective legal communities for both lawyers and investigators to specialize in the handling of sexual assault cases.

The IRC began its 90-day review of sexual assault in the U.S. military March 24. The commission's director, Lynn Rosenthal, said in conducting their work, her team met with over 600 individuals in the U.S. military, including survivors, researchers, current and former service members, commanders, junior and senior enlisted members and advocates.

Airmen build a display of teal ribbons.
Awareness Ribbons
Air Force Tech. Sgt. Rebecca Willemstein, 138th Security Forces Squadron, and Breanna Ault, Student Flight, place teal-colored ribbons near high-traffic areas to bring awareness of the campaign to eliminate sexual assault within the military.
Photo By: Sr. Master Sgt. Roberta A. Thompson. Air National Guard
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During a briefing July 2 at the Pentagon, she laid out exactly why the commission was asked to conduct their review and make recommendations.

"Twenty thousand service members experience sexual assault every year," she said. "Less than 8,000 report those sexual assaults, less than 5,000 of those are unrestricted reports — meaning the victim has said that he or she wants a full investigation — and only a tiny fraction of those end up with any kind of action at all in the military justice system. So that's the chasm that we're talking about."

Rosenthal said the recommendation that sexual assaults be prosecuted outside the chain of the command is in part because commanders themselves are not equipped to handle the complexity of a sexual assault scenario. The military justice system itself is also not ready for that, she said.

"These crimes are interpersonal in nature and have the potential to be re-traumatizing for victims as their cases move forward, so they need specialized care and handling," she said.

When it comes to caring for victims, Rosenthal said, victims' advocates are largely collateral duty roles — they have another job in the military besides taking care of sexual assault victims. The IRC recommended changes there as well.

A woman stands behind a lectern. Before her is an audience of reporters.
Lynn Rosenthal
Lynn Rosenthal, the chairperson of the Pentagon’s new sexual assault independent review committee, briefs the media at the Pentagon, Washington, D.C., July 2, 2021.
Photo By: Air Force Staff Sgt. Jack Sanders
VIRIN: 210702-D-XI929-1010

"Those recommendations include shifting sexual assault coordinators and victim advocates out of the command structure — largely eliminating collateral duty victim advocates — although you might need them in isolated deployed environments or on ships," she said. "This kind of independent advocacy, where someone is 100% focused on the victim and reporting outside of the command structure, is a best practice. It's what victims need — somebody 100% on their side."

Austin said he's directed Deputy Secretary of Defense Kathleen H. Hicks to prepare a roadmap to implement recommendations from the IRC. Following his approval of that roadmap, he said, it will be the role of the undersecretary of defense for personnel and readiness to oversee the implementation of recommendations.

"Our most critical asset as a department is our people, and our people and readiness are inextricably linked," Austin said. "We will remain the preeminent fighting force in the world because we strive to take care of our people. Our values and expectations remain at the core of addressing this problem and I have every confidence that our force will get this right."