DoD trying to balance changes to sexual assault prosecution without giving up large UCMJ authority

The Defense Department is trying to walk a fine line in its support for taking certain crimes out of the military chain of command as Congress moves forward with a bill that will make one of the biggest changes to the Uniform Code of Military Justice in years.

Deputy Defense Secretary Kathleen Hicks reiterated to lawmakers Tuesday that DoD supports taking seven specific crimes out of the chain of command, but not all nonmilitary crimes, which is what the most popular version of legislation proposes.

That bill currently has solid support in the House and a filibuster-proof majority sponsoring the bill. However, some senators have been wavering in their support after hearing concerns from the military’s top officials.

“We took a problem-centric approach to this issue, and began with the problem scope around sexual harassment, sexual assault and related sexual misconduct,” Hicks told the House Armed Services Military Personnel Subcommittee. “I think what we did here is a very good model for how we should approach other major challenges, particularly people challenges, but any challenges in the department.”

The specific crimes are sexual assault and harassment, plus related articles like stalking, posting photos without permission and domestic abuse.

“What we’ve promised to do here is move the needle. I don’t currently have evidence as I do in this case that there’s a specific issue around trust of the commander that weighs in the balance,” Hicks said. “At the same time, we scoped this particular approach in our legislation understanding that faith, that good order and discipline and trust between commander and commanded is absolutely vital to military readiness.”

Some lawmakers took issue with Hicks’ assertion that there is not evidence of general eroded trust between commander and commanded.

Rep. Anthony Brown (D-Md.), a former military commander, there were multiple studies that show minorities are prosecuted more often by commanders.

“What they found is a lack of trust Black and brown service members have in commanders; this issue has been around for a long time,” Brown said. “The problem can be simplified, but it’s not a simple problem: it’s an under-prosecution of sexual assault and an over-prosecution of black and brown people. We know the problem. There’s a lack of trust between black and brown and commanders in the military justice system.”

The over-prosecution of minorities is one of the handful of arguments for taking nonmilitary crimes out of the chain of command, along with the fact that a majority of commanders are not lawyers and may lack the complex nuances needed to decided when to prosecute a crime.

Hicks said she felt DoD would need at least six months to study the effects of taking all nonmilitary crimes out of the chain of command.

Many lawmakers noted that a handful of allied militaries have already taken nonmilitary crimes out of the chain of command without ill effects.

Brown said he was also concerned about how DoD was implementing some measures of the Independent Review Commission (IRC) on Sexual Assault.

The commission suggests creating three special victims categories, and currently DoD is only backing one.

DoD’s proposal only creates special victim categories for specified offenses such as sexual assault and harassment, but not for trait of character or intent of offender.

Those categories would allow special victims units to take over cases for people under the age of 16, spouses or dating partners in the trait of character category. The units would also take over hate crimes, bullying and hazing.

“The department is looking ahead, not just at the legal piece of this, but at the changed implementation and management side of it, and in doing that and weighing the advice inside the department and from outside experts like the IRC,” Hicks said. “The approach really is this balance of how do we implement change that has real effect quickly, meaningfully and that can withstand challenge. I’m sure you know the UCMJ changes are frequently challenged in court.”

Conservative Democrats like Sen. Jack Reed (D-R.I.), chairman of the Senate Armed Services Committee, are backing DoD’s proposal, while some Republicans like Ranking Member Sen. Jim Inhofe (R-Okla.) are skeptical of both versions.

“The input from our top brass is just one piece of the puzzle,” Inhofe wrote after receiving letters from top military officials about the bill. “I remain concerned that, as written, it would not reduce sexual assault or other crime in the slightest and would complicate the military justice system unnecessarily.”

Sen. Kirsten Gilibrand (D-N.Y.), chairwoman of the Senate Armed Services Personnel Subcommittee, who is the main sponsor of the bill taking all nonmilitary crimes out of the chain of command, noted during her subcommittee’s markup of the bill that the full committee’s general provisions for the legislation only hold the Pentagon’s recommendations.

“The current system, which asks commanders who are not trained lawyers to make prosecutorial decisions in complex cases in which they often know both the accused and the victim can see them unfairly place their thumbs on the scale of justice when it carries serious life altering consequences for the accused,” Gilibrand said. “It’s imperative that we include it in our subcommittee mark as a recommendation by the Personnel Subcommittee to the entire committee.”

Gillibrand argued against limiting the outside prosecutions to sexual assault, saying it would be discriminatory and set up what some call a “pink” court to deal with crimes usually involving female victims.

“I’m deeply concerned that if they limit it to just sexual assault, it will really harm female service members. It will further marginalize them, further undermine them, and they’ll be seen as getting special treatment,” she told AP.

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