DoD special trial counsel offices become fully operational, giving more protections to sexual assault victims

Special victims units are now solely responsible for investigating sexual assault and some other serious crimes, marking a turning point for the military justice system and the way sexual misconduct is handled in the military.

Within each military service, Offices of Special Trial Counsel will allow trained lawyers to evaluate and prosecute allegations of sexual assault and other “covered” offenses independently, taking those cases out of the hands of victims’ commanders.

Secretary of Defense Lloyd Austin announced today that the Offices of Special Trial Counsel are now fully operational, officially shifting away prosecutorial discretion for serious offenses from unit commanders to specially trained military attorneys.

“This landmark change to the U.S. military justice system will significantly strengthen the independent prosecution of sexual assault and other serious criminal offenses in the Department of Defense. It is the most important reform to our military justice system since the creation of the Uniform Code of Military Justice in 1950,” Llyod said in a statement.

Earlier this year, President Joe Biden signed an executive order officially implementing legislative changes to the Uniform Code of Military Justice. Service members, who once had to take their assault claims directly to their commander, now have the opportunity to work with independent prosecutors and provide their input at every stage of the case.

“This independence gives the Office of Special Trial Counsel the ability to evaluate each case on a case by case basis and make decisions based upon the evidence and the law, free from any external influences or pressures,” a senior Navy official said in a phone call with reporters on Dec. 21.

The reforms largely stem from recommendations made in 2021 by the independent review commission on sexual assault in the military established by Defense Secretary Lloyd Austin.

Last year, Austin signed a memo laying out policies governing the new special trial counsel offices. It directed the secretaries of the military departments to ensure that the offices are fully operational within each service branch by Dec. 27, 2023.

When it comes to command input, the memo states that “the commander of any victim of an alleged covered offense and the commander of any accused in a case involving a covered offense will be given a reasonable opportunity to provide input to the special trial counsel regarding case disposition, but that input is not binding on the special trial counsel.”

Covered offenses include rape and sexual assault, stalking, domestic violence, kidnapping and murder, among others.

Each special trial counsel is headed by a lead special trial counsel, who will serve for a fixed term of three years, with an option for that term to be extended.

The military services will have personnel assigned to their installations around the world.

The Navy, for example, has a total of 47 attorneys in its offices, including 24 certified attorneys and 23 co-chairs who will assist those lead lawyers. The service expects to certify another ten attorneys in the coming months once they reach specific training requirements. And the remainder of the attorneys will be certified in the next year or two. The offices’ support staff includes 26 civilians filling paralegal and trial administrative roles, and 17 enlisted sailors will also assist with administrative work.

To figure out staffing for the office, the service looked at their caseload history over the course of five years. Based on those numbers, the expectation is that each certified attorney will be able to handle 50 cases per year. For example, Norfolk, Va., is expected to be one of the busiest offices, and since that location will have about ten certified attorneys, the office should be able to clear roughly 500 cases each year.

The Army has a total of 150 personnel, including 65 prosecutors and 57 paralegals. There will also be a special victim liaison at each field office, providing support to victims throughout the entire process.

“Before being certified each special trial counsel had to meet minimum experience and training requirements, including passing a specifically tailored certification course,” a senior Army official told reporters. “We will evaluate cases on the merits and apply an expert legal analysis to determine which cases should go forward to trial, we will make these decisions based on the evidence and consideration of fairness for all involved in the military justice process. ”

Since the offices have long been building up to full operational capacity, senior leaders don’t expect their offices to be flooded with incoming cases. Their staff has already been working on the cases that occurred prior to Dec. 28, but now that the annual defense policy bill has been signed into law, they have the discretion to exert authority over those prior offenses.

“Our special trial counsel haven’t just been…sitting at home waiting for Dec. 28 to hit before we start doing work. So, like the other services said, they’ve been working on these cases that are occurring before Dec. 28. So it there’s not going to be a sudden flood that comes in and overwhelms us. We’ve already been working on those cases,”  a senior Army official said.

“And that’s going to be a conversation on a case by case basis in terms of what cases we choose to exert authority over. Certainly the more developed the cases, if it’s the day before trial, I wouldn’t anticipate that we would come in and pump the brakes on that and try and restart a process, but certainly those cases that are just being reported, or had just started in investigation. Those would be good candidates for us to to exert authority over those cases that occurred or reported before Dec. 28,” he continued.

Senior officials believe that this major step will not just promote trust in the military justice system among service members, but also significantly improve personnel readiness.

While there was a slight increase in reported sexual assault cases in fiscal 2022, Pentagon officials continuously emphasized that a large number of cases go unreported. There were 8,942 reports of sexual assault across the military branches last year, but last year’s report estimated that nearly 36,000 active-duty personnel, both women and men, experienced sexual assault.

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