Legislatively Speaking
By Senator Lena C. Taylor
Lena C. Taylor
Last week, President Biden signed an Executive Order to implement historic, bipartisan military justice reforms that significantly strengthen how the military handles sexual assault cases. The Executive Order transfers key decision-making authorities from commanders to specialized, independent military prosecutors in cases of sexual assault, domestic violence, murder, and other serious offenses by amending the Uniform Code of Military Justice (UCMJ). Why is this important?
According to the Annual Report on Sexual Assault in the military, sexual assault in the US military jumped 13% from the previous fiscal year. Some 8,866 reports of sexual assault, were reported in the in fiscal year 2021. These assaults include those while in military service, prior to service and made by civilians against service members. The data indicates there is clearly a problem. This issue is how those assaults have been processed or dealt within the past.
Decisions about prosecuting these assaults and crimes that included domestic violence, child abuse and even murder, were left up to commanding officers. For decades, everyone from lawmakers, military leaders and even U.S. presidents had fought long sought changes to the system. Previously, commanders had the authority to determine which cases were referred for court-martial, who could be considered for juries, and more.
If we are honest, when you look at the power commanders had in these situations, you had to ask what took them so long to come around. While the fight of federal legislators like New York’s Sen. Kirsten Gillibrand, had been waged for a long time, there was finally a bi-partisan movement in the last couple of years. The cynic in me wonders how if the threats against and subsequent overturning of Roe v. Wade was a factor in doing more to deal with sexual assaults more effectively. Either way, change has come.
Amendments to the Manual for Courts-Martial and its accompanying Rules for Courts-Martial included establishing the rules that will govern the new Offices of Special Trial Counsel (OSTC), the independent military prosecutors who will now decide, in the place of commanders, whether to prosecute covered offenses such as sexual assault and domestic violence, child abuse, and murder.
The new rules make clear that prosecutorial decisions made by special trial counsel are binding and fully independent from the chain of command. Modernized procedures will work to better protect victims and promote fairness before, during and after court-martial proceedings.
While the changes are much more comprehensive than I’ve outlined, it is also important to understand the significance of creating a uniform evidence standard for non-judicial punishment actions and reducing disparities in sentencing in cases of rape and sexual assault.
The reforms ordered by the Biden/Harris administration reflect generational changes and a shift in views. They reflect progress and forward thinking leadership. Change can be slow, but it’s coming!