How sexual assault and other serious crimes are handled within the United States military has changed.
President Joe Biden signed an executive order changing the Manual for Courts-Martial to address how certain crimes in the ranks are handled. The order profoundly changes how the military must respond to crimes, including sexual assault, domestic violence, child abuse, and murder in the ranks.
What the Executive Order Does
- The Executive order creates the Offices of Special Trial Counsel (OSTC), a panel of independent military prosecutors.
- This body would review military criminal cases, including sexual assault and other violent crimes, to see which it must prosecute under its authority.
- The order also creates positions for independent trial counsel. These are independent prosecutors replacing portions of the old system that allowed military commanders to decide whether a prosecution should move forward in serious offenses, including sexual assault or rape.
- The executive order requires that “prosecutorial decisions made by the special trial counsel are binding and are fully independent from the military chain of command.” There are also new boundaries set for trial counsel to ensure that independence.
Changes to the Manual for Courts-Martial
Prior to the executive order, military commanders had much more say in how certain crimes were handled in their units. If a crime was committed, the chain of command typically got involved in ways unique to the military.
This was codified in the Manual of Courts-Martial, which had to be rewritten to include the new requirements.
Under the executive order, the chain of command would not be involved in prosecuting criminal charges against troops under their command for certain violent crimes.
Instead, independent prosecutors would do the work, taking control away from commanders and placing it more under the auspices of military law enforcement.
Another important change? The executive order reforms the sentencing system “to promote uniformity and fairness, as recommended by the commission to reduce disparities in sentencing in cases of rape and sexual assault,” according to Defense.gov.
The Original Plan
CNN reports that the original plan for these changes came via a bipartisan effort between New York Democratic Senator Kirsten Gillibrand and Republican Senator Joni Ernst of Iowa. Their efforts were originally intended “to remove prosecution of sexual assault from the military chain of command,” according to CNN.
But the executive order requires independent prosecution for a variety of violent crimes, not just sexual assault or rape. It was expanded beyond what some consider to be the original scope of the effort.
Under the order, when a crime is reported, the installation security forces or military police must contact special trial counsel first. Defense.gov says the next steps include an assessment and decision as to whether the case falls under the jurisdiction of the special counsel.
If it doesn’t, Defense.gov says the crimes “could be referred to commanders using the traditional military justice system, where commanders, with advice from judge advocates, will determine what to do.”
The executive order becomes effective on December 27, 2023, as per the National Defense Authorization Act.