Austin endorses major change in how military prosecutes sex assaults

WASHINGTON — Defense Secretary Lloyd Austin said Tuesday that he supports stripping commanding officers of the authority to decide whether troops accused of sexual assault should face prosecution.

Austin told the Senate this month that “what we are doing is not working and we need to fix it,” but Tuesday’s statement is his first explicit endorsement of assigning the cases to independent military lawyers, a major change in how the military addresses sexual assault.

“[W]e will work with Congress to amend the Uniform Code of Military Justice, removing the prosecution of sexual assaults and related crimes from the military chain of command,” said Austin, who added that other crimes like domestic violence should also be handled by the same “independent prosecution system.”

“I support this as well, given the strong correlation between these sorts of crimes and the prevalence of sexual assault,” said Austin.

On Wednesday, Austin was scheduled to testify before the House Armed Services Committee about the Pentagon budget. In his prepared remarks, he said the recommended changes to assault prosecution would require new authorities to implement, and "will most assuredly require additional resources, both in personnel and in funding. We look forward to having those discussions with this committee."

In his statement Tuesday Austin was accepting recommendations from an independent review commission on sexual assault that he appointed. Austin did not express an opinion on proposed legislation that would overhaul the military justice system.

House Democrats introduced bipartisan legislation Wednesday mirroring a bill unveiled in the Senate that would remove the decision to prosecute serious crimes from the chain of command and put it in the hands of trained, independent military prosecutors. House Speaker Nancy Pelosi, D-Calif., said at a press conference about the measure, the Vanessa Guillén Military Justice Improvement and Increasing Prevention Act, that she plans to bring it to the House floor as soon as possible.

Sen. Kirsten Gillibrand, D-N.Y., a lead co-sponsor of the legislation in the Senate who’s worked on the issue for years, said Wednesday that “there is no greater problem in the U.S. military right now than the scourge of sexual assault.”

“The fact that our generals, our admirals, our service secretaries are still against this reform is shocking. We've had every secretary of defense since Dick Cheney saying we've got this man, we've got this, we have zero tolerance for sexual assault,” Gillibrand said. “Today is the first time that we have a secretary of defense who agrees that sexual assault should be taken out of the chain of command. That's a big deal because it's a recognition that the chain of command is not inviolate. It is not the most important thing. What's the most important thing is that men and women of the armed services have a criminal justice system that is worthy of the sacrifice they make every day in serving our country.”

Reports of sexual assaults in the military have been on the rise since 2006, according to the Pentagon.

There have been a number of changes in the Military Code of Justice over the past decade to add more civilian oversight to the military’s prosecution of sexual assault cases and to beef up assistance for victims. But the military has previously rejected proposed changes that would take legal decisions out of the chain of command.

Austin said Tuesday he would present "specific recommendations about the commission’s findings" to President Joe Biden "in coming days."

As a candidate for president, Biden advocated taking the issue of sexual assault out of the chain of command. “I will order the Defense Department to take urgent and aggressive action to make sure survivors are in fact supported and abusers are held accountable for their crimes,” Biden said in April 2020.

In May, Gen. Mark Milley, chairman of the Joint Chiefs of Staff, said he was no longer opposed to taking decisions on sexual assault prosecutions out of the hands of commanding officers.

“We’ve been at it for years, and we haven’t effectively moved the needle,” Milley said in an interview with The Associated Press. “We have to. We must.”