Changes are Coming and Have Come to Sexual Assault Prosecutions in the Military – Mason Veterans and Servicemembers Legal Clinic

Written by Spring 2022 M-VETS Student Advisor Doug Boyle.

Introduction/Proposed Reforms

Sexual assault in the military has been a major public issue, particularly over the past decade. The issue was prominently highlighted by the tragic circumstances surrounding the death of Specialist (“SPC”) Vanessa Guillen. In April 2020, SPC Guillen was stationed at Fort Hood, Texas when she disappeared. Her remains were found in June 2020, and the suspect in her murder committed suicide after escaping the base during the investigation.[1] Then-Secretary of the Army Ryan McCarthy created an independent review panel to study the command climate at Fort Hood. The panel identified major flaws with the sexual harassment and assault response prevention (“SHARP”) program at Fort Hood, and a command climate that was permissive of sexual harassment and sexual assault.[2] And an Army investigation into the handling of SPC Guillen’s case found that she had been sexually harassed by a supervisor and leadership in her unit failed to take the proper actions. While the investigation did not connect the harassment to SPC Guillen’s murder, it did result in the firing of 21 Army personnel.[3]

During Fiscal Year 2020, the Department of Defense (“DoD”) identified a total of 6,290 reports of sexual assault by service members for incidents occurring during military service.[4] But of those 6,290 reports, only 50 led to sex-offense convictions under the Uniform Code of Military Justice (“UCMJ”). Women make up 16.5% of the armed services. But according to some studies almost one-quarter of female servicemembers have reported experiencing sexual assault while more than half have reported experiencing sexual harassment.[5] As it stands now, military commanders have the authority to decide whether a servicemember accused of sexual assault (and any other crime for that matter) is subject to a court martial[6]—regardless of the evidence against that servicemember. Advocates and some politicians saw this aspect of the UCMJ as a reason why “troops who are assaulted rarely see justice. . . .”[7]

As a result, the past decade has seen three major proposals aimed at reforming sexual assault prosecutions under the UCMJ. First, Senator Kirsten Gillibrand (D-NY) introduced the Military Justice Improvement Act (“MJIA”) in 2013. After several unsuccessful attempts to get the MJIA passed, Senator Gillibrand introduced a revised bill, the Military Justice Improvement and Increasing Prevention Act (“MJIIPA”) in 2021.[8] Under MJIIPA, the authority to convene a court martial after an alleged “covered offense” would be transferred from commanding officers to Judge Advocate General Corps’ (“JAG”) officers at an O-6 (Navy commanders and Army/Air Force/Marine Corps colonels) ranking or higher. Furthermore, that JAG must “have significant experience” with court martial trials and must be “outside the chain of command of the [servicemember] subject to such charges.”[9]

The UCMJ’s punitive articles (i.e., criminal offenses) are found in articles 77 through 134. These articles cover offenses ranging from breach of medical quarantine and “malingering,” to rape and murder.[10] Under MJIIPA, more than thirty of the UCMJ’s offenses would constitute “covered offenses,” meaning the court martial convening authority for these offenses would be divested from commanding officers and vested in qualified JAG officers.[11] Unsurprisingly, “covered offenses” include wrongful broadcast or distribution of intimate visual images (article 117a), rape (article 120), and other sexual misconduct (article 120c). But perhaps surprisingly, “covered offenses” also include larceny and wrongful appropriation (article 121) and fraudulent use of credit cards, debit cards, and other access devices (article 121a).[12] Finally, to constitute a “covered offense,” the maximum punishment authorized by the UCMJ must include “confinement for more than one year,” that is, the offense must be felonious.[13]

The second major proposal regarding sexual assault prosecutions in the military was the I Am Vanessa Guillén Act (the “Guillén Act”) which was introduced by a bipartisan group of more than 100 congressmen and congresswomen in 2020.[14] Under the Guillén Act, each military branch would be required to create a position of chief prosecutor, filled by “a commissioned officer in the grade of O-6 or above who has significant experience prosecuting sexual assault trials by court martial.”[15] If a servicemember were charged with a “sex-related offense,” the traditional court martial convening authority (i.e., the servicemember’s commanding officer) would have to present that charge to the chief prosecutor’s office.[16] At that point, the chief prosecutor’s office would decide whether to convene a court martial regarding the sex-related offense.[17]

The Guillén Act would cover far fewer offenses than MJIIPA. Under the Guillén Act, “sex-related offenses” include rape and sexual assault (article 120), mail: deposit of obscene matter (article 120a), rape and sexual assault of a child (article 120b), and other sexual misconduct (article 120c). As it stands, sexual harassment is not a standalone offense under the UCMJ. But servicemembers who engage in sexual harassment can be charged under other punitive articles. For example, a court recently upheld the Navy’s decision to charge a sailor accused of sexual harassment under UCMJ article 92 (failure to obey order or regulation).[18] And servicemembers have been properly charged with sexual harassment under UCMJ articles 117 (wrongful broadcast/distribution of intimate visual images)[19] and 93 (cruelty or maltreatment).[20]

The Guillén Act however would add article 120d to the UCMJ and make sexual harassment a standalone offense. The definition of sexual harassment under the Guillén Act is lengthy. But it includes “sexual advance[s],” “request[s] for sexual favors,” and “any other conduct of a sexual nature” in circumstances where “submission to the conduct involved is made either explicitly or implicitly a term or condition of employment,” “submission to or rejection of such conduct is used as the basis for an employment decision,” or “such conduct . . . create[s] an intimidating hostile, or offensive work environment. . . .”[21] Naturally then, the newly created article 120d would be a “sex-related offense” for which the court martial convening decision must be made by the office of the chief prosecutor.[22]

The third reform proposal was made by a DoD Independent Review Commission (“IRC”) that began its work in March 2021.[23] At President Biden’s direction, Secretary of Defense (“SECDEF”) Lloyd Austin established the 90-day IRC which was comprised of civilians, retired servicemembers, government officials, and federal prosecutors.[24] The IRC’s recommendations were primarily focused in four areas: Accountability, prevention, climate and culture, and victim support and care. At its conclusion, the IRC made 82 recommendations to SECDEF Austin.[25] It is SECDEF Austin’s intent to accept the IRC’s recommendations wherever possible,[26] but several are key here.

The first is the recommendation to create an “Office of the Special Victim Prosecutor in the Office of the Secretary of Defense . . . and shift legal decisions about prosecution of special victim cases out of the chain of command.”[27] The IRC also recommended ensuring independent personnel with specialized training investigate claims of sexual harassment, mandatory separation in the event of a substantiated claim, and “[p]rofessionalized career billets for military justice personnel handling special victim crimes.”[28] Finally, the IRC recommended that sexual harassment be delineated as a standalone offense and expedited processing of Executive Orders (“E.Os.”) regarding sexual assault in the military.[29]

2. What Actually Happened?

On 27 December 2021, President Biden signed into law the National Defense Authorization Act for Fiscal Year 2022 (the “2022 NDAA”).[30] The first change made in the context of military sexual assault is the insertion of a new section—824a (“Special trial counsel”)—into the UCMJ.[31] This addition to the UCMJ mandates the secretaries of each military branch to promulgate regulations for detailing JAG officers as special trial counsel (“STC”).[32] In turn, a STC has exclusive authority to determine whether reported offenses are “covered offenses,” over which a STC would have exclusive authority in determining whether to convene a court martial.[33] Plus, a STC could exercise authority over “any offense that the [STC] determines to be related to the covered offense.”[34] If a STC determines that something is a “covered offense”—but does not convene a court martial—the accused’s commander may nonetheless pursue administrative actions.[35] And each military service will have a lead STC who is a JAG officer with at least an O-7 (brigadier general or rear admiral (lower half)) rank.[36] These provisions of the 2022 NDAA will not take effect until late 2023.[37]

Next, the 2022 NDAA amends article 1 of the UCMJ (“Definitions”) in part by defining what constitutes a “covered offense.”[38] “Covered offenses” include UCMJ articles 117a (Wrongful broadcast/distribution of intimate visual images), 118 (Murder), 119 (Manslaughter), 120 (Rape and sexual assault generally), 120b (Rape and sexual assault of a child), 120c (Other sexual misconduct), 125 (Kidnapping), 128b (Domestic violence), 130 (Stalking), 132 (Retaliation).[39] In addition, “the standalone offense of child pornography,” which is punishable under UCMJ article 134 is a “covered offense.”[40]

The 2022 NDAA also directed President Biden to prescribe regulations establishing sexual harassment as an offense punishable under UCMJ article 134, and revise the Manual for Courts-Martial (“MCM”) to include the new offense.[41] On 26 January 2022, President Biden issued E.O. 14062 (“2022 Amendments to the Manual for Courts-Martial, United States”).[42] In that E.O., President Biden amended the MCM to reflect that the following elements constitute sexual harassment:

That the accused knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
That such conduct was unwelcome;
That, under the circumstances, such conduct:
Would cause a reasonable person to believe, and a certain person did believe, that submission to such conduct would be made, either explicitly or implicitly, a term or condition of a person’s job, pay, career, benefits, or entitlements;
Would cause a reasonable person to believe, and a certain person did believe, that submission to, or rejection of, such conduct would be used as a basis for decisions affecting that person’s job, pay, career, benefits, or entitlements; or
Was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person did perceive, an intimidating, hostile, or offensive working environment; and
That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.[43]

3. Will This Work?

As some commentators have noted, “except for diehard opponents of any transfer of disposition authority, everyone got something and no one got everything they sought.”[44] For example, Senator Gillibrand issued a statement after the 2022 NDAA’s passage complaining that “House and Senate Armed Services leadership have gutted our bipartisan military justice reforms behind closed doors. . . .”[45] Senator Gillibrand goes on to bemoan the fact that court martial convening authority writ large was not removed from commanding officers (recall the expansive list of crimes under MJIIPA for which commanders would not have convening authority).[46]

Conversely, Army Lieutenant General (Retired) Thomas Spoehr has argued that removing commanding officers’ convening authority “reduces them to mere observers in the justice system.”[47] To Mr. Spoehr, removing commanders’ convening authority in sexual assault cases will actually lead to fewer court martials. This is because as it stood prior to the 2022 NDAA, a commander could convene a court martial regardless of whether probable cause was established. In other words, a commander could convene a court martial even if there was no reasonable likelihood of success at trial—because the commander is not bound by the same rules of ethics that military lawyers are.[48]

Since the founding of the United States, its commanding officers have been tasked with maintaining “good order and discipline.”[49] Individuals like Mr. Spoehr argue that this mandate has led commanding officers to convene court martials even when probable cause did not exist. This is because the commanding officers “knew that sending the case to court martial sent a powerful message that such behavior would not be tolerated, even if the ultimate success of the case at trial was not certain.”[50]

Lieutenant Colonel Dan Maurer—an Assistant Professor of Law at the United States Military Academy—points out though that arguments like Mr. Spoehr’s are based solely on anecdotal and personal experience.[51] Furthermore, when senior military officers expressed concerns about the potential passage of MJIIPA, they offered “[n]o actual evidence” that reforms would erode commanders’ abilities to “fight and win wars.”[52] In fact, empirical evidence from other modern militaries with similar limitations on commanders’ convening authority suggested that just the opposite occurred.[53]

On the one hand, whether Mr. Spoehr’s and other senior officers’ fears are based on conjecture or not, it is difficult to dismiss them out of hand. It is not hard to hypothesize a case where a commanding officer convenes a court martial related to sexual assault, despite a lack of solid evidence. The commander may convene the court martial because of political pressures or because she wants to send a message regarding the tolerance of undisciplined behavior. If that same case is referred to a STC who has significant education and experience related to trial, would the STC really convene a court martial when there is not even enough evidence to find probable cause?

That said, the foregoing example is just that, a hypothesis. And there is evidence that removing the convening authority of commanding officers may actually improve commanders’ abilities to maintain good order and discipline.[54] All told, only time will tell whether the 2022 NDAA’s provisions strike the right balance between improving the military justice system’s handling of sexual assault and protecting commanding officers’ proper authority.

[1] Eline de Bruijn, Rebuilding Trust After Tragedy: How Vanessa Guillen’s Death Changed Fort Hood and the Army, WFAA News (15 JUL 2021), https://www.wfaa.com/article/news/local/texas/rebuilding-trust-tragedy-how-vanessa-guillens-death-change-fort-hood-army/287-f88df4ee-17aa-47a8-978b-49e3fbddbfac.

[2] Allie Yang, Denise Martinez-Ramundo, Natalie Cardenas, Chris Kilmer & Abby Cruz, Vanessa Guillen’s Fiance, Closest Friends Detail Upsetting Investigation, ABC News (11 JUN 2021), https://abcnews.go.com/US/vanessa-guillens-fiance-closest-friends-detail-upsetting-investigation/story?id=78174535.

[3] de Bruijn, supra note 1.

[4] Department of Defense Annual Report on Sexual Assault in the Military: Fiscal Year 2020, U.S. Dep’t Def. 5 (15 MAR 2021) (available at: https://www.sapr.mil/sites/default/files/DOD_Annual_Report_on_Sexual_Assault_in_the_Military_FY2020.pdf).

[5] See Melinda W. Moyer, ‘A Poison in the System’: The Epidemic of Military Sexual Assault, N.Y. Times (11 OCT 2021), https://www.nytimes.com/2021/08/03/magazine/military-sexual-assault.html.

[6] 10 U.S.C. § 822.

[7] Moyer, supra note 5.

[8] Press Release, Senator Kirsten Gillibrand, Gillibrand Statement on Inclusion of Military Justice Improvement and Increasing Prevention Act in NDAA, 22 JUL 2021 (available at: https://www.gillibrand.senate.gov/news/press/release/gillibrand-statement-on-inclusion-of-military-justice-improvement-and-increasing-prevention-act-in-ndaa).

[9] Military Justice Improvement and Increasing Prevention Act of 2021, S. 1520, 117th Cong. § 2(d)(1)(A)-(C) (2021) [hereinafter MJIIPA].

[10] See generally 10 U.S.C. §§ 877-934.

[11] See MJIIPA § 2(b)(1)(A)-(B).

[12] MJIIPA § 2(b)(1)(A).

[13] Id.

[14] Press Release, Representative Jamie Raskin, 100+ House Members Introduce Bipartisan I Am Vanessa Guillén Act to Transform Military’s Response to Sexual Violence and Missing Servicemembers, 16 SEPT 2020 (available at: https://raskin.house.gov/2020/9/100-house-members-introduce-bipartisan-i-am-vanessa-guill-n-act-transform#:~:text=The%20I%20Am%20Vanessa%20Guill%C3%A9n%20Act%20will%20fundamentally%20reform%20reporting,military%20service%2C%20to%20bring%20charges).

[15] I Am Vanessa Guillén Act of 2020, H.R. 8270, 116th Cong. § 2(a)(2) (2020) [hereinafter Guillén Act].

[16] Guillén Act § 2(a)(1).

[17] Guillén Act § 2(a)(1).

[18] See generally United States v. Olivares, No. 201800125, 2019 CCA LEXIS 97, at *2–12 (N-M. Ct. Crim. App. 7 MAR 2019).

[19] United States v. Griffin, 81 M.J. 646 (N-M. Ct. Crim. App. 2021).

[20] United States v. Dear, 40 M.J. 196 (C.A.A.F. 1994).

[21] Guillén Act § 3(a)(1).

[22] Guillén Act § 2(a)(1).

[23] C. Todd Lopez, Commission Begins 90-Day Look into Sexual Assault in Military, U.S. Dep’t Def. (24 MAR 2021), https://www.defense.gov/News/News-Stories/Article/Article/2548632/commission-begins-90-day-look-into-sexual-assault-in-military/.

[24] Spotlight: Independent Review Commission on Sexual Assault in the Military, U.S. Dep’t Def., https://www.defense.gov/Spotlights/Independent-Review-Commission-on-Sexual-Assault-in-the-Military/.

[25] Greg Hadley, Pentagon’s Sexual Assault Commission Issues Recommendations, Austin Directs Reforms, Air Force Magazine (2 JUL 2021), https://www.airforcemag.com/pentagons-sexual-assault-commission-issues-recommendations-austin-directs-reforms/.

[26] Memorandum from Lloyd Austin to Senior Pentagon Leadership, Commanders of the Combatant Commands, & Defense Agency and DoD Field Activity Directors 1 (22 SEP 2021) (available at: https://media.defense.gov/2021/Sep/22/2002859809/-1/-1/0/DOD-ACTIONS-AND-IMPLEMENTATION-TO-ADDRESS-SEXUAL-ASSAULT-AND-SEXUAL-HARASSMENT-IN-THE-MILITARY.PDF).

[27] Independent Review Commission on Sexual Assault in the Military, Hard Truths and the Duty to Change: Recommendations from the Independent Review Commission on Sexual Assault in the Military 7 (2021) (available at: https://www.airforcemag.com/app/uploads/2021/07/IRC-FULL-REPORT-FINAL-1923-7-1-21.pdf).

[28] Id. at 32.

[29] Id. at 33; C. Todd Lopez, Sexual Assaults will no Longer be Prosecuted by Commanders, U.S. Dep’t Def. (2 JUL 2021), https://www.defense.gov/News/News-Stories/Article/Article/2681848/sexual-assaults-will-no-longer-be-prosecuted-by-commanders/.

[30] Statement, President Joe Biden, Statement by the President on S. 1605, the National Defense Authorization Act for Fiscal Year 2022, 27 DEC 2021 (available at: https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/27/statement-by-the-president-on-s-1605-the-national-defense-authorization-act-for-fiscal-year-2022/).

[31] National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, § 531, 135 Stat. 1546 (2021) [hereinafter 2022 NDAA].

[32] 2022 NDAA § 531.

[33] Id.

[34] Id.

[35] Id.

[36] 2022 NDA § 532.

[37] Philip D. Cave, Don Christensen, Eugene R. Fidell, Brenner M. Fissell & Dan Maurer, The Division of Authority Between the Special Trial Counsel and Commanders Under the Uniform Code of Military Justice: Planning Now for the Next Phase of Reform, Lawfare Blog (28 FEB 2022), https://www.lawfareblog.com/division-authority-between-special-trial-counsel-and-commanders-under-uniform-code-military-justice.

[38] 2022 NDAA § 533.

[39] Id.

[40] Id.

[41] 2022 NDAA § 539D.

[42] Exec. Order No. 14062, 87 Fed. Reg. 4763 (26 JAN 2022).

[43] Id.

[44] Cave, et al., supra note 37.

[45] Statement, Senator Kirsten Gillibrand, Gillibrand Statement on the Gutting of Bipartisan Military Justice Reforms by House and Senate Armed Services Leadership, 7 DEC 2021 (available at: https://www.gillibrand.senate.gov/news/press/release/gillibrand-statement-on-the-gutting-of-bipartisan-military-justice-reforms-by-house-and-senate-armed-services-leadership).

[46] See id.

[47] Thomas Spoehr, Congress Should Avoid Changes That Would Erode the Military Justice System, The Heritage Foundation (11 MAY 2021), https://www.heritage.org/defense/report/congress-should-avoid-changes-would-erode-the-military-justice-system.

[48] Id.

[49] See Kevin B. Kennedy, Good Order and Discipline: A Commander’s Responsibility, Every Airman’s Duty, Ellsworth Air Force Base (25 FEB 2014), https://www.ellsworth.af.mil/News/Commentaries/Display/Article/807890/good-order-and-discipline-a-commanders-responsibility-every-airmans-duty/.