Written by Fall 2022 M-VETS Student Advisor Grace Roman.

Introduction

On December 27, 2021, President Biden signed the National Defense Authorization Act for Fiscal Year 2022 (NDAA 22).[1]  NDAA 22 includes many notable changes to the Uniform Code of Military Justice (UCMJ) that must be fully implemented by December 27, 2023.

The most sweeping changes to the UCMJ occurred in the wake of the murder of Army Specialist Vanessa Guillen.  SPC Guillen disappeared from Fort Hood on April 22, 2020.[2]  Her remains were found on June 30, 2020 after being murdered by another soldier.[3]  Before her death, SPC Guillen reported to friends and family members that she was being sexually harassed.[4] Following SPC Guillen’s murder, many across the country were outraged, and calls began for reform to military command policy governing many offenses.  The UCMJ reforms in NDAA 22 are the culmination of these calls, marking “historic changes to how the Armed Services will prosecute certain victim-centric offenses, including sexual assault. . . .”[5]

Victim-Centric Changes

            Special Trial Counsel

Before NDAA 22, military commanders were responsible for deciding to refer all cases to court-martial. This structure had been the subject of reform efforts for nearly two decades, with even retired generals speaking out.  Retired Army Major General Dennis Laich is one such retired high-ranking officer, who said, “We have relied on the chain of command to deal with this issue, and the chain of command has failed for decades.  America gives us their sons and daughters, and we’ve failed to discharge the responsibility to take care of them.”  SPC Guillen’s death was the force that finally moved the needle to change this structure.  Accordingly, Section 531 of NDAA 22 shifts the referral responsibility to a newly created Special Trial Counsel (STC), giving the STC “exclusive authority” regarding the decision to dismiss, refer, or offer a plea bargain for certain violations of the UCMJ.[6]  These specific crimes include:

• Article 117a (Wrongful Broadcast or Distribution of Intimate Visual Images);
• Article 118 (Murder);
• Article 119 (Manslaughter);
• Article 120 (Rape and Sexual Assault Generally);
• Article 120b (Rape and Sexual Assault of a Child);
• Article 120c (Other Sexual Misconduct);
• Article 125 (Kidnapping);
• Article 128b (Domestic Violence);
• Article 130 (Stalking);
• Article 132 (Retaliation);
• Article 134 (Child Pornography)
• Article 82 (Solicitation to commit one of the foregoing offenses);
• Article 81 (Conspiracy to commit one of the foregoing offenses; and
• Article 80 (Attempt to commit one of the foregoing offenses.[7]

The aim of the implementation of the STC is to eliminate a command’s discretion in charging decision making, instead placing the decision-making authority into the hands of a neutral third party.  Following this change, “‘[u]nit leaders will still be responsible for setting a proper command climate and still must play a role in preventing and addressing sexual assault, harassment, and other problems . . .’ [but will] no longer be at the forefront of prosecuting sexual assault and other serious crimes for fear that these acts often go unprosecuted by convening authorities.”[8]

Many have openly criticized NDAA 22’s creation of the STC and its removal of command authority over charging decisions in many UCMJ crimes.  Chairman of the Joint Chiefs of Staff General Mark Milley wrote to the Senate Armed Services Committee expressing his view that “removing commanders from prosecution decisions, process and accountability may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead.”[9] Many are confused by the fact that commanders are entrusted with the authority to risk their troops’ lives in combat but not with the military justice charging decisions.[10] Some feel the STC procedures constitute “[p]lauging the justice process with bureaucracy. . . .”[11] Others still are concerned that the lead SEC is still a commissioned officer (an O-7 or higher), leaving doubt whether the STC is sufficiently independent.[12] Because the STC-related changes will not be fully implemented until late 2023, it is too soon to tell whether these concerns will actualize.

Codification of Sexual Harassment

In addition to the implementation of the STC to oversee charging decisions in victim-centric crimes, NDAA 22 also required the codification of sexual harassment as a UCMJ crime. Section 539D(b) of NDAA set out the crime’s elements as follows:

• 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 that 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—
• to the prejudice of good order and discipline in the armed forces;
• of a nature to bring discredit upon the armed forces; or
• to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.”

The codification of sexual harassment in the UCMJ marks a monumental step toward addressing sexual violence in the military, but there are still potential problems with its implementation.  First, the STC does not have charging authority in sexual harassment cases, as it is not one of the enumerated offenses under the STC’s control.  This was a required concession to congressional opponents of the military justice changes in NDAA 22 in order to garner enough votes.[13] This concession is particularly alarming when SPC Guillen’s murderer had been previously credibly accused of sexual harassment, which his command declined to charge.[14] Though Army investigators concluded that the murderer’s prior sexual harassment allegations were unrelated to SPC Guillen’s murder, had the allegations been properly handled by his command, SPC Guillen’s death could have been avoided. SPC Guillen’s case stands alone as an argument for the newly-created STC to have purview over charging sexual harassment.

Additionally, commands often still opt to charge sexual harassment cases under Article 92 for Failure to Obey a Lawful Regulation, as sexual harassment was previously governed by Army Command Policy in Army Regulation (AR) 600-20, part 7-7.

Conclusion

Major institutions like the military that have a culture of permissiveness regarding sexual assault and harassment cannot be changed overnight. The aforementioned victim-centric changes mark a step forward in challenging that culture.  Though there are potential problems with a piecemeal approach, as seen in the failure to include sexual harassment under the STC’s authority, incremental steps forward mark progress.  Senator Kirsten Gillibrand (D-NY) has outwardly expressed her view that these changes do not go far enough and has vowed to fight for more.  The next few years following the full implementation of NDAA 22’s measures will be highly instructive for the additional changes necessary to reform military culture around victim-centric crimes.

 

[1] Pub. L. No. 117-81, 135 Stat. 1551 (2021).

[2] Johnny Diaz et al., What to Know About the Death of Vanessa Guillen, N.Y. Times, (Nov. 30, 2022), https://www.nytimes.com/article/vanessa-guillen-fort-hood.html.

[3] Id.

[4] Id.

[5] Col. Michael Lewis, Major Changes in the Uniform Code of Military Justice, American Bar Association, (Oct. 7, 2022), https://www.americanbar.org/groups/judicial/publications/judicial_

division_record_home/2022/vol26-1/major-changes-in-uniform-code-of-military-justice/.

[6] 10 U.S.C. § 824a.

[7] David A Schlueter & Lisa Schenck, Recent Legislative Developments: The 2022 National Defense Authorization Act, 2022 Continuing Legal Education and Training Program of the United States Court of Appeals for the Armed Forces, (July 2022), https://www.armfor.uscourts.gov/ConfHandout/2022ConfHandout/SchenckSchlueterRecentLegisDevelopmentsRR.pdf.

[8] Emma K. Hildebrand, Encroaching on Command Authority: How History Informs the “Military Justice Improvement and Increasing Prevention Act,”48 J. Legis. 390, 405 (2022).

[9] Scott Maucione, Military Leaders Push Back on Taking Crimes Out of Chain of Command, Fed. News Network (June 22, 2021), https://federalnewsnetwork.com/defense-main/2021/06/military-leaders-pushback-on-taking-nonmilitary-crimes-out-of-chain-of-command/.

[10] Cristopher W. Behan, Don’t Tug on Superman’s Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members, 176 Mil. L. Rev. 190, 193 (2003).

[11] Hildebrand, supra note 8 at 411.

[12] Kristen M. Stone, The Betrayal of the Red, White, & Blue: The Failures of Institutional Self-Regulation & the Military’s #MeToo Movement, 70 Buff. L. Rev 1183, 1199 (May 2022).

[13] Jennifer Steinhauer, Lawmakers Reach Deal to Overhaul How Military Handles Sexual Assault Cases, N.Y. Times, (Dec. 7, 2021), https://www.nytimes.com/2021/12/07/us/politics/military-sexual-assault-congress.html.

[14] Diaz et al., supra.