WASHINGTON – After years of failing to contain the scourge of sexual assault in the military, Lloyd J. Austin III, the new Secretary of Defense, is open to contemplating significant changes in the prosecution of these crimes, a potential profound change affecting generations of commanders effect have resisted.
A revision of the way the military handles sexual assault cases – by keeping them outside the military chain of command and assigning military attorneys unrelated to the defendant – should be approved by Congress, where some lawmakers have long pushed for such a system.
President Biden was a vocal supporter of these changes, even though general after general has gone to Capitol Hill to argue against them for the past decade. “I had a real encounter with one of the Joint Chiefs in the Cabinet Room on the matter,” Biden said at a fundraiser last year.
Mr. Austin’s first job as secretary was to order a review of the Pentagon’s treatment of sexual assault cases. In December, he met remotely with survivors of military attacks and was disturbed and moved by their stories, an official said.
He also recently read a report on the culture of Fort Hood, the large Texas military base where a female soldier was murdered last year. An army report after her death found “an acceptable environment for sexual assault and sexual harassment” and many grassroots leaders were released from their duties.
Mr. Austin, a retired four-star general in the Army, is also being pushed out of Congress. The senators repeatedly asked him how he would deal with the issues of sexual harassment and the attack on the military during his confirmation hearing earlier this month.
If Mr. Austin accepted these changes he would be the first secretary to do so, a significant change in position for the department.
“Every defense secretary since Dick Cheney has come here and said nice things, and then the struggle behind the scenes was to protect the status quo,” said Senator Kirsten Gillibrand, the New York Democrat who has been legislating on the matter for years .
In 2019, the Department of Defense found there were 7,825 reports of sexual assault involving service members as victims. This represents an increase of 3 percent compared to 2018. Between 2018 and 2019, the conviction rate for cases remained unchanged. Seven percent of the cases in which the command took action resulted in convictions. This was the lowest rate since the department began reporting in 2010.
Proponents of a revision of the law – such as sexual assault survivors attorneys and numerous members of Congress – watch intently as Mr. Austin reacts to the inevitable pressures within the military to avoid major changes to his judicial system.
Just as the Clinton-era “don’t ask, don’t tell” policy that openly prevented gay people from serving was only lifted after military leaders changed their positions, so too could Mr. Austin’s advocacy change the dynamics of sexual assault. In 2010 the decision of Adm. Mike Mullen, to become the first sitting chairman of the joint chiefs of staff to support the repeal of “don’t ask, don’t tell”, helped Congress move the issue forward.
Mr. Austin, the second retired general in five years to receive a waiver of a law banning those who have been out of active military service as Secretary of Defense for less than seven years, sought to convince lawmakers that he will lead in terms of the tradition of civilian control of the military. Mr. Biden was looking forward to it too.
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Jan. 26, 2021, 2:54 p.m. ET
“This could be a welcome opportunity to reassure people who were skeptical as to whether a person who has served 41 years in uniform in an environment that sees itself as a society in itself actually offers civilian control.” said Eugene R. Fidell, a senior researcher at Yale Law School and an expert in military justice.
While many industries, from Hollywood to journalism to restaurants, have been ravaged by the #MeToo movement in recent years, women in the military received little national attention until last summer after Army Specialist Vanessa Guillen was told by another soldier at Fort Hood was killed .
Although reports that she had been sexually molested by her suicidal killer have never been confirmed, the case sparked a far broader look at the problems of harassment and attack against men and women in the armed forces.
“Sometimes a thing that is logically and factually unrelated to a topic comes to the fore because it’s impossible to separate it from those other topics,” said Fidell.
Congressional and defense ministers have debated how to deal with the problem for decades as prominent cases have amplified it on a regular basis, from the attack by a Navy lieutenant in 1992 at the annual Tailhook Symposium in Las Vegas to videotaping of cadets in the bathroom in West Point in 2013 to numerous complaints of harassment, assault and rape from bases around the world.
Over the years, Congress has taken several steps to better align the military justice system with the civilian one. This includes preventing lengthy pre-trial testimony from prosecutors intended to compromise their credibility, making it difficult for appellate courts to overturn sexual assault convictions, and ensuring that sexual assault survivors across the military can report their assaults without fear of them be punished as a result.
“All of these things help improve the lives of survivors,” said Ms. Gillibrand. “But none of them put rapists and recidivists in jail.”
Ms. Gillibrand has put laws in place that allow military prosecutors, not commanders, to decide which sexual assault cases to attempt.
Proponents of this shift say it would increase the number of people reporting crimes without fear of retaliation, a key barrier to trial and conviction. Opponents, including former Senate Armed Forces Committee chairmen and military leaders, have argued that doing so would undermine the tradition of military prosecution, cited as essential to maintaining order and discipline.
When Ms. Gillibrand first proposed such a bill in 2013, then Chairman of the Joint Chiefs of Staff Gen. Martin E. Dempsey said, “A reduction in command responsibility could affect the commander’s ability to enforce professional standards ultimately to carry out the mission. “
Arizona Republican Senator John McCain, who died in 2018, once said he was so appalled by the attack problem that he could not recommend a friend’s daughter to join the armed forces. However, Mr. McCain, a retired naval pilot who had spent years prisoner of war in Vietnam, vehemently opposed Ms. Gillibrand’s proposal.
President Barack Obama expressed his condolences to Ms. Gillibrand’s legislation but hesitated to take action against the generals on the matter. President Donald J. Trump attributed sexual assault in the military – affecting more men than women – to the inclusion of women in combat roles.
“Biden has been more resolute on this issue than any other president,” said Colonel Don Christensen, president of Protect Our Defenders, a defender of the Air Force. “Obama would not take over the generals and admirals. I’m sure Austin, who himself was in command, is in a situation of shared loyalty. “
Earlier this year, Congress approved a measure to set up a pilot attorney general’s office at the service academies for such incidents, which was pressured by female veterans in the house.
“Ultimately, it requires leadership from the President,” said Ms. Gillibrand. “We should have a criminal justice system that deserves the sacrifices of those who serve.”
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