By Alex Horton, Published 14 August
2023 at 1815 EDT
Be careful what you ask for, you might just get it. The Military expects that as a result of this change there will be far fewer accused actually charged or brought to Court Martial. In sexual misconduct cases, commanders are much more inclined to charge an accused and let a court adjudge guilt which does result in a high acquittal rate. Military prosecutors are much more concerned with winning and their win-loss stats so only bring “slam dunk” cases to trail and don’t prosecute the tougher cases. Hence, the “close calls” will no longer be brought to Justice.
“The
change is the biggest reform to the Uniform Code of Military Justice since its
creation in 1950, the White House said.” Actually this is incorrect.
The biggest chance happened in 1968 when accused got lawyers to represent them
in Special Courts. Before then, accused were represented by an officer randomly
selected off a duty roster.
Since the UCMJ went into
effect on 31 May 1951, the administration of Military justice has been the
exclusive responsibility of Commanders so this change taking effect this
December which removes from commanders
the decision to charge and try a service member for sexual assault and
13 other special victim related crimes is a radical departure from what has
been working for the past 72 years. With this change the decision to charge and
try these crimes will rest with independent military prosecutors and the net
effect will be a drastically reduced number of rape and sexual assault
prosecutions.
I entered the Army as a High
School Grad Draftee inducted at the Scranton/Wilkes-Barre Pennsylvania MEPS. I
tested out high enough to be offered the opportunity to attend Officers
Candidate School (still carrying my Draftee US serial number) and after commissioning
I went to Vietnam as a new Second Lieutenant.
I extended in Vietnam to come home a decorated Captain with a CIB and
stayed in the Army retiring after 30 years as a Full Colonel/06. During my 30 years in the service I Commanded
Four Companies, was the Executive Officer of a Combat Battalion, Commanded a
Divisional Combat Battalion on the DMZ in Korea and Commanded at the Brigade
level so I had a Ton of time with troops. Because I was a Court Martial
Convening Authority, I attended the Senior Officers Legal Course at the Army
Judge Advocate General (JAG) School on campus at the University of Virginia Law
School in Charlottesville, Virginia. My point is I have had extensive
experience melting out Military Justice and supervising subordinate Commanders as
they executed their responsibilities disciplining troops.
Uniform prosecution standards also would forever put
to rest the military’s traditional practice of using the less rigorous standard
of probable cause to refer a case to court-martial. Over the last decade, the
probable cause referral standard has likely been the culprit for the low
conviction rate in sexual assault cases in the armed forces. Additionally, the
military is the only jurisdiction in the United States of America that uses
probable cause (the standard of proof to obtain a warrant) to refer a case to a
felony level trial where the burden of proof is beyond a reasonable doubt. The
probable cause standard to refer a case to court-martial has allowed military
sexual assault prosecutions for years. As military lawyers with established
independent offices charged with prosecuting special victim crimes, it might
adopt the principles of prosecution as stringent as the Department of Justice.
If its prosecutors across all services use the heightened referral standards,
it will result in a significant reduction in the number of victims being able
to confront their violators or having their day in court. Although most commanders were already
referring most credible allegations to Court Martial, they were also following
orders contained in these Federal Statutes.
1.
Commanding Officers were
told in NDAA-14 that all sexual assault cases should be referred for
courts-martial. Such a provision essentially replaces a presumption of
innocence with a presumption of probable cause.
2.
Commanding Officers were
told in NDAA-14 that a failure to maintain a healthy “command climate” (aka
high referral rate for sexual assault allegations) will be relieved of their
post.
3.
The statute of limitation
for sex offenses was lengthened.
4.
Sexual Assault Prevention
and Response training sessions for service members ignore presumption of
innocence by teaching “start by believing” and “never question the victim.”
5.
“Victim-centered
investigation” models teach investigators to “believe the victim” and not
question inconsistencies in the complainant’s story, which it attributes to
trauma and not deception. This approach negates the opportunity for a fair and
impartial investigation.
Although sexual assault is a grave concern, Congress first over-reacted
by forcing Commanding Officers to pursue criminal charges in every case
regardless of the merit of the allegations. As a result of the
over-charging, data shows that acquittal rates for sex offenses between 2012
and 2014 were very high. Rather than modifying Congressional mandates, the Congressional
and the Presidential solution was to remove jurisdiction for administering
Military Justice from Commanders where it had been for at least 70+ years.
The answer was not to make it easier for prosecutors to convict, but to improve
the investigation process to produce reliability of results.
the Defense Advisory
Committee on Investigation, Prosecution, and Defense of Sexual Assault in the
Armed Forces (DAC-IPAD) released a report in October 2020
exploring the astounding number of sexual assault cases that are referred to
trial without sufficient admissible evidence to obtain a conviction. The
committee argues that this serious problem has significant negative
implications for the accused, the victim, and the military justice process. So
Congress first created the situation and rather than fixing it removed
Commanders from the problems. Remember,
it’s the Commander that is responsible for maintaining good order and discipline
in their unit and pays the price if they fail to so it.
When the public sees a military sexual assault case go to trial with
insufficient evidence, it sends a message that this is a political prosecution,
not one based on evidence. This creates the impression that the military will
take any case to trial, degrading confidence in legitimate cases that actually
have enough evidence.
Here is what one universally respected expert in
Military Law had to say about the subject:
The Military takes tough sexual assault cases to
trial. That's why its conviction rate is low.
Everyone wants nothing more than to see the eradication of sexual assault from the military and society. But not at the expense of constitutional rights.
If you are an outsider only
loosely familiar with the concept of “sexual assault in the military,” then you
may be susceptible to what seem to be altruistic proposals from advocacy groups
and senators looking to change the laws surrounding sexual assault in our armed
forces. But as a career military justice practitioner, both on the
prosecutorial and defense sides, I would caution you to look closely at
any proposals put forth to determine if they will actually prevent or reduce
sexual assault in the military, or adjudicate the cases in a more “fair”
manner.
If you
have a low conviction rate in particular types of cases, the overarching reason
should be pretty obvious — you’re taking close cases to trial. This is
precisely the military’s formula. So, instead of telling certain alleged
victims of sexual assault that their cases cannot be prosecuted (or will likely
result in an acquittal), the military takes a wide swath of sexual
assault cases to trial that vastly span the spectrum when it comes to evidentiary
strength. That has yielded an acquittal rate of nearly 93% in recent years.
Transferring
disposition authority from commanders to career prosecutors in all likelihood will
not increase the number of sexual assault prosecutions. But I am hopeful that,
if passed, it will yield prosecutorial decisions that are solely
evidence-based, without direct command influence. This model will relatedly
result in higher conviction rates (if that’s actually a goal). But Congress and
advocacy groups may still be unappeased because reports of sexual assault
will continue to rise, with lower prosecution rates.
And while the constitutional rights of a person
accused of a crime may not be in vogue in the current cultural environment,
that does not make them any less critical. The presumption of
innocence, burdens of proof, due process, fair trials, competent representation
and the like are only buzz words until you’re the one with your actual freedom
on the line.
When members of Congress bemoan the low conviction
rates in military sex assault cases, what they are saying is this: Without
analyzing the specific facts and circumstances of each and every case or
sitting through the trials, I believe that these people were wrongfully found
not guilty in a court of law that afforded these military members the same
constitutional rights as anyone brought to justice in this country.
Opinion: Uniform standards needed now for sexual
assault prosecution offices
By Meghan Tokash and Paul Grimm 3 July 2023
A gavel rests on the judge’s bench in the
courtroom of the 39th Air Base Wing legal office at Nov. 14, 2019, at Incirlik
Air Base, Turkey. (Staff Sgt. Joshua Magbanua/Air Force)
The United States military is this year
executing the most
historic and transformative change to military justice since the creation of the Uniform Code of
Military Justice in 1950. On Dec. 28, 2023, the decision to charge and try a
service member for sexual assault and 13 other special victim related crimes
will be removed from commanders and will rest in the hands of independent
military prosecutors. The offices housing these specialized litigators became fully
operational on July 1, 2023.
But the secretary of defense has one crucial
outstanding task left: create uniform prosecution standards across all the
services, which he can do with a stroke of a pen. This final action — or
failure to act — could make or break the success of the independent special
victim’s prosecution offices.
In 2021, service members past and present raised
their voices to the Independent
Review Commission on Sexual Assault in the Military. They identified the command-driven justice
system as a perpetrator of broken trust for survivors and criminally accused
navigating the military justice landscape. The secretary of
defense and the Congress
listened.
On Dec. 28,
2021, the historic
legislation removing commanders from prosecuting special victim cases became
law. On July 1, the new
Offices of Special Trial Counsel, or OSTC, in the Department of the Navy, the
Army, and the Air Force made their groundbreaking debut.
On June 9, 2023, after five years of rigorous
study, data collection, and stakeholder engagement, the Defense Advisory
Committee on the Investigation, Prosecution, and Defense of Sexual Assault in
the Armed Forces, or DAC-IPAD, released a
report to the secretary of defense and Congress recommending Secretary Lloyd Austin revise
Appendix 2.1 of the MCM to establish uniform prosecution standards that align
with the prosecution principles contained in the United States Justice Manual.
In its report, the DAC-IPAD included a proposal
to create a statement of prosecutorial practices and policies that every judge
advocate can use when exercising prosecutorial discretion. The proposed
prosecution standards provide that counsel for the government refer charges to
a court-martial only if they believe that the service member’s conduct
constitutes an offense under the Uniform Code of Military Justice, or UCMJ, and
that the admissible evidence will probably be sufficient to obtain and sustain
a conviction when viewed objectively by an unbiased fact finder.
This is not a radical idea — in fact, admissible
evidence to obtain and sustain a conviction is the gold standard used by
prosecutors across the United States Department of Justice. Presently, the
military uses the much lower standard of probable cause to send a case to trial
and that is not the industry standard.
The DAC-IPAD is comprised of current and former
United States district court judges, a state circuit court judge, a former
clerk of court for federal bankruptcy court, federal and state prosecutors, a
defense appellate counsel, the federal public defender for Washington, D.C., a
nationally recognized criminologist, the nation’s top forensic nurse examiner,
a former Department of Defense general counsel, a former DoD associate deputy
general counsel, a deputy assistant secretary at the Department of Education,
and the executive director of the National Crime Victim Law Institute. Many
committee members have prior military service as judge advocates (including
these two authors who both served as Army judge advocates) and have
the expertise and judicial prowess to underwrite such a recommendation that
elevates the referral standard.
This policy detail is essential, and timing is
everything.
Presently, the military does not have uniform
standards to properly guide its prosecutors and each OSTC is writing its own
so-called “business rules” that will detail how judge advocates screen, charge,
and refer cases. Shrouded in a veil of secrecy, these “rules” are deemed
“pre-decisional” by the Pentagon so the public has had no visibility, input, or
oversight of their development.
If the secretary of defense does not move
swiftly, each service may create different standards governing prosecutorial
decision-making. Uniform prosecution standards issued by the secretary of
defense would assure service members that criminal cases are being evaluated
consistently to avoid charging disparities and unfavorable trial outcomes for
both victims and accused.
Uniform prosecution standards also would forever put to rest the
military’s archaic practice of using the less rigorous standard of probable
cause to refer a case to court-martial. Over the last decade, the probable
cause referral standard has likely been the culprit for the abysmal conviction
rate in sexual assault cases in the armed forces. Additionally, the military is
the only jurisdiction in the United States of America that uses probable cause
(the standard of proof to obtain a warrant) to refer a case to a felony level
trial where the burden of proof is beyond a reasonable doubt. The probable
cause standard to refer a case to court-martial has plagued military sexual
assault prosecutions for years. As the military professionalizes lawyers in its
ranks with the establishment of independent offices charged with prosecuting
special victim crimes, it must also adopt uniform principles of prosecution on
par with the Department of Justice. And its prosecutors across all services
should use the heightened referral standard of admissible evidence to obtain
and sustain a conviction.
Secretary Austin need only adopt the DAC-IPAD’s
proposal contained in Appendix G of its newly released report. The proposed
standards provide military prosecutors policies and practices that promote the
reasoned exercise of prosecutorial authority that will contribute to the fair,
evenhanded administration of the UCMJ. Furthermore, the promulgation of these
standards by Secretary Austin will establish trust that important prosecutorial
decisions will be made rationally and objectively based on an individualized
assessment of the facts and circumstances of each case. Establishing the rules
now and making them uniform sends a message to sexual assault victims, those
criminally accused, and the American public that the military’s new
prosecutorial offices will abide by policy designed to prevent unwarranted
preferral and referral disparities — both actual and perceived.
The implementation of independent special victim
prosecution offices is imminent. The policy guiding these new offices must
ensure uniformity, reliability, and consistency that is vital to any
prosecutorial function. Without uniform guidance from the secretary, each OSTC
may have conflicting standards for screening cases, preferring charges, and
referring cases to trial. Worse, prosecutors within each service’s OSTC could
use different standards for exercising prosecutorial discretion. Disparate case
outcomes will only exacerbate the problem of broken trust in the military’s
handling of sexual assault cases. Without uniform prosecution standards, a
decade’s effort at military justice reform and the success of the independent
special victim prosecution offices will be in jeopardy.
The Hon. Paul
Grimm is a retired United States district court judge and professor of
the practice of law and director of the Bolch Judicial Institute at Duke Law School. Meghan Tokash is a federal prosecutor
with the Department of Justice and served as a commissioner on the Secretary of
Defense’s Independent Review Commission on Sexual Assault in the Military. When
she was an active duty Army judge advocate, Ms. Tokash served as Gen. Austin’s
senior trial counsel for U.S. Forces-Iraq from 2010-2011.
Both Judge Grimm and Ms.
Tokash are members of the Defense Advisory
Committee on the Investigation, Prosecution, and Defense of Sexual Assault in
the Armed Forces. Their opinions
are their own and not those of the full DAC-IPAD, the Department of Justice or
the Duke Law School.
28
July 2023
President Biden to Sign Executive Order
Implementing Bipartisan Military Justice Reforms
WHITE HOUSE RELEASE
Today, President Biden will sign an
Executive Order to implement historic, bipartisan military justice reforms that
significantly strengthen how the military handles sexual assault cases. The
Executive Order transfers key decision-making authorities from commanders to
specialized, independent military prosecutors in cases of sexual assault,
domestic violence, murder, and other serious offenses by amending the Uniform
Code of Military Justice (UCMJ).
These changes, which implement reforms passed by Congress in the Fiscal Year
2022 National Defense Authorization Act (FY22 NDAA), represent the most
significant transformation of the military justice system since the UCMJ was
established in 1950. The historic reforms announced today will better protect
victims and ensure prosecutorial decisions are fully independent from the chain
of the command. They follow decades of tireless efforts by survivors,
advocates, and Members of Congress, to strengthen the military justice system’s
response to gender-based violence and build on recommendations from the
Independent Review Commission on Sexual Assault in the Military (IRC), which
Secretary Austin established at President Biden’s direction as one of his
earliest acts in office.
These reforms are a turning point for survivors of gender-based violence in the
military. They fulfill President Biden’s promise to fundamentally shift how the
military justice system responds to sexual assault and related crimes, which is
something President Biden has prioritized since Day One of this administration.
Ending gender-based violence wherever it occurs has been a top priority for the
President throughout his career—as a Senator, and as Vice President. As
Commander in Chief, he’s made clear that our one truly sacred obligation as a
nation is to prepare and equip those we send into harm’s way, and to care for
them and their families both while they are deployed and when they return home.
The reforms implemented through today’s Executive Order do just that, promoting
dignity and respect for those who serve by better protecting our servicemembers
and making the military safer and more just.
Today’s Executive Order
takes important action to reform our military justice system by amending the
Manual for Courts-Martial and its accompanying Rules for Courts-Martial
including by:
·
Establishing the rules that will
govern the new Offices of Special Trial Counsel (OSTC), the independent
military prosecutors who will now decide, in the place of commanders, whether
to prosecute covered offenses such as sexual assault and domestic violence,
child abuse, and murder;
·
Making clear that prosecutorial
decisions made by special trial counsel are binding and fully independent from
the chain of command;
·
Delineating the relationship and
authorized interactions between special trial counsel and commanders to protect
the independence of special trial counsel;
·
Modernizing procedures to better
protect victims and promote fairness before, during and after court-martial
proceedings;
·
Reforming the court-martial
sentencing system to promote uniformity and fairness, as recommended by the
IRC, to reduce disparities in sentencing in cases of rape and sexual assault;
and
·
Creating a uniform evidence standard
for non-judicial punishment actions, which the IRC highlighted as critical to
make consistent across the military services given that most sexual misconduct
cases are handled by nonjudicial punishment rather than courts-martial.
This month also marks two years since
the IRC published its final
report, outlining recommendations to improve accountability, prevention,
climate and culture, and victim care and support. Today’s Executive Order
advances the IRC’s core accountability recommendations and builds on the
progress that has already been made by the Department of Defense in
implementing the IRC’s more than 80 recommendations, including:
·
Establishing the Offices of Special
Trial Counsel. In July 2022, with direction from Secretary
Austin, the Army, Navy, Marine Corps, and Air Force, including the Space Force,
established and staffed their OSTCs to assume authority for prosecutorial
decisions for covered offenses including sexual assault and domestic violence
at the end of 2023. Beginning January 1, 2025, special trial counsel
prosecutorial authority will expand to include sexual harassment cases.
·
Hiring, Training, and Empowering the
Prevention Workforce. Consistent with the IRC’s
recommendation to establish a dedicated prevention workforce with public health
expertise, the Department of Defense launched a phased approach to hiring a
primary prevention workforce with 2,000 skilled professionals who will promote
the health of their military community and work with leaders to change policies
and implement prevention activities. In December 2022, the Department of
Defense released guidance for
this new workforce, and hiring and onboarding is underway at installations
around the world.
·
Strengthening and Professionalizing
the Sexual Assault Response Workforce. The
Department of Defense, in collaboration with the Military Services and National
Guard has adopted a comprehensive approach to restructuring, professionalizing,
strengthening, and resourcing for the sexual assault response workforce. This
includes moving Sexual Assault Response Coordinators (SARCs) and Victim
Advocates (VAs) from the command reporting structure, and generally eliminating
collateral duty for SARCs and VAs. This standardized approach across the
Department of Defense is nearing completion.
·
Improving the Military’s Response to
Domestic Violence and Sexual Harassment. Recognizing
sexual assault can overlap with other forms of gender-based violence, the IRC
recommended ways to improve accountability and support to survivors of domestic
violence and sexual harassment. The Administration has:
o
Reissued and revised the Defense
Department’s domestic abuse policy in
December 2021. Key updates include expanding eligibility for Sexual Assault
Prevention and Response program services to domestic violence survivors who
have experienced sexual assault;
o
Tracked the prevalence of domestic
abuse/intimate partner-related sexual assault by collecting information on the
victim-perpetrator relationship in the Workplace and Gender Relations Surveys
of Active-Duty Members (WGRA), and Workplace and Gender Relations Surveys of
Reserve Component Members (WGRR);
o
Expanded victim advocate services,
reporting options and support to survivors of sexual harassment, through new
guidance issued by the Department of Defense in September 2022. This guidance
has been implemented across all Military Departments;
o
Starting with the Navy and
the Marine Corps, issued policies for
the independent investigation of sexual harassment reports, moving these
investigations outside the chain of command of both the individual reporting
sexual harassment and the alleged offender. The Department of Defense is
working to develop a comprehensive approach to address this issue across all
Military Departments; and
o
Amended the Manual for
Courts-Martial through an Executive Order in
January 2022 that established sexual harassment as a specific offense under the
UCMJ, strengthening the military justice response in prosecuting cases of
domestic violence, and implementing changes to the UCMJ to criminalize the
wrongful broadcast or distribution of intimate visual images.
26 JANUARY 2022
Executive
Order, 2022 Amendments to the Manual for Courts-Martial
white HOUSE RELEASE
Today, President Biden
signed an Executive Order to amend the Uniform Code of Military Justice, which
is key to advancing the historic, bipartisan military justice reform he signed
into law last month through the National Defense Authorization Act (NDAA).
This Executive Order strengthens the military justice system’s response to
gender-based violence, and delivers on key recommendations from the Independent
Review Commission on Sexual Assault in the Military (IRC) that Secretary of
Defense Lloyd Austin launched in March 2021.
This year’s NDAA also included key components of the I Am Vanessa Guillén Act,
which honors the memory of Army Specialist Vanessa Guillén, whose experience
with severe sexual harassment was followed by her brutal murder, drawing
national attention to the scourge of sexual violence in the military. The
Guillén family’s leadership and determination in advocating for change
underscored the need for military justice reform, including how the Uniform
Code of Military Justice (UCMJ) addresses sexual harassment. The Executive
Order that the President signed today establishes sexual harassment as a
specific offense under the UCMJ. It also strengthens the military justice
response in prosecuting cases of domestic violence, and fully implements
changes to the military justice code to criminalize the wrongful broadcast or
distribution of intimate visual images.
As this Executive Order goes into effect today, we reaffirm our commitment to
advancing the military justice reform that the President signed into law as
part of the NDAA, which includes the historic shift of legal decisions from
commanders to independent, specialized prosecutors in cases of sexual assault,
domestic violence, and other serious crimes. And we honor the courage and
leadership of the many survivors and advocates who long fought for these
critical changes.
President Biden has long been committed to ending domestic violence, sexual assault,
and other forms of gender-based violence, first as a United States Senator,
then as Vice President, and now as President and Commander-in-Chief.
These efforts have become even more critical during the COVID-19 pandemic, as
risk for gender-based violence has increased in the United States and around
the world. The important steps we have taken today build on the ongoing
efforts of the Biden-Harris Administration to address gender-based violence,
wherever it occurs, including by directing $1 billion in supplemental funding
through the American Rescue Plan for domestic violence and sexual assault
prevention and services, andsigning into law the Amendments to the Victims of
Crime Act (VOCA), resulting in an increase of hundreds of millions of dollars of
non-taxpayer funding for lifesaving services to crime victims around the
country. Today’s Executive Order also reinforces the commitments of the
Biden-Harris Administration to supporting survivors by releasing the first-ever
National Strategy on Gender Equity and Equality in the United States, which
identifies gender-based violence prevention and response as a core strategic
priority for President Biden. The strategy also names military justice reform
as an essential component of elevating gender equality in security processes.
Today marks another turning point for survivors of gender-based violence in the
military. Moving forward, the Administration will continue to advance
prevention, promote safe and respectful military climates, and strengthen care
and support for survivors.
