Defense Secretary Lloyd Austin signaled to lawmakers Thursday that he supports stripping commanding officers of the authority to decide whether troops accused of sexual assault should face prosecution.
A shift to place such decisions in the hands of independent legal authorities would amount to a sea change in the way the military handles sexual assault cases.
Austin plans to make his recommendation to President Joe Biden in the coming weeks, according to a defense official.
“As I have said before, what we are doing is not working and we need to fix it,” Austin said in testimony to the Senate Armed Services Committee.
“I want to be sure that whatever changes to the [Uniform Code of Military Justice] I recommend to the president – and ultimately to this committee – are scoped to the problem we are trying to solve, have a clear way forward on implementation, and ultimately restore the confidence of the force in the system.”
Austin stopped short of explicitly endorsing particular changes to the way the military has long handled sexual assault allegations, but the defense official said Austin’s position aligns with the recommendations of a Pentagon panel set up to study the issue.
The commission established by Austin recommended that independent military lawyers - rather than commanding officers – should decide whether to court-martial those accused of sexual assault or harassment. Lawmakers, including Democratic Sen. Kirsten Gillibrand of New York, have long demanded such a change as the only way to come to grips with the problem that has plagued the military for decades.
“Clearly, what we’ve been doing hasn’t been working,” Austin said Thursday. “One assault is too many. The numbers of sexual assaults are still too high, and the confidence in our system is still too low.”
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.
After Austin makes his recommendation to the president, the debate is likely to heat up in Congress, which must approve changes to the Uniform Code of Military Justice.
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.”