The election of a new President means a change in the administration, and that change can alter any number of ways that our nation handles issues or approaches different matters. Mr. Lloyd Austin III, who was an army officer for a long time, has recently entered into the role of the Secretary of Defense.
Since around early 2010, the issue of sexual assault in the military has been an ongoing conversation in the halls of Congress and within the administration and the executive branch with pretty much every presidency. Anytime a case of military sexual assault hits the news, it almost inevitably leads to the President making some type of commentary about how the military handles sexual assault. That happened in the Obama administration quite candidly, it happened in the Trump administration, and it has recently come up in the Biden administration.
The new Secretary of Defense, Secretary Austin, has been asked questions throughout the course of his confirmation hearings and the confirmation process about the military’s handling of sexual assault. Secretary Austin’s answers, which came after the 2019 and 2020 studies about increasing reports of sexual assault, included his opinion on unchanged conviction rates for periods of time and whether the command at any particular level (commanders in general) are the proper people to be handling military sexual assault allegation.
For the longest time, every President, as well as every leader within the Department of Defense, has believed that the military justice system should be handled at the commander level, that it’s a commander-driven process, and, therefore, a commander should be able to make decisions about whether cases go to trial, when they go to trial, and what type of court-martial is convened to handle specific cases. Those three decisions have always been believed—since the beginning of the Uniform Code of Military Justice—to properly be a commander-driven process. Due to recent politics, however, there are members of Congress and now members of the executive branch who are open to taking the decisions regarding how to deal with sexual assault cases out of the hands of commanders. In other words, proponents of this course of action believe that if a sexual assault allegation is made, that allegation and all of the evidence should be given to a trained prosecutor who sits apart from the command; then, that trained prosecutor and their office would make the determination as to whether that particular case is going to go to trial, whether charges are going to be brought or dropped.
This has been a pretty consistent conversation at both the executive and legislative levels in the last decade. There are pros and cons to this issue across the board, and we don’t really know what’s going to happen. We’ve got Secretary Austin, who has effectively voiced his willingness to consider this particular course of action, his willingness to consider taking sexual assault cases out of the hands of commanders and putting them in the hands of some type of professional prosecutorial branch. And the President, frankly, has been a pretty vocal proponent of these changes over the years, particularly within the past year or so as he was elected to the office. While we don’t know what the future will look like, it could be a potentially gigantic change in how things are handled if the executive branch and its civilian leaders, including the Secretary of Defense, took the process away from commanders.
National Military Law Experts