Independent Prosecutors Now Handle Military Sex Crimes
Sexual assault is notoriously underreported in society in general, but this is even more true within insulated organizations such as militaries.
In the United States, sexual assault cases within the armed forces have been on the rise for years. The Pentagon's 2022 Annual Report on Sexual Assault in the Military showed that reported incidents of sexual assault rose 13% in the Air Force, 9% in the Navy, and 3.6% in the Marine Corps (they fell by 9% in the Army, but there were still 8,942 reported incidents across all branches).
Congress has been making efforts to address this growing issue. Last year legislators passed a bill to add further protections for service members, with bipartisan approval. In July, President Biden signed an executive order that implements those proposed changes. Among other things, the reforms removed a lot of balls from victims' courts and put them in the hands of trained prosecutors instead.
Those changes went into effect on January 4. Let's take a look at what this will mean for servicemembers and their families.
Options for Assault Victims in the Military
Victims of sexual assault have multiple avenues to report the incident, including their chain of command, a dedicated Sexual Assault Response Coordinator (SARC), or a healthcare provider. SARCs are specially trained military personnel who provide victims with confidential support and guidance throughout the reporting process. Victims also have access to various support services, including counseling, medical care, and advocacy assistance from SARCs and other trained professionals. These services are designed to help victims cope with the emotional and physical trauma of sexual assault and to ensure their well-being.
Once reported, the incident is thoroughly investigated by trained military investigators. The investigation may involve interviewing witnesses, gathering evidence, and reviewing relevant documents. Depending on the severity of the case and the evidence gathered, the accused may face administrative or criminal action under the Uniform Code of Military Justice (UCMJ). Administrative actions can range from counseling to reprimand or even discharge from the military. Criminal charges under the UCMJ can include rape, sexual assault, and other related offenses, which can carry significant penalties, including imprisonment.
Since 2011, the Department of Defense (DoD) has also provided a 24/7 "Safe Helpline," the sole hotline for members affected by sexual assault. It is completely anonymous and confidential. Callers can get one-on-one support or peer-to-peer support, along with many other resources and information to aid in their recovery.
Unrestricted and Restricted Reporting
The DoD gives two reporting options to service members and their adult military dependents: Unrestricted Reporting and Restricted Reporting. These options differ in terms of confidentiality, investigation, and support services available.
Unrestricted reporting triggers formal investigation. Once a report is made, an official investigation begins into the alleged assault. This involves law enforcement, the chain of command, and potentially a court martial for the accused. Information about the assault becomes a matter of official record, and details may be shared with investigators, commanders, and others involved in the case.
In unrestricted reporting, victims gain access to medical care, counseling, advocacy, legal assistance, and safety measures like expedited transfer from their unit. This path allows victims to pursue justice through the military justice system and potentially hold the perpetrator accountable for their actions.
With restricted reporting, there is no formal investigation. The assault itself is not formally investigated or pursued through the military justice system. The victim's identity and details about the assault are kept confidential, except in a few limited circumstances (e.g., potential risk to others).
While victims can still access medical care and advocacy services, legal assistance and safety measures like unit transfers are not readily available. This option prioritizes the victim's immediate needs and well-being while avoiding the potential burdens of a formal investigation and public disclosure.
New Changes Bring Independent Lawyers
But some members of Congress were frustrated with the old system, arguing that it was improper for commanders to be put in charge of leading the investigations because they would fail to take complaints' seriously or try to protect any alleged wrongdoers under their command. While Pentagon leaders for a long time resisted any change, 2023 finally saw Congressional agreement to get a new system in place.
Now with the new laws in effect, the way that sexual assault cases in the military are tried will be making major changes. Rather than being tried under the authority of the chain of command, sexual assault will now be tried under a new division called Offices of Special Trial Counsel. These offices are responsible for not just most sexual assault and misconduct cases, but also those involving murder, manslaughter, kidnapping, domestic violence and child pornography.
One independent commission specializing in sexual assaults in the military reported in its findings that using special counsels would have a positive impact because they were better equipped to make decisions about the subject matter. The report said, “These outcomes will also increase confidence in the public that the military is correcting its course in the prosecution of special victim cases."
Related Resources
- Sex Crimes (FindLaw's Learn About the Law)
- Can Convicted Sex Offenders Change Their Names? (FindLaw's Law and Daily Life)
- Rape Laws (FindLaw's Learn About the Law)