Commanding officers no longer determine whether to pursue sexual assault cases in military courts
Andrew Cherkasky is concerned about eroding protections for the accused. (Photo courtesy of Golden Law Inc.)
It used to be that when U.S. military service members were sexually assaulted by other service members, there was one person, their commanding officer, who decided what happened with the allegation. A military lawyer could offer advice on the matter, but the commander was ultimately empowered to determine whether a case should be investigated and prosecuted.
For years, victim advocacy groups criticized putting so much power in the hands of commanders, who rarely had legal expertise. There was concern commanders were shielding alleged perpetrators from potential prosecution, says Josh Connolly, senior vice president of victims’ advocacy group Protect Our Defenders.
In July 2023, President Joe Biden signed an executive order taking cases involving sexual assault and other crimes potentially committed by service members out of the hands of individual commanders. The order established an Office of Special Trial Counsel for each military branch with its own staff of military lawyers. Its creation follows years of advocacy by members of Congress and victims’ rights advocates concerned over a rise in sexual assault reports within the military.
“The perception and reality had been that a commander could and did tip the scales one way or another in a sexual assault case,” Connolly says. “The concern was that the commander would choose not to have a case pursued, and the victim would then be ostracized and experience retaliation.”
Although the creation of the new Offices of Special Trial Counsel is a welcome change for victims’ advocates, not everyone is happy about it. Critics like Joseph Jordan, a former judge advocate general who represents service members under military investigation, say it creates an unnecessary layer of bureaucracy. “The changes are making the military legal system more like how we do things in the civilian world,” says Jordan, who practices out of Killeen, Texas. “But the military system is different for a reason. If you pull the decision-making from the commanding officer, what kind of discipline can the commander enforce?”
For fiscal year 2022, the Department of Defense’s Annual Report on Sexual Assault in the Military showed there were 8,942 sexual assault reports involving service members that year, a 1% increase from 2021.
The year before that, the Pentagon revealed there were 8,866 sexual assault reports, a 13% increase from fiscal year 2020. However, in fiscal year 2023, the number of reports went down to 8,515.
Years in the making
Sen. Kirsten Gillibrand, D-N.Y., spent years advocating for reform of the military judicial system to better protect female service members. Under pressure, the Pentagon in 2021 created the Independent Review Commission on Sexual Assault in the Military. Its purpose was to investigate ways to address sexual assault and harassment in the armed forces. The commission’s report came up with dozens of recommendations, including the special prosecution units.
Gillibrand and Rep. Jackie Speier, a Democrat from California who retired last year, pushed to rewrite the Uniform Code of Military Justice to include the recommendations.
In a press release announcing last year’s executive order, the White House said the creation of the Offices of Special Trial Counsel, accompanied by the other revisions, represented the biggest changes to the Uniform Code of Military Justice since it was established in 1950.
Military attorneys—who will also be empowered to prosecute domestic violence, child abuse and even murder through all aspects of the military legal system—will staff the offices.
There have been some snags. The Army’s Office of Special Trial Counsel received negative press when it was revealed that Brig. Gen. Warren Wells, confirmed by Congress as the office’s lead lawyer, sent a 2013 email in which he appeared to downplay sexual assault allegations. Wells was fired from the job in December but remains on active duty.
Meanwhile, controversy over the special units remains. Defense lawyer and former judge advocate general Richard Stevens, founder of the Law Offices of Richard V. Stevens in Dunkirk, Maryland, says changes to the military justice system have been based on “the misguided narrative [that] the military justice system is broken and in need of fixing.”
Indeed, Andrew Cherkasky, a former prosecution-side judge advocate general, says the military has had a history in the last 15 years of “aggressively prosecuting” sexual assault cases, contrary to public perception. He’s concerned the military has been allowing protections for the accused to erode. “If a service member is accused of sexual violence, that can derail a career, so we should make sure protections are in place for the accused,” Cherkasky says.
Alternatively, victims’ advocates say the special trial counsel offices’ work should be embraced to further professionalize the military’s justice system and ensure for victims that the merits of a case will determine how it is handled.
“One problem the military had is with retention and recruitment, particularly of women. If we are going to get the best and the brightest in the numbers, we need to show that we take sexual assault seriously,” Connolly says. “The least we can do is to create an environment that minimizes the likelihood that women will be assaulted and harassed by their fellow service members.”
He’s keeping a watchful eye on how the prosecutorial units fare in the upcoming years.
“The military needs to have the right personnel in these offices to optimize the likelihood of success,” Connolly says. “They have to get this right.”
This story was originally published in the October/November 2024 issue of the ABA Journal under the headline: “Charting a Different Path: Commanding officers no longer will determine whether to pursue sexual assault allegations.”
