Independent lawyers begin prosecuting cases of sexual assault and other crimes in the US military

WASHINGTON — WASHINGTON (AP) — The U.S. military opened a new chapter Thursday in the way it investigates and prosecutes cases of sexual assault and other major crimes, putting independent lawyers in charge of those decisions and sidelining commanders after years of pressure from Congress .

The change, long resisted by Pentagon leaders, was ultimately forced by frustrated members of Congress who believed that commanders too often would not take seriously victims' complaints or try to protect alleged perpetrators in their units .

The new law was fueled by a continued increase in sexual violence and harassment within the military. The Air Force, Marine Corps and Navy all saw increases in reported sexual assaults last year, but a sharp 9% drop in reports from the Army — the largest military service — caused the overall number to drop. In 2021, the number of reported attacks increased by 13%.

Under the law, new special prosecutors will have the authority to make prosecutorial decisions on a number of major crimes, including murder, rape and several other crimes related to sexual violence, kidnapping, domestic violence, making or possessing images of child sexual abuse, stalking and revenge.

In a statement, Secretary of Defense Lloyd J. Austin III called it “the most significant reform of our military justice system since the introduction of the Uniform Code of Military Justice in 1950.”

However, it is unclear what impact the change will have on the broader problem of sexual misconduct in the military, and whether it will lead to an increase in prosecutions and, if so, whether that will have a deterrent effect.

Senior military service officials familiar with the new program said they already have more than 160 certified special trial attorneys who will take over prosecutorial decisions starting Thursday. However, many of these lawyers are already involved and have been providing advice and support in ongoing cases for months. The officials spoke to reporters on condition of anonymity to discuss the new program under Defense Department regulations.

From Thursday, special trial lawyers will have sole authority to make prosecutorial decisions on new cases involving major crimes. Any advice on pre-existing cases is non-binding, the officials said.

According to officials, the Army will have 65 certified trial attorneys, the Air Force 40, the Marine Corps 33 and the Navy 24, with 23 not yet certified attorneys assisting in the cases. Another ten are expected to be certified in the summer.

The lawyers will be spread across the US and the world, with greater numbers at bases and locations where there are more military personnel and more crime.

Officials said they expect each trial attorney to handle as many as 50 investigations and about eight to 12 trials per year.

An independent commission studying sexual violence in the military suggested in its report that the use of special counsel would have a positive impact. It said the special counsels would make better decisions about which cases to move forward, resulting in higher conviction rates. The increased number of convictions will encourage more accused perpetrators to take plea deals, according to the report, easing the need for victims to testify at trials.

“These results will also increase public confidence that the military is correcting its course in prosecuting special victims,” the report said.

Sean Timmons, managing partner at the law firm Tully Rinckey, which specializes in military cases, said the change doesn't really address the underlying behavioral issues. As a result, he said, it is unlikely to have a real impact or deterrent on military misconduct. He said this could lead to more people being fired as a result of administrative proceedings, but agreements in which victims do not testify could ultimately result in weaker cases.

“My analogy to that is we're rearranging the seats on the Titanic,” said Timmons, a former Army judge advocate general. “Nothing will really change except the semantics and appearance. That is the unfortunate reality.”

The military services have long struggled to come up with programs to prevent sexual violence and encourage reporting, including several new initiatives in recent years. But they have yet to show real progress in reducing the number of reported assaults, and anonymous surveys still indicate that many more victims are choosing not to report them.

Defense officials have long argued that an increase in reported attacks is a positive trend, both in the military and in society at large. According to them, greater reporting shows that there is more confidence in the reporting system and the support available for victims.

Nate Galbreath, acting director of the Pentagon's Office of Sexual Assault Prevention and Response, said in April that the department used a $479 million budget injection this year to hire as many as 2,400 staff for a new prevention workforce. He said about 350 people had already been hired and that as the number grew, they would be placed in military installations around the world to help commanders address some of the risk factors that lead to sexual violence.