NDAA envisions new military policies on sexual assaults

Conference report omits provisions on moving prosecution outside the military chain of command

Speier, left, and Gillibrand at a November 2017 press conference.  (Tom Williams/CQ Roll Call file photol)
Speier, left, and Gillibrand at a November 2017 press conference. (Tom Williams/CQ Roll Call file photol)
Posted December 8, 2020 at 11:13am

The defense authorization conference report that Congress is likely to send to the White House this week contains a bevy of previously unpublicized new protections for victims of sexual assault in the military.

President Donald Trump has threatened to veto the fiscal 2021 NDAA bill. But assuming it becomes law — whether this year or early next — it is likely to include the sexual assault initiatives.

The list of provisions includes a proposal to make it more difficult to overturn convictions in military courts — a change that will affect all criminal cases, not just sexual crimes.

Also in the NDAA is a requirement that the Pentagon write “Safe to Report” regulations, which would enable military personnel who allege they were sexually assaulted to report it without fear of punishment for minor misconduct such as underage drinking or violating curfew.

The bill does not, however, include a provision long supported by victims’ advocates: moving the prosecution of such crimes outside the military chain of command and into the hands of purportedly more independent authorities.

In fact, the conferees killed a couple of House-passed provisions that would have chipped away at commanders’ authority to handle discipline in their ranks.

What is left in the bill are tweaks to the armed forces’ process of prosecuting crimes, sexual or otherwise — some of considerable importance but none amounting to the radical redesign that many advocates want.

“These are fixes around the edges of the system, versus an overhaul of the system,” said Don Christensen, president of Protect Our Defenders, a group that advocates for military victims of sexual offenses, in an interview. “They’re important, but they don’t change the fundamental nature of military justice.”

California Democrat Jackie Speier, chairwoman of the House Armed Services Military Personnel Subcommittee, who wrote many of the NDAA’s sexual assault provisions, called them modest. “We have so much more to do next year,” Speier said in an emailed statement. “I look forward to working with a President who takes seriously the problems of sexual assault, sexual harassment, and intimate-partner violence in our armed forces.”

Appellate changes

Sexual assault — and failure to report and to prosecute it — remain endemic and epidemic in the military, statistics show.

A fiscal 2018 survey of military personnel revealed that fully 20,500 sexual assaults occurred in the ranks that year, the most recent year for which data are available. Nearly three-quarters of these attacks are not reported, according to official statistics.

And only a tiny fraction of the assailants are ever convicted — just 138 in fiscal 2019.

One of the most significant changes contained in the new NDAA is one that will affect how the armed services’ appellate judges review courts martial convictions.

Currently, military appellate courts must review lower court rulings using a “factual sufficiency” standard. In layman’s terms, that means appellate judges must essentially relitigate cases with only a modicum of deference to the lower courts’ decisions, even though the appellate judges do not have the same access to witnesses.

This standard has historically made it more likely that convictions in military courts are overturned, as compared to civilian courts, said Eugene R. Fidell, a senior research scholar at Yale Law School and professor at New York University who specializes in military law.

Fidell, who thinks the NDAA change is a positive development, said in an interview Tuesday that the current standard is a throwback to a time before there were judges or even many lawyers in courts martial, and so it was important for military appellate judges to almost completely reassess every conviction being appealed.

Convictions are only rarely overturned, he noted, but when that has happened in several rape and assault cases in recent years, it has led to uproars.

“In a certain category of high-profile cases, this will rebalance the scales,” Fidell said.

Speier, for her part, said the new appellate standard “will make it more difficult for appeals courts to second guess witness testimony, which has disproportionately resulted in lost convictions for sexual assault, domestic violence, and child abuse.”

One such reversal occurred in 2019, when the conviction of Col. Daniel Wilson for abusing two prepubescent girls was overturned.

Adrian Perry, the mother of the girls, wishes the NDAA had gone farther. On the plus side, she said in an interview Tuesday, the final measure allows overturned convictions to be appealed — something that is not currently permitted. And, she said, it sets a new standard that will make it somewhat harder for appellate judges to overturn convictions.

However, she hastened to add, the NDAA still permits appellate judges to make personal judgments about evidence and witnesses they do not see or hear in person.

"It was crippling to our family, and I don't want any other family to have to go through this," she said in an interview Tuesday.

Flurry of new provisions

The bill makes other changes that aim to protect victims of sexual assault in the U.S. military.

The measure would require the Pentagon to include in reports to Congress information about training personnel in awareness of sexual crimes and about progress in checking the backgrounds of recruits for such offenses.

Another provision would require the service academies to ensure they take steps to keep alleged victims and alleged perpetrators away from each other.

In addition, the measure would require that a new mechanism be established for confidentially reporting assaults through channels that are outside the military chain of command, a way of avoiding reprisals against witnesses and victims, which advocates say remains a problem.

Conferees pull several punches

The latter provision is one of the few ways commanders’ control over unit discipline has been even slightly challenged in the new legislation.

Speier and New York Democrat Kirsten Gillibrand, the ranking member of the Senate Armed Services Personnel Subcommittee, have tried but failed for several years to convince their colleagues to force the Pentagon to set up independent prosecutions of sexual assaults and other crimes.

This year’s bill stopped short of even modestly moving in that direction.

“While this year’s NDAA includes some provisions that will improve how the military handles sexual assault, such as the Safe to Report Act, much more must be done to fix the many fundamental problems with the military justice system," Gillibrand said in a statement Tuesday.

The House-passed NDAA would have set up a pilot program allowing independent prosecutions just at the service academies, but it was killed in conference.

Along the same lines, another House-passed provision that did not survive conference would have allowed military personnel seeking a protective order, who now can only ask their commanders, to also seek one from a military trial judge.

“This NDAA conference report once again threw out important House provisions that address the sexual assault/harassment epidemic in the military,” Speier told CQ Roll Call.