The debate over the military’s handling of sexual assault cases has broadened and now takes on questions about racial justice, according to lawmakers who are pushing to change the armed forces legal system.
Majorities in both chambers now favor passing a law to establish professional legal teams in the armed services that would decide which felony allegations should go to courts-martial — decisions that are now made by generals and admirals who mostly lack legal training.
The debate in Congress now turns on whether such military courts-martial officers — which appear likely to be created by law soon — should cover prosecution decisions on all felonies that are not military-unique, such as desertion, or just sexual felonies and related offenses such as domestic abuse.
Pentagon leaders made clear this week they favor limiting the change to just sexual crimes and related offenses. But a supermajority in the Senate and seemingly a majority of the House want to change the system for all major crimes.
According to official government reports, Black members of most of the military services are twice as likely to be charged with the same crime as their white comrades.
It is this apparent bias that members hope a revamped military justice system will fix. Dealing with it has been a virtually unnoticed part of the military sexual assault debate up to now, but it is fast becoming a central part of the case that lawmakers are making for change.
What is normally called the military sexual assault debate, then, is really now about a more sweeping call to professionalize more of the military justice system. And the rationale for making the full change for most felonies increasingly includes the argument that the theoretically more trained and less biased prosecutors’ offices would make the system fairer for minority servicemembers.
Sen. Kirsten Gillibrand, D-N.Y., who is known for defending victims of sexual assault, said at a news conference Wednesday that, because her proposed legislation would cover all major nonmilitary crimes, it would help protect defendants’ rights in a broad sense and address racial inequities in the system.
The new law “has to apply to all felonies because, if you are going to jail for more than a year of your life,” she said, “you deserve a review by someone who has no bias against you. Well, if you are a Black or brown servicemember, I’m sorry to say, there may well be biases against you. Because in the statistics out of the [Defense Department] itself, in some of the services you are up to 2.61 times more likely to be punished because you are a Black servicemember.”
The question of bias
The primary impetus for the growing congressional support this year for legislation to change the military justice system has been the torrent of an estimated 20,000 sexual assaults and 100,000 sexual harassment incidents in the military each year, according to Defense Department statistics.
Only a fraction of these cases are formally reported or lead to convictions or to professional consequences for perpetrators.
If members such as Gillibrand and Rep. Jackie Speier, D-Calif., get their way, the law would change so that decisions to prosecute not just sexual crimes, but also most other felonies, would be removed from commanders’ hands.
Gillibrand’s bill has 66 co-sponsors, including leading Republicans such as Sen. Charles E. Grassley of Iowa. On Wednesday, Speier and Rep. Michael R. Turner, R-Ohio, among others, filed a comparable bill in the House.
At a news conference unveiling the House measure, Rep. Anthony G. Brown, a former military lawyer who serves on the Armed Services Committee, said the military justice system “fails our women and men in uniform, particularly Black and Brown enlisted soldiers, sailors, airmen, Marines and guardians.”
About 43 percent of U.S. servicemembers are people of color, the Maryland Democrat said, yet only two of the most senior four-star admirals and generals are Black.
“An overwhelming majority of the Senate — and you will see an overwhelming majority of the House — believe that we need to accelerate that movement to expand the list of offenses that are no longer referred to court-martial by commanders, because what we are doing in this bill is addressing bias in the system,” Brown said.
Speier, meanwhile, said this week’s news that Defense Secretary Lloyd J. Austin III and the service chiefs support moving decisions on prosecuting sexual crimes and related offenses outside the chain of command is welcome but insufficient. That is to some extent, she suggested, because a partial change would not adequately address all the racial disparities in the system.
“While I’m grateful that they finally recognize that sexual assault and sexual harassment cases need to be taken out of the chain of command, with this bill we’re saying we want to go further and take all nonmilitary felony crimes out of the chain of command, because we're very concerned, and rightfully so, that there is a bias that exists,” she said, referring to the statistics on racial disparities.
Senate Armed Services Chairman Jack Reed, D-R.I., and James M. Inhofe of Oklahoma, the panel’s ranking member, are leading a group of lawmakers that back the Pentagon approach to limit to sexual offenses the kinds of crimes that would be decided on outside the chain of command.
House Speaker Nancy Pelosi predicted at Wednesday’s news conference that the Speier-Turner bill would pass the House and the companion Gillibrand measure, which is backed by numerous conservatives, would be passed in the Senate, too.
President Joe Biden, in campaign remarks last year, backed the broader approach sketched by these advocates — a stance that, if he sticks to it, could put him at odds with the Pentagon.
Gillibrand, Speier and their allies believe new courts-martial offices in the armed services — because they would be independent of the chain of command of the accused or the alleged victim and would be staffed by lawyers and other specialists — would make it more likely that justice is served for both the alleged victims and perpetrators.
That is because, they say, those making the call would not only be trained to make such decisions but also would not know the people involved in the case.
In the Army, Navy and Air Force, Black servicemembers were more likely to be charged with crimes — between 40 percent and 71 percent more likely, depending on the service — than white personnel, according to a 2017 study of Defense Department data by Protect Our Defenders, a human rights group that focuses on military issues.
“Racial disparities are present at every level of military disciplinary and justice proceedings,” the report said.
Two years later, the Government Accountability Office, in a report requested by the House Armed Services Committee, found that Black and Hispanic servicemembers were more likely than others to be investigated or tried for alleged crimes, after controlling for factors such as rank and education.
In every service but the Air Force, Black personnel were at least twice as likely to be investigated or tried, the report found.
The GAO did not find noteworthy racial disparities in convictions or punishment severity.