Today, President Biden will sign an Executive Order to implement historic, bipartisan military justice reforms that significantly strengthen how the military handles sexual assault cases. The Executive Order transfers key decision-making authorities from commanders to specialized, independent military prosecutors in cases of sexual assault, domestic violence, murder, and other serious offenses by amending the Uniform Code of Military Justice (UCMJ).
These changes, which implement reforms passed by Congress in the Fiscal Year 2022 National Defense Authorization Act (FY22 NDAA), represent the most significant transformation of the military justice system since the UCMJ was established in 1950. The historic reforms announced today will better protect victims and ensure prosecutorial decisions are fully independent from the chain of the command. They follow decades of tireless efforts by survivors, advocates, and Members of Congress, to strengthen the military justice system’s response to gender-based violence and build on recommendations from the Independent Review Commission on Sexual Assault in the Military (IRC), which Secretary Austin established at President Biden’s direction as one of his earliest acts in office.
These reforms are a turning point for survivors of gender-based violence in the military. They fulfill President Biden’s promise to fundamentally shift how the military justice system responds to sexual assault and related crimes, which is something President Biden has prioritized since Day One of this administration. Ending gender-based violence wherever it occurs has been a top priority for the President throughout his career—as a Senator, and as Vice President. As Commander in Chief, he’s made clear that our one truly sacred obligation as a nation is to prepare and equip those we send into harm’s way, and to care for them and their families both while they are deployed and when they return home. The reforms implemented through today’s Executive Order do just that, promoting dignity and respect for those who serve by better protecting our servicemembers and making the military safer and more just.
Today’s Executive Order takes important action to reform our military justice system by amending the Manual for Courts-Martial and its accompanying Rules for Courts-Martial including by:
- Establishing the rules that will govern the new Offices of Special Trial Counsel (OSTC), the independent military prosecutors who will now decide, in the place of commanders, whether to prosecute covered offenses such as sexual assault and domestic violence, child abuse, and murder;
- Making clear that prosecutorial decisions made by special trial counsel are binding and fully independent from the chain of command;
- Delineating the relationship and authorized interactions between special trial counsel and commanders to protect the independence of special trial counsel;
- Modernizing procedures to better protect victims and promote fairness before, during and after court-martial proceedings;
- Reforming the court-martial sentencing system to promote uniformity and fairness, as recommended by the IRC, to reduce disparities in sentencing in cases of rape and sexual assault; and
- Creating a uniform evidence standard for non-judicial punishment actions, which the IRC highlighted as critical to make consistent across the military services given that most sexual misconduct cases are handled by nonjudicial punishment rather than courts-martial.
This month also marks two years since the IRC published its final report, outlining recommendations to improve accountability, prevention, climate and culture, and victim care and support. Today’s Executive Order advances the IRC’s core accountability recommendations and builds on the progress that has already been made by the Department of Defense in implementing the IRC’s more than 80 recommendations, including:
- Establishing the Offices of Special Trial Counsel. In July 2022, with direction from Secretary Austin, the Army, Navy, Marine Corps, and Air Force, including the Space Force, established and staffed their OSTCs to assume authority for prosecutorial decisions for covered offenses including sexual assault and domestic violence at the end of 2023. Beginning January 1, 2025, special trial counsel prosecutorial authority will expand to include sexual harassment cases.
- Hiring, Training, and Empowering the Prevention Workforce. Consistent with the IRC’s recommendation to establish a dedicated prevention workforce with public health expertise, the Department of Defense launched a phased approach to hiring a primary prevention workforce with 2,000 skilled professionals who will promote the health of their military community and work with leaders to change policies and implement prevention activities. In December 2022, the Department of Defense released guidance for this new workforce, and hiring and onboarding is underway at installations around the world.
- Strengthening and Professionalizing the Sexual Assault Response Workforce. The Department of Defense, in collaboration with the Military Services and National Guard has adopted a comprehensive approach to restructuring, professionalizing, strengthening, and resourcing for the sexual assault response workforce. This includes moving Sexual Assault Response Coordinators (SARCs) and Victim Advocates (VAs) from the command reporting structure, and generally eliminating collateral duty for SARCs and VAs. This standardized approach across the Department of Defense is nearing completion.
- Improving the Military’s Response to Domestic Violence and Sexual Harassment. Recognizing sexual assault can overlap with other forms of gender-based violence, the IRC recommended ways to improve accountability and support to survivors of domestic violence and sexual harassment. The Administration has:
- Reissued and revised the Defense Department’s domestic abuse policy in December 2021. Key updates include expanding eligibility for Sexual Assault Prevention and Response program services to domestic violence survivors who have experienced sexual assault;
- Tracked the prevalence of domestic abuse/intimate partner-related sexual assault by collecting information on the victim-perpetrator relationship in the Workplace and Gender Relations Surveys of Active-Duty Members (WGRA), and Workplace and Gender Relations Surveys of Reserve Component Members (WGRR);
- Expanded victim advocate services, reporting options and support to survivors of sexual harassment, through new guidance issued by the Department of Defense in September 2022. This guidance has been implemented across all Military Departments;
- Starting with the Navy and the Marine Corps, issued policies for the independent investigation of sexual harassment reports, moving these investigations outside the chain of command of both the individual reporting sexual harassment and the alleged offender. The Department of Defense is working to develop a comprehensive approach to address this issue across all Military Departments; and
- Amended the Manual for Courts-Martial through an Executive Order in January 2022 that established sexual harassment as a specific offense under the UCMJ, strengthening the military justice response in prosecuting cases of domestic violence, and implementing changes to the UCMJ to criminalize the wrongful broadcast or distribution of intimate visual images.