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Biden signs executive order changing how military handles serious criminal cases including sexual assault [Updated]

The change comes two years after an independent commission recommended it to the Pentagon.
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The 432nd Wing/432nd Air Expeditionary Wing’s office of the Judge Advocate General has opened the first dedicated military court room for Creech Air Force Base, Nevada, May 27, 2020. (U.S. Air Force photo by Airman 1st Class William Rosado) The 432nd Wing/432nd Air Expeditionary Wing’s office of the Judge Advocate General has opened the first dedicated military court room for Creech Air Force Base, Nevada, May 27, 2020. This permanent location, on the south side of the base, will increase the timely process of any required court case and drastically reduce any scheduling conflicts that may arise. Court cases will no longer be required to share or compete for time and space at Nellis Air Force Base, located nearly 50 miles away. (U.S. Air Force photo by Airman 1st Class William Rosado)

The way the U.S. military handles sexual assault cases is changing. As directed in an executive order from President Joe Biden, some of the most serious crimes such as sexual assault and murder are being transferred outside of the purview of victims’ commanders to outside prosecutors, a major change in the military’s Uniform Code of Justice.

Biden signed the order on Friday, July 28 and new rules immediately went into effect. These cases will now be handled by the Offices of Special Trial Counsel, an independent panel made up of prosecutors. Under prior rules, commanders decided whether or not to prosecute these cases, which include sexual assault, domestic abuse, and murder. The changes, which implement reforms passed by Congress last year, mark “the most significant transformation” of the U.S. military justice system since the UCMJ was established in 1950, according to the White House in a Friday statement on the signing. 

Under the new rules, rulings by the Offices of Special Trial Counsel will be final, and commanders cannot overrule them.

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The changes come from the 2022 fiscal year National Defense Authorization Act. Congress mandated the move in order to overhaul military justice and improve confidence in the system regarding these serious crimes. Sen. Kirsten Gillibrand (D-New York) led the push. The NDAA required that these new rules go into effect by December but Biden’s executive order implements them months ahead of that deadline. 

An independent commission set up by Secretary of Defense Lloyd Austin in 2021 also recommended moving these cases outside of the chain of command to military prosecutors. The commission’s statements ran in opposition to the long-time stance many military officers held; commanders argued that moving these cases out of their control would negatively impact order and authority in the service. 

In April, the Department of Defense released a report saying that the number of sexual assault cases resolved through court martial had dropped from 71% in 2013 to 37% in 2022. Instead, many were resolved through administrative actions such as separation. However, sexual assault remains a major issue within the armed forces. A 2023 survey by the Pentagon saw the number of sexual assaults reported continue to rise, up 1% over 2022. Increases were reported in the Navy, Marine Corps, and Air Force, even as the Army reported a drop in reported cases. Sexual assault has also been cited as a reason the military has been struggling to meet its recruitment goals. 

The White House said this week that the military is currently hiring for positions in the Offices of Special Trial Counsel. It will be fully staffed before the year’s end. 

Update: 8/1/2023: This article has been updated with more recent statistics.

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