New Special Trial Counsels To Handle Sexual Assault Cases In US Military

President Joe Biden has signed an executive order that changes how some crimes — including sexual assault, domestic violence, child abuse and murder — are handled within the military justice system.

The executive order makes changes to the Manual for Courts-Martial. The changes, among other things, move responsibility for the handling of such crimes away from military commanders to independent military prosecutors, who are outside the military chain of command.

Many of the changes in the executive order are related to recommendations made by the Independent Review Commission on Sexual Assault in the Military, which was created in 2021 at the direction of Secretary of Defense Lloyd Austin.

According to a senior administration official, the executive order amends the Manual for Courts-Martial and its accompanying rules in several ways.

In future, new special trial counsels will serve as the independent military prosecutors in place of military commanders, the Pentagon says.

They will decide whether to prosecute allegations of sexual assault, domestic violence, and certain other serious offenses in the military.

The order also establishes that prosecutorial decisions made by the special trial counsel are binding and are fully independent from the military chain of command.

It clearly delineates the relationship and authorized interactions between special trial counsel and commanders to protect the independence of the special trial counsel.

The new executive order also updates the procedures necessary to protect victims and the accused before, during and after court -martial proceedings.

The administration official also said the executive order reforms the sentencing system to promote uniformity and fairness, as recommended by the commission to reduce disparities in sentencing in cases of rape and sexual assault.

“Lastly, [it creates] a uniform, ‘preponderance of the evidence’ standard for the imposition of non-judicial punishment, which the IRC highlighted as critical to make consistent across the military services, given that most sexual misconduct cases are handled by non-judicial punishment, rather than courts-martial,” the official said.

Under the new rules, the official said, the special trial counsel has the “right of first refusal” when it comes to deciding whether to be involved in prosecuting some crimes committed by military personnel.

When a crime is reported, the official said, military police, for instance, will connect with the special trial counsel first, and the special trial counsel will assess if the case falls within its purview. If it doesn’t, those crimes could be referred to commanders using the traditional military justice system, where commanders, with advice from judge advocates, will determine what to do.

The changes will come into effect on Decemeber 27, and will apply to offenses committed after that date, the Defense department quoted a Biden administration official as saying.

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