WASHINGTON, D.C. – Representative Adam Smith (D-Wash.), Chairman of the House Armed Services Committee, today issued the following statement articulating how the bipartisan, bicameral agreement on the National Defense Authorization Act (NDAA) for Fiscal Year 2022 (FY22) would deliver results for survivors of sexual assault and related crimes in the U.S. military.
“This year’s NDAA dramatically reforms how the U.S. military will handle sexual assault crimes under the Uniform Code of Military Justice (UCMJ). The prosecution of all sex crimes will be taken away from the control of the military commander and given to a new Special Trial Counsel’s office run by qualified, independent, uniformed attorneys and ultimately overseen by the civilian Service Secretaries. These offices have the sole authority for charging decisions and the responsibility to prosecute those charges – all of which will take place separate from the military chain of command for all parties to an alleged crime. This long overdue and crucial set of reforms will dramatically improve the military’s response to the problem of sexual assault within the ranks, and it lays the strongest possible foundation for additional reforms in the future.
“It is very disappointing to see these sweeping reforms misrepresented and maligned. Survivors deserve honesty about these reforms just as much as they deserve the results that these reforms will provide. I have spoken with Senator Gillibrand many times this year as we crafted this legislation, and I understand that she prefers a different approach. But her recent claims in the press that the language in the NDAA does nothing to take the commander’s authority away — specifically by arguing that the ‘convening authority’ allows commanders to pick judges and specific jurors and to decide what evidence can be introduced at trial — simply mischaracterizes what are, in fact, bold reforms that deliver independence and justice for survivors of sexual assault in the military.
“Military commanders do not select judges under current law, and they would not under the language in the FY22 NDAA. Each service’s Judge Advocate General — not any commander — ultimately details judges to their circuits, and then those judges alone decide what evidence and witnesses may be presented. A commander may only become part of this equation at all if one party requests an outside expert — then the commander must approve the expense for that outside expert, but of the many military lawyers I have spoken to, not one can recall a commander denying this request once a judge has approved it. Finally, while a commander establishes a broad jury pool from eligible service members in their command, prosecutors and defense attorneys select jury members through the voir dire process familiar to any civilian who has received a jury summons.
“It is entirely possible to disagree with these reforms without mischaracterizing them. Senator Gillibrand clearly believes that a different approach should be taken to sexual assault reform in the UCMJ — that charging and prosecuting even more crimes, not just those associated with sex crimes, should be taken out of the chain of command, and that creating a Special Trial Counsel’s office in each service is a mistake because it would create a so-called ‘pink court.’ However, the Senator’s own proposal would keep the prosecution of drug-related crimes within the chain of command, and she also personally assured me that she was okay with an amendment to her measure on scope of crimes, passed during the Senate Armed Services Committee markup, that would have created a special victims prosecutor for sex crimes while keeping her approach intact. That just doesn’t add up.
“Adequately addressing the challenge of sexual assault and other sex crimes in the military will require the attention of specially-trained prosecutors operating with the independence and accountability that the language in the FY22 NDAA provides. Survivors of the military’s sexual assault crisis have already waited far too long for meaningful reform to the UCMJ. Congress must not make survivors wait for justice any longer simply because the initial House and Senate versions of the NDAA differ on how many additional crimes should be removed from the military chain of command. The FY22 NDAA just passed the House with an overwhelming majority, and it will deliver justice for survivors by bringing accountability, independence, and transparency to the prosecution of sexual assault and other sex crimes in the military – anyone who pretends otherwise is doing survivors a great disservice.”