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On December 7, 2021, the House of Representatives passed S. 1605, the bipartisan, bicameral text of the National Defense Authorization Act (NDAA) for Fiscal Year 2022 (FY22), by a vote of 363-70.
The FY22 NDAA makes historic policy changes that will benefit our service members and their families, including a package of bold reforms that will deliver accountability, independence, and results for survivors of sexual assault in the U.S. military.
These reforms, supported by a range of leading advocates and experts, will remove the prosecution of sexual assault and related crimes from the military chain of command; preserve the independence of judges, juries, and proceedings; and make sure that prosecutors are equipped to take on sexual assault cases. The FY22 NDAA also includes solutions to tackle the sexual harassment crisis in the military.
Continue reading this edition of The Facts from the Democratic majority on the House Armed Services Committee to learn more.
These reforms remove prosecutions of sexual assault and related crimes from the chain of command.
- Under the reforms in the FY22 NDAA, each Service Secretary will establish an Office of Special Trial Counsel to prosecute sexual assault cases and related crimes, along with a Lead Special Trial Counsel who reports directly to the Secretary without intervening authority.
- Each service's Lead Special Trial Counsel is independent from the chain of command of the survivor and the accused.
- Special Trial Counsel decisions to convene a court-martial for sexual assault and related cases are binding on the commander and convening authority in any given case.
These reforms preserve the independence of judges, juries, and proceedings in military sexual assault cases.
- Under current law, military commanders do not pick judges in sexual assault cases. Each military service’s Judge Advocate General ultimately details judges to their circuits — the reforms in this year's NDAA would continue to ensure the independence of judges in military sexual assault cases.
- Prosecutors and defense attorneys select jury members for military justice cases through the voir dire process — just like a civilian jury. Commanders only establish a broad jury pool from eligible service members.
- Judges alone — not military commanders — decide what evidence and witnesses can be presented in a military justice case. If any party to a case requests an outside expert, a commander may approve the expense for that expert once an independent judge has approved that expert.
These reforms ensure that prosecutors are trained, equipped, and qualified to handle sexual assault cases.
- The FY22 NDAA doesn't just establish roles and responsibilities of each service's Special Trial Counsel — it also includes training and experience requirements for the prosecutors who will be taking up sexual assault cases in the military.
- To address the challenges of racial and ethnic inequity in the military justice system, especially when it comes to prosecuting sexual assault cases, this bill requires the inclusion of race and ethnicity in annual reports on sexual assaults and reporting on racial and ethnic demographics in the military justice system.
These reforms include solutions to tackle the military's sexual harassment crisis.
- The FY22 NDAA includes sexual harassment as general punitive article under the Uniform Code of Military Justice.
- These reforms also require independent investigations of complaints of sexual harassment with specified timelines.
- The bill further protects survivors by requiring the Department of Defense to track allegations by survivors of sexual assault or sexual harassment of retaliation.
These reforms are supported by longstanding advocates for solutions to the military sexual assault crisis.
- "Today is the culmination of years of advocacy from military sexual assault survivors, their families and supporters. Military sexual assault survivors took on the world’s largest employer with the world’s largest budget and won a major victory," said Col. Don Christensen (ret.), the former Chief Prosecutor of the United States Air Force and President of Protect Our Defenders. "The provisions included in this year’s NDAA are the most transformative military justice reforms in our nation’s history."
- Ruth M. Glenn, President and CEO of the National Coalition Against Domestic Violence: "We appreciate Congress’s and the Administration’s commitment to promoting safety and justice for victims and survivors who experience abuse at the hands of service members. For too long, many of these victims and survivors have been ignored and had their cases swept under the rug. These changes will help to ensure survivors are heard and recognized."
- "Tragically, Vanessa Guillen lost her life because the military failed to take the problem of sexual violence seriously enough," said Monika Johnson Hostler, President of the National Alliance to End Sexual Violence. "She deserved better, and we believe these policies will mean survivors are more likely to be protected, supported, and receive justice. This is a historic victory."
Click here to read more statements of support for the provisions in the FY22 NDAA related to reforms for military justice and accountability.