Top general open to shift in prosecution of sex assault cases

Lack of progress could necessitate a change in military policy, says Joint Chiefs chairman.

WASHINGTON — In a potentially significant shift in the debate over combating sexual assault in the military, the nation’s top general says he is dropping his opposition to a proposal to take decisions on sexual assault prosecution out of the hands of commanders.

Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, stopped short of endorsing the changes recommended by an independent review panel. But in an interview with the Associated Press and CNN, Milley said he is now open to considering them because the problem of sexual assault in the military has persisted despite other efforts to solve it.

“We’ve been at it for years, and we haven’t effectively moved the needle,” he said. “We have to. We must.”

The comments by Milley, as arguably the most influential officer and as the senior military advisor to Defense Secretary Lloyd J. Austin III and to President Biden, are likely to carry considerable weight among the service chiefs and add to momentum for the change.

Austin, a former senior commander and former vice chief of the Army, has not publicly commented on the review commission’s proposal, but it is his creation and thus its recommendations are seen as especially weighty.

Lawmakers are also stepping up pressure for the change.

Milley said he would reserve judgment on the proposal to take prosecution authority on sexual assault cases away from commanders until the review commission has finished its work and its recommendations are fully debated within the military leadership.

The review commission submitted its initial recommendations to Austin late last month.

Officials have said they expect him to give service leaders about a month to review and respond.

The review panel said that for certain special victims crimes, designated independent judge advocates reporting to a civilian-led office of the Chief Special Victim Prosecutor should decide two key legal questions: whether to charge someone and, ultimately, if that charge should go to a courtmartial. The crimes would include sexual assault, sexual harassment and, potentially, certain hate crimes.

This goes against longstanding and vehement Pentagon opposition to such moves.

“I was adamantly opposed to that for years,” Milley said, speaking during a military flight Sunday.

“But I haven’t seen the needle move,” referring to a failure to reduce the number of reported sexual assaults.

Indeed, in response to policy questions for his July 2019 Senate confirmation hearing, Milley wrote: “Commanders must retain the ability to hold all service members in their formation accountable for their actions. The authority to discipline service members, to include convening courts-martial, is an important tool that enables commanders to fulfill their responsibility to their people and to establish an appropriate culture where victims are treated with dignity and respect.”

In his comments Sunday, Milley said he has shifted his thinking in part because he is concerned by indications of a lack of confidence by junior enlisted service members in the fairness of sexual assault case outcomes.

He said this amounts to an erosion of confidence in the military chain of command.

“That’s really bad for our military if that’s true, and survey and the evidence indicate it is true,” he said. “That’s a really bad situation if the enlisted force — the junior enlisted force — lacks confidence in their chain of command to be able to effectively deal with the issue of sexual assault.”

Sexual assault has long dogged the military, triggering widespread congressional condemnation and frustrating military leaders struggling to find prevention, treatment and prosecution efforts that work.

The most recent of the Defense Department’s biennial anonymous surveys, done in 2018, found that more than 20,000 service members said they experienced some type of sexual assault, but only a third of those filed a formal report.

Formal reports of sexual assaults have steadily gone up since 2006, including a 13% jump in 2018 and a 3% increase in 2019, according to Pentagon data. The 2020 data are not yet available.

‘That’s a really bad situation if the enlisted force ... lacks confidence in their chain of command.’ — Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff