Lawyers can now prosecute military assault cases

OK comes after years of pressure on Congress

WASHINGTON — The US military on Thursday opened a new chapter in how it investigates and prosecutes cases of sexual assault and other major crimes, putting independent lawyers in charge of those decisions and sidelining commanders after years of pressure from Congress.

The change, long resisted by Pentagon leaders, was finally forced by frustrated members of Congress who believed that too often commanders would fail to take victims’ complaints seriously or would try to protect alleged perpetrators in their units.

The new law was fueled by a persistent increase in sexual assaults and harassment across the military. The Air Force, the Marine Corps, and the Navy all saw reported sexual assaults go up last year, but a sharp 9 percent drop in reports from the Army — the largest military service — drove the overall number down. In 2021, reported assaults spiked by 13 percent.

Under the law, new special counsels will have the authority to make prosecution decisions on a number of major crimes, including murder, rape, and several other sexual assault-related offenses, kidnapping, domestic violence, making or possessing child sexual abuse images, stalking, and retaliation.

In a statement, Secretary of Defense Lloyd J. Austin III called it “the most important reform to our military justice system since the creation of the Uniform Code of Military Justice in 1950.”

It’s unclear, however, what impact the change will have on the broader problem of sexual misconduct in the military, including if it will trigger an increase in prosecutions and, if so, whether that will have any deterrent effect.

Senior officials from the military services who are familiar with the new program said they already have more than 160 certified special trial counsels who would take over the prosecution decisions as of Thursday. Many of those lawyers, however, have already been involved, providing advice and support for months on cases that are underway. The officials spoke to reporters on the condition of anonymity to discuss the new program under rules set by the Defense Department.

As of Thursday, the special trial counsels will have sole authority to make prosecution decisions on new cases involving the major crimes. Any advice on already existing cases is nonbinding, the officials said.

According to the officials, the Army will have 65 certified trial counsels, the Air Force will have 40, the Marine Corps will have 33, and the Navy will have 24, with 23 attorneys who are not yet certified assisting in the cases. About 10 more are expected to be certified in the summer.

The lawyers will be scattered around the US and the world, with larger numbers at bases and locations where there are more service members and more crime.

The officials said they expect each trial counsel to handle as many as 50 investigations and roughly eight to 12 trials a year.