Biden to clear the way for overhaul of military justice code on sexual assault

President Biden on Friday is poised to sign a new executive order that will clear the way for major changes to the Uniform Code of Military Justice for the first time in decades, taking authority away from commanders in cases of sexual assault, rape and murder to make the chain of command independent. 

Biden’s signature will mark the “most significant transformation” to the way the U.S. military legal system operates since it was set up in 1950 — after several decades of pressure from advocates and sexual assault victims who pressed for laws that would better serve those in uniform, according to a White House statement.  

Lawmakers for years have argued for taking military commanders out of the equation when it comes to deciding whether cases of sexual assault and harassment should be elevated to a legal situation, against the wishes of Defense officials — with Congress in 2022 mandating that such changes take place.  

The new executive order, which the White House called a “turning point for survivors of gender-based violence in the military,” will cement the process for the Defense Department to create a group of special prosecutors to handle sexual assault and other high-profile crimes rather than commanders, as in years past. 

The Pentagon must fill out the group, known as the Offices of Special Trial Counsel, within two years under the law long championed by Sen. Kirsten Gillibrand (D-N.Y.). 

An independent review commission on sexual assault in the military, set up by Defense Secretary Lloyd Austin, in 2021 recommended the change along with more than two dozen suggestions. It was included in last year’s annual National Defense Authorization Act but needed a change to the Uniform Code of Military Justice, which required Friday’s formal presidential action. 

Biden’s order will “significantly strengthen how the military handles sexual assault cases” by making “clear that our one truly sacred obligation as a nation is to prepare and equip those we send into harm’s way, and to care for them and their families both while they are deployed and when they return home,” according to a White House statement. 

Under the law, the new, specialized military lawyers will decide whether to pursue sexual assault charges instead of military commanders — who in years past were the authority on whether to move forward with a case — with the commanders unable to override the decision.  

The order will also allow special trial counsel offices to expand their authority in 2025 to include cases of sexual harassment. 

Advocates of military sexual assault victims for years pressed for such cases to be taken out of the chain of command as they argued that military leaders often deferred on taking seriously the assault claims of those under them. 

Senior defense officials spoke out against changing the system, arguing that altering the chain of command would erode confidence in the ranks.  

But Austin finally endorsed such changes in 2021, with Joint Chiefs of Staff Chairman Gen. Mark Milley, who had long opposed any alterations to the system, finally acknowledging that younger troops had lost confidence in military brass taking sexual assault cases seriously. 

White House officials told reporters that the military services had started hiring for the Offices of Special Trial Counsel, expected to be operational by the end of the year.