From its inception, Protect Our Defenders, informed by experiences of survivors and military justice experts, has advocated for reform of the military justice system and enhanced protections for survivors. POD has done so through direct and grassroots lobbying and media campaigns. At the behest and support of POD, Congress has passed the following reforms to the military justice system:
Enhancing Fundamental Reform: Building on last year’s historic legislation, Congress requires the president to remove “residual prosecutorial duties and other judicial functions” from convening authorities for covered offenses. These authorities include the authority to grant immunity, order depositions, and hire expert witnesses. Allowing these authorities to remain with senior commanders threatened the independence of the Special Trial Counsel Office. Removing these remaining authorities from the convening authority was POD’s top priority this year.
Increasing the Number of Covered Offenses: Congress mandated three more offenses fall under control of the Special Trial Counsel Office, including death or injury of an unborn child, mailing of obscene matters, and, importantly, sexual harassment. Reports have demonstrated that units with higher rates of sexual harassment also have higher rates of sexual assault.
Random Selection of Court Members: Until now, the accused’s senior commander has had the ability to select court-members (jury) for the alleged offender’s court-martial. This process has been widely criticized for decades and allowed the convening authority to put his/her thumb on the scale either for or against the accused. The legislation now requires a process for randomized selection of court-members for all offenses, significantly increasing both the reality and perception of a fairer process for both victims of crimes and those accused of committing crimes.
Review of Victim Discovery Rights: Victims currently have difficulty accessing evidence involving their cases, including their own statements to law enforcement and the results of forensic examinations of their person and property. The military has resisted efforts to give victims access to any evidence. Congress has now directed the Defense Advisory Committee (DAC-IPAD) to make recommendations on what information a victim should be provided. We will work with the DAC-IPAD to ensure victims are able to have access to fundamental evidence needed to properly advocate for holding offenders accountable.
Independent Investigations of Sexual Harassment: Allegations of sexual harassment will now be investigated by specially trained investigators outside of the chain of command. Until now, investigations were primarily done by untrained members working directly for the commander. As a result, most investigations were poorly done and rarely ever resulted in accountability for the harasser.
Require DoD to Inform Victims of Civilian Support Agencies: The DoD will now be required provide referrals to organizations like POD that provide assistance to victims of sexual assault.
Empowering Military Prosecutors: For the first time in our nation’s history, military attorneys, not commanders, will determine whether an allegation of sexual assault, rape, domestic abuse or murder is prosecuted. Congress created an independent office, Special Trial Counsel (STC) that will have exclusive prosecution authority over 11 of the most serious offenses under the UCMJ as well as any other known offenses committed by the accused. The STC office will also have the exclusive authority to enter in any plea agreements and to add or dismiss charges. While groundbreaking, the reform falls short by leaving certain key prosecution functions with commanders, such as granting immunity or hiring expert witnesses.
Sentencing Reform: The military sentencing system has failed to evolve since 1775 resulting in significant sentencing disparities and shockingly light sentences for those convicted of sex crimes and domestic violence. The new reform removes the ability of accused service members to request sentencing by military court members (jury) instead of a judge. Now, a military judge will determine all noncapital sentences using, for the first time, sentencing guidelines.
Criminalizing Sexual Harassment: Sexual harassment is rampant within the active force with 25% of active duty women experiencing it each year. Multiple studies have shown that sexual harassment is often a precursor to sexual assault, and units with high rates also have high rates of sexual assault. The new legislation makes sexual harassment a specific criminal offense under the UCMJ.
Independent Investigations of Sexual Harassment: Allegations of sexual harassment will now be investigated by specially trained investigators outside of the chain of command. Currently, investigations are primarily done by untrained members working directly for the commander. As a result, most investigations are poorly done and rarely ever result in accountability for the harasser.
Enhanced Victim Rights: Victims are often left in the dark during investigations and often not consulted about key accountability decisions. When commanders fail to prosecute offenders and instead address the allegations administratively, victims have great difficulty learning what, if any, administrative actions were taken. Now victims have a right to be informed of what actions were taken and what punishments were administered. Victims will also have a right to be informed of any plea agreement or separation in lieu of trial agreement.
Racial Disparities: As first identified in POD’s 2017 report, the military has a significant problem with racial disparities in its military justice system and discipline process. This legislation requires each service to conduct an assessment of racial disparity in military justice and discipline processes and military personnel policies, as they pertain to minority populations.
Offer Services to Civilian Victim Services Organizations: The DoD will now be required to inform survivors of domestic violence of civilian organizations that provide legal advocacy for survivors. Survivors are often unaware that may receive free legal representation from organizations like POD.
Appellate Reform: Until this reform, military appellate courts, unlike almost all civilian appellate courts, could conduct a factual sufficiency review of the record of court-martial. This allowed the courts to re-evaluate evidence without hearing live witness testimony. The appellate court could override a trial court decision solely on the basis of their determination of the credibility of witnesses the court never heard testify. This policy change will now require that military appellate courts use the “clear and convincing” standard to show that the trial court erred in convicting the defendant. Consequently, it will be more difficult for military appellate courts to overturn court-martial convictions on the basis of factual sufficiency.
Safe to Report: The Pentagon will be required to create a “Safe to Report” policy that will protect service members who are reporting their sexual assault from being punished for minor collateral offenses such as underage drinking or violating curfew.
Enhancing Victims’ Rights Post-Conviction: Previously, victims of MST were only entitled to updates on certain events post-conviction: release hearing dates, appellate courtroom hearings, transfers of the perpetrator to different prison facilities, and/or in the event of the prisoner’s death. However, this provision expands the list of post-conviction events that the victim is entitled to be informed about. Victims now must be given notice regarding post-trial motions, filings, and hearings that address the finding or sentence of a court-martial, in addition to when the accused is released from confinement or imprisonment.
Victim’s Right to Notice of Appeals that Affect their Mental Health Privilege or Privacy: This provision represents a further expansion of the post-conviction notification rights for MST victims. If an offender files a post-conviction appeal that would potentially unseal the survivor’s mental health records or other private information, the victim has the right to be informed of the appeal.
Confidential Reporting of Sexual Harassment: In response to the sexual harassment and subsequent murder of SPC Vanessa Guillén at Ft Hood, TX in 2020, calls arose for a separate, confidential mechanism for reporting sexual harassment outside of the chain of command. This new provision requires the Secretary of Defense to lay out a process by which military personnel can make confidential reports of sexual harassment. Upon receipt of a report, the confidential resource must then provide a list of resources available to the survivor as well as an outline of their legal and administrative options should they wish to file a complaint.
Racial Disparity in Military Justice, Part II: In June 2020, POD released a follow up to the groundbreaking 2017 Racial Disparity report that exposed glaring racial disparities in the military justice system. The 2020 report spurred the Air Force IG to conduct an independent investigation into racial disparities in the Air Force’s justice system, the findings of which not only corroborated POD’s report but exposed a far more widespread plague of racism in the Air Force. After the release of the report, Congress passed legislation requiring the IG to study diversity and extremism in the military.
Evaluation of Barriers to Minority Participation in Armed Forces: As a result of POD’s report and the IG findings, a federally funded study will be carried out to examine barriers to minority participation and promotion in the Armed Forces, and will issue recommendations to remedy these impediments.
Racial Disparity: Based on POD’s 2017 racial disparity report that resulted in a GAO review of racial disparity in the military justice system, Congress now requires the military to track race, ethnicity and gender of service members who are court-martialed. The Secretary of Defense is also required to identify causes of disparity and to “take steps to address causes.” POD recommended these reforms in the original disparity report.
Unlawful Command Influence: In 2017, CAAF overturned a rape conviction for unlawful command influence (UCI) even though the court admitted there was no actual UCI and the rapist was in no way prejudiced by any alleged UCI. Congress made it clear CAAF’s ruling was improper and now requires a court to find a UCI violation “materially prejudices the substantial rights of the accused” before a finding or sentence can be overturned on appeal. Prohibiting appellate courts from making victims pay the price for command misconduct that does not prejudice the accused.
Expansion of SVC Program to Include Domestic Violence Victims: In 2018, Congress mandated the military study making SVC’s available for victims of domestic violence. In 2019, Congress specifically expanded SVC services for victims of domestic violence.
Sentencing Guidelines: Courts-martial operate with no sentencing guidelines and very few mandatory minimum sentences. As a result, there is great disparity in military sentences and sentences for sexual violence cases are significantly lighter than in most civilian jurisdictions. For the first time, sentencing guidelines will be developed for courts-martial which will lead to greater accountability for offenders. Guidelines area necessary first step in sentencing reform to ensure offenders are appropriately punished.
Victim Preferences: Since 2015, victims had a right to request their case be handled by civilian authorities rather the chain of command. Based on POD’s interaction with victims, POD knew this right was being ignored by the military. POD convinced Congress to order the DOD IG review the military’s compliance with the law. The IG found that 80% of the time the military failed to inform victims of their right or failed to properly document the victim’s preference. The legislation requires the military to properly document its compliance with the law and to train SVCs to be trained on civilian justice matters so that they may properly inform victims to ensure they have the “information necessary to make an informed decision regarding preferences” regarding which jurisdiction to choose. The SVCs must be trained on laws of the state in which the SVC is assigned victim rights, criminal prosecution processes, sentencing processes and protective orders.
Study of Alternative Military Justice System: The Secretary of Defense must study an alternative military justice system based on MJIA and the feasibility of prosecutor based pilot program.
Feres reform: For the first time military victims of medical malpractice may now make claims for damages. At this time, they may not sue in federal court, but this is a major first step towards repealing the Feres doctrine and eventually allowing survivors to recover damages.
Domestic Violence: For the first time, domestic violence was made a specific offense in the UCMJ. Prior to this, perpetrators of domestic violence escaped being appropriately labeled for their crimes. This legislation ensures that when a military member’s conviction is reported to civilian authorities, his crimes will be properly identified as domestic violence, making it less likely that the offender will have access to firearms.
Expansion of SVC Program to Victims of Domestic Violence: Currently SVC’s are usually only available to victims of sexual assault and rape. However, victims of domestic violence often face the same barriers to justice as victims of sexual violence. As a result, Congress mandated that the DoD study making the SVC’s available to victims of domestic violence.
Criminalize “Revenge Porn”: Recognizing the widespread impact on victims who had their intimate images shared without their consent, Congress criminalized the distribution on social media of such videos and photographs. The sharing of such images, as demonstrated by the Marines United scandal, was particularly devastating for military women.
Improve the Quality of Annual SAPRO Reports: Prior to this reform, sexual assaults committed by a military member against his or her spouse or any other family member was not included in the annual report to Congress, significantly undercounting the actual numbers of sexual assaults committed by military members.
Career Military Justice Tracks: The military has resisted efforts to allow attorneys to specialize in military justice litigation, which resulted in too many inexperienced prosecutors trying complex cases. The legislation mandates the military to allow JAG officers to specialize in criminal litigation throughout their careers, which increases the quality of prosecutions and enhances justice.
Strengthen Victim Appellate Rights: Despite Congress’s efforts to allow victims to appeal military judges’ rulings in violation of their rights, the Court of Appeals for the Armed Forces (CAAF) claimed to not have jurisdiction to hear such an appeal, stipulating that only the intermediate service courts had jurisdiction for an appeal by a victim. Congress amended the UCMJ to make it clear to CAAF that it indeed had jurisdiction to hear appeals from victims, giving victims access to the highest military court.
Racial Disparity: Based on POD’s ground-breaking report on racial disparity in military justice system, Congress mandated the Government Accountability Office (GAO) to do an extensive review of the racial disparity problems in the military justice process. In May 2019 the GAO released its report which affirms POD’s findings that Hispanic and Black service members are more likely to face court martial than their white counterparts.
Address Widespread Trainee Abuse: Recognizing the inherent power imbalance in a trainee environment, Congress created a strict liability standard for military training instructors who engaged in sexual activities with trainees in a basic training environment.
Strengthen the Psychotherapist-Patient Privilege: Prior to this reform, military judges routinely ordered the disclosure of confidential psycho-therapist records to the perpetrator and his counsel, eviscerating the privilege. The reform eliminated the “constitutionally required exception” commonly used by judges to pierce the privilege. Moreover the change heightened the burden on the defense to show why they should have access to the records. This reform has greatly enhanced the protections promised by the privilege.
Reform of Pre-Trial Depositions: After victims were given the right not to testify Article 32 hearings, the defense sought to use depositions as a means of forcing victims to be subjected to cross-examinations prior to a trial. The deposition rule in effect at the time was poorly written and was used by judges to force victims who were willing to testify at court to undergo invasive depositions. The law was changed making it clear that depositions should not be ordered for any witness who was willing to appear at a trial.
Enhanced Appellate Rights for Victims: For the first time, the victim of a sex assault crime can appeal a military judge’s ruling violating a victim’s rights, such as her mental health privilege or the right to be treated with fairness.
Expansion of SVC Services to Dependents and DoD Civilian Employees: Initially, Special Victims Counsel were only available to active duty service members. Congress mandated that SVC’s will be available to dependents as well as DoD civilian employees.
Codify Right to In-Court Representation for Special Victims’ Counsel (SVC): While all branches of the DoD established a Special Victims’ Counsel program to represent victims of sexual assault and rape, the actual scope of a Counsel’s authority in a court martial was unclear. Often judges would not allow Special Victims’ Counsel to speak on behalf of their clients at a court martial, meaning that the SVC’s were powerless in fighting against unwarranted intrusions into the mental health records and sexual histories of a victim. Congress rectified this by making it clear that the SVC role included representation in court, allowing SVC’s to file motions and make arguments defending their client’s rights.
Mandate Consultation With Victims’ Counsel During Scheduling of Proceedings: Congress instructed the Secretary of Defense to establish policies and procedures designed to ensure that any counsel of a victim of a sexual offense is provided prompt and adequate notice of the scheduling of any hearing, trial, or other proceeding in connection with the prosecution of their case.
Eliminate Good Military Character (“GMC”) as a Defense: An accused used to be able to provide evidence of his “good military character” as a complete defense to any charge including sexual assault. Under the law, good military character was considered sufficient to raise reasonable doubt and there was no equivalent to this rule in the civilian criminal justice system. Now guilt or innocence will be determined the facts of the case not the popularity of the accused.
Eliminate No Punishment as an Option for Penetrative Sex Offenses: Prior to this reform, someone convicted of rape could be sentenced to No Punishment as a sentence. Congress mandated that at a minimum, a convicted rapist must be discharged from the service with a dishonorable discharge.
Article 32 Reform: Prior to the 2013 reform, the Article 32 process had little if any protections for a victim appearing before the investigation. Rather than being a probable cause hearing, the Article 32 process was viewed as an investigation and discovery tool for the defense. This led to often abusive questioning of a victim of sexual assault or rape, having nothing to do with probable cause. The 2013 reform refocused the Article 32 on the question of probable cause, enhanced victim protections (including mental health and Rape Shield), and most importantly gave the victim the option of testifying or not at the hearing.
Eliminate the Use of Good Military Character (“GMC”) in Making Prosecution Decisions: Prior to this change, a commander was required to consider the Good Military Character of the accused in making the decision whether or not to prosecute.
Article 60 Reform: Under Article 60 UCMJ, a convening authority could overturn any verdict and reduce any sentence for any reason or no reason at all. The fallacy of this authority was brought to light when two general officers overturned sex assault convictions based in part on the belief that the offenders were good officers who would not commit the offenses. Congress quickly removed this power from convening authorities to overturn any conviction or reduce a sentence for nonconsensual sex offenses as well as most other offenses.