Washington, DC – On Tuesday, the Senate signed the FY20 National Defense Authorization Act (NDAA). The final NDAA contains a number of provisions that are key to reforming the military justice system and advancing protections of victims of domestic violence, military sexual assault, and rape. A number of Protect Our Defenders (POD) recommendations and priorities were included in the new legislation, including reform of unlawful command authority; sentencing guidelines; a limited repeal of Feres, a legal doctrine that prevents those injured in military service from successfully suing the federal government; and a requirement for the Secretary of Defense to track race, ethnicity, and gender of courts-martials, identify causes of disparity, and to “take steps to address causes” in response to Protect Our Defenders’ 2017 report, Racial Disparities in Military Justice.
Earlier this year, the Government Accountability Office (GAO), released an investigative report on racial and gender disparity within the Military. The report was conducted as a result of a provision in the 2018 NDAA calling for an assessment of disparities within the military justice system, which was sparked by Protect Our Defenders’ groundbreaking report on racial disparity. The GAO report, based on data collected from 2013-2017, found that in the Army, Navy, Marine Corps and Air Force, black and Hispanic servicemembers were more likely than white servicemembers to face investigations. That report uncovered the disproportionate treatment of black servicemembers who were at least 1.29 times and as much as 2.61 times more likely than white servicemembers to have action taken against them in an average year.
Other critical provisions in the 2020 NDAA include: expansion of pre-referral powers of military judges, requirement that victims court preferences be recorded, requirement to study an alternative military justice system, expanded special victims’ council (SVC) representation to include domestic violence, and a requirement that SVC’s be trained on civilian justice matters.
This year’s NDAA represents important steps toward combatting the military sexual assault epidemic. Protect Our Defenders is hopeful that the passage of FY20 NDAA is a step in the right direction towards what is ultimately needed to protect our service members and create a safe work environment for those in uniform — fundamental justice reform.
Col. Don Christensen (ret.), the former Chief Prosecutor of the United State Air Force and President of Protect Our Defenders, released the following statement:
“Sexual assault and domestic voilence in the military undermine the entire institution. While we’re disappointed Congress continues to block high-level military justice reform, the provisions passed in this year’s NDAA have the potential to institute real change.
“We’re hopeful that three provisions in particular — sentencing guidelines, the limited repeal of Feres, and the requirement to track race, ethnicity and gender of courts-martial — will move the needle in terms of advancing victims’ rights and giving servicemembers the fair and just legal process they deserve. These provisions will establish real consequences for serious crimes, allow victims of medical malpractice to make claims and protect the members of our military that have long been discriminated against.
“We urge President Trump to sign the NDAA. Our service members deserve bipartisan support in their fight for justice.”