Austin: I Support Taking Military Sex Crime Prosecutions Away From Chain of Command

Editor's note: This article was updated to include Defense Secretary Austin's statement, which was issued shortly after the original version of this article was published.  

Defense Secretary Lloyd Austin will support congressional efforts to remove the prosecution of sexual assaults and other crimes from the military chain of command, he announced late Tuesday in a statement. 

Austin’s announcement revealed a split between the military brass and its civilian leadership that was made more evident just hours before, when letters emerged from Joint Chiefs Chairman Gen. Mark Milley and each of the service branch heads to the Senate Armed Services Committee’s top Republican, in which they cautioned that a proposed measure to change the military’s justice system extensively goes too far—and that even a bill limited only to sex crimes could have unintended consequences on their ability to maintain discipline in the ranks.  

Milley and the chiefs said legislation proposed by Sen. Kirsten Gillibrand, D-N.Y., may have unintended consequences on unit discipline because its reach would take commanders out of the prosecutorial chain of every non-military crime, not just sexual assault. 

Their letters were sent to the Sen. Jim Inhofe, R-Okla., who in a statement said that the proposed bill “would complicate the military justice system unnecessarily.”

Efforts to revise how the military handles sexual assault and harassment cases are being driven within the Pentagon and Congress. Legislation was introduced last year after the murder of Army Spc. Vanessa Guillen.

Biden administration officials have said the issue of sex crimes in the military is an immediate priority. Shortly after Defense Secretary Lloyd Austin was confirmed, he directed an internal, independent commission to look at how the military could handle those cases better. The panel’s first recommendation was to remove sexual assault prosecutions from the chain of command, a step long resisted by senior military leaders who have argued against drastic changes to the military’s internal justice system and traditions. 

“In coming days, I will present to President Biden my specific recommendations about the commission’s findings, but I know enough at this point to state the following,” Austin said in the statement. 

“First, we will work with Congress to amend the Uniform Code of Military Justice, removing the prosecution of sexual assaults and related crimes from the military chain of command, but I know enough at this point to state the following,” he said. “The [Independent Review Commission on Sexual Assault and Sexual Harassment] recommended the inclusion of other special victims’ crimes inside this independent prosecution system, to include domestic violence. I support this as well, given the strong correlation between these sorts of crimes and the prevalence of sexual assault.”

“As I made clear on my first full day in office, this is a leadership issue. And we will lead. Our people depend upon it. They deserve nothing less,” Austin said. 

Austin’s statement contrasts with the Joint Chiefs, who described in their letters their discomfort with Gillibrand’s proposed sweeping reforms in the Military Justice Improvement and Increasing Prevention Act of 2021. 

“I urge caution to ensure any changes to commander authority” be “limited only to sexual assault and related offenses,” Milley wrote. “As I understand the scope of the the draft bill would remove the commander from decisions for all non-military offenses and felony cases punishable by one year or more,” meaning a range of offenses that spans distributing intimate images, arson, child endangerment, robbery, rape, murder, and more. 

Chief of Naval Operations Adm. Mike Gilday said the bill’s broad scope “could cause sailors to doubt the capabilities of their commanders or to believe that their commanders operate without full trust of their supervisors.”

“If the real issue to be addressed is sexual assault, then any changes must be focused on that problem,” Gilday said. “I have seen no evidence that there is a lack of trust among victims for all crimes for which the punishment exceeds one year of confinement, which is the range of offenses which [the proposed legislation] seeks to cover.”

In a statement late Tuesday, Gillibrand said she was disappointed but not surprised by the chiefs’ responses. 

“From racially integrating the armed forces to enabling women to serve in combat to allowing LGBTQ service members to serve openly, the chain of command has always fought to protect the status quo, just as they are doing here,” Gillibrand said. “Their arguments are recycled talking points from the battles for progress in the past and are void of any coherent argument beyond the disingenuous ‘good order and discipline.’” 

The bill could further complicate the National Guard’s ability to enforce discipline, because enforcement would be affected by whether or not a service member was on federal or state orders during their alleged offense. Most of the time, Guardsmen are under the control of their governors, and when sexual assaults or other crimes occur, they are investigated by local law enforcement, said National Guard Bureau Chief Army Gen. Daniel Hokanson. 

Chief of Space Force Operations Gen. Jay Raymond said he was “open to structural changes, including the possibility of removing these cases from the chain of command,” but said he was “not convinced the number of sexual assaults will decrease in the short term.” Raymond cautioned that an unintended consequence of removing sexual assault and harassment prosection from the chain of command could create “a risk that commanders may not display the same level of focus on prevention efforts.” 

Raymond also noted that the proposed legislation included every branch except the still-new Space Force in its scope, and asked that as the bill is further discussed, Space Force be granted “the same authorities and responsibilities as other service chiefs.” 

Marine Corps Commandant Gen. David Berger said that the bill’s 180-day execution deadline “is not nearly enough time to reconfigure a military justice system that has been in place for over seven decades,” and said the changes would make prosecutions a more complex, lengthier process.

“It is unclear to me whether or not the bill would promote the interests of justice,” Berger wrote. 

Army Chief of Staff Gen. James McConville and Air Force Chief of Staff Gen. CQ Brown also said that if a legislative change takes place, they recommend it apply only to Article 120 offenses of rape and sexual assault. 

Inhofe, in his statement, said that “their answers were, across the board, not reassuring. The service chiefs acknowledged the devastating effects of sexual assault on our military, and all were open to reasonable ideas to address this issue.”