Sen. Kirsten Gillibrand, D-NY, shown during a 2021 Senate Armed Services Committee hearing, believes that the 2023 defense policy bill will close important loopholes in the military's handling of sexual assault cases.

Sen. Kirsten Gillibrand, D-NY, shown during a 2021 Senate Armed Services Committee hearing, believes that the 2023 defense policy bill will close important loopholes in the military's handling of sexual assault cases. Anna Moneymaker/Getty Images

After a Spike in Sexual Assaults on Troops, Is Real Change on the Way?

The 2023 defense policy bill will close a prosecutorial loophole that advocates say has been preventing justice for victims of rape, harassment, and other crimes.

Part 1 of "The Threat Within," a three-part series on sexual assault in the U.S. military. Read Part 2 and Part 3.

This report has been updated to reflect the released version of the 2023 National Defense Authorization Act.

When the Pentagon’s annual sexual-assault report landed on Sen. Kirsten Gillibrand’s desk in September, its findings left the longtime reform advocate neither happy nor surprised: fiscal 2021 brought a sharp increase in sexual assaults, as well as other disturbing trends.

“Every year we pass meaningful reforms to improve outcomes, and the DOD is not implementing them,” Gillibrand, D-NY, told Defense One. The Pentagon, she said, “just hasn’t taken this issue seriously.”

But the Senate Armed Services Committee member said this year’s defense policy bill will bring changes that just might make future reports less bleak.

Those fighting to reduce sexual assault in the ranks—Gillibrand for a decade, Rep. Jackie Speier, D-Calif., and Rep. Mike Turner, R-Ohio, even longer—had long been unable to dent the Pentagon’s insistence that the prosecution of such assaults must be left to the accused attacker’s commanding officer. Good order and discipline required this arrangement, military leaders insisted, despite evidence that victims don’t trust commanders to carry out justice and several high-profile cases that illustrated why.

That finally began to change in 2021, when Defense Secretary Lloyd Austin established a 90-day Independent Review Commission on sexual assault in the military.

The commission’s report led to what some advocates called “the biggest reform of military justice in our country’s history.” The legislation that followed—passed as part of the fiscal 2022 National Defense Authorization Act—directs a slate of changes, including making sexual harassment a crime under the Uniform Code of Military Justice and creating a special trial prosecutor in each military service to handle 11 specific offenses. The new prosecutorial office will remove “the prosecution of sexual assaults and related crimes, domestic violence, child abuse, and retaliation from the military chain of command,” Austin wrote in a July 2021 memo.

But Gillibrand says the 2022 NDAA changes don’t go far enough. Commanders still have some prosecutorial authority over the 11 covered crimes, including the ability to approve witnesses, decide whether someone can be dismissed, and negotiate a settlement. The duties of a convening authority must be completely removed, she said, to avoid “unintended or intended bias,” and to ensure the person making those decisions is well trained in prosecution.

“It matters to both the outcome—to get justice—but also to the perception of the service members, that there is a system that is unbiased and professional and can render justice,” she said.

Gillibrand says the 2023 NDAA finishes the job started by its predecessor. The bill withdraws the remaining “convening authority” duties from the commander for the 11 crimes and give them to an independent prosecutor. That, she said, “is a huge success.” The bill also adds two crimes to the list that will be handled by the special trial counsel.

“So this year we see as sort of a culmination of the last 15 years of work. This year, the bill finally removes the last vestiges of the old command structure” for several offenses, Gillibrand said.

An early version of the NDAA would have added six crimes to the list, but when the final version was released late Tuesday night, the list had been pared to two. If the bill passes, that will make a total of 13 offenses removed from commanders’ jurisdiction.

The bill is expected to come to a vote this month.”

‘The conflict persists’

The overhaul is a long time coming.

The first serious attempt to remove the reporting, investigating, and prosecuting of sexual assault crimes from the military chain of command came in 2011, when Rep. Jackie Speier, D-Calif., introduced the Sexual Assault Training Oversight and Prevention Act, or STOP Act. Earlier that year, attorney Susan Burke had filed a lawsuit on behalf of nearly 30 current and former service members against Donald Rumsfeld and Robert Gates. The plaintiffs, who all said they had been sexually assaulted while serving, alleged that the defense secretaries’ “acts and omissions in their official capacities contributed to the military culture of tolerance for the sexual crimes perpetrated against them.”

Speier said she remembers reading the complaint after it was filed, and “it turned my stomach, what they had endured.” She began telling the stories of military sexual assault victims on the House floor, and quickly realized that “if you don’t take these cases out of the chain of command, then the conflict persists.”

Many of the plaintiffs in the lawsuit, as well as service members who filed a similar suit against then-Defense Secretary Leon Panetta, were featured in the 2012 documentary “The Invisible War.”

The documentary, along with a spike in military sexual assaults, made the issue a hot topic in Washington that year and spurred a flurry of reforms. In the summer of 2012, then-Marine Corps Commandant Gen. James Amos invited a few lawmakers to his home to discuss the problem. Among them was Rep. Mike Turner, R-Ohio, who recalls that Amos’s wife asked one of the female officers in attendance: “‘If you were sexually assaulted, would you report it?’ And the officer actually said to the group, ‘No, it’s not worth it.’”

“That is a human values issue. And it’s a readiness issue,” Turner told Defense One. “If people feel that, that they’re at risk, they’re either hesitant to join the military or stay. Or it certainly has an effect on their service, when they believe that the service doesn’t value them.”

Turner began fighting to change how the military handles sexual assault in 2008, after the brutal murder of 20-year-old Marine Lance Cpl. Maria Lauterbach, whose family still lives in his Congressional district. Maria was eight months pregnant when she vanished from Camp Lejeune, in North Carolina, in December 2007. She had reported being raped twice by one of her supervisors, Cpl. Cesar Laurean, and was pursuing a case against him when she went missing. But Marine Corps and NCIS authorities “so deeply believed” that Maria was lying about being raped, her mother told Defense One, that they failed to see a connection between the pending case and her disappearance, and did not question Laurean for weeks. A GAO report later found that NCIS had never fully investigated the rape accusations or even checked out Laurean’s easily-disproved alibi.

Maria’s charred remains were found buried in Laurean’s backyard on Jan. 11, 2008, not long after he fled to Mexico. The corporal had beaten her to death with a crowbar in his garage; he was later convicted of first-degree murder and sentenced to life in prison.

Turner calls the Marine Corps’ actions during and after the investigation “so egregious” as to be nearly unbelievable.

One example: Four days after Lauterbach’s body was found in Laurean’s backyard, Marine spokesman Lt. Col. Curtis Hill told a roomful of reporters that Laurean was a “stellar Marine,” while Lauterbach was merely a “solid Marine.” He also repeatedly said the Marine Corps had “no indication” until Laurean went on the lam that he may have been involved in Lauterbach’s disappearance. Hill mentioned losing “two good Marines.”

Turner believed this “showed the complete lack of an understanding of, of the value of Maria’s life, and the, just the horror, the complete violation of a human who was raped.” 

He immediately sent an inquiry into the incident. In their response, Marine Corps officials wrote that “Maria did not report any violence in the two rapes that she reported,” Turner said.

The nonsensical response showed that the problem was “not just rules and procedures. This is cultural,” he said.

The murder that changed things

The 2023 NDAA sexual-assault language, which Speier and Turner co-sponsored in the House, is far from the first change the Pentagon has undertaken to tackle the problem. Since 2010, there have been more than 50 Defense Secretary-directed initiatives and more than 150 Congressional provisions intended to reduce and better respond to sexual assault, according to the Independent Review Commission’s 2021 report.

Indeed, Austin’s creation of the DOD-wide commission was prompted by the findings of the Fort Hood Independent Review Committee convened after the murder of Spc. Vanessa Guillen in 2020.

The Fort Hood group’s scathing report found that the post’s command climate was “permissive of sexual harassment / sexual assault,” that sexual assault and harassment were likely “significantly underreported” at the post, and that the Army’s program to stop sexual assault and sexual harassment was “structurally flawed.” It also showed that several things should have tipped off Army leaders about the problems at Fort Hood before Guillen’s death. The post was an outlier among Army bases in published rates of violent sex crimes, and Pentagon studies had shown a “high risk of sexual assault and harassment at Fort Hood.” Command climate surveys had also shown a high risk of those crimes.

But for all the larger problems revealed by the Fort Hood commission, the case became a tipping point because of the Army’s resistance to investigating the disappearance of a young female soldier—and because Guillen’s family had to bring it to the attention of the military, “who had refused to investigate it as a harassment case initially, despite the family telling the [military police] that they had heard from their sister and their daughter that she was being harassed,” Gillibrand said.

It was only after the exhaustive efforts of the Guillen family, and the viral #IamVanessaGuillen social media campaign they started, that the true details of Vanessa’s death became clear: She had been beaten to death in a munitions room by a fellow soldier, then buried off base. Her remains were found more than two months later. (Just weeks ago, the girlfriend of the man believed to have killed Guillen pleaded guilty to an accessory charge for her role in covering up the soldier’s death.)

“I just feel like they don’t take it seriously enough,” Vanessa’s sister Mayra Guillen told Defense One. Sexual harassment and sexual assault are “so normalized in the military, that they don’t do anything about it. And now…with my sister’s passing, I feel like they all like, realize that it’s a huge problem,” she said, and that has finally provided the pressure needed to “have this change once and for all.”

The Guillen family “did an incredible job of lobbying” on behalf of victims, Speier said. And the crime itself was “so dramatic, so heinous, that it had the impact of flipping the members [of Congress] who were hesitant before.”

Gillibrand said Guillen’s case and the Ft. Hood report were “an indictment of the commander-led system,” and showed that “these commanders are not doing what they promised to do, which is create a positive climate and create good order and discipline.…I think it was a moment for people to say, you know, maybe we need to try something different.”

Don Christensen, president of the advocacy group Protect Our Defenders, served as chief prosecutor for the U.S. Air Force from 2010 to 2014. One of the cases he prosecuted was that of Lt. Col. James Wilkerson, an F-16 pilot who was convicted of sexual assault in 2012 and spent three months in jail before the verdict was overturned by his commander. The case ignited a firestorm on Capitol Hill.

“The bottom line reality is, all the bluster we’ve had for the last 10 years and pushback against military justice reform, and how important it is to commanders? It isn’t. It’s a distraction to them,” Christensen said. “If you’re a wing commander in the Air Force, you’d much rather be hanging out with the pilots on the flight line” than “dealing with the [staff judge advocate] and this court martial he wants you to talk about.”

“The average commander really doesn’t want to be dealing with these decisions,” he said. “But it has become orthodoxy, dogma, within the military that this has to be, without any really deep-seated thought on why it has to be that way.”

Now, as the Pentagon moves forward with the reforms that already passed and as the 2023 NDAA heads toward passage with the additional changes Gillibrand and Speier have proposed, some say they are hopeful that the culture will also change.

“They’ve spent billions and billions of dollars on the way they wanted it done, and it wasn’t getting any better,” Speier said. “I just feel very confident now that we have put in place the tools for this issue to be handled appropriately.”

But, Gillibrand said, “passing this law is just the first step. We have to make sure it gets implemented, we have to make sure we have transparency and accountability every step of the way.”

Part 1 of "The Threat Within," a three-part series on sexual assault in the U.S. military. Read Part 2 and Part 3.