FY22 NDAA Reforms Sexual Assault Prosecution in the Military

FY22 NDAA Reforms Sexual Assault Prosecution in the Military

By LT Sarah Beth Rupp, USN

Rotor Review’s Winter 2022 theme of “Leadership and Culture” is incomplete without the conversation concerning sexual assault in the military. This ongoing problem continues to plague the United States Navy, impacting readiness, morale, and the ability to create a cohesive warfighting force that values its servicemembers. As members and leaders of helicopter squadrons, it’s imperative we care about eliminating this trend.

20,000 service members were sexually assaulted in 2018, when sexual assault prevalence in the military increased by 44%. Only 8,000 service members that year reported an assault, according to the Department of Defense’s (DoD) own annual surveys. The sexual harassment numbers are even worse, one in every four women in the service having experienced sexual harassment in 2018. These startling numbers led to the 2021 creation of President Biden’s Independent Review Commission (IRC) that conducted an “independent and impartial assessment” of the military’s current treatment of sexual harassment and sexual assault. Out of this 90-day effort, the main finding was a theme of broken trust. There is a large disparity in what commanders believe is happening and what service members actually experience. To correct this core issue, the IRC put forward more than 80 recommendations covering four lines of effort: victim support, prevention, command climate and culture, and accountability. The most notable recommendation out of the 80 came from the accountability line of effort, recommending the creation of The Office of the Special Victim Prosecution, an independent civilian-led office detached from the chain of command that would report directly to the Service Secretaries. Judge Advocate Generals (JAGs) in this office would replace commanders in deciding whether to charge a suspect in a crime for court martial. Renamed as the Special Trial Counsel, this recommendation will make it into this year’s National Defense and Authorization Act (NDAA), a landmark decision for the military legal system.

President Biden signed the FY22 NDAA into law on December 27, 2021, requiring each Service Secretary to establish an Office of Special Trial Counsel and a Lead Special Trial Counsel, independent from the survivor’s chain of command and the accused. Other lines of effort, apart from accountability, also made it into the NDAA. Among those are requirements for the DoD to track allegations of retaliation by victims of sexual assault and sexual harassment, publish an annual agenda for primary prevention research, initiate a study and report on the feasibility of establishing a Sexual Assault Response Coordinator Military Occupational Specialty, and the Secretary of Defense to develop a plan to address sexual harassment and assault affecting DoD civilians.

But what about those cases that don’t make it to court martial, those cases of “he-said she-said,” those cases of the “court of something happened” that will never make it to trial, only to go to NJP? “The wounding is deep for service members,” says Meghan Tokash, an Assistant U.S. State Attorney who served as a judge advocate in the U.S. Judge Advocate General’s Corps for eight years, has over 15 years of criminal litigation experience as a prosecutor, and served on this year’s Independent Review Commission (IRC). Tokash admits, “other lines of efforts got overshadowed by this huge historic moment in military legislation.” This landmark portion of the NDAA will hopefully correct bias on a legislative level, but “how do we legislate ourselves out of bias?” How do you regulate and legislate human behavior? To some degree, you can’t. Tokash says, “I think we need to have more focus on the other lines of effort like command climate. You know, we need to have commanders say, ‘this is not how you treat other people, and it’s not going to be tolerated in my unit, and if I hear it and if I see it, you’re done.’”

As these shifts in sexual assault prosecution are implemented in the coming years, our responsibility as leaders and officers lies in taking a look at our work climate and culture and asking ourselves, “Am I proud of the behavior tolerated here?” Would I actually recognize sexual harassment when it occurs, in all its subtle forms? Would I actually intervene as a bystander, even if it was unpopular? How can I make my Sailors safer, at work, on the ship, in port, and at their barracks? What behavior will I tolerate? As the government attempts to curb the sexual assault and harassment crisis in the military, we own the responsibility in adjusting our cultures to reflect that endeavor.