By: Jamie Gluckman
On July 28, 2023, President Biden signed Executive Order (EO) 14103 to implement bipartisan military justice reforms that transformed the way the military handles sexual assault cases. Specifically, EO 14103 transferred authority on decisions to prosecute from commanders to specialized military prosecutors in sexual assault cases. This reform was long-awaited, and senior officials in the Biden administration called it the “most sweeping change” to the military code since 1950. While EO 14103 will fundamentally shift how the military justice system does business, it begs the question: is EO 14103 enough, especially when comparing it to how the American civil court handles sexual assault prosecution?
History
EO 14103 followed multiple decades of pressure from lawmakers and advocates of sexual assault victims despite serious opposition from military commanders. While President Biden signed the EO, it was long-fought-for legislation that allowed this systematic change in the military to occur, especially the legislative changes in the FY22 NDAA. The Uniform Code of Military Justice (UCMJ) was created by Congress and, thus, can only be changed by an act of Congress. President Biden’s signing of EO 14103 was the final step to execute what is already law under Congress’s UCMJ in the Manual for Courts-Martial (MCM).
Advocates for sexual assault victims in the military had consistently complained that the victims’ assault claims were not taken seriously or were even blocked by military commanders. In 2021, the necessary changes were finally embraced by the Pentagon and mandated by law, in a push led by U.S. Senator Kirsten Gillibrand. Senator Gillibrand had heard about the cases of women assaulted in the military, only to be disbelieved by their command and face the slew of challenges that come with speaking up about sexual assault, such as victim-blaming, retaliation, and isolation. A justice system led in this manner is deeply unfair to service members who put their lives on the line to fight for the United States and, consequently, its justice system. As time has passed, even military commanders who once opposed these reforms started to endorse them, witnessing the military legal system spiraling out of control.
This law, which Senator Gillibrand fought for, enacted a two-year process for the Department of Defense (DoD) to create a system of special prosecutors to handle sexual assault cases, known as the Offices of Special Trial Counsel. These offices would be staffed by experienced military prosecutors and led by high-ranking officers who report to the civilian secretary of each military branch. In July 2023, President Biden signed the EO, thus completing the final step to implement these reforms.
Legal Framework
With EO 14103, these new specialized military legal offices will have the authority to decide when to prosecute sexual assault cases, possessing a solid understanding of when to take sexual assault claims seriously rather than leaving service members at the mercy of their commanders. The MCM outlines that, unlike in civilian communities, military commanders exercise discretion in deciding whether an offense should be charged. Switching this long-term role from command to specialized military officers entirely changes the military’s framework. While it seems preposterous that someone’s “boss” would have the authority to decide whether a criminal offense should be charged, this system has remained rigid in the military since the UCMJ’s conception. White House National Security Communications Advisor John Kirby described this change as a reorganization of the military legal system for sexual assault, setting up an entirely separate system just to handle these crimes. Essentially, these prosecutorial decisions are now fully independent from the military chain of command, representing a massive and uplifting shift for survivors of gender-based violence in the military.
Comparison to Civilian Legal Framework
EO 14103 marks a colossal change in the way the military prosecutes sexual assault; however, the military still has a long way to go in reforming its sexual assault system. Perhaps the military can learn a few things from the civilian criminal system. For example, in the criminal system, sexual assault is handled by vertical prosecution. Vertical prosecution means that the same prosecutor, possessing specialized training, is assigned to a case from its inception to its end. With vertical prosecution, victims can feel more supported throughout their case. This system has improved victim trauma and conviction rates.
Additionally, in the civilian system, it is recommended that a prosecutor meet with the sexual assault victim before determining whether to charge the offender. Rather than merely reading a report, a meeting with the victim allows the victim to develop a rapport with the prosecutor. Also, an in-person meeting shifts the process from being offender-oriented to victim-oriented, allowing the sexual assault victim to have more faith in the justice system and know that their case is being treated seriously. Even though the civilian system is more developed than the military’s system, treating sexual assault victims with more thought and care, it is still a reach to say the job is done well in any system.
Progress
While EO 14103 seems promising, we have yet to see its real impact, having been implemented only a year ago. However, a recent DoD report revealed that instances of sexual assault in the military have declined compared with levels in 2021, marking the first decrease in nearly a decade. To elucidate, rates of unwanted sexual contact effecting active-component women decreased from 8.4% to 6.8% from 2021 to 2023. For men, the rates of unwanted sexual assault decreased from 1.5% to 1.3%. In total, nearly 7,000 fewer service members experienced sexual assault in only two years. Although EO 14103 has yet to reveal its long-term impact, the results so far indicate a promising transition for victims of sexual assault.
Additionally, we can expect to start seeing more improvements and soon. For example, in January 2025, the Offices of Special Trial Counsel will officially expand their cases to include sexual harassment. From EO 14103, we can all hopefully have more confidence in the military’s reporting system and stronger support for sexual assault victims moving forward. However, it is critical to remember that the job is far from done in any system, and we must still push our policymakers to implement further changes.
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