The United States military is this year executing the most historic and transformative change to military justice since the creation of the Uniform Code of Military Justice in 1950. On Dec. 28, 2023, the decision to charge and try a service member for sexual assault and 13 other special victim related crimes will be removed from commanders and will rest in the hands of independent military prosecutors. The offices housing these specialized litigators became fully operational on July 1, 2023.
But the secretary of defense has one crucial outstanding task left: create uniform prosecution standards across all the services, which he can do with a stroke of a pen. This final action — or failure to act — could make or break the success of the independent special victim’s prosecution offices.
In 2021, service members past and present raised their voices to the Independent Review Commission on Sexual Assault in the Military. They identified the command-driven justice system as a perpetrator of broken trust for survivors and criminally accused navigating the military justice landscape. The secretary of defense and the Congress listened.
On Dec. 28, 2021, the historic legislation removing commanders from prosecuting special victim cases became law. On July 1, the new Offices of Special Trial Counsel, or OSTC, in the Department of the Navy, the Army, and the Air Force made their groundbreaking debut.
On June 9, 2023, after five years of rigorous study, data collection, and stakeholder engagement, the Defense Advisory Committee on the Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, or DAC-IPAD, released a report to the secretary of defense and Congress recommending Secretary Lloyd Austin revise Appendix 2.1 of the MCM to establish uniform prosecution standards that align with the prosecution principles contained in the United States Justice Manual.
In its report, the DAC-IPAD included a proposal to create a statement of prosecutorial practices and policies that every judge advocate can use when exercising prosecutorial discretion. The proposed prosecution standards provide that counsel for the government refer charges to a court-martial only if they believe that the service member’s conduct constitutes an offense under the Uniform Code of Military Justice, or UCMJ, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction when viewed objectively by an unbiased fact finder.
This is not a radical idea — in fact, admissible evidence to obtain and sustain a conviction is the gold standard used by prosecutors across the United States Department of Justice. Presently, the military uses the much lower standard of probable cause to send a case to trial and that is not the industry standard.
The DAC-IPAD is comprised of current and former United States district court judges, a state circuit court judge, a former clerk of court for federal bankruptcy court, federal and state prosecutors, a defense appellate counsel, the federal public defender for Washington, D.C., a nationally recognized criminologist, the nation’s top forensic nurse examiner, a former Department of Defense general counsel, a former DoD associate deputy general counsel, a deputy assistant secretary at the Department of Education, and the executive director of the National Crime Victim Law Institute. Many committee members have prior military service as judge advocates (including these two authors who both served as Army judge advocates) and have the expertise and judicial prowess to underwrite such a recommendation that elevates the referral standard.
This policy detail is essential, and timing is everything.
Presently, the military does not have uniform standards to properly guide its prosecutors and each OSTC is writing its own so-called “business rules” that will detail how judge advocates screen, charge, and refer cases. Shrouded in a veil of secrecy, these “rules” are deemed “pre-decisional” by the Pentagon so the public has had no visibility, input, or oversight of their development.
If the secretary of defense does not move swiftly, each service may create different standards governing prosecutorial decision-making. Uniform prosecution standards issued by the secretary of defense would assure service members that criminal cases are being evaluated consistently to avoid charging disparities and unfavorable trial outcomes for both victims and accused.
Uniform prosecution standards also would forever put to rest the military’s archaic practice of using the less rigorous standard of probable cause to refer a case to court-martial. Over the last decade, the probable cause referral standard has likely been the culprit for the abysmal conviction rate in sexual assault cases in the armed forces. Additionally, the military is the only jurisdiction in the United States of America that uses probable cause (the standard of proof to obtain a warrant) to refer a case to a felony level trial where the burden of proof is beyond a reasonable doubt. The probable cause standard to refer a case to court-martial has plagued military sexual assault prosecutions for years. As the military professionalizes lawyers in its ranks with the establishment of independent offices charged with prosecuting special victim crimes, it must also adopt uniform principles of prosecution on par with the Department of Justice. And its prosecutors across all services should use the heightened referral standard of admissible evidence to obtain and sustain a conviction.
Secretary Austin need only adopt the DAC-IPAD’s proposal contained in Appendix G of its newly released report. The proposed standards provide military prosecutors policies and practices that promote the reasoned exercise of prosecutorial authority that will contribute to the fair, evenhanded administration of the UCMJ. Furthermore, the promulgation of these standards by Secretary Austin will establish trust that important prosecutorial decisions will be made rationally and objectively based on an individualized assessment of the facts and circumstances of each case. Establishing the rules now and making them uniform sends a message to sexual assault victims, those criminally accused, and the American public that the military’s new prosecutorial offices will abide by policy designed to prevent unwarranted preferral and referral disparities — both actual and perceived.
The implementation of independent special victim prosecution offices is imminent. The policy guiding these new offices must ensure uniformity, reliability, and consistency that is vital to any prosecutorial function. Without uniform guidance from the secretary, each OSTC may have conflicting standards for screening cases, preferring charges, and referring cases to trial. Worse, prosecutors within each service’s OSTC could use different standards for exercising prosecutorial discretion. Disparate case outcomes will only exacerbate the problem of broken trust in the military’s handling of sexual assault cases. Without uniform prosecution standards, a decade’s effort at military justice reform and the success of the independent special victim prosecution offices will be in jeopardy.
The Hon. Paul Grimm is a retired United States district court judge and professor of the practice of law and director of the Bolch Judicial Institute at Duke Law School. Meghan Tokash is a federal prosecutor with the Department of Justice and served as a commissioner on the Secretary of Defense’s Independent Review Commission on Sexual Assault in the Military. When she was an active duty Army judge advocate, Ms. Tokash served as Gen. Austin’s senior trial counsel for U.S. Forces-Iraq from 2010-2011.
Both Judge Grimm and Ms. Tokash are members of the Defense Advisory Committee on the Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces. Their opinions are their own and not those of the full DAC-IPAD, the Department of Justice or the Duke Law School.
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