President Biden signed an executive order last month that removes legal decision-making authority from commanders for most serious crimes.
After Darchelle Mitchell reported being raped, the Naval Criminal Investigative Service told her they had never had so much evidence for a case, she said—including the accused coworker’s DNA on her comforter and in the rape kit. Nonetheless, the man was found not guilty. Then Mitchell’s reenlistment request was denied.
But if the decision-making authority for her case had been outside of her chain of command, it “would have given me a chance to continue to serve without finding corners to hide and cry in,” Mitchell told Defense One. “It just lets them know that it’s not OK. You can’t hide it. You can’t run from it, you can’t sweep it underneath the rug. It’s no longer acceptable, and we’re not taking it anymore. It would have changed everything.”
Last month, President Joe Biden signed an executive order that shifted the authority to make legal decisions on cases of sexual assault, domestic violence, murder, and other serious crimes from military commanders to independent military prosecutors with specialized training. It’s a change to the Uniform Code of Military Justice that advocates have been calling for since 2011.
Defense One spoke to several survivors of sexual assault in the military, including Mitchell, about how their cases might have turned out if they had not been handled within their chain of command.
“When I was assaulted, and I told my boss about it, his first words were, ‘That’s what you get.’ And he was my commanding officer,” said Paula Coughlin, who was serving as an admiral’s aide when she was assaulted at the 1991 Tailhook convention. “The idea that I wouldn’t have to talk to him about it, and that I would actually have a real avenue for justice… it would be life-changing. Just totally life-changing.”
Terri Odom became emotional as she talked about how her case “would have been handled a whole lot different.” Odom, who was raped, tortured, and left for dead by a superior in the Navy, said she did everything her command asked of her—including having an abortion—in an desperate attempt to stay in the military, but “it still didn’t help.”
BriGette McCoy, who was raped twice while serving in the Army, said the change “would have definitely made a difference to how I would have come forward, how early I would have come forward, and more than likely how others around me who had had similar experiences” but who didn’t report attacks.
The recent executive order implements reforms championed by Sen. Kirsten Gillibrand, D-N.Y., who said in a statement that she is “grateful we have a commander in chief who recognizes the importance of reforming and professionalizing our military justice system.”
Many of the changes Gillibrand fought for were approved by Congress in the 2022 National Defense Authorization Act. But she said those changes didn’t go far enough because commanders retained some authority to make decisions in the prosecution of sexual assaults and other serious crimes. She worked to have the additional authorities removed from commanders in the 2023 defense policy bill, and those changes were cemented with the executive order.
“While it will take time to see the results of these changes, these measures will instill more trust, professionalism, and confidence in the system,” Gillibrand said in a statement.
Sean Timmons, an attorney with the law firm Tulley Rinckey who previously served as an Army lawyer, said the change in the law is “a great outcome,” but said it would likely reduce the number of courts martial for sexual assault.
“Now the lawyers are going to do an independent merits assessment of the evidence and determine if there’s enough to go forward from a proof perspective,” Timmons said, adding that he believes Congressional pressure has led commanders to move ahead with many cases that lacked sufficient evidence.
“It’s going to result in a lot fewer trials…but the ones that should go forward will actually result in legitimate justice and good outcomes. So I think it’s a great thing,” he said.
