In 2014, Air Force Lieutenant General Franklin set aside the conviction of a Lieutenant Colonel whom a military jury had convicted of sexual assault. Franklin had ordered the trial, and nothing in the record of that trial indicated a legal error that might justify an appellate reversal. Instead, Franklin was simply not convinced of his subordinate’s guilt and, acting as the proverbial “thirteenth juror,” overrode the military jury’s decision.
The outrage over this decision unleashed a genuine avalanche of scrutiny and criticism of the military justice system. Franklin defended his decision in a comprehensive submission to the Secretary of the Air Force, but nothing he said or could alter the perception of a fundamentally flawed system that discounted the interests of sexual assault victims in the ranks. Curing the perceived defects in this system – most notably the seemingly inexplicable grant of authority to military commanders to make binding prosecutorial and clemency decisions – became the mission of victim’s advocates, long-time critics of military justice, and ultimately a number of Senators and Members of Congress.
The next nine years saw countless studies and reviews of the system, many of which were mandated by Congress. This led to the implementation of substantial changes related to the reporting and processing of allegations of sexual assault and the protection of crime victims, culminating last week with President Biden’s Executive Order implementing the most significant changes to the UCMJ since 1968.
Who decides whether sexual assault cases are sent to trial by courts-martial is by far the most significant change to the military justice system enacted by Congress and implemented by the President’s Executive Order. For the first time since 1775, senior military commanders like Franklin will no longer make this decision for sexual assault and several other serious violations of military law. Instead, each military service will appoint a Special Prosecutor who must be at least a 1-star general or admiral and a Judge Advocate General (JAG) officer – a highly experienced military attorney. These officers will, in effect, serve as the “DA” for their respective Services, receiving charges proposed by JAG officers from around the globe and deciding whether the evidence justifies criminal trial.
This change has been the single most controversial aspect of this reform debate, and many veterans of the military justice system (including me) advocated against it (see here). But this train has left the station, and the Services are well on their way to implementing this new process. This leads to the big question: now what?
Critics of the military justice system have long argued that giving non-lawyer senior commanders the authority to decide what cases go to trial inhibits credible prosecution of sexual assault offenses. Whether or not that was true (many believe the opposite, that these commanders were often more inclined to send difficult cases to trial than the military lawyers advising them) will now be tested, for if the theory is correct, we should see a significant spike in such prosecutions. But what if that is not the result of this change?
We may not be able to predict the future with certainty, but we know a few things. First, the senior JAG officers who will now make prosecution decisions will be guided by the same criteria used by any other District Attorney in the United States: they will have to evaluate the strength of the available evidence and assess the probability of satisfying the burden of proving the alleged offense beyond a reasonable doubt. And like any other District Attorney, they will bear a legal and ethical obligation to decline to prosecute cases that are not supported by sufficient evidence. We also know that, unlike the Generals and Admirals who had to make these decisions prior to this change, there is a very low risk that they will be concerned about the negative career consequences of not sending a case to trial. Unlike a Major General commanding an Army Division or an Admiral commanding a Carrier Task Force, these new Service prosecutors will not face the real possibility of having a promotion held up in the Senate based on criticism they were not “hard” enough on sexual assault cases.
We should also expect that these Prosecutors will make their critically important decisions ethically and honorably, faithful to the law they each swear to uphold. All of this indicates a new era of more aggressive sexual assault prosecutions may be an unrealistic expectation; that the number of cases sent to trial may actually decline. Whatever the numbers turn out to be, this is by far the most laudable consequence of this change: a higher degree of confidence that the decision to send a case to trial – or decline to do so – is based on evidence and law and one we should respect. But from a policy perspective, this may actually contribute to the perception that the system is still flawed. That would be truly unfortunate.
One final aspect of these changes must be emphasized: although controversial, no one should doubt they will be implemented promptly, efficiently, and fairly. Nothing less should be expected of the military legal services and the exceptional men and women who will now be responsible for making what Congress and the President ordered work. Let’s just hope that if the outcome of these changes fails to align with the expectations of those who fought so hard to achieve them that they will accept those outcomes as legitimate.
Geoffrey Corn is the George R. Killam, Jr. Chair of Criminal Law and the Director of the Center for Military Law and Policy at Texas Tech University School of Law. Corn is a Lieutenant Colonel (retired) having served 22 years in the Army as both a tactical intelligence officer and a military attorney. His career culminated as the Army’s senior law of armed conflict expert advisor. He has authored or co-authored more than 60 scholarly articles and numerous texts, including “The Law in War: A Concise Overview.“