The newly signed National Defense Authorization Act (NDA) contains several provisions that officials from a prominent advocacy group said are crucial to reforming the military justice system and advancing protections of victims of domestic violence, military sexual assault and rape.
Protect Our Defenders said those recommendations and priorities included reforming unlawful command authority, sentencing guidelines, and limited repeal of a legal doctrine that prevents those injured in military service from suing the federal government.
Protect Our Defenders counts as a human rights organization, which seeks to honor, support and give voice to U.S. military personnel sexually assaulted while serving the country.
Organization officials said the new law should further help their mission of protecting those who have been “re-victimized by the military adjudication system — a system that often blames the victim and fails to prosecute the perpetrator.”
The law also includes the recommendation to require the Secretary of Defense to track race, ethnicity, and gender of court-martials, identify causes of disparity, and to take steps to address causes. Those provisions were in response to Protect Our Defenders’ 2017 report, Racial Disparities in Military Justice.
“Sexual assault and domestic violence in the military undermine the entire institution,” said retired Col. Don Christensen, the former chief prosecutor of the United States Air Force and president of Protect Our Defenders. “While we’re disappointed Congress continues to block high-level military justice reform, the provisions passed in this year’s NDAA have the potential to institute real change.”
In 2019, the Government Accountability Office (GAO), released an investigative report on racial and gender disparity within the military. Officials conducted the report as a result of a provision in the 2018 NDAA calling for an assessment of disparities within the military justice system, which was sparked by Protect Our Defenders’ groundbreaking report on racial inequality.
The GAO report, based on data collected from 2013-2017, found that in the Army, Navy, Marine Corps, and Air Force, Black and Hispanic service members were more likely than white service members to face investigations.
That report uncovered the disproportionate treatment of Black service members who were at least 1.29 times and as much as 2.61 times more likely than white service members to have action taken against them in an average year.
This year’s NDAA represents necessary steps toward combatting the military sexual assault epidemic, according to officials at Protect Our Defenders.
The organization is hopeful that the passage of fiscal 2020 NDAA is a step in the right direction towards what is ultimately needed to protect service members and create a safe work environment for those in uniform, officials said.
Other critical provisions in the 2020 NDAA include the expansion of pre-referral powers of military judges, a requirement that victims court preferences be recorded, and a requirement to study an alternative military justice system.
Provisions include expanded special victims’ council representation to include domestic violence and a requirement that SVC’s receive training on civilian justice matters.
“We’re hopeful that three provisions in particular — sentencing guidelines, the limited repeal of Feres, and the requirement to track race, ethnicity and gender of courts-martial — will move the needle in terms of advancing victims’ rights and giving service members the fair and just legal process they deserve,” Christensen said.
“These provisions will establish real consequences for serious crimes, allow victims of medical malpractice to make claims, and protect the members of our military that have long been discriminated against,” he said.