Military Justice Reform in the 2022 NDAA
In December 2021, Congress passed, and the President signed, the fiscal year 2022 National Defense Authorization Act or “NDAA”. The 2022 NDAA makes significant changes to the U.S. military justice system – part of the years long effort to reform military justice. Some of those changes will have little practical impact on the rights of accused Soldiers, Sailors, Airmen, and Marines. However, other “updates” to the system will negatively impact service members when the law goes into effect in two years. These changes will impact those charged with Article 120, charged with sexual harassment, and other serious offenses.
This article briefly describes three of the more significant changes: 1) Flag officers lose their authority to refer certain charges to courts-martial – lawyers will make the decision whether or not to prosecute certain offenses including who is charged with Article 120, Article 120b, or Article 120c; 2) Military Judges, not panel members, will sentence convicted service members in all special and general courts-martial even if the member selected trial by panel members; 3) Service members will be charged with sexual harassment under Article 134 instead of Article 92. For a more detailed description of these and other changes under the NDAA, I recommend professor (LTC) Dan Maurer’s excellent post over at Lawfare. The purpose of this post is to highlight three of the more significant changes to the system.
NDAA changes who has the authority to prosecute those charged with Article 120, other serious offenses
The NDAA directs each military service to create an Office of the Special Trial Counsel (STC) within the next two years. The STC is granted authority to refer certain offenses to courts-martial.
Included in those offenses are: wrongful broadcast or distribution of intimate visual images; murder; manslaughter; rape and sexual assault, including of children, and certain other types of “sexual misconduct” where service members could be charged with Articles 120, 120b, and 120c; kidnapping; domestic violence; stalking; retaliation; and producing, processing, receiving, viewing and distributing child pornography; an STC can also charge Articles 80, 81, and 82 if a service member conspires to, attempts or solicits any of the above.
Professionalizing the charging decision will not necessarily harm accused service members. Whether senior commanders or experienced Judge Advocates make the decision to refer charges does not change the actual strength or weakness of the evidence at trial. Under the current rules, senior Judge Advocates advise flag officers on the decision whether or not to refer charges. This change causes serious heartburn in the Pentagon, but we are waiting to see how it will impact accused service members.
Sentencing by Military Judge
This change will lead to harsher sentencing – and that is the point. When first enacted, the UCMJ was designed to provide for individualized sentencing – in other words to consider the offense, the offender, as well as the victim.
The 2022 NDAA attempts to bring courts-martial sentencing procedures in line with the practice in Federal District Courts. The Act strips service members of the option to choose sentencing by panel members. When the act goes into effect, Military Judges will make the sentencing decision in all special and general courts-martial even if the accused chose trial by panel members. This will be the case for all noncapital convictions, regardless of type of offense. Sentencing parameters will constrain Military Judges’ discretion on sentencing. Military judges may sentence outside those parameters only under special circumstances yet to be announced.
Stripping accused service members of the option to choose sentencing by panel members is by far the most detrimental change brought by the 2022 NDAA. This monumental change to trial practice in the military requires its own article and detailed analysis.
If military justice reformers want to make courts-martial look like trials in federal and state courts, they ought to advocate for unanimous jury verdicts at courts-martial – the same right enjoyed by civilians in federal and state criminal courts.
How Service Members are charged with sexual harassment will Change
The 2022 NDAA directs that sexual harassment become a standalone offense. The act makes sexual harassment a new UCMJ offense: service members will be charged with sexual harassment under Article 134.
In recent years the military services have changed their regulations governing sexual harassment – those regulations are a confusing mess which commanders have enforced in a haphazard manner under Article 92, violation of a lawful order or regulation. Moving the offense of sexual harassment to Article 134 may clarify what facts are necessary to prove the elements of the offense IF some clear definitions are included in the manual for court-martial. We are not optimistic – commanders will probably continue to over investigate and over charge sexual harassment allegations.
More service members may be charged with sexual harassment under Article 134. And that is the point of this change in the law.
Contact The Law Office Of Peter Kageleiry, Jr. Consultation
If you find yourself charged with sexual harassment Article 134 or charged with Article 120, Article 120b, or Article 120c, you need an experienced military lawyer to help you mount an aggressive defense. Protect your freedom.