The Coast Guard has completely reworked its approach to prosecuting allegations of sexual assault and other serious crimes.
The new Office of the Chief Prosecutor (OCP), led by Rear Adm. William Dwyer, now oversees the service’s handling of victim-centric offenses, including sexual assault, child pornography, and domestic violence. (See sidebar for a full list of all “covered offenses.”)
“The goal of OCP is to professionalize both the prosecutorial staff and the processes in pursuit of the truth,” said RDML Dwyer. “With specialized training and dedicated attention to victim-centric offenses, the OCP gains an economy of scale and bolsters confidence in the military justice system.”
RDML Dwyer assumed the role of the Coast Guard’s first Chief Prosecutor in April of last year. Since, he has devoted his energy and time traveling to meet with each of the court-martial convening authorities throughout the Coast Guard and field any questions on the new processes.
His office was created through the 2022 National Defense Authorization Act (NDAA), which required all military services to train and certify judge advocates (called Special Trial Counsels or STCs) to evaluate and make charging decisions on all cases involving victim-centric offenses.
The OCP is a historic milestone in the Coast Guard’s efforts to strengthen our service culture. The office is a very intentional step to handle victim-centered crimes outside the chain of command. It also represents a tremendous investment in the investigative and litigation components of our service’s handling of military justice matters.
“Vesting the authority to refer charges to court-martial with professional prosecutors instead of commanders is a sea change in our military justice system” said Rear Adm. Rick Batson, the Judge Advocate General (TJAG) of the Coast Guard.
For years, critics have advocated for an independent decision-making process for victim-centric crimes.
“I went through the old system to file an unrestricted report,” said one active-duty member who survived a military sexual assault. The member – who we’ll call Julie – requested anonymity in order to speak candidly. “The system is a thousand times better now because the person who decided whether or not the case goes to court-martial is a specially trained lawyer.
“I was sexually assaulted by someone in my unit who was senior to me,” Julie said. “He PCS’d before the investigation completed, so his new CO was the decision maker on imposing punishment, as that’s how it worked at the time. When I met with the CO, he saw it as a ‘he said/she said’ situation. It was frustrating.”
“Decision-making by an independent office with experienced prosecutors – outside of the chain of command of both victim and accused – will ensure allegations of sexual assault and other serious crimes are thoroughly and objectively reviewed based on all available evidence,” said RDML Batson.
Commanders are still responsible for good order and discipline and ensuring that allegations are promptly reported to CGIS and ensuring the safety of their units.
Commands still handle non-victim centric offenses, but now any “covered offenses” have to go to the OCP. The OCP decides whether the available evidence permits and merits prosecution. If so, prosecution will be handled by OCP experts trained to prosecute crimes involving victims.
The new system has another benefit – by reducing commands’ workload, operational commanders can remain focused on contingencies (like hurricane response and major marine casualty investigations) and daily operations.
And as Julie points out, the new approach removes victims’ concerns that commands could be influenced by external factors, such as the alleged perpetrator’s career and reputation, or how hard it might be to backfill their position.
How the New System Works
Before the OCP launched, sexual misconduct reports and investigations were supported and tracked by the servicing legal office and sent to the relevant Convening Authority – typically District Commanders and other Flag Commands. Their legal staffs would advise CGIS during the investigation, and then review all the evidence to make a non-binding recommendation to the Convening Authority. The Convening Authority would then decide whether to convene a court-martial, use non-judicial punishment, take administrative action, return the matter to a subordinate command for disposition, or close the case without action.
Now, reports of covered offenses go to the OCP, who assigns a Special Trial Counsel (STC). The STC works closely with CGIS during the investigation and, after receiving non-binding input from the Convening Authority and the victim(s), independently decides whether evidence is sufficient to charge the case at a court-martial. Depending on the facts of the case, the STC may determine early in the investigation that the severity of the allegations and/or available evidence do not warrant referral of charges to court-martial. In that situation, the STC may defer the case back earlier to enable more timely resolution.
If charges are filed, the STC has exclusive authority to enter into plea agreements on behalf of the United States. A vital role of the STC is to confer with Special Victims’ Counsel (SVCs) to ensure victim input is considered in disposition decisions, and that victims are kept adequately informed of progress of a case as it moves through the system.
If the STC decides not to prosecute the covered offense(s), the Convening Authority can’t independently hold a court-martial.
In tomorrow’s article we will introduce you to the new special trial counsel and take you on a virtual tour of their practice courtroom in Charleston, S.C.
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