Not making a dent in sexual assault

Military sexual assault has been in the news for an awful long time. This focus has lead to increasing calls for changes to how the military handles sexual assault. The culmination of these efforts is Senate Bill 1789, called the Military Justice Improvement Act. What the bill does is remove the call about whether to prosecute sexual assault from the chain of command to a team of experts that have “significant experience with court martials.”

The bill is lauded by everyone from Kristen Gillibrand to the Secretary of Defense, who magically dropped all opposition. Let’s be totally honest here, for any member of the military, if the President says “You’re going to drop opposition,” that person will find a way to drop opposition to whatever the President wants, or resign. That holds true for both parties, so I don’t think that any flag or general officer suddenly dropping opposition is surprising.

The sad part is that this bill won’t do anything to solve sexual assault in the military. It pretends that the reason sexual assault isn’t prosecuted is because of an unwillingness to bring it to trial. That’s partially true, as most sexual assault cases are handled with Non-Judicial Punishment (sometimes called Captains Mast or Article 15). The reason for that is simple: NJP requires a “preponderance of evidence” to prove guilt, while a court martial requires “beyond a reasonable doubt.” And the military uses NJP to essentially punish someone that they think committed the crime, despite this lack of evidence. Keep in mind too that many sexual assaults aren’t reported, and its impossible to prosecute a crime that doesn’t make it to court. This is true in military and civilian courts.

The second part of this is that sexual assault cases are notoriously low on evidence. Many of these cases are two individuals consuming alcohol or recreational drugs, not thinking actions through and then committing crimes. But try proving consent when you have nothing but statements from each individual. In civilian courts, most sexual assault cases get thrown out for exactly this reason: no evidence to prove something beyond a reasonable doubt. In this regard, because the military can use NJP, it achieves a better punishment rate than the civilian world.

This is easily shown in the 2010 Military Sexual Assault report.

Could not be prosecuted – In FY10, there were 450 final dispositions for subjects accused of sexual assault. Sixty-one percent (274) of these cases could NOT be prosecuted for the following reasons: lack of jurisdiction (13), the offender was unknown (16), the allegation was unfounded meaning it was false or the allegation did not meet the elements of a sexual assault offense (44), probable cause existed only for a non-sexual assault offense (18), the subject died (0), evidence was insufficient (70) or the victim declined to cooperate with investigation and / or prosecution (113).

Initial civilian jurisdiction – In 21 of the remaining cases, civilian authorities initially assumed jurisdiction. Of these cases, 8 were either pending or the disposition was unknown at the time this report was written. NCIS files indicate that the victim declined to cooperate in 1 case. Of the remaining 12 cases in which dispositions were known, charges were filed in 8 cases or 67% of cases. Further analysis is not possible due to lack of information regarding these cases.

Presented for disposition – As a result of the foregoing, 155 of the remaining subjects were presented to commands for a disposition decision. Commanders declined action in 30 cases pursuant to RCM 306(c)(1). Of the remaining 125 subject cases, courts martial charges were preferred (initiated) against 70 subjects, non-judicial punishment was imposed on 36 subjects, 5 subjects were administratively discharged and other administrative actions were taken against 14 subjects. In other words, courts-martial charges were preferred in 46% of the cases in which any type of action was possible.

DoD Annual Report on Sexual Assault in the Military, FY 2010

So out of the 450 cases that made it to disposition, 274 go away because they simply CAN’T be prosecuted. After that, Commander’s declined action on 30 cases. That’s a massive disparity. I don’t know why commanders decline to prosecute the 30 cases, but its a far cry from the vast majority that lacked evidence. Out of 450 cases, only 70 make it to court martial. The win rate at court martial varies, but its sitting high, around 80-90%. You can actually see those results on the Results of Trial website. These cases had enough evidence that expert trial counsels thought they could win in court and went ahead to press charges.

So, here’s my prediction: this bill will pass and will do nothing to change sexual assault. It’ll actually make it harder to prosecute because anyone accused of sexual assault MUST go to a court martial. There will be some high profile cases that will get put in the news, but if there was evidence, most commanders would have sent a case to court martial anyway.

The other thing it will do is raise the personnel cost of accusation. Since everything must flow to a court martial, any member accused will have to sit around while the cases proceeds, which averages 9-18 months. During that time the person can’t promote, change jobs, or deploy, so accusing someone of sexual assault will become misused by at least a few people to tank careers. Given that the military already ditched its pension and continues to focus on the ghosts of white supremacy instead of fighting China, this will continue to influence high-performing members to seek employment elsewhere.

We don’t want sexual assault in our Armed Services, but when we don’t step back and ask how it is people go un-punished, it leads to taking the wrong actions.

This post represents the views of the author and not those of the Department of Defense, Department of the Navy, or any other government agency.

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