Military Justice Project

The Center for Prosecutor Integrity – Military Justice Project advocates for fundamental fairness and due process for those accused of sexual assault in the United States military.

Over the past decade, there have been increasing pressures from Congress to address public concerns about sexual assault in the military. In the last 5 years, Congress has implemented numerous provisions in the National Defense Authorization Act that amended training sessions, admissibility of evidence, trial procedures, and Article 120 (rape and sexual assault statute) of the Uniform Code of Military Justice.

While eradication of sexual assault is an admirable goal, it cannot come at the expense of the rights of the accused.

Courts-Martial Process:

Recent Changes to the Military Justice System:

The following changes have been designed to make it easier to prosecute allegations of sexual assault and increase conviction rates.

Complainants are permitted to refuse to testify at Article 32 hearings.
Article 32 hearings were once used as an investigative tool, but now have been narrowed to determine probable cause that a crime occurred, the accused was potentially involved, and the armed services have jurisdiction.
Special Victim’s Counsel potentially create a barrier to justice because they do not have the same ethical obligation as prosecutors to disclose any exculpatory evidence received from the complainant.
Commanding Officers were told in NDAA-14 that all sexual assault cases should be referred for courts-martial. Such a provision essentially replaces a presumption of innocence with a presumption of probable cause.
Commanding Officers were told in NDAA-14 that a failure to maintain a healthy “command climate” (aka high referral rate for sexual assault allegations) will be relieved of their post.
The statute of limitation for sex offenses was lengthened.
Sexual Assault Prevention and Response training sessions for service members ignore presumption of innocence by teaching “start by believing” and “never question the victim.”
“Victim-centered investigation” models teach investigators to “believe the victim” and not question inconsistencies in the complainant’s story, which it attributes to trauma and not deception. This approach negates the opportunity for a fair and impartial investigation.

Statistical Data Regarding Military Adjudication of Sexual Assault Offenses:

Table 1. Outcomes of Adult Sexual Assault Cases from Preferral (Total for FY12–FY14)

Outcomes from Preferral	Cases in which a penetrative offense was the most serious charge (1,275 total)	Cases in which a sexual contact offense was the most serious charge (486 total)
Convicted of penetrative offense	25%	N/A
Convicted of contact offense	17%	29%
Convicted of sex offense	41%	(same as above)
Convicted of a non-sex offense	10%	31%
Overall conviction rate	51%	60%
Acquitted of all charges	22%	15%
Alternate disposition	12%	17%
Dismissed without further action	16% (82% of dismissals occurred after Article 32 Hearing)	8% (58% of dismissals occurred after Article 32 Hearing)

Table 2. Outcomes of Adult Sexual Assault Cases Referred to Court-Martial by Most Serious Sex Offense Charged (Total for FY12–FY14)

Outcomes from referral	Penetrative offense was the most serious charged offense (912 cases)	Contact offense was the most serious charged sex offense (359 cases)
Convicted of penetrative offense	34%	N/A
Convicted of contact offense	23%	39%
Convicted of non-sex-offense	13%	41%
Overall conviction rate (for sex or non-sex related offense	70%	80%
Acquitted of all charges	29%	20%

Courts-martial convictions may result from a plea of guilty by the accused to one or more charged offenses, or from a finding of guilty by the court-martial to one or more charged offenses, contrary to the accused’s plea of not guilty. The latter group comprises contested court-martial cases. In cases in which an accused was tried for a sexual assault offense in a contested trial, the accused was convicted of a sexual assault offense in 348 of 898 (39%) of cases. (JPP Report at http://jpp.whs.mil/Public/docs/08-Panel_Reports/05_JPP_StatData_MilAdjud_SexAsslt_Report_Final_20160419.pdf, see page 28).

Over-charging:

Although sexual assault is a grave concern, Congress has over-reacted by forcing Commanding Officers to pursue criminal charges in every case regardless of the merit of the allegations. As a result of the over-charging, data shows that acquittal rates for sex offenses between 2012 and 2014 were very high.

The answer is not to make it easier for prosecutors to convict, but improve the investigation process to produce reliability of results.

Proposals to Bring Fundamental Fairness to Military Justice:

Article 1 of the UCMJ needs to use neutral terminology such as “alleged victim” and “Special Counsel” instead of conclusory terms such as victim and Special Victim Counsel.
Probable Cause determinations of the Investigating Officer (IO) at an Article 32 hearings shall be binding on Convening Authorities.
Complainants shall not be permitted to refuse to testify at the Article 32 hearing, unless defense counsel is permitted to depose the complainant via Article 49.
The number of panel members should be increased to 12 for all General Courts Martial and 6 for Special Courts Martial to increase the reliability of verdict. (Art. 16)
Any conviction at courts martial shall require a unanimous verdict. (Art. 52)
Conviction Review Units should be created to evaluate the merit of convictions, and monitor rates of false allegations.

++++

For more information, contact Christopher Perry, Program Director, at cperry@prosecutorintegrity.org