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The Lack of Convictable Evidence in Military Sexual Assault Cases

January 15, 2021

Sexual assault in the military has been a problem for years. The Pentagon recently announced 6,236 reports of sexual assault in 2019, up 3 percent from 6,053 in 2018. It is also estimated that only one in four sexually assaulted service members report the crime.

At the same time, the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) released a report in October 2020 exploring the astounding number of sexual assault cases that are referred to trial without sufficient admissible evidence to obtain a conviction. The committee argues that this serious problem has significant negative implications for the accused, the victim, and the military justice process.

When the public sees a military sexual assault case go to trial with insufficient evidence, it sends a message that this is a political prosecution, not one based on evidence. This creates the impression that the military will take any case to trial, degrading confidence in legitimate cases that actually have enough evidence.

How Many Prosecuted Sexual Assault Cases Result in a Conviction?

The DAC-IPAD, which consists of legal experts and retired military personnel, conducted an exhaustive three-year review of 1,904 sexual assault investigations that were prosecuted and closed in fiscal 2017. Here is what the committee found:

  • In 1,336 cases (70.2 percent), no action was taken.
  • In 51 cases (2.7 percent), the charges resulted in adverse administrative action or non-judicial punishment.
  • 517 cases (27.2 percent) went to trial. Of these, 144 (61.3 percent) ended in an acquittal. Only 91—or less than 5 percent of the original cases—resulted in a conviction of sexual assault.

In these cases, most of the alleged victims (94.6 percent) were female, and most of the accused subjects (97.7 percent) were male. More than half of the incidents involved alcohol use by the alleged victim (57.0 percent) or the suspect (55.5 percent), and nearly half of the cases (46.5 percent) involved impairment of the victim resulting in partial or no memory of the event.

According to the committee’s findings, charges against the subject were more likely if:

  • The victim made the report within seven days
  • The victim was an officer
  • The victim was White
  • Pretextual communication supported the victim’s account
  • The victim reported physical injury
  • A sexual assault forensic examination (SAFE) was performed on the victim
  • DNA evidence was tested
  • The victim had legal representation
  • And other factors

Is it a Case of Systemic Cover-Ups?

Following its extensive review of the case documents, the DAC-IPAD found no systemic problem related to commanders deciding whether to charge the accused or take no action. However, the committee did find a systemic problem with referring sexual assault cases to court martial when there isn’t enough evidence to convict.

Some members of the military’s Sexual Assault Prevention and Response Program have another perspective. Three employees spoke out recently about improper investigations and retaliation firings at the Pentagon for reporting evidence of sexual assault cover-ups.

One whistleblower said she discovered documentation showing military commanders investigating reports of sexual assault themselves instead of referring them to criminal investigators, which violates the Uniform Code of Military Justice (UCMJ). Another said her biggest concern with the program is that a few bad actors could successfully cover up such illegal activities.

The whistleblowers say they’ve seen a decrease in convictions despite an increase in assault reporting. An anonymous military survey also found that 64 percent of women who reported sexual assault perceived retaliation associated with their report (though only 15 percent of the victims experienced negative behavior prohibited by military law). Many victims view the treatment and judgment they receive after reporting an assault as worse than the assault itself. As a result, many have chosen to keep quiet.

One of the military’s responses to the whistleblowers’ allegations was to promise a new action plan in December 2020. Military leaders say they encourage Sexual Assault Prevention and Response Program employees who experience retaliation to report it. The military has spent hundreds of millions of dollars on sexual assault prevention efforts in the past 15 years, with a zero-tolerance policy that they plan to continue enacting.

Continued Effort to Minimize the Commander’s Role in Military Justice

For years now, advocates of military sexual assault victims have sought to remove convening authority from commanders for serious non-military crimes, including rape. Advocates suggest that such authority allows commanders to sweep cases under the rug and that trained legal personnel could better determine when to prosecute a case.

However, military leadership continues to argue against the proposal. In a June 2020 open letter to the House and Senate Armed Services Committees, a group of 120 officers stated that “the continued effort to minimize or terminate the commander’s role in military justice is disturbing. Entrusting commanders with disciplinary authority is the thread that runs through every iteration of the US military criminal code to this day.”

Proposed Solutions to the Lack of Convictable Evidence in Military Sexual Assault Cases

Articles 32 and 34 of the UCMJ both require assessments of whether the evidence establishes probable cause to lawfully charge a case. However, there is no regulation to assess whether the evidence is sufficient to prove beyond a reasonable doubt that the accused is guilty. Since this is the level of proof required to obtain a conviction, there is a disconnect in the way convening authorities send cases to court martial.

Articles 32 and 34 are designed to shield the accused from trial on unsupported charges, but they don’t prevent the referral and court martial of sexual assault charges that fail to meet that standard. The DAC-IPAD recognizes that convening authorities do what the military justice system allows. Still, the practical application of Articles 32 and 34 results in high acquittal rates, as seen in the 2017 cases documented in the report.

Based on this information, the committee recommends that Congress amend Article 34 to require the staff judge advocate to advise the convening authority in writing whether there is sufficient admissible evidence to convict before the convening authority refers the charges to trial.

Defend Yourself Against Military Sexual Assault Charges

There’s no arguing that sexual assault in the military is a problem, but that doesn’t mean every accusation is faultless. Legitimate sexual assault victims deserve justice, but so do the unfairly accused.

If you have been charged with sexual assault, Joseph L. Jordan, Attorney at Law can defend you. We approach sensitive matters of rape and sexual misconduct with solid arguments, a compelling presentation of evidence, and an irrefutable defense. In the end, the side with the best representation wins, so enlist our help for the most advantageous outcome possible in your case! Call us toll free at 800-580-8034 or 254-221-6411 to speak directly with Joseph L. Jordan today.

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