Soldiers & Survivors in the Military Injustice System

Every year, the Sexual Assault Prevention and Response Office (SAPRO) of the United States Department of Defense (DOD) publishes a report on sexual assault within the military. During my summer internship with the nonprofit Protect Our Defenders, I searched through the report for relevant statistics (including the statistic showing that while the estimated prevalence rate of male sexual assaults for Fiscal Year (FY) 2018 remained consistent from FY 2016, the estimated prevalence rate of female sexual assaults for FY 2018 increased from FY 2016).

At that time, I found an interesting flowchart detailing the administrative and judicial fate of sexual assault reports from FY 2018 (see pages 14, 16, 19, 24, and 25 of Appendix B). As I worked my way through the flowchart, I was astounded by dwindling figures. The chart begins with 7,623 reports of sexual assault received in FY 2018. By the end of the chart, only 111 case dispositions ended with a conviction by court-martial of penetrating or sexual contact offenses. How could only 1.5% reports (case dispositions) end with a conviction of a sexual assault related offense?

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I decided to delve into the chart and try to figure out how only 1.5% of reports ended with a conviction of sexual assault related offenses. If you want to explore sexual assault in the United States military or the armed forces of 175 other countries, check out WomanStats variables EWCMS-PRACTICE-3, EWCMS-LAW-5, EWCMS-DATA-2, EWCMS-DATA-3.

First, a large portion of the 7,623 reports made in FY 2018 are thrown out of the final conviction tally because the report was restricted (meaning that the survivor chose to seek medical or similar help, but did not wish to report the assault) [1], the offender was unknown, the case fell outside of DOD’s legal authority, the investigation has not yet been completed, etc.

Once we account for all of these technicalities, we are left with 2,854 case dispositions. If we take these 2,854 case dispositions as the viable number of cases that could end in conviction (instead of our original 7,623), only 3.9% of case dispositions ended with a conviction of sexual assault related offenses. This is still an extremely low number.

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From these 2,854 case dispositions, only 668 case dispositions with sexual assault charges substantiated have court-martial charges preferred (initiated). Here’s what happened to the other 2,186:

  • Command action was precluded because:
    • The victim declined to participate in justice action (173 case dispositions)
    • Insufficient evidence of any offense to prosecute (735 case dispositions)
    • Statute of limitations expired (27 case dispositions)
  • The allegation was unfounded by Command/Legal review (74 case dispositions)
  • Other misconduct charges—not sexual assault charges—were substantiated (634 case dispositions)
  • Sexual assault charges were substantiated, but commander action meted out the following instead of initiating court-martial charges:
    • Nonjudicial punishments (267 case dispositions)
    • Administrative discharges (118 case dispositions)
    • Other adverse administrative actions (158 case dispositions)

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With the remaining 668 case dispositions, only 482 were completed in FY 2018. Among these 482, only 307 proceeded to trial (175 of these either had all charges dismissed or receive discharge or resignation in lieu of court-martial). 104 of these 307 case dispositions resulted in acquittal of all charges. This means 203 case dispositions were convicted of any charge at trial. However, only 111 of these cases resulted in convictions of penetrating or sexual contact charges. 1.5%.

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There appear to be two main problems in this process. First, the military justice system likely has the same problems with evidence in sexual assault prosecution that civilian courts do. The Rape, Abuse, and Incest National Network (RAINN) reports that “out of every 1000 instances of rape, only 13 cases get referred to a prosecutor, and only 7 cases will lead to a felony conviction…If law enforcement or the prosecution team feel that they are not able to prove guilt, they may decide not to press charges” [2].

There are often no witnesses to sexual assault, and victims may not seek medical help and not complete a rape kit examination within the critical 72-hour window after an assault. Or, victims may shower, change clothes, or complete similar activities before the rape kit examination, which can destroy or remove critical evidence [3].  These issues are likely as endemic within the military justice system as they are in the civilian justice system. The world still needs to find a better way to bring justice to sexual assault survivors.

The second problem is the overwhelming presence and control of command authority. Protect Our Defenders explains that the convening authority or commander have many of the same functions that civilian prosecutors usually do, including “[initiating] an investigation of criminal misconduct,” “[charging] an accused with a criminal offense,” and “[determining] what charges (if any) will be sent to trial by courts-martial” [4].

The nonprofit also explains that many of these decisions are laden with conflict of interest, because the commander or convening authority “may have close ties to the accused [or] the commander’s career may even suffer if assaults happen in his unit or on his watch” [5].

While interning for Protect Our Defenders, I caught a glimpse of the particularly painful nature of military sexual assault. In these cases, there can exist a profound sense of betrayal. In a climate that promotes cohesiveness and absolute trust, the assault by a fellow servicemember, the retaliation a survivor faces upon reporting, and/or the lack of action in the pursuit of justice can feel like intense betrayal. In the wake of these traumatic experiences, the least the military can do for survivors is to provide a justice system that gives survivors full and impartial justice in the wake of sexual assault.

-MAD

Featured cover image courtesy of: Sgt Jennifer L. Jones

[1] https://www.sapr.mil/sites/default/files/Appendix_B_Statistical_Data_on_Sexual_Assault.pdf

[2] https://www.rainn.org/articles/what-expect-criminal-justice-system

[3] https://www.rainn.org/articles/rape-kit

[4] https://www.protectourdefenders.com/downloads/Current_Command-Based_MJP-Explanation.pdf

[5] https://www.protectourdefenders.com/roadblocks-to-justice/

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