Statistical Data Regarding Military Adjudication of Sexual Assault Offenses
In the military, the “preferral” process entails the formal charging of the accused with criminal allegations. Usually, charges are preferred after the investigators have completed their research into the matter, and the Commanding Officer has decided to dispose of the criminal allegations at a court-martial. Following preferral, the case proceeds to an Article 32 Hearing at which the investigating officer makes a recommendation on probable cause for each offense.
The following Table shows the extremely low rate at which the military justice system is acquiring convictions for penetrative sexual assault allegations. The low conviction rate is not a result of improperly trained prosecutors, but evidence of the fact that Command is pursuing non-meritorious cases. The directive to pursue all allegations of sexual assault via courts-martial is a directive from Congress. Such methods result in poor investigations, higher likelihood of wrongful conviction, and a lack of justice for true victims.
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) |
Following an Article 32, the case can be referred for courts-martial. The act of “referral” of the charges creates the court, and in the case of special or general courts-martial, leads to the appointment of an independent military judge who will preside over the case. Once the case is referred, it is under the control of the military judge unless the convening authority withdraws and dismisses the charges. The convening authority also retains the ability, through his trial counsel, to negotiate a “pretrial agreement” or plea bargain to dispose of the case. This ability to plea bargain continues all the way up until the case ends.
Not surprisingly, given that Command is told to refer all allegations regardless of the situation, the conviction rates do not increase dramatically following the probable cause hearing. Table 2 provides the rate for convictions after the Article 32. Only 34% of all penetration cases referred for courts-martial result in a conviction for a penetration offense.
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. (see: JPP Report at page 28).
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