MILITARY JUSTICE 

The Center for Prosecutor Integrity advocates for fundamental fairness and due process for persons 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 five years, Congress has enacted 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.

Although sexual assault is an important 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 high. The answer is not to make it easier for prosecutors to convict, but improve the investigation process to produce reliability of results.

Recent Changes to the Military Justice System

The following changes have been designed to make it easier to prosecute allegations of sexual assault, thus increasing the likelihood of a wrongful conviction:

  • 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 whether 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” (i.e., a 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. This approach negates the possibility of a fair and impartial investigation.

Proposals to Restore Fundamental Fairness 

The Center for Prosecutor Integrity is proposing the following changes:

  • 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.

Testimony to the Judicial Proceedings Panel

  • Letter to JPP – 11 10 16: Victim Centered Investigations in Military Sexual Assault Cases Impede Justice
  • Letter to JPP – 12 11 15: Recommendations to Restore Due Process and Protect the Presumption of Innocence in Military Sexual Assault Matters
  • Letter to JPP – 11 6 15: Follow-up to our October 9, 2015 Letter to the Judicial Proceedings Panel
  • Letter to JPP – 10 9 15: Military Sexual Assault Programs Have Had Mixed Effects; Judicial Proceedings Panel Needs to Refocus and Redirect Military Sexual Assault Initiatives

Scholarly Articles

Statistical Data Regarding Military Adjudication of Sexual Assault Offenses

Media