The Military Justice System Response to Sexual Assault
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According to a study done by McClatchy, out of 2,039 sexual assault allegations made in 2009-10, only 551 were sent to courts-martial and only 147 of those 551 resulted in rape convictions.
last updated August 2013
 
When a United States service member has been sexually assaulted, he or she has two options for reporting the assault. The victim can either use the Restricted Reporting System or the Unrestricted Reporting System.
 
The Restricted Reporting System allows victims to confidentially report cases of sexual assault and to receive medical or psychological counseling. Under the Restricted Reporting System, victims must report the assault to a Sexual Assault Response Coordinator, Victim Advocate, or healthcare professional. However, Restricted Reporting does not trigger an official investigative process. It does not hold perpetrators accountable. A victim using the Restricted Reporting process will not receive a military protective order. Furthermore, the victim must continue to have contact with the perpetrator if they are in the same organization.[1]
 
If a victim desires an official investigation, he or she should utilize the Unrestricted Reporting System. The victim’s commander will be notified and an investigation will begin.[2]
 
The United States military justice system is very different from the justice system available to civilians. The civilian justice system places prosecutorial decisions in the hands of federal or state prosecutors. Alternatively, legal responsibilities in the military fall on the commanding officer in the offender’s chain of command.[3] The Uniform Code of Military Justice gives commanding officers a variety of options in handling the case. The commanding officer can decline to take any action if he or she believes the case is frivolous. The commanding officer can order non-judicial punishment for the offender. The commanding officer may also elect to take administrative, rather than judicial, action. Administrative measures include discharges, reduction of rank, reprimands, withholding of privileges, reassignment, etc.[4]
 
If a commanding officer believes the best solution for the case is a judicial forum, he or she can send the case to a court-martial. The court-martial is the military equivalent of a civilian trial. The court-martial can then decide whether to convict or acquit the offender or discharge the offender without a trial.[5]
 
External pressure on the military has led to the increased use of courts-martial to decide cases of sexual assault since 2009. McClatchy conducted a study and reported a 70% increase in cases sent to courts-martial. However, many rape perpetrators continue to evade rape convictions. For example, out of 2,039 sexual assault allegations made in 2009-10, only 551 were sent to courts-martial and only 147 of those 551 resulted in rape convictions.[6]
 
 
  • There were 2,661 cases with disposition information to report. 363 of those cases were believed to be unfounded. 584 cases were outside the legal authority of the military.
  • This left 1,714 cases of the 2,661 that were presented to military commanders for possible action from 2012 or years prior.
 
Of the remaining 1,714 cases that were actually sent to military commanders for disposition:
 
  • Commanders could not take action against 509 of them due to evidentiary problems.
  • In 81 of the cases, commanders declined to take action because the commanders believed the claims were unfounded.
  • In 221 cases, the offenders were given non-judicial punishment (including administrative discharge).
  • In 65 cases, the offenders were subject to other administrative action.
  • In 244 cases, misconduct charges other than sexual assault or rape were substantiated.
  • 594 of the 1,714 cases were sent to courts-martial.
 
Of the 594 cases, 460 cases were completed in 2012:
  • 302 of the 460 cases actually proceeded to court. The remaining 158 cases were either granted discharge/resignation (70 cases) or the courts-martial cases were dismissed (88 cases).
  • Of the 302 cases that proceeded to court, 238 resulted in convictions for rape or sexual assault. 64 of the cases were acquitted.[7]
 
In recent years, as more light has been shed on the frequency of sexual assault incidents in the United States military, members of Congress and various advocates have supported the removal of sexual assault prosecution decisions from the chain of command. Instead, they advocate giving these legal responsibilities to military prosecutors outside of the military justice system. Senator Kirsten Gillibrand and Congresswoman Jackie Speier are two members of Congress who have fought for such measures. According to Senator Kirsten Gillibrand:
 
The chain of command is really an impediment for solving [sexual assault in the military] because it's resulting in underreporting, no transparency, no accountability…The crux of the issue is objectivity. They (victims) don't believe the commanders can be objective, that commanders either know the victim or know the perpetrator or have a reason to support the perpetrator, who is more senior, more decorated, gone on more missions than the victim.[8]
 
Debate on the issue was sparked after a series of high-profile cases in which commanding officers dismissed charges brought against sexual assault perpetrators. For example, in February 2013, Air Force Lt. Gen. Craig Franklin faced criticism for setting aside the aggravated sexual assault conviction of Lt. Col. James Wilkerson after a jury of five military officers found Wilkerson guilty of raping a fellow soldier. Franklin removed the conviction and all of the punishments given to Wilkerson.[9]
 
Many believe that “commanding officers cannot make truly impartial decisions because of their professional affiliation with the accused, and often times with the victim…”[10] Furthermore, of the female soldiers who experienced unwanted sexual contact in 2012, 25 percent indicated that the perpetrator was someone in their military chain of command.[11] Critics also believe that many commanding officers do not possess adequate legal training to conduct proper investigations.[12] Commanding officers also might be concerned with preserving their own reputation. According to Army Maj. Gen. Dennis Laich, “The last thing a company commander wants to do is make the phone call to his or her battalion commander to say ‘I have an allegation of rape in my unit,’…This is often viewed as a failure to command that will adversely affect their career.”[13]
 
Many advocates applauded United States Secretary of Defense Leon Panetta’s decision in April 2012 to eliminate the ability of unit commanders to handle sexual assault cases. Instead, the new policy requires that this responsibility be given to more senior officers higher up in the chain of command.[14] While many feel this new rule is an improvement, they nonetheless believe more substantial action is required. Anu Bhagwati, Executive Director of the Service Women’s Action Network, stated in her testimony before the Military Personnel Subcommittee of the Senate Armed Services Committee:
 
Last year’s reform to make Colonels the convening authorities over sexual assault cases was a step in the right direction, but it does not resolve the issue of institutional bias. Colonels and Generals may have more rank than junior officers, but their rank does not endow them with expertise in the law. In recognition of this fact, a number of common law countries have already transferred case disposition authority from commanders to prosecutors, deeming the policy a violation of the right to a fair and impartial trial.[15]
 
Countries that have recently eliminated the reporting system from the chain of command include the United Kingdom, Canada, Australia, Germany, Norway and Israel.[16] The United Kingdom established the Service Prosecuting Authority (SPA), an organization that prosecutes criminal cases from all service branches, on January 1, 2009. The SPA is part of the Ministry of Defense and is completely independent from the military’s chain of command.[17] In 1992, the Canadian Supreme Court ruled in Michel Généreux v. Her Majesty The Queen that “the structure of the General Court Martial at the time of the accused’s trial infringed his right to be tried by an independent and impartial tribunal.” The court thus ruled that the military justice system violated the accused’s rights under section 11(d) of the Canadian Charter of Rights and Freedoms.[18] Finally, in Israel, the Military Advocate General has sole authority to prosecute cases and in fact only has to alert commanders about forthcoming charges against their subordinates.[19]
 
The Feres Doctrine
 
The Feres Doctrine, passed in 1950 by the United States Supreme Court, prohibits military service members from suing the military for any injuries that occurred “incident to service” in the military. This was meant to prevent civil litigation from interfering with the military’s operation in times of war. However, over the years, the Feres Doctrine has expanded to include virtually “anything and everything that happens to an individual while serving in the military, including rape.”[20] This leaves many servicewomen who have been raped without any kind of legal recourse.
 
After the Special Rapporteur on Violence Against Women Rashida Manjoo’s visit to the United States in 2011, the United Nations recommended that the United States “ensure adequate investigation of all allegations by an independent authority and allow victims to bring claims against the military when damages arise out of negligent or wrongful acts.”[21]  
 
One promising practice includes the establishment of the United States Air Force’s Special Victims’ Counsel Program. The program consists of a group of lawyers who advocate for victims. The lawyers do not work for the defendant and they do not work for the government. The goal is to help victims go through the legal process. The Special Victim Counselors provide legal assistance, aid with transfer or housing issues, and make sure that victims feels safe.[22] In August 2013, United States Secretary of Defense Chuck Hagel announced that the Department of Defense would extend this program to other branches of the military. The new program is scheduled to be established on November 1, 2013.[23] Other policy changes announced by Hagel include:
  • Amending the manual for courts-martial so that victims are allowed to make recommendations on what penalties should be given to the offender (to be implemented October 15, 2013);
  • Requiring the secretaries of the military departments to develop policies allowing the offender to be reassigned or transferred to eliminate contact with the victim (to be implemented January 1, 2014);
  • Standardizing policies prohibiting inappropriate relations between trainers and trainees and recruiters and recruits across all branches of the military (to be implemented November 1, 2013);
  • Requiring  that status reports of allegations be taken to the first general/flag officer within the chain of command "without delay" (to be implemented November 1, 2013);
  • Requiring judge advocates to serve as investigating officers for preliminary hearings in sexual assault cases (to be implemented December 1, 2013); and 
  • Regularly evaluating closed sexual assault investigations to check for errors.[24]

Many advocates applaud the effort but believe these changes are too minimal to make a difference. Senator Kirsten Gillibrand stated, "The Pentagon taking action is a good thing and these are positive steps forward but it is not the leap forward required to solve the problem." Taryn Meeks, leader of the advocacy organization Protect Our Defenders and former Navy JAG officer, believes the Pentagon order "falls short of reform that would protect victims from the outset--by keeping the decision to prosecute within the chain of command."[25] Anu Bhagwati, executive director of the Service Women's Action Network, stated that "small-scale military sexual assault solutions will not stem the cultural tide created by years of victim-blaming and retaliation. The solutions announced...demonstrate that the U.S. Department of Defense is still only wading in the shallow end on these issues, unable to create the deeper, large-scale solutions our service members and veterans need." [26]

 


[1] “Reporting Options: Restricted / Unrestricted Reporting,” SHARP program, accessed August 14, 2013, http://www.preventsexualassault.army.mil/policy_restricted_unrestricted_reporting.cfm.
[2] Ibid.
[3]United States Department of Defense, Task Force Report on Care for Victims of Sexual Assault (April 2004) , http://www.sapr.mil/public/docs/research/Task-Force-Report-for-Care-of-Victims-of-SA-2004.pdf.
[4]Ibid.
[5] Ibid.
[6] Marisa Taylor and Chris Adams, “Military's newly aggressive rape prosecution has pitfalls,” McClatchy Newspapers, November 28, 2011, http://www.mcclatchydc.com/2011/11/28/131523/militarys-newly-aggressive-rape.html#.UgO7t8pIT1U.
[7] United States Department of Defense, Department of Defense Annual Report on Sexual Assault in the Military, Volume 1, April 15, 2013, http://www.sapr.mil/public/docs/reports/FY12_DoD_SAPRO_Annual_Report_on_Sexual_Assault-VOLUME_ONE.pdf
[8] Donna Cassata, “Kirsten Gillibrand Targets Military Sexual Assault Law,” The Huffington Post, July 29, 2013, http://www.huffingtonpost.com/2013/07/29/kirsten-gillibrand-military-sexual-assault_n_3669914.html.
[9] Bill Briggs, “Convicted of sex assault - then cleared - fighter pilot sparks protest at Tucson base,” NBC News, April 25, 2013, http://usnews.nbcnews.com/_news/2013/04/25/17899582-convicted-of-sex-assault-then-cleared-fighter-pilot-sparks-protest-at-tucson-base?lite.
[10] Hearing Testimony of Anu Bhagwati, Executive Director of the Service Women’s Action Network, before the Military Personnel Subcommittee of the Senate Armed Services Committee, March 13, 2003, http://servicewomen.org/wp-content/uploads/2013/03/Anu-Bhagwati-Senate-Testimony-Final.pdf.
[11] United States Department of Defense, Department of Defense Annual Report on Sexual Assault in the Military, Volume 2, April 15, 2013, http://www.sapr.mil/public/docs/reports/FY12_DoD_SAPRO_Annual_Report_on_Sexual_Assault-VOLUME_TWO.pdf.
[13] Brittany Barry, “The Invisible War,” American Veteran, Fall 2012, http://pubs.royle.com/display_article.php?id=1193954.
[14] James Dao, “Panetta Proposes New Sexual Assault Rules for the Military,” New York Times, April 17, 2012, http://atwar.blogs.nytimes.com/2012/04/17/panetta-proposes-new-sexual-assault-rules-for-the-military/.
[15] Anu Bhagwati, supra note 10.
[16]Alex Seitz-Wald, “Answer to military’s sexual assault problem may be overseas,” Salon, June 5, 2013, http://www.salon.com/2013/06/05/answer_to_militarys_sexual_assault_problem_may_be_overseas/. 
[17] “Service Prosecuting Authority,” United Kingdom Ministry of Defence, 2010, http://spa.independent.gov.uk/.
[18] R. v. Généreux, [1992] 1 S.C.R. 259, http://www.law.yale.edu/Genereaux.pdf
[19] Alex Seitz-Wald, supra note 16.
[20] Lawrence Korb and Anu Bhagwati, “Rape in the ranks: To combat sexual assault in the military, victims need access to civil courts,” The Baltimore Sun (May 9, 2012), http://articles.baltimoresun.com/2012-05-09/news/bs-ed-military-sexual-assault-20120509_1_sexual-assault-military-academies-military-culture.
[21] Special Rapporteur on violence against Women, its causes and consequences, Mission to the United States of America, U.N. Doc. A/HRC/17/26/Add.5, June 6, 2011, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/138/26/PDF/G1113826.pdf?OpenElement.
[22] Larry Abramson, “Air Force Trains Special Lawyers for Sexual Assault Victims,” National Public Radio, June 3, 2012, http://www.npr.org/2013/06/03/188002344/air-force-trains-special-lawyers-for-sexual-assault-victims.
[23] Tom Watkins, "Hagel outlines plan to reduce, respond to sexual assault cases," CNN, August 15, 2013, http://www.cnn.com/2013/08/15/politics/hagel-sexual-assault.
[24] Ibid.
[25] Bill Briggs, "Critics underwhelmed with Pentagon plan to stem military sex assaults," NBC News, August 15, 2013, http://usnews.nbcnews.com/_news/2013/08/15/20038691-critics-underwhelmed-with-pentagon-plan-to-stem-military-sex-assaults?lite.
[26] Statement from Anu Bhagwati, executive director of Service Women's Action Network and former Marine Corps captian, in response to the U.S. Department of Defense's update on sexual assault prevention and response measures, August 15, 2013, http://servicewomen.org/wp-content/uploads/2013/08/SWAN-Statement-on-8.15.13-DoD-Announcement.pdf.