NCFM, U.S. Military Sending Sexual Assault Cases to Court Martial that lack Evidence; Report Concludes

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by NCFM

A recent report by a Department of Defense committee concludes that the military is sending sexual assault cases to court martial that lack sufficient evidence and probable cause.

The Defense Advisory Committee on the Investigation, Prosecution and Defense of Sexual Assault (DAC-IPAD) in the Armed Forces issued a report in October of 2020, that nearly a third of the sexual assault cases sent to court martial lacked sufficient probable cause.  The report found that of 235 cases of “penetrative sexual assault” — rape or sodomy — sent to court-martial, nearly a third, or 73, did not have enough evidence to convict.

In short, the 394-page report concluded,

“…..there is a systemic problem with the referral of penetrative sexual offense charges to trial by general court-martial when there is not sufficient admissible evidence to obtain and sustain a conviction. In the Committee’s view, the decision to refer charges to trial by general court-martial in the absence of sufficient admissible evidence to obtain and sustain a conviction has significant negative implications for the accused, the victim, and the military justice process.”

The DAC-IPAD committee which included legal experts and retired military personnel, reviewed 1,904 cases of rape that were prosecuted and closed in fiscal 2017.  They found that no action was taken in 70%, or 1,336, of the cases.  Fifty-one cases, or 2.7%, were referred to nonjudicial punishment, and charges were preferred in 27.2%, or 517, of cases.

Of those eventually sent to court-martial, about half were tried for sexual assault while the other half were tried for a charge other than rape.  Eventually, 91, or less than 5% of the original cases, resulted in a conviction of sexual assault.

The report also determined that there was not a systemic problem with the initial disposition authority’s decision either to prefer a penetrative sexual offense charge or take no action.

There were of course detractors; primarily, Senator Kirsten Gillibrand and the advocacy group Protect Our Defenders who arbitrarily dismiss any such empirical evidence or studies and insist the problem is of pandemic proportions.

The bottom line is that while hysterics cry that the sexual assault problem in the military is the most pressing issue it faces; the reality is that it is not.  While any example of sexual assault in the military is unacceptable, the reality is that less than 100 cases actually resulted in a conviction, out of approximately 1.4 million service members, not including the reserves or National Guard.

What does all of this mean?

What this means is that while sexual assaults happen in the military, the problem is actually quite less than the overall problem in society in general.  In those cases which resulted in a conviction, the majority involved alcohol use or as a result of a high conflict divorce.

The actual incidence of forcible rape is very low, and despite proclamations by some, military leaders are not sweeping these allegations ‘under the rug.’  In fact, the data shows the opposite, that questionable cases are being sent to court martial when the evidence is lacking.

While there are some cases that were mishandled and other mistakes that were made, the false narrative and hysteria that is portrayed by some in the legislature, special interest groups and some in the media, the actual problem of sexual misconduct in the military is overblown hype.

The reality is that many servicemen in the military actually avoid contact with female service members to prevent being falsely accused.

A 2012 survey of 54,000 Marines (linked below) regarding the integration of women in combat arms resulted in 80% of the respondents stating they were concerned about being falsely accused of sexual harassment or assault.

Going back to 2011 there were concerns of false allegations of sexual misconduct, even before congress started to push for reform.  Charles Feldmann, a former military prosecutor who’s now a defense attorney, told a local publication, “most of the rape cases that I’ve defended in the military system never would have gone to trial in a civilian system because the prosecutor would say, ‘There’s no way I’m taking that to trial because I’m not going to get a conviction.’” He claimed that that military prosecutors were afraid their careers would be at risk if they didn’t prosecute every “iffy rape case.”

The bottom line is despite the hype, histrionics and hysterics, there is no epidemic of sexual assault in the military.  The more accurate reality is that there is a greater risk of being falsely accused and wrongfully convicted of sexual assault in the military as a consequence of the politicized false narrative of a sexual assault epidemic.

A Texas based non-profit, ‘Save Our Heroes’ that advocates for those falsely accused and wrongfully convicted of sexual misconduct offenses in the military opines that in the last 8-9 years, more than 400 servicemen have been wrongfully convicted and incarcerated for sexual misconduct offenses in the military.

While there are problems that have to be worked out, some cases have been mishandled and while some female victims have been ignored, all of the committees, panels, commissions and hearings come down to the fact that the actual problem of sexual assault in the military is not what some want you to believe.

The reality is that false allegations of sexual misconduct in the military are the real pandemic and it is up to military leaders and their civilian oversight entities to apply the law based on facts evidence and probable cause, rather than manufactured statistics and overblown hysterics.

Former Air Force JAG Katie Cherkasky, now in private practice has stated,

“The “she has no reason to lie” mantra has been taught in military sexual assault response and prevention briefings for years…..  Alleged victims do lie…..  the motives of an alleged victim to lie can be to avoid trouble with a spouse, to gain attention from those around them, to gain financially or professionally, to justify mental health issues, to damage someone they don’t like, or simply for the sake of lying.  That’s right, some people lie just because they can…..”

“The military does not have a sexual assault crisis.  Are there instances of sexual assault which should be investigated and prosecuted?  Absolutely!  However, there is nothing unique about the members of the military or the training in the military that promotes sexual violence.  Further, there is nothing about the military that would reflect that allegations are not taken seriously.  In fact, military sexual assault charges are brought to trial without regard for the credibility or weight of the evidence.  Routinely, cases are brought to trial even though trained and objective preliminary hearing officers determine the case to have NO probable cause.  The Generals and Admirals in the military are so debilitated by the risk of unwanted political pressure that they refuse to make the tough decision to not take a case to trial.”

The proper application of law, justice, and resources will ensure that those who are truly guilty of these offenses are punished accordingly and those who are truly victimized are afforded justice and provided the resources for recovery.

Links/References

https://dacipad.whs.mil/images/Public/08-Reports/08_DACIPAD_CaseReview_Report_20201019_Final_Web.pdf

https://www.military.com/daily-news/2020/11/05/military-sending-rape-cases-court-martial-without-enough-evidence-convict-report-finds.html?ESRC=eb_201106.nl

https://www.theatlantic.com/politics/archive/2014/02/some-marines-fear-innocent-men-are-being-convicted-rape/358220/

https://www.stripes.com/news/military-s-dubious-stats-on-false-sex-assault-cases-cloud-prosecutions-debate-1.241057

https://www.mcmilitarylaw.com/blog/2017/february/false-allegations-and-deception-in-the-law-part-/

https://bestmilitarydefense.com/tag/false-sexual-assault-allegations/

https://www.washingtonpost.com/news/checkpoint/wp/2016/03/10/survey-details-depth-of-opposition-in-marine-corps-to-allowing-women-in-combat-jobs/

https://www.cna.org/CNA_files/PDF/DRM-2012-U-003253-Final.pdf

https://dacipad.whs.mil/images/Public/06-Public_Comment/Statement_Michael_Conzachi_SaveOuHeroes_20190125.pdf

NCFM, U.S. Military Sending Sexual Assault Cases to Court Martial that lack Evidence; Report Concludes