News

4/27/2023

Recently, ProPublica published an article about sexual assault investigations and prosecutions--or lack of prosecution.

Vianna Davila, Lexi Churchill and Ren Larson, ProPublica and The Texas Tribune, and Davis Winkie, Military Times, The Army Increasingly Allows Soldiers Charged With Violent Crimes to Leave the Military Rather Than Face Trial. Pro Publica, 10 April 2023.

Today, we are receiving news from Task & Purpose about the decline in prosecutions. Jeff Shogol, Pentagon reports huge drop in troops court-martialed for sexual assault over last 10 years. Task & Purpose, 27 April 2023. I was struck by this comment:

A major reason for the drop in courts-martial is that sexual assault survivors have shown they prefer other ways to adjudicate their cases, said Nate Galbreath, acting director of the Department of Defense Sexual Assault Prevention and Response Office.

“One of the things that we’ve seen year after year since 2015 with the addition of the special victims counsel program, which are attorneys that represent victims throughout the military justice process, is that victims have made it abundantly clear that they would like to help see the department hold their offenders appropriately accountable, but they’d like to do it through non-confrontational means; and that’s essentially what we see in the percentages with administrative actions and discharges and nonjudicial punishment,” Galbreath told reporters on Thursday.

One option for off-base offenses (or those with shared local and federal jurisdiction over the base) is for the local prosecutor to have the case for disposition. Or if on a base with exclusive federal jurisdiction, could not the USA prosecute?

See, e.g., Chap 10, AFI 51-201.

Lazy Fare

4/27/2023 23:34:08

That matches up pretty consistently with the hundreds of cases I've seen. I'm always a bit frustrated by the unrealistic view many of the advocates and commentators take--that there are slews of great court-martial cases that the branches would win, except they're too soft or afraid to litigate, and they hand out ADSEPs as the easy out.

Yes, the locals could prosecute, or in rare cases, the DOJ--but I have never, ever seen a 120 case dropped by the military that DOJ or the locals thought was winnable. I have repeatedly seen the converse (often to limited success), where the military takes cases the locals dropped.

In a similar vein, the commentary seems to ignore the range of sexual assault cases, and the painful reality of going through the process. If I was groped by a drunk acquaintance, and I had the option of "we can fire their ass and you probably don't have to see them ever again" or "we can spend 18 months litigating this, you can get called a drunk-whore in a public examination discussing every stupid mistake and/or lie you ever made, and there's a good 35% chance we'll convict them and make them a sex offender for life--but if not they'll get fully acquitted and get to keep working in the same job"--you can bet your buttocks I'll go for the ADSEP almost every single time (especially if I'm not personally sure that sex offender registration is really the fair outcome).

In short, I submit that civilian jurisdictions don't see this issue because they don't have this tool, and they never charge these cases for non-serial offenders in the first place.

That all having been said, ensuring the military has good data collection, and review and accountability over the decisions is important (so that the system doesn't get abused, flushing good cases with willing witnesses just because it's more efficient). But every jurisdiction I've seen is loathe to do it against a victim's wishes.

Side note to Task and Purpose's article: I certainly think the contested 120 numbers have come down a lot in the past decade--but I also think there was a huge spike 2010-2013, which may make the decline look more dramatic and aberrant than it would otherwise.

Alan

4/28/2023 09:00:41

Could it be that SA prosecutions are down because there are less SAs occurring?

Nathan Freeburg

4/30/2023 09:51:52

Anecdotally, granted (but the sample size is pretty large), SVC/VLC input has absolutely increased the number of separations in lieu (Chapter 10 - Army, Chapter 6 - Air Force, RILO - Department of the Navy).

Which makes sense. Now you have an attorney with different interests than the government who has leverage.

5/2/2023 12:52:48

Wasn't svc interest the big issue when their role in a court martial was being carved out? I remember kind of eye-rolling at the time. But if they have the ability to determine if a trial happens, maybe not.

Cloudesley Shovell

5/2/2023 09:00:44

There are no solutions, only trade-offs. (Thomas Sowell, I believe).

What are the incentives? (A corollary--who benefits?)

I have not been a player in this arena for some time now, so I don't know the answers to these questions as it pertains to sexual assault in the military. I can surmise a few things, though.

First, those surveys that keep insisting that sexual assault is endemic in the military and only getting worse. I'd love for someone to take a hard look at those surveys, the questions they ask, and how they ask those questions. Who benefits from the perception that sexual assault is a huge problem in the military?

As for alternative dispositions--the facts of each individual case are incredibly important, so it's difficult to conclude anything. But as far as solutions v trade-offs, perhaps one of the trade-offs resulting from the wholesale revision of sexual assault law over the last decade or more is fewer prosecutions and more administrative remedies.

As for who benefits from adseps v trials, there are lots of answers. The CA resolves a case without an expensive and messy trial that could result in acquittal. The accuser can stay (mostly) anonymous and avoids a trial. The accused gets some bad paper but avoids the very real risk of a long prison sentence and a destroyed life. That's an easy decision.

What incentives exist now that didn't exist previously for making a report of sexual assault in the first place? They exist, that's for sure. I'm not familiar with the current system, though, so I cannot state anything further and I decline to speculate.

Kind regards,

CS

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