Insufficient Alleged Rape Case Evidence

This article discusses the October 2020 DAC-IPAD review of adult penetrative sexual-offense investigations closed in fiscal year 2017. It describes that historical study, not current charging procedures.

The report found generally reasonable initial disposition decisions but identified cases referred for trial without sufficient admissible evidence to obtain and sustain a conviction.

Command decisions

The committee assessed commanders’ initial disposition decisions in the cases it reviewed. Its finding that those decisions were generally reasonable did not resolve the separate policy question of who should control future prosecutions.

“For the first time in a study of decision making in military sexual assault investigations, reviewers assessed whether military commanders' initial disposition decisions were reasonable — that is, within a permissible zone of discretion — with particular focus on those commanders' decisions either to prefer penetrative sexual offense charges against a Service member or to take no action against the Service member on that offense," according to the report.

The committee found no systemic problem with decisions either to prefer a penetrative sexual-offense charge or to take no action on that offense.

Insufficient evidence

Of 235 cases tried to verdict on a penetrative sexual-offense charge, reviewers assessed 73 as lacking sufficient admissible evidence to obtain and sustain a conviction. That was a subset, not most of the cases tried to verdict. The assessment was limited to the investigative and court-martial materials supplied to reviewers; they did not have every item that counsel or decision makers might have had.

Of those 73 cases, 71 resulted in acquittals on the penetrative offenses. One of the two resulting convictions was later reversed for factual insufficiency.

The report also stated, “The decision to refer to trial by general court-martial an adult penetrative sexual offense charge that lacks sufficient admissible evidence to obtain and sustain a conviction directly contributes to the 61.3% acquittal rate for these offenses.”

The Pentagon report took issue with the Uniform Code of Military Justice in large part stating “the Committee recognizes that staff judge advocates and convening authorities are doing what the military justice system allows; however, the Committee criticizes the military justice system itself for allowing the referral of charges that are not supported by sufficient admissible evidence to obtain and sustain a conviction.”

The 2020 report urged changes in order to uphold the sanctity of the military justice system.  The real cost, however, is needlessly risking both the reputation and livelihood of the accused and the alleged victim without sufficient evidence to ascertain what really happened in any given case.

Primary source: DAC-IPAD October 2020 report, executive summary, pages 1–4.

Contemporaneous coverage: Military Times coverage of the Pentagon case-review study

Tim Nettles is a contributing writer on military matters.  He is a retired Command Master Chief with over 27 years of active service. For a consultation regarding a court martial, adverse administrative action or military law matter, please contact Bilecki Law Group at (813) 669-3500.