Insufficient Alleged Rape Case Evidence

A subcommittee of the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces recently released findings from a comprehensive study of 1,904 alleged rape cases closed during fiscal year 2017.

In the report, a team comprised of dozens of former military and civilian criminal justice experts made two significant findings:  The majority of command decisions to not seek court martial were justified, and there are too many cases referred to court martial without sufficient evidence.

A subcommittee of the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces recently released findings from a comprehensive study of 1,904 alleged rape cases closed during fiscal year 2017.

In the report, a team comprised of dozens of former military and civilian criminal justice experts made two significant findings:  The majority of command decisions to not seek court martial were justified, and there are too many cases referred to court martial without sufficient evidence.

a military members hands folded

Command decisions

Of 1,904 total investigations closed during FY 17, 70 percent (1,336 cases) never saw charges.  While some lawmakers continue to argue that the decision to refer a sexual assault case to court martial should be taken out of a Commanding Officer’s hands, the committee disagreed.  

“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 concluded that there were no significant issues with commanders declining to take action on rape investigations, stating that in over 95 percent of the cases reviewed, commanding officers were justified in their decision to not press charges.

Insufficient evidence

In the most stunning aspect of the study, the committee found that, of all of the “penetrative sexual assault” cases sent to trial, 73 cases did not have enough evidence for a conviction in their opinion.  The report does not specifically list what defines sufficient evidence, but states that the subcommittee relied on the expertise and experience of the members.

“Predictably, 71 of the 73 cases resulted in acquittals of the accused on those offenses at trial. While one of the two cases that resulted in a conviction was later overturned on appeal because the evidence was factually insufficient,” the report said.

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 report stresses that changes are needed 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.

Source: https://www.militarytimes.com/news/your-military/2020/11/03/pentagon-study-says-not-enough-rape-case-are-going-to-trial-with-proper-evidence/

Tim Nettles is a contributing writer on military matters.  He is a retired Command Master Chief with over 27 years of active service. Bilecki Law Group has over 50 years of combined experience in military court-martial defense.  For a consultation regarding a court martial, adverse administrative action or military law matter, please contact Bilecki Law Group at (813) 669-3500.

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