There has been a lot of media attention recently on rape victims and the prevalence of rape in the military. As some of the individuals retell their stories, it is clear to see that they suffered from a traumatic experience. However, being in the military myself, and a former military prosecutor no less, I do not share the opinion that there is an “epidemic” in our ranks. Does sexual assault occur in the military? Absolutely. But does it occur at a rate any higher than what you might find on an average college campus or in the public writ large? No. And when sexual assault allegations arise, are commanders sweeping them under the proverbial rug? Certainly not!
One of the major differences in the military justice system versus the state criminal justice system, is that the District Attorneys in the states can evaluate the allegations, and if they decide that the case lacks prosecutorial merit, they can refuse to present the case to a grand jury for an indictment. Another major difference is if the grand jury says there isn’t enough evidence, the District Attorney can’t go forward. Neither of these checks and balances are found in the military justice system.
Instead, unit commanders (called Convening Authorities - usually Colonels and higher) decide whether a case should proceed to trial. For felony-level cases like sexual assault, they must first receive a recommendation from a neutral investigator, but the ultimate decision on whether to go forward with a case rests with the commander.
The neutral investigator (called an Article 32 Investigating Officer) hears the evidence that the government has against the defendant and makes a recommendation to the commander. This sounds fair so far, but when the investigator recommends NOT going forward on a sexual assault case because of deficiencies in the evidence, all too often the commander is faced with a dilemma: dismiss the charges as recommended or forward the charges to a General Court-Martial. The easiest decision is to send it forward.
But can you blame them? What are the commanders supposed to do when the deafening chorus of politicians and news anchors are calling for more accountability for "rapists" in the military? Does anyone really expect a commander (typically a rising star in the military) to risk their professional future by refusing to send a rape allegation to trial and face being labeled by the media as “hiding rapists” or being “soft on sexual assault?” No way! They are going to take the easy way out. The politically palatable way out. They are going to kick the can down the road to the prosecutor and let him take the case to trial, warts and all, under the guise of letting “the military justice system runs its course.”
Please do not read this to say that I think all sexual assault allegations in the military have no prosecutorial merit. Many do. But can we ever expect the commander to make the hard call to dismiss a case when it lacks merit? Not any more. And then when the prosecutors do their very best with a case that would have never gone to trial in a state system, we ask: Why can’t you get the conviction? The prosecutors may possess the trial skills of Perry Mason or Clarence Darrow, but they can’t change the facts of the case, the rules of evidence, or the burden of proof. These cases are seldom black and white. And in a Constitutional system that requires proof beyond a reasonable doubt, convictions are (and should be) hard to come by.
With all of this going on (our focus on the victims), what is baffling to me, is that we are forgetting about the accused. What happened to “innocent until proven guilty?” Congress is asking for more convictions; going so far to change the military sexual assault laws in a shameless effort to secure more convictions, while, the accused is labeled a rapist before even having his day in court. This is terrible and antithetical to our criminal justice system. We can’t simply jettison the Constitution when it is politically appealing.
McClatchy put out a pretty good article on this issue last week (LINK). Of the many the media outlets that have focused on this issue, they are the only one, in my opinion, that has its priorities straight. Sometimes justice means that a person is convicted of sexual assault. Sometimes it doesn’t. But this prejudgment of military defendants (or any defendants) has to stop. By law, an accused is innocent until a verdict of guilty is returned and no sooner.