The newest DoD statistics show that reports of sexual assaults in the military are “up” by thirteen percent. The annual reports states that 7,916 Active service members reported “unwanted sexual contact” or attempts to commit this crime. Roughly eight percent of active-duty females and one point five percent of active-duty males reported “an experience” of unwanted sexual contact. However, of those reports, only 2,683 had “sufficient evidence” to take any disciplinary action and 177 of the reports were proven to be false.
Compare this to the civilian sector, where roughly twenty percent of females and twenty five percent of males report the same.
Ignoring the basic fact that sexual assault in much more prevalent in the civilian sector, Congress and DoD have taken several steps to further decrease the incidents of sexual assault. These measures include staffing every command with (usually) senior enlisted or officers serving as “Victim Advocates” and providing the alleged victim a dedicated uniformed attorney who is often assigned to the alleged victim long before the accused servicemember has a right to that same legal assistance. Additionally, alleged victims can request transfer to another command—a request that is routinely granted—if the allege they were sexually assaulted. Moreover, active duty servicemembers who commit misconduct of their own now may not be punished for that misconduct in the regular fashion if that misconduct was committed or is somehow tied to the servicemember’s report of sexual assault. Finally, finding that 39 percent of alleged victims of sexual assault “don’t trust” the military justice system to prosecute their allegations, Congress has made sweeping changes to the prosecution of sexual assault, including mandating that law enforcement and military prosecutors be experienced in their field and also receive extensive training focused on sexual assault. No such requirements or training are mandated for those who defend those accused of these crimes. Instead, military attorneys assigned to defend those accused of these crimes, often have little experience and no investigative resources. The imbalance created is stark and troubling.
And the imbalance between military and civilian resources is also stark. While civilian’s who allege they have been the victim of sexual assault may have an advocate within the county prosecutor’s office, none are afforded the protections Congress has provided our active-duty members. Yet civilian public defenders are experienced in their craft and have experienced investigators to assist them.
The imbalance deserves attention. While efforts to decrease actual sexual assault in the military are widely supported, care must be taken to protect the accused as well. As the 177 cases that were proven false indicate, unscrupulous individuals DO lodge false complaints to avoid arduous duty assignments or in an attempt to accountability for their own misconduct. Those of us who work hard to defend our defenders are routinely disappointed when our clients, accused of this terrible crime, are ostracized, have their records flagged, promotions upheld, and are forced to defend themselves at a court martial where the many, many of them are fully acquitted, but not before their police records are tarnished with an “arrest for sexual assault,” they spend tens of thousands of dollars on legal representation, and are never again the same person.
What’s worse, many are not even afforded the ability to defend themselves at a court martial. In the Navy and Marine Corps, many of those accused of sexual assault, where the evidence is insufficient to win a conviction at a court martial, are forced to nonjudicial punishment, where they have no right to legal representation, little experience or ability to defend themselves, and subject only to the Commanding Officer’s determination about whether the crime occurred. In the majority of these cases, these defenders lose, and are quickly forced out of the Service, often after many years of honorable service. What’s worse, this NJP “conviction for sexual assault” is made available to civilian employers and the now-former servicemember experiences incredible difficulty gaining employment—for the rest of their lives.
Sexual assault, like all crimes, should be prosecuted and those found guilty held appropriately accountable. However, those who constantly cry that DoD is deficient in its response and that “more must be done” ignores the fact that DoD is far better at reducing sexual assault than those leaders have been in their own districts. And to respond to their own cries, they have created a “special,” victim-centric justice system that incentivizes false allegations and deprives our defenders of the due process they deserve to defend themselves against the lifelong impacts of simply being accused of this crime. And while meaningful efforts to minimize any crime are welcome by all, the Due Process rights of our innocent-until-proven-guilty-defenders must be as equally high a priority. It is not now, and innocent men and women are needlessly suffering.
If you or a loved one are accused of sexual assault or sexual harassment in the military, please reach out immediately to an experienced military law attorney for assistance.
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