CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, June 16, 2014

Schenck on Sexual Assault in the Military

Schenck lisaLisa M. Schenck (George Washington University - Law School) has posted two pieces on SSRN regarding sexual assault in the military. The first is Sex Offenses Under Military Law: Will the Recent Changes in the Uniform Code of Military Justice (UCMJ) Re-Traumatize Sexual Assault Survivors in the Courtroom? (Ohio State Journal of Criminal Law, Vol. 11, p. 439, 2014). Here is the abstract:

In 2013, the President, Secretary of Defense, and members of Congress responded with shock and outrage to perceptions of increased sex assaults committed by military personnel upon other military personnel. Politicians are considering a variety of changes to substantive and procedural criminal law to make prosecution of such offenses more effective. 

This Article evaluates substantive military criminal law, UCMJ art. 120, 10 U.S.C. § 920, and Military Rules of Evidence 404(a) and 405(c). Drawing on lessons learned from state and federal laws, the Article then makes recommendations regarding statutory changes in military criminal sexual assault and procedural statutes. Specifically, the author recommends amending substantive military criminal law to add the offense of “Indecent Act” back into UCMJ art. 120; modifying the definition of force; eliminating the increased emphasis on whether the victim’s fears are “reasonable”; removing the focus from the accused’s perceptions of the victim; returning the statutory limitations on the affirmative defense of mistake of fact as to consent; adopting California’s evidentiary threshold for giving affirmative defense instructions on mistake of fact as to consent and consent; and creating a statutory structure to restrict judicial appellate discretion in determining the need for certain lesser-included offense instructions. The author supports a statute-based amendment of Military Rules of Evidence 404(a) and 405(c) to clarify that general military character or good soldier evidence is not admissible to show probability of innocence for sexual assault offenses.

The second is Informing the Debate About Sexual Assault in the Military Services: Is the Department of Defense its Own Worst Enemy? (Ohio State Journal of Criminal Law, Vol. 11, p. 579, 2014). Here is the abstract:

In 2013, the Department of Defense (DoD) published its Annual Report on Sexual Assault in the Military Fiscal Year (FY) 2012, reflecting an increase in the number of sexual assaults on military personnel (extrapolated from survey responses) from 19,000 in FY 2011 to 26,000 in FY 2012. The report also provided that in FY 2012, 302 sexual assault courts-martial occurred with only 238 military personnel convicted of sexual assaults committed on military victims, resulting in an alleged conviction rate of less than 1%. Using inflammatory language and misleading statistics, some attacked the prosecution and conviction rates in the military services. Other commentators and some members of Congress criticized how the military handles sexual assault cases, contending that the military justice process is less effective at holding perpetrators accountable than its civilian counterparts, and proposing profound changes in the military justice system. 

This Article explains that the 26,000 extrapolation is based on public health survey methodology, not criminal justice methodology, and the problems with comparing survey statistics to prosecution and conviction rates. The author argues that the DoD should change its annual sexual assault report metrics; separate the sexual harassment report from the sex crimes report; employ Bureau of Justice (BOJ) personnel and standards to include 15,000 active duty personnel in its major crime and victimization survey, the National Crime Victimization Survey; and, report “forcible rape” statistics based on the BOJ’s Uniform Crime Report criteria. To provide further transparency regarding resolution of military sexual assault offenses, to deter offenders, and to eliminate the public and victim misperception that cases are not effectively prosecuted, the author also recommends extensive disclosure by posting on the internet information about individual cases, and disposition statistics by general court-martial jurisdiction, military service, and the DoD as a whole. 

To support these recommendations, the author provides a historical review of the DoD’s media battles and Congressional mandates to establish task forces and panels to study the problem of sexual assault in the military services. The author then describes the problems and issues involved with the DoD’s reporting of military sexual assaults — a report which includes the entire spectrum of sexual assault and reports taken from service members who receive training encouraging them to report any inappropriate sexual contact. The Article also explains that the DoD’s 2012 extrapolation of 26,000 sexual assault victims is based on the type of surveys that the Department of Justice, the Department of Education, and the four largest states have elected not to use for comparison to prosecution or conviction rates in their official reports. Lastly, the Article describes prosecutorial discretion factors existing in the military services, which civilian prosecutors may not face, such as availability of alternative disposition and punishment options, involvement from the chain of command up to and including Presidential, Congressional, and Secretarial influence, and military operations and readiness concerns. These factors should be considered before criticizing how the military handles sexual assault cases. 

The facts involving the particular offense at issue are critical to assessing whether justice has been fairly applied and Congress should require convening authorities to routinely appropriately-redacted post charge sheets and other pertinent documentation on the internet.

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