Analysis From Protect Our Defenders: Evidence Shows That the Military Justice System Remains Broken

FOR IMMEDIATE RELEASE

December 4, 2014 Contact: Brian Purchia, brian@protectourdefenders.com

EVIDENCE SHOWS THAT THE MILITARY JUSTICE SYSTEM REMAINS BROKEN

Despite the Pentagon’s conclusions, the Report to the President provides no evidence that the military justice system’s ability to handle sexual assault cases has improved. On the contrary, these numbers continue to paint a chilling picture of a system consistently incapable of handling sexual assault.

The prosecution rate has decreased. In 2014, just 910 cases were preferred, compared to 5983 total reports. The military considers this to be a prosecution rate of 38% (out of cases where the military could take action), and by its own acknowledgment, this rate has not improved from 39% in 2013.

Out of 5,983 reports, only 175 resulted in a conviction for a registrable sexual offense.

Although overall reports are up, the proportion of victims willing to come forward and publicly report an assault has actually gone down. In 2011, 76% of reports made by service members were unrestricted and therefore actionable; in 2014, the percentage of unrestricted reports made by service members fell to 68%

Further, there is no evidence to conclude that the increase in reports is due to a growing confidence in the system. It is just as likely that increased media attention, which led to a similar spike in sexual assault reporting in Israel several years ago, caused this increase in reports. While victims might feel emboldened to report when they know the world is watching, this cannot be sustained as Congress and the media turn their attention elsewhere.

84% of military victims still do not have enough confidence in the system to publicly report their sexual assault.

Retaliation persists at startling rates. In 2012, 62% of respondents faced retaliation for reporting. In 2014, that number remains unchanged, even as retaliation (including social retaliation) is now considered a crime. Disturbingly, the majority of survivors who were retaliated against experienced some form of reprisal from their commanders (including professional, adverse administrative action, or punishment for reporting).

Victims continue to lose confidence in the military justice system. In 2009, victims in 10% of cases stopped participating with the military justice process. That rate remains unchanged, and has in fact increased from 9% in 2013.

DOD’S REPORT TO THE PRESIDENT IS A BIASED ACCOUNT THAT CHERRY-PICKS NUMBERS TO ATTACK MEANINGFUL ATTEMPTS AT REFORM

This week, the Pentagon released a report to the President, to influence his decision to determine whether sufficient progress has been made in preventing and responding to sexual assault within the Armed Forces. Despite the military’s efforts to spin the numbers in their favor, this report shows nothing of the kind. The blatant effort to undermine calls for reform shows that ultimately the military is motivated not by an actual desire to address sexual assault and support survivors, but to ensure that their antiquated, biased system is not reformed.

This report relies on questionable data–results of the latest Military Workplace Study and a new Survivor Experience Survey.

Before the Military Workplace Study, conducted by RAND in just 2014, was released, the Service Chiefs of each military branch issued letters “indicat[ing] their support” for the new survey. In two of the Services, the Chiefs included comments such as, “Without your participation, DoD and Congress may draw the wrong conclusions about the environment our Sailors serve in, which could lead to bad policies that affect all of us.” These comments suggest that, if service members have been assaulted, it may very well not be in their best interest to indicate so on the survey.

Throughout this report, the military relies on a Survivor Experience Survey, an unscientific report that the Pentagon admits is not generalizable. Although all survivors who made a restricted or unrestricted report were contacted, only 150 responded–a response rate in the single digits. Further, this survey was distributed 30-150 days after reporting, when most cases are still in the investigation stage and most victims have had virtually no experience with the military justice system. In such a self-selected sample, it would be unexpected to see negative results, which makes the continuing presence of retaliation in this sample (59% of respondents) even more shocking.

When DoD cites areas of progress, in nearly every instance, they fail to cite empirical evidence and instead claim credit for implementing policies that were mandated by Congress. For instance, the implementation of the Special Victims Counsel (SVC) program is cited as a sign of progress in holding perpetrators accountable, even though Congress mandated its establishment across the services, and SVCs have no authority over the adjudication process.

Although the President asked only for a showing of progress, the Pentagon has instead chosen to focus on the prospect of taking convening authority out of the chain of command, and placing it in the hands of trained military prosecutors. This report was driven by political pressures, rather than an unbiased evaluation of how the military prevents and responds to sexual assault.

SEXUAL ASSAULT ESTIMATES REMAIN AT 2010 LEVELS

Past year prevalence estimates of unwanted sexual contact (USC) for the past 8 years show that the drop being hailed by DoD as an indicator of success is actually a replication of fluctuations in the past.

• For women, sexual assault rates have fluctuated between 6.8% and 4.3% over the past 8 years. Disturbingly, despite the Pentagon’s best efforts, the rate of unwanted sexual contact is now nearly identical to 2010 levels–before significant reforms were implemented.
• For men, sexual assault rates have steadily remained around 1% for the past 4 years. In other words, we have seen zero progress for men.
  

CASES SHOW THAT THE MILITARY JUSTICE SYSTEM REMAINS BROKEN

While DoD has focused on presenting a picture of success and progress, we have continued to see case after case in which victims are retaliated against, commanders side with the accused, and those who attempt to speak out are silenced. Just a few recent examples of this include the following cases.

Fort Leonard Wood:

In September 2014, an Army Staff Sergeant at Fort Leonard Wood was found guilty of four counts of sexual assault and six counts of abusive sexual contact. During sentencing testimony, one of his victims said that a Lieutenant Colonel had told her and other trainees not to report if they were sexually assaulted. “I have issues of trusting those who are in charge of me,” she said, after being told, “not to make any more allegations.” Another female service member testified under oath that she and others were told by their Sergeant Major that their company would not graduate “if any more sexual assault cases” were reported.

NYT Story about Ellsworth Case:

In April 2013 and Air Force Major was sexually assaulted by another airman after a night of drinking outside of Ellsworth Air Force Base. Six weeks after the assault, the victim filed a report. The attacker admitted to the assault in a pretext phone call. Despite this, the victim was met with skepticism by her command, who told her, “It’s illogical for you to think that there won’t be negative consequences to your reporting.” Eventually the perpetrator was brought to trial, sentenced to 45 days in jail, along with forfeiture of two months’ pay and dismissed from the Air Force. However, at a board hearing where the victim’s attacker petitioned to be reinstated, the victim’s commander testified on behalf of the assailant. Though his appeal was denied, the support he received from the victim’s fellow troops and even her commander were made clear.

Air Force Academy:

Air Force investigator Special Agent (SA) Brandon Enos, and Eric Thomas, a cadet informant, were retaliated against after their work led to the first successful prosecutions of sexual assault at the Academy in over a decade. After helping to successfully prosecute the cases, SA Enos was transferred out of the academy and forced out of the Air Force. Cadet Thomas was expelled for actions related to the undercover work he did during the investigation.

Summary:

Zero Evidence of Progress:

No progress on prevalence

• 2014 estimates of sexual assault are identical to estimates from four years ago in 2010.

No progress on victim trust in the system

• Same number of victims in 2014 stopped participating in the process as in 2009
• Fewer victims are willing to come forward and publicly report an assault than in 2011

No progress on prosecution rates: The prosecution rate has decreased since 2013

It is clear that DoD continues to prioritize institutional prerogatives over the actual experiences of sexual assault survivors. The report effectively erases the importance of accountability and a functioning justice system, instead choosing to pat themselves on the back for implementing changes forced on them by Congress after decades of inaction.