Scholarship Saturday: DoD’s Judicial Proceedings Panel raises “serious questions” about how the military justice system treats the accused in sexual assault cases

By Isaac Kennen

Scholarship Editor

As recently discussed on this blog, the Judicial Proceedings Panel (JPP) is one of three entities chartered under the Federal Advisory Committee Act to conduct an independent assessment of the military justice system. In May of this year, a JPP subcommittee published its Report on Barriers to the Fair Administration of Military Justice in Sexual Assault Cases. The report offers a stark assessment regarding the perceived failure of the military justice system to treat service members accused of sexual offenses fairly:

Congress, the Department of Defense, and the White House have all worked to change the military system so that victims of sexual assault are treated with respect and are not further victimized by the criminal justice process. Other changes have been put in place to counter the perception that sexual assault predators were being protected from prosecution by military commanders.

Many of these changes have been valuable. One possible sign that they are having an effect is the increase in the past few years of the number of sexual assault cases being reported. While its cause cannot be identified with certainty, many believe that it indicates greater confidence that the criminal justice system will help the victim and vigorously prosecute the accused.

As constructive and important as these changes have been, they have also produced an unintended negative consequence: they have, as the Subcommittee was repeatedly told on its site visits, raised serious questions about the fundamental fairness of the military justice process when it comes to the treatment of the accused.

Report at 4.

The report’s conclusion is that:

The consensus among [both government and defense] counsel interviewed during the installation site visits was that the combination of a less robust Article 32 process, pressure on convening authorities to refer sexual assault cases to courts-martial, and the low standard of probable cause for referring cases to courts-martial has led to cases being referred to courts-martial in which there is little chance for a conviction. Many counsel felt that the result has been a high acquittal rate in sexual assault cases, which, in turn, has caused military members to question the fairness of the military justice system. In addition, some counsel worried that when the word gets around that sexual assault cases are going to courts-martial supported only by weak evidence, military juries may be much more skeptical of the charges and the prosecution and thus may be more likely to acquit. Perhaps inevitably, as Service members become aware of weak cases and high acquittal rates, victims may become more reluctant to make unrestricted reports.

Report at 22-23.

The report concludes that the crux of the problem is that an increased number of weak sexual assault cases are being taken to trial. According to the report, there are several origins to that problem. But, in sum, the problem appears to boil down to the military justice system’s inability to ensure that the military officers charged with controlling that system are adequately informed about the state of the evidence prior to sending a case to trial. Exacerbating the problem, the military justice system has been unable to ensure those officers perform their duties without regard for their own personal career interests.

First, the report comments that the new Article 32 preliminary hearing process “no longer serves a useful purpose.” Report at 5. With the dilution of Article 32, there is no longer “a formal written process for ensuring that the convening authority is made fully aware of the strengths and weaknesses of a case and has guidance for deciding an appropriate disposition.” Report at 23. The report recommends some process be created to fill the void left by the now all but useless Article 32 process to ensure the convening authority is “given enough information to make a proper decision, since the convening authority, like prosecutors in civilian jurisdictions, are responsible for determining which cases are prosecuted and which are not.” Report at 24.

The specific process recommended by the JPP to better inform convening authorities is to make a Staff Judge Advocate’s pretrial advice to the convening authority non-discoverable to the defense. The hope is that allowing those public officers to operate in secret will promote their integrity. Report at 26.

Second, and related to the first issue, the JPP report posited that convening authorities have, of late, tended to refer cases to trial regardless of whether the evidence supports such action. Report at 12-14. The report voices concern that convening authority disposition decisions appear to be influenced by pressure from superiors regarding their own personal career interests. Id. To remedy this problem:

The JPP Subcommittee recommends that Congress repeal provisions from the National Defense Authorization Act for Fiscal Year 2014 and Fiscal Year 2015, sections 1744 and 541 respectively, that require non-referral decisions in certain sexual assault cases to be forwarded to a higher general court-martial convening authority or to the Service Secretary. The perception of pressure on convening authorities to refer sexual assault cases to courts-martial created by these provisions and the consequent negative effects on the military justice system are more harmful than the problems that such provisions were originally intended to address.

Report at 27.

A third problem noted by the JPP subcommittee is that some prosecutors have voiced ethical reservations regarding the standard applicable to referral of charges:

[C]ounsel told the Subcommittee that once probable cause is established, counsel are compelled to go forward with a case even when they do not believe there is reasonable likelihood of success at trial.

Report at 16. “Trial and defense counsel alike believe that the probable cause standard is too low,” and that, at least in practice, the standard they are asked to apply for pursing prosecutions does not comport with Section 9-27-220 of the United States Attorney’s Manual. Report at 14. Perhaps more importantly, lawyers have expressed their belief that they have been asked to pursue prosecutions that would not be deemed appropriate by their licensing authority. Id.

The report noted that, despite these lawyer’s expressions of concern, at least in one Service, not a single prosecutor has sought guidance from that branch’s ethics office. That Service has, in turn, taken the lack of complaint as being evidence that no problem exists. Report at 15.

But the JPP did find the probable cause standard to be a problem, and:

The JPP Subcommittee recommends that Article 33, UCMJ, case disposition guidance for convening authorities and staff judge advocates require the following standard for referral to court-martial: the charges are supported by probable cause and there is a reasonable likelihood of proving the elements of each offense beyond a reasonable doubt using only evidence likely to be found admissible at trial.

Report at 26 (emphasis added).

Aside from these more fundamental concerns, the report also identifies some collateral matters which, in the subcommittee’s view, has impaired the fair administration of justice. Those items include the inability of prosecutors to prepare victims for testimony at trial due to the representation of special victims counsel, the tendency of Sexual Assault Prevention and Response training to inspire cynicism regarding the credibility of victims, and a view among court-martial panels that victims may make false sexual assault allegations in order to gain the benefit of their Service’s expedited transfer program.

- Originally published on June 24, 2017 on, image available without attribution in the CAAFlog archive here.