Scholarship Saturday: Two new DoD reports on sexual assault, Senatorial interest, and the specter of Unlawful Command Influence
By Isaac Kennen
It is sexual assault report card season for the Department of Defense, and the actual numbers reported don’t necessarily match the political rhetoric. And, the political rhetoric is, perhaps, particularly strident this season. That could be a concern given CAAF’s recent decision in United States v. Boyce, CAAF Dkt. No 16-0546/AF (CAAFlog case page) (reversing a multiple-rape conviction due to the rhetoric and actions of senior Air Force officials, including the Secretary and the Chief of Staff of the Air Force, which, though not directed referencing Boyce’s case, created significant doubt about the independence of the convening authority and therefore constituted unlawful command influence).
In March, DoD’s Office of People Analytics released the results of a survey of sexual assault victims who had participated in the military justice process – the Military Investigation and Justice Experience Survey (MIJES) report. That report acknowledged that the survey’s methodology makes the report’s findings more anecdotal than empirical:
[T]he 2016 MIJES does not employ statistical sampling or scientific weighting. Therefore results from this survey cannot be generalized to the full population of military members who made a report of sexual assault; results can only be attributed to those eligible respondents who completed the survey.
MIJES Report at iv. With that caveat, the report’s findings, though unscientific, warrant some discussion.
First, the 2016 MIJES found that 38 percent of victims believed they had suffered retaliation for reporting sexual abuse. Id. at vi. That number is significantly higher than the number reflected in the, also recently released, FY 16 DoD Annual Report on Sexual Assault in the Military (FY16 ARSAM), which reported the reprisal rate to be about 19 percent:
Of [the 58 percent of] Service members who indicated experiencing a negative outcome after reporting a sexual assault, 32 percent met the survey criteria described in policy and law for professional reprisal, ostracism, and/or maltreatment.
FY16 ARSAM, at 33-34 (32 percent of 58 percent is 18.56 percent).
Further, though she did not affix a percentage to the retaliation problem, Senator Clair McCaskill also recently lamented that there are “stubbornly high rates of survivors who report that they have been retaliated against by their peers after coming forward.” Similarly, Senators John McCain and Jack Reed recently called on DoD leaders to implement “needed protections to end retaliation against those who report sex-related offenses.” The result of all of this political attention, as one DoD official told reporters, is that “retaliation is on everyone’s mind.”
But, the issue of retaliation against military sexual assault victims is not the only topic that has inspired critical Congressional, and thereby media, attention. Senator Gillibrand also has complained that more sexual offense cases should go to trial and, once there, they should result in more convictions. Specifically, her office recently stated:
Perhaps most disturbing, this report [(the FY16 ARSAM)] shows that we have less not more accountability in the military justice system with fewer cases going to trial and with the relatively few that do, fewer cases are resulting in convictions[.]
That concern, too, has been noted and echoed by media outlets. In turn, political lobbyists, specifically Protect Our Defenders (POD), have joined in. POD released a statement complaining that “out of more than 4,500 unrestricted reports that were made in 2016, only 124 cases resulted in a conviction for a non-consensual sex offense.”
POD’s assertion is backed by data contained in the FY16 ARSAM, at Appendix B, page 24, Figure 12. There it is revealed that, in FY 2016, 389 cases alleging a sexual offense were prosecuted through to a verdict. Of those verdicts, 261 included conviction on some offense, though not necessarily a sex offense. Of those 261 convictions, only 124 required the convict to register as a sex offender.
[Readers should note that the numbers in Appendix B are more relevant to POD’s argument than the numbers found elsewhere in the FY16 ARSAM, at Appendix C, page 29. Specifically, in Appendix C, DoD reported that it prosecuted 617 courts-martial where a sexual offense was alleged in FY 2016. Appendix C also appears on first glance, at least to this author, to assert that, of those 617 prosecutions, there were 260 convictions of a sexual offense (apparently comprised of 147 penetrative sexual offense convictions, and 113 contact sexual offense convictions). But, a closer inspection of that provision reveals that Appendix C actually only shows that, of the 617 individuals who were initially accused of a sex crime, 260 ended up being convicted of some offense, but not necessarily of a sex offense.]
As a result of the above – Congressional attention, media attention, and lobbyist attention – a narrative that the military prosecutes too few sexual offense cases and that courts-martial return too few convictions has taken form.
[The preceding 4 paragraphs were edited on 6/3/2017 to reflect clarifying information provided to me by POD.]
Through the 2016 MIJES report, DoD has added victims to the chorus of those complaining that the military justice system fails to hold offenders sufficiently accountable. The report notes, at page 140, that only 51 percent of victims who responded to the MIJES said they would recommend that another victim file an unrestricted report. Twenty-six percent said they would recommend other victims file a restricted report instead, and 23 percent said they would recommend filing no report at all. Id.
A deeper dive, at page 125, reveals that one of the most common reasons that responding victims gave for not recommending that other victims come forward was their belief that their assailant was not held appropriately accountable by the military justice system. Only 20 percent were satisfied with the action taken against the accused, 61 percent said they were dissatisfied, and the remainder were indifferent. Id. at 140.
Boyce shows that if the appearance of convening authority independence is not scrupulously guarded and protected from political pressure, then hard-won convictions might be forfeit. In that light, recent calls by prominent Congressional leaders to crack down on retaliation, to bring more prosecutions, and to return more convictions, are cause for concern. The risk that commanders might be tainted has been amplified by mass media reporting and the work of lobbyists. The demands for commanders to take more aggressive action have also been loaned the righteous patina of victim-protecting by the anonymous, unscientific, and context-free data collected and reported as part of the 2016 MIJES. Accordingly, given Boyce, it is as important now as it ever has been that commanders making disposition decisions be free, and be seen to be free, from these sorts of pressures.