The National Sexual Violence Resource Center estimates that between 2-10% of all sexual assaults reported nationally are determined to be false, with the generally accepted average hovering around 7%. Many legal advisers and Department of Defense criminal investigation agents would argue the estimate applied to the department is too low.
Using that percentage — and recognizing that in FY20, the DOD investigated 7,816 sexual assault allegations — that means somewhere between 156 to 782 service members were falsely accused last year. Adding context to that number, last year there were 415 court-martial actions completed in sexual assault cases within the DOD. Of those 415 cases, 90 were dismissed and 99 resulted in acquittals.
The DOD is now considering a policy that would increase the number of false accusations. As part of the Safe-to-Report policy required by Congress, the proposed rule change would absolve a member who makes an allegation of sexual assault from any collateral misconduct.
Collateral misconduct is defined under federal law but, within the services, usually involves minor infractions, including orders violations, underage drinking, fraternization, adultery, single-time drug use, false official statements, and drunken disorderly conduct. While seemingly insignificant, disciplinary action for any of the aforementioned infractions can effectively end a military career and result in the forfeit of thousands of dollars worth of bonuses, severance pay, and retirement eligibility.
Moreover, as retention, promotion, and reenlistment become more competitive, the slightest disciplinary infraction could mean the difference between staying in and being told to leave the service. In short, avoiding discipline for these minor crimes is in a service member’s best interest.
In many instances, even when the collateral misconduct is not alleged to be directly associated with the assault claim, the allegation is still cited as justification to not pursue disciplinary action. For example, a Marine could be charged with being drunk and disorderly last weekend, but those charges could be dropped after the Marine alleges they were sexually assaulted months prior, even though the assault is just now being reported in the aftermath of last weekend’s debauchery.
As this author can personally attest, mandating that collateral misconduct not be adjudicated within the DOD will further incentivize fabrication. As it is nearly impossible to find a commander willing to pursue action against a member for making a false accusation (UCMJ violation of Article 107, False Official Statement), fictitious claims of sexual assault go unchecked. When fictitious claims are made, the falsely accused member becomes a victim of the military justice “process.”
As discussed in prior publications, the traumatic experience of being investigated by NCIS or CID can have serious and lasting effects on the wrongfully accused. These consequential effects include a loss of motivation to serve, alcohol and drug abuse, self-harm and suicidal ideations, and other destructive behaviors that lead to misconduct while awaiting adjudication of the false claim.
A policy change of this nature will also ensure the credibility and sincerity of a complainant with a legitimate claim of sexual assault is further scrutinized during a criminal or administrative proceeding.
At trial, the quickest way for a defense counsel to create reasonable doubt is to establish a motive for the complainant to fabricate their claim — “the witness is lying because of X.” Even in those instances when a legitimate allegation is being made, doubt can still be created when the complainant has been systematically absolved of misconduct. For example, the soldier is lying because they were accused of being drunk and disorderly but now that they’ve made a claim of sexual assault, they no longer face punishment for that infraction. Subsequently, justice for legitimate cases of sexual assault will be eluded, due to a perceived motive to fabricate an allegation.
While it may be a noble idea, the department must face the harsh realities of the second- and third-order effects of this proposed policy. Plainly stated, considering the unique environment of the U.S. military, giving a “get out of jail free” card to those alleging a sexual assault is a dangerous incentive to falsify a claim. The department must allow collateral misconduct to be adjudicated — removing the incentive and motive to fabricate on this basis altogether.
Major Rafiel Warfield, USMC, has practiced law in the U.S. military for over a decade and is currently the deputy chief of operational law for U.S. Forces-Korea. The opinions expressed in this article are solely those of the author and not endorsed by the Department of Defense.
