In the civilian judicial system, prosecutors are notoriously hesitant to indict or try criminal suspects if they are not certain they can successfully convict. In fact, the U.S. Department of Justice manual prohibits prosecutors from initiating federal prosecution unless a federal crime has been committed and the evidence is sufficient to prevail at trial. When it comes to such crimes as sexual assault, this limits the number of charges that go before a jury. Only the strongest cases are tried, resulting in high conviction rates.
Although some guilty suspects may go free as a result, the judicial system is designed so that the innocent are unlikely to be convicted or have their reputations destroyed through an agonizing legal process.
In the military, however, this is not the case. Senior officers make the call on whether to prosecute, typically based on the lowest threshold of evidence: “probable cause.” As a result, many cases in which civilian prosecutors would not even indict have proceeded to courts-martial, and even more have been sent to administrative board proceedings in which the standard for proof of culpability is much lower.
Military commanders who make decisions about charges — typically colonels, naval captains, or general/flag officers — tend to operate on the belief that “the process must be allowed to play out.” They often prefer to allow complainants to have their day in court, even if only to exonerate the accused and prevent the stigma of an unadjudicated allegation. Placing little emphasis on whether a given case can be won, some commanders refer cases to adjudication, regardless of the evidentiary merits, so as to avoid criticism that they are weak on sex crimes. No commander wants to find himself the subject of the next hashtag movement or congressional complaint. The consequences of this “go through the process” mentality can be devastating for those wrongly accused whose lives are cruelly picked apart.
Ironically, the pressure on commanders to act is coming from the same cadre of lawmakers and activists who want to remove commanders from the decision-making process. This same energy, oddly, is not directed toward civilian prosecutors, who routinely decline to prosecute sexual assault cases.
In 2017, the Defense Advisory Committee on Sexual Harassment reported that more than 70 cases had been sent forward to court-martial even though a preliminary hearing officer determined there was no probable cause. Most recently, in the fiscal year 2020, there were 415 court-martial actions completed in sexual assault cases. Of those 415 cases, 90 were dismissed and another 99 resulted in acquittals.
So in nearly half of all cases, the defendant was exonerated.
Some would argue that exoneration is enough for an accused service member, but this ignores the traumatic effects of the military justice system. Prior to adjudication, those accused of sex-related crimes in the military are barred from promotion and special duty assignment. They face involuntary transfer to new units. They have their pending orders canceled and their security clearances flagged, and they are relieved of their responsibilities and authority.
Meanwhile, every piece of their lives is examined. They are ordered to provide DNA samples. Friends and associates are interviewed, and their barracks or homes and electronic devices are all potentially subject to search and seizure. Their immediate chain of command, and subsequently their entire unit, is informed. Their reputations are destroyed, often irreparably. As they go through this “process,” they are not provided even so much as basic mental health support.
This status quo has prompted Congress to consider stripping adjudication authority from military commanders for sex-related crimes. This reform, endorsed by Secretary of Defense Lloyd Austin and an independent review commission, would include the creation of a separate adjudication authority structure within the Department of Defense.
If Congress goes forward with these reforms, the decision to prosecute sex crimes in the military would be transferred to an independent prosecutor. Based on the numbers, this will more than likely lead to a decline in the number of cases that move forward to trial. However, this reform will also lead to a reduction of frivolous prosecutions based on weak evidence — a reprieve for those who otherwise would be victimized by the process of military justice.
Maj. Rafiel Warfield, U.S. Marine Corps, 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.
