The Military Times recently published an article (available here) analyzing the DoD’s Fiscal Year 2014 annual report on sexual assault in the military (available here). The article is largely number-crunching, but the title is outright inflammatory:

Military sexual assault claims: 1 in 20 lead to jail time

One can only imagine how the various activist organizations are salivating over this headline, as it implies a miserably low rate of punishment for military sexual offenders. But intelligent observers will approach this report with caution.

The 1-in-20 statistic comes from the following analysis in the Military Times article:

Last year, 6,131 service members reported a sexual assault.

But only about 317 service members were court-martialed and sentenced to confinement as a result of a reported sexual assault.

While it’s true that 317 is 5.17% of 6,131, those numbers have little to do with actual punishments for sexual assault, for three reasons.

First, the Department of Defense remains incapable of giving a succinct and rational definition of sexual assault. The first footnote in the FY14 report states:

Department of Defense Directive 6495.01 defines sexual assault as intentional sexual contact characterized by use of force, threats, intimidation, or abuse of authority or when the victim does not or cannot consent. The crime of sexual assault includes a broad category of sexual offenses consisting of the following specific Uniform Code of Military Justice offenses: rape, sexual assault, aggravated sexual contact, abusive sexual contact, forcible sodomy (forced oral or anal sex), or attempts to commit these offenses.

This definition is so vague that it is dangerous. Not only does this definition fail to provide an outer limit to the meaning of the term sexual contact (something CAAF is currently considering in the interlocutory Army case of United States v. Schloff, No. 15-0294/AR (CAAFlog case page), but it also uses the amorphous term cannot consent. Some people hold the nonsensical belief that a person cannot consent to sexual activity after consuming just one sip of alcohol. Undoubtedly, some such encounters found their way into the DoD report.

The next flaw in the 1-in-20 number is that it does not acknowledge the great many cases that were found unworthy of a court-martial prosecution.

For instance, according to the Military Times article, of the 6,131 reports of sexual assaults:

1,471 were restricted reports;

528 cases were “unfounded” because they were “baseless,” constituted a “non-sexual assault offense” or stemmed from “allegations misinterpreted by a third party”;

252 were dismissed because investigators were unable to identify the perpetrator;

231 cases were dropped because the alleged perpetrator was either a civilian or foreign national who was outside the military’s legal jurisdiction; and

628 were dismissed outright for reasons including: insufficient evidence to prosecute (323); victim declined to participate in the command investigation (248); a command-level legal review said the allegations were legally “unfounded” (48); or the statute of limitations expired (9).

Additionally, Appendix A of the DoD report provides table of dispositions (image links to original):

Table 4

This data clearly shows that of 6,131 reports of sexual assault, only 998 cases warranted preferral of a sexual offense charge.

Of note, any person subject to the UCMJ – including an alleged victim – may prefer a charge. See Article 30, UCMJ.

Finally, the third flaw in the 1-in-20 statistic is that it does not reflect actual dispositions.

Of the cases in which charges were preferred, the DoD report provides the following information:

Of the 998 subjects who had court-martial charges preferred against them for at least one sexual assault charge in FY 2014, 861 subjects’ court-martial outcomes were completed by the end of the FY:

• Court-martial charges against 176 subjects were dismissed. However, commanders used evidence gathered during the sexual assault investigations to take NJP against 46 of the 176 subjects (NJP was initiated but dismissed for six of these subjects, leaving 40 subjects with a NJP administered). The punishment may have been for any kind of misconduct for which there was evidence. The 40 subjects who received NJP were adjudged five categories of punishment: reductions in rank, fines or forfeitures of pay, restriction, extra duty, and reprimand.

• Ninety-seven subjects were granted a resignation or discharge instead of courtmartial.

• Of the 588 subjects whose cases proceeded to trial: 434 subjects (74%) were convicted of at least one charge at court-martial. Most convicted Service members received at least four kinds of punishment: confinement, reduction in rank, fines or forfeitures, and a discharge (enlisted) or dismissal (officers) from service.

• One hundred fifty-four subjects (154; 26%) were acquitted of all charges.

Original here. With only 588 cases at trial and 154 acquittals, that leaves just 434 court-martial convictions for which the accused could be sentenced to confinement.

Of those 434 convictions, Appendix D of the DoD report provides the following information (image links to original):

Appendix D

This data shows 317 sentences known to include confinement in 434 convictions.

317 is 73% of 434, or nearly 3 in 4.

Undoubtedly the headline “1 in 20 [claims] lead to jail time” sells more newspapers than the headline “3 in 4 [convictions] lead to jail time.” And the Military Times is in the newspaper business, not the military justice reform business.

Hopefully reformers will look past this headline and focus on the actual data.

13 Responses to “More bad math on military sexual assault”

  1. Anon says:

    I believe that you mean United States v. Schloff, and not Stellato…

  2. RKincaid3 (RK3PO) says:

    Hopefully reformers will look past this headline and focus on the actual data.

     
    Yah, right.  They haven’t so far.  Remember the politics–it is as bad as or worse than the newspaper business.  Drama sells–even misleading or downright fake.
     
    So, get ready for the next round of servicemember abuse–where everyone is either a victim or an abuser in practice or in waiting!
     
    Sigh…

  3. DCGoneGalt says:

    I just can’t help myself on two points:

    “Of the 588 subjects whose cases proceeded to trial: 434 subjects (74%) were convicted of at least one charge at court-martial.”

    Of that 434, does anyone know how many were actually convicted of a sexual offense?  I think it is important to weed out the dereliction/adultery convictions that would normally not warrant a court-martial as stand-alone offenses and that, in a sane world, would receive serious consideration for an alternate forum of disposition on clemency.
     

    “528 cases were “unfounded” because they were “baseless,” constituted a “non-sexual assault offense” or stemmed from “allegations misinterpreted by a third party”; [. . .]
    434 subjects (74%) were convicted of at least one charge at court-martial.”

    More cases were determined to be unfounded than resulted in a finding of guilt beyond a reasonable doubt in a court-martial.  While it is true that demonstrably true allegations may not result in a conviction for a variety of reasons (victim does not wish to participate in investigation/trial, jurisdiction, etc.), I wonder if there will be a “public interest” POD-People-esque press conference or Congressional champion to draw attention to the “Crisis Of Unfounded Allegations” ™ in the military. 

  4. Zachary D Spilman says:

    Thank you Anon. I did mean Schloff, not Stellato. I just edited the post to correct this error. 

  5. k fischer says:

    I think a more poignant title for the Military Times Article would be unfounded allegations in military are two to eight times higher than civilian unfounded allegations. 
     
    If there are 3,648 allegations that were closed in 2014, and lawyers unfounded 528 at the investigation stage, then unfounded 48 more of them after the Commander received them, then that would be a false or baseless reporting rate of 16% (rounded up from 15.7%).  If the false reporting rate ranges between 2% to 8% in the civilian world, then the false reporting rate in the military is twice to eight times higher than the civilian false reporting rate.  Why are there so many false allegations in the military?
     
    Then if you add in the other 628 cases that were not preferred because of different reasons and the 477 cases where other misconduct occurred, but the sexual assault was dismissed, then you have a false rate of 36%, and we are getting close to substantiating the numbers in the dreaded Kanin and McDowell studies, which are impugned because the civilian and military cops  had the nerve to ask those poor victims to take a polygraph. 
     
    martial.  That is an abysmal 12.9% prosecution rate.  Does anyone who practices military justice really think it’s because the military is soft on sexual assault?  
     
    They won’t investigate because they know what they will find, exactly what McDowell found when he conducted his investigation.  False allegations in the military are out of control.

  6. k fischer says:

    *******Only 588 Servicemembers out of 4,525 reports faced martial.  That is an abysmal 12.9% prosecution rate.  Does anyone who practices military justice really think it’s because the military is soft on sexual assault?

  7. Just Another JAG says:

    Well done Zach. I hope more people read this and look into the numbers and not stop at the headlines.

  8. Another Perspective says:

    “Of note, any person subject to the UCMJ – including an alleged victim – may prefer a charge. See Article 30, UCMJ.”
    Does anyone really believe that a victim (usually junior enlisted) will ever unilaterally prefer a charge and specification of sexual assault even if they are legally eligible to do so?

  9. Zachary D Spilman says:

    Another Perspective says:

    Does anyone really believe that a victim (usually junior enlisted) will ever unilaterally prefer a charge and specification of sexual assault even if they are legally eligible to do so?

    Does anyone really believe that a special victims’ counsel wouldn’t advise such a service member to do exactly that in a case where an allegation with prosecutorial merit it stymied by an obstructionist convening authority?

  10. JB says:

    K fisher – “unfounded” does not equal “false.” Of the 20+ cases in the last year that I, as a supervisor, concurred with an “unfounded” opine, I can only recall 3 that were shown to be actually false. Unfounded correlates to no (or very little) corroborating evidence much more than it does false. I have also seen that an “unfounded” vs “insufficient evidence” opine is determined more on the whim of the TC or the preferance of the supervising investigative agent, which gets a lot of cases with just a little corroborating evidence to often be classified as “unfounded” rather than maybe the more appropriate “insufficient evidence.”  

  11. K fischer says:

    In the study “unfounded” means baseless a non sexual assault offense, a misinterpretation by a third party, or a false allegation.  I don’t see where it says uncorroborated.  But, I’m glad to see that somebody isn’t taking cases based solely on a complaining witnesses’ uncorroborated word.  I recommend that you stay anonymous, too.  We need more supervisors like you, JB.
     
     

  12. DCGoneGalt says:

    JB:  You are misapplying the “unfounded” category, and from what I have seen you are in the (unknown to me until now) minority. “Unfounded” is for false, i.e. baseless, allegations or those allegations where the conduct does not constitute a sex crime.  The “insufficient evidence” category is for cases with no, or very little, evidence to support an allegation because the truth of the allegation will remain unknown.  I have seen illogical mental gymnastics to keep allegations out of the “unfounded” category.  For instance, if someone says they were touched at a pool table by a subject who then left the building but the security video shows they played pool and joked for a few hours an then left together does that really mean it is unfounded?  I have had to explain that while I will listen to explanations as to why people can behave counter-intuitively, I do not believe there is a forensic psych who believes digital video recordings behave in a counter-intuitive manner.  

  13. Saul says:

    Zachary D Spilman says:
    May 15, 2015 at 7:20 PM

    Does anyone really believe that a special victims’ counsel wouldn’t advise such a service member to do exactly that in a case where an allegation with prosecutorial merit it stymied by an obstructionist convening authority?

    Zach (or anyone) – what happens if a victim prefers charges against a Soldier, after the TC, presumably with CoJ support, decides there is insufficient evidence to prosecute a case?   Thinking through the process, the case seems highly likely to not be referred.