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):
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):
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.