Note: Post edited to provide a link to POD’s reply.
Back in April, in this post, we noted the publication of a report by the advocacy group Protect Our Defenders (POD) that accused the Department of Defense of misleading Congress regarding sexual assault prosecutions under the UCMJ.
The Secretary of Defense responded at the end of May and his response is available here.
The response included some harsh language about POD’s report:
[T]he central issues raised in the report and article are based on certain misunderstandings of how the military justice system works, lack of access to information contained in the full case files, or a disagreement on what “counts” as a sexual assault case.
Response at 1.
The response and its enclosure is a persuasive rebuttal of POD’s report in five ways.
First, the enclosure highlight’s POD’s “attempt to distinguish between cases where civilian authorities would not (‘declined’) bring a case in a civilian court, and cases where civilian authorities voluntarily allowed (‘deferred’) the case to be brought in a military court, even if the civilian authorities may have believed they would have been able to bring a case.” Encl. at 2 (emphases in original). The enclosure explains that the military justice system does not make a meaningful distinction between a declined case and a deferred case, and further that making such a distinction “would be difficult even with perfect data.” Encl. at 3.
Second, the enclosure discusses how sexual assault cases aren’t just those involving prosecutions for violations of Article 120, 120b, or 125, but rather that the military “tracks cases involving allegations of sexual assault as ‘sexual assault cases’ even when the charges filed may be for an alternate or collateral offense.” Encl. at 3-4. The enclosure then provides a few examples of cases involving convictions for other offenses (such as conduct unbecoming an officer, obstruction of justice, or possession of child pornography) that are rightly characterized as sexual assault prosecutions based upon the facts of the case. POD’s report, however, did not consider (or acknowledge) these facts.
Third, the enclosure disputes POD’s calculation of conviction rates based upon the fact that POD “applies different criteria to determine which cases to consider in assessing conviction rates than do the Services.” Encl. at 5.
Fourth, the enclosure chastises POD for its observation that “the military did not identify a single case where a commander sent a case to trial after a military prosecutor refused to prosecute.” Encl. at 7 (quoting POD report at 2). As the enclosure explains, “the commander has the statutory authority and responsibility to make the ultimate decision regarding referral of a case to trial, but he or she does not make that decision in a vacuum.” Encl. at 7
Finally, as POD’s report highlighted that court-martial sentences often vary widely, the enclosure notes that the UCMJ’s sentencing scheme was created by Congress, and the DoD recently proposed changing it.
Edited to add: POD replied to the Secretary’s response in a letter available here.