Proposed Rule Changes Could Make Military Sexual Assault Defense an Uphill Battle

September 15, 2012

A proposed law sponsored by Representative Jackie Speier (D-California) would pull the prosecution of military sexual assaults out of the chain of command and into civilian courtrooms. The bill -- pending since November of 2011 and currently being debated by the House of Representatives Armed Services Committee -- takes the onus for investigation and prosecution of military sex crimes away from commanding officers and into the hands of an impartial office, the Pentagon's Sexual Assault Prevention and Response Office (SAPRO).

Vocal Support on Both Sides

Military sexual assault cases should ideally be handled the same as other crimes committed by servicemembers: reporting the incident up the chain of command and facing the punishment doled out by a military court. The military judicial system has been in place for hundreds of years now, and seems to be effective at both punishing offenses and deterring future crimes. Some argue, however, that the military justice system doesn't seem nearly as effective where sex-related crimes are concerned.

Recent survey numbers indicate that the great majority of sexual assaults among military personnel go unreported. It is estimated that only one out of every six military sexual crimes are reported, and of the estimated 3,200 sexual assaults reported in 2011, less than 800 of them were actually prosecuted. What is not so clear, however, is why the rate of reporting and prosecuting those cases is lower than other criminal accusations handled by the military justice system. It could be for any number of reasons, including shame, fear of stigma, fear of repercussions from higher-ranking officials or just a desire to handle the matter outside of the traditional chain of command.

Most military spokespersons, including Army Major General Gary Patton, the director of SAPRO, feel that while there is room for improvement in the handling of sex crimes, those cases should still be handled within the confines of the military justice system. He feels that the military justice system is a vital part of military life, and it is uniquely qualified to handle the unique pressures, expectations and circumstances facing servicemembers. General Patton is vehement in his support of the military's investigative and judicial abilities in spite of the recent high-profile sexual assault allegations coming from Lackland Air Force Base in Texas.

Those pushing for rule changes that would remove military sex crimes from military jurisdiction argue that their rates would likely fall if more cases are prosecuted, something they feel will only be done if an impartial, outside judicial authority assumes responsibility for handling them. That may be a valid argument, but it is not supported by data from the civilian criminal justice system. It also does not take into account the aspects of military life that remain unknown and unfamiliar to the rest of us.

It should be noted, in fact, that sexual assaults are also some of the least-reported crimes in the civilian world. Recent data released by the Bureau of Justice Statistics show that only 36 percent of rapes, 34 percent of attempted rapes and 26 percent of sexual assaults are reported to authorities. Furthermore, only about one-third of all sex-related crimes are ever reported to anyone (not even a parent, clergyman or other trusted figure).

What Is the Answer?

Unfortunately, the situation does not have a quick-fix solution. Clearly, there is a need for servicemembers who have been assaulted to have a forum to confront those who allegedly committed the offense. There is also a need for the accused to protect their Constitutional rights. The concerns some legal experts have about removing sex-related crimes from military jurisdiction are that most civilian attorneys do not have the requisite knowledge to defend servicemembers, and that handing cases off to "outsiders" wouldn't allow the accused to seek the counsel of a skilled criminal defense lawyer early enough in the process to protect their rights.

For now, since Representative Streier's bill remains in committee, the handling of military sexual assault cases remains "in-house." Any military servicemember facing accusations of sexual assault or any other criminal offense has the same right to counsel that civilians have, and should consider seeking the counsel of a criminal defense attorney uniquely skilled in handling cases involving members of the military.

Article provided by The Law Offices of Phillip Stackhouse, PLLC
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