Military units are sending rape cases to court-martial without enough evidence to convict the accused -- a miscalculation that harms the military justice process, a Pentagon advisory board has found.
In a report released last month, the Defense Advisory Committee on Investigation, Prosecution and Defense of Sexual Assault in the Armed Forces found that of 235 cases of "penetrative sexual assault" -- rape or sodomy -- sent to court-martial, nearly a third, or 73, did not have enough evidence to convict.
According to the committee, 71 of those cases "predictably ... resulted in acquittals of the accused on those offenses at trial."
Of the two remaining cases, one was overturned on appeal due to insufficient evidence.
"There is a systemic problem with the referral of penetrative sexual offense charges to trial by general court-martial when there is not sufficient admissible evidence to obtain and sustain a conviction on the charged offense," committee members wrote. "In the Committee's view, the decision to refer charges to trial by general court-martial in the absence of sufficient admissible evidence to obtain and sustain a conviction has significant negative implications for the accused, the victim, and the military justice process."
As part of their mission to advise the secretary of defense on the military's handling of sexual assault cases, the committee members, including legal experts and retired military personnel, reviewed 1,904 cases of rape that were prosecuted and closed in fiscal 2017.
They found that no action was taken in 70%, or 1,336, of the cases. Fifty-one cases, or 2.7%, were referred to nonjudicial punishment, and charges were preferred in 27.2%, or 517, of cases.
Of those eventually sent to court-martial, about half were tried for sexual assault while the other half were tried for a charge other than rape. Eventually, 91, or less than 5% of the original cases, resulted in a conviction of sexual assault.
In its extensive review of the case documents, the committee found, however, that commanders rightfully decided when to charge the accused or take no action in most of the cases.
The members concluded that there is "not a systemic problem with the initial disposition authority's decision either to prefer a penetrative sexual offense charge or take no action."
Advocates for victims of military sexual assault and some Democratic lawmakers have sought for years to remove convening authority in such cases from commanders.
Arguing that command authority allows military leaders to sweep cases under the rug and that trained legal personnel could better determine when cases must be prosecuted, Sen. Kirsten Gillibrand, D-N.Y., has sought since 2013 to take the decision out of commanders' hands.
Advocacy group Protect Our Defenders pledged last month to continue supporting lawmakers and candidates dedicated to overhauling the military justice system to ensure prosecution of accused perpetrators of sexual assault and hold commanders accountable.
"Fundamental reform would include removing prosecutorial authority from the chain of command for serious non-military crimes such as rape and murder, and empower experienced military prosecutors to make those decisions," wrote the group in an October release.
But military leadership and judge advocates general, or JAGs, continue to balk at the proposal. In June, a group of 120 officers, including 13 flag officers and the former top JAGs of the Army, Navy, Air Force and Coast Guard, along with two former Marine Corps staff judge advocates, penned an open letter to the House and Senate Armed Services Committees opposing it.
"The continued effort to minimize or terminate the commander's role in military justice is disturbing," the officers wrote. "Entrusting commanders with disciplinary authority is the thread that runs through every iteration of the U.S. military criminal code to this day."
As with similar reports on military sexual assault, the alleged victims and accused perpetrators in the 2017 cases were mostly young, enlisted paygrade E-5 and below, with an average age between 23.6 and 25.5 years. More than half of the incidents involved alcohol use, either by the alleged victim or the suspect, and nearly half involved impairment -- either the victim had blacked out, was unconscious or asleep, or had no memory of the event.
According to the report, factors that contributed to prosecution or conviction included whether the alleged victim was an officer or white; whether they reported physical injury; whether a medical exam was performed or DNA evidence taken; whether the alleged victim used drugs or was impaired; whether the suspect used alcohol or drugs; and whether the alleged victim took part in the investigation or had a lawyer.
The committee recommended that since so many cases were sent to court-martial without substantial evidence, Congress should amend the Uniform Code of Military Justice to require the staff judge advocate to advise the convening authority in writing whether there is sufficient evidence to obtain a conviction before the convening authority refers charges.
Among the services, the Coast Guard had the highest percentage of cases referred to court-martial, as well as case materials strong enough to obtain a conviction, with 46% of cases preferred and 78% of those having sufficient evidence.
The Navy had the lowest percentage of cases preferred, 23%, with roughly half those having sufficient evidence to convict.
Less than half the cases the Air Force sent to court-martial had the evidence needed to convict.
As a result of having strong such evidence, the Coast Guard was the service with the highest percentage of rape convictions in 2017: 71.4%. The Army came in second at 44.7%, followed by the Marine Corps at 42.3%, the Navy at 37.5%, and the Air Force at 26.5%.