The number of service members who have faced courts-martial for sexual assault charges has dropped precipitously over the past decade, according to the Defense Department’s latest report about sexual assault in the military.
In 2013, commanders preferred charges for 71% of cases in which evidence supported charging a service member with sexual assault, the report found. That figure fell to 37% of such cases last year.
During that same timeframe, the percentage of sexual assault cases that have been adjudicated by administrative actions, including separation, has risen from 18% to 35%; and the percentage of cases resolved through nonjudicial punishment has increased from 12% to 28%, the report found.
A major reason for the drop in courts-martial is that sexual assault survivors have shown they prefer other ways to adjudicate their cases, said Nate Galbreath, acting director of the Department of Defense Sexual Assault Prevention and Response Office.
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“One of the things that we’ve seen year after year since 2015 with the addition of the special victims counsel program, which are attorneys that represent victims throughout the military justice process, is that victims have made it abundantly clear that they would like to help see the department hold their offenders appropriately accountable, but they’d like to do it through non-confrontational means; and that’s essentially what we see in the percentages with administrative actions and discharges and nonjudicial punishment,” Galbreath told reporters on Thursday.
However, Galbreath acknowledged the Defense Department does not have hard data on how many sexual assault survivors have said that they want to take a less confrontational approach to resolve their cases.
Galbreath also said his assertion that sexual assault survivors prefer pursuing administrative actions and nonjudicial punishments over courts-martial comes from anecdotal information.
“Our feedback from the leadership within the Special Victims Counsel and programs of the victim legal counsel is that this is the voice of the victim being heard, and that their willingness to support administrative actions and discharges or nonjudicial punishment – less confrontational forms of accountability action – is something that we are seeing over and over,” Galbreath said. “As I work with them and talk with them every year, this is a theme that we continue to hear.”
The Defense Department is also taking steps to restore survivors’ faith in the military’s justice system so that they will want to take their cases to trial more often, Galbreath said. Staring in December, each service will have a special trial counsel’s office that will take over responsibility for prosecuting sexual assault cases – a major recommendation by an independent panel that looked into how the military dealt with sexual assault and harassment.
But Erin Kirk, co-founder of the advocacy group Not In My Marine Corps, said there is widespread fear among sexual assault survivors that they will face retaliation if they take their cases to trial.
“They’re literally afraid for their lives,” Kirk told Task & Purpose.
Kirk noted the Defense Department’s report on sexual assault released on Thursday shows approximately 34% of the 8,942 reports of sexual assault involving service members in Fiscal 2022 were restricted – meaning they were made confidentially and did not automatically trigger an investigation. The percentage of restricted reports reveals that many survivors don’t trust the military’s justice system, she said.
The lack of trust in the system and fear of reprisal by sexual assault survivors are the real reasons why fewer cases are going to court-martial, Kirk said.
“’Less confrontational approach’ has got to be the most ridiculous wag the dog line I’ve ever seen,” Kirk said.
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