Press Release

Senator Gillibrand Releases Latest Military Sexual Assault Snapshot Report: New Data Show Despite Recent Congressional Reforms, Dysfunction In Military Justice System Remains

May 23, 2016

Washington, D.C. – U.S. Senator Kirsten Gillibrand today released a new report on military sexual assault, finding in a review of 329 case files provided by the Department of Defense (DoD) that despite recent Congressional reforms, dysfunction in the military justice system remains. Gillibrand’s latest report again found a high prevalence of sexual assault against civilian women near bases and civilian spouses of service members – two survivor groups not counted in DoD prevalence surveys. The analysis continues to affirm a lack of trust in the military justice system as one out of five of the survivors in the cases reviewed declined to move forward after initially filing a report. Even when cases did proceed, just 22 percent of the 329 cases reviewed went to trial and only about 10 percent of all cases resulted in a sexual assault conviction, and five percent were convicted of a crime other than sexual assault. Gillibrand’s analysis also found that zero cases of retaliation were prosecuted despite recent Congressional actions defining retaliation as a crime.

The report was compiled from data Gillibrand requested from the DoD. In February 2014, the Senator initially asked for all files pertaining to the investigation and adjudication of sexual assault cases from 2009 through 2013 at the largest U.S. base within each service branch. It took the DoD nearly a year to fulfill this initial request and even then it provided only a fraction of the information originally sought. Gillibrand released an initial report on this information in May of 2015. Immediately following the release of her first report Gillibrand again requested the same case files for the subsequent year, 2014, as well as all case files regarding sexual assaults against minors and any cases involving retaliation related to a report of sexual assault where action was taken. This new report reflects an analysis of 329 case files from the year 2014 at the Army’s Fort Hood in Texas, Naval Station Norfolk in Virginia, the Marine Corps’ Base Camp Pendleton in California and Wright-Patterson Air Force Base in Ohio.

“We once again requested these case files for 2014 to try to get a snapshot of how the estimated 20,000 reports of sexual assault in FY14 were investigated and what happens as they move through the military justice system. This year’s analysis makes clear that despite the reforms Congress has passed to date, the military justice system is still dysfunctional, the problem of sexual assault is still pervasive, and survivors still don’t believe they will get justice,” said Senator Gillibrand. “Whether it’s the recent Associated Press report that found DoD officials misled Congress about military sexual assault cases, the DoD’s own SAPRO report that showed zero progress has been made toward fixing the problem in the last six years, or the new data we analyzed from these 329 cases; the facts continue to show that the reforms Congress has passed to date aren’t enough, and it’s time to instead put decision making power into the hands of non-biased, professionally trained, military prosecutors.”

The full report is available online and an overview of the findings follows below:

  • Civilians Trapped in Commander-Led Military Justice System – For 2nd Year in a Row, Gillibrand Review Has Found a Higher Prevalence of Civilian Victims of Military Sexual Assault than SAPRO Reported
  • Three significant – but often overlooked – categories of survivors in military communities are the civilian women living near military communities, non-military spouses of service members, and minors, which total 102, or 31%, of the cases analyzed. This is significantly higher than the rate of civilian survivors that are listed in the DoD SAPRO Report. Additionally, it is important to note that the SAPRO also excludes cases involving intimate partners, which fall under the purview of the DoD’s Family Advocacy Program.
  • The DoD routinely seeks jurisdiction of cases when there is dual jurisdiction with civilian authorities, which means that civilian victims, including children, are often subjected to a foreign system of justice which, unlike the civilian system they are accustomed to, centers around the conflicted interest of the chain of command.
o   In 57% of case files involving non-minor civilians, no legal or punitive action was listed as being taken, compared to service member cases, in which no action was taken 34% of the time.
  • Of note, the DoD’s sexual assault surveys, which are the main source of data to quantify the prevalence of sexual assault in the military, only query service members, and therefore only include projected statistics of how many service members are survivors of military sexual assault.
  • Case Files Demonstrate that Almost 20% of Those Who Report Eventually Opt Out of Military Justice Process – This is in Addition to DoD Estimates that Nearly 8 out of 10 Survivors Overall Don’t Report
  • Fifty-six of the survivors who took the first step toward justice by filing unrestricted reports within the military justice system later declined to move forward. The data show that at least 18% (56 out of 329) of those who went forward and initially chose to file an unrestricted report – indicating they were comfortable going public with their accusations and pursuing court action – declined to move forward and pursue justice. The DoD often cites all unrestricted reports as a sign of faith in the system yet current DoD estimates find that roughly 8 out of 10 military sexual assault survivors do not even report their crimes. That statistic, combined with an 18% attrition rate and a 62% DoD-reported rate of retaliation toward those who report sexual assault, directly rebuts the claim of growing “faith” in the system.
  • Of these 56 reports, many victims voluntarily submitted to an intrusive sexual assault evidence collection kit, indicating a strong commitment to pursuing justice. That they ultimately declined to move forward may be related to the fear of retaliation, which remains a major problem according to the DoD. It should be noted that the best research in the field of sexual assault shows that the rate of false accusation is similar to other crimes, falling between 2% and 8% of cases. In other words, 92% to 98% of the accusations are likely to be accurate.
  • The attrition rate of unrestricted reports may in fact be significantly higher than reported here, as many incomplete and heavily redacted files do not indicate whether or not the victim declined to move forward.
  • ZERO Cases of Retaliation Prosecuted Despite Congressional Action
  • As part of the initial case request, Senator Gillibrand specifically asked the branches to provide information on any case of retaliation related to sexual assault where action was taken. The DoD provided ZERO case files on retaliation. But, as shown in last year’s RAND Military Workplace Study, retaliation remains a major concern in the reform of sexual assault in the military: 62% of women who reported being sexually assaulted experienced retaliation. The prevalence of retaliation remains unchanged from 2012, while the estimated number of unwanted sexual contacts remains at 2010 levels – an average of 52 new cases every day. In the 2014 National Defense Authorization Act (NDAA), Congress made retaliation a crime under the Uniform Code of Military Justice (UCMJ).
  • Multiple cases included in the files provided to Senator Gillibrand’s office did include scenarios of reported retaliation and hostile work environments in the ranks, and demonstrated how failure to deal with this problem creates a less-focused and less-effective military. Remarkably, in one of the case files, a military investigator found several messages on the accused’s phone from another service member recommending that the accused “threaten and scare” the accuser “to not participate in the furtherance of the investigation.” The victim withdrew her complaint and no action was taken against either service member, despite the unrefuted evidence that they considered making threats to retaliate against the alleged victim of the sexual assault if she were to move forward with her case.
  • Too Often the Command IS the Problem
  • A number of cases demonstrate how the chain of command structure has failed victims, with most cases reflecting abuse of power by a superior over a subordinate. Nearly 2/3, or 64%, of the cases at these bases had a perpetrator of a higher rank assaulting a victim of a lower rank.
  • Furthermore, several cases exist where the military investigating officer recommended going forward with the case to court-martial, but the commander disagreed, and the case failed to go forward. There were also cases of commanders authorizing discharges in lieu of court-martial, sending potentially violent sex offenders free in the civilian world. Other cases show commanders unwilling to back up their subordinates and instead ignoring these accusations of improper behavior.
  • Uneven Justice: Cases Dropped, Non-Judicial Punishment for Rape, Discharges in Lieu of Courts-Martial
  • Just 22% of the 329 cases went to trial. Of those, only about 10% of these 329 sexual assault suspects were convicted of a sexual assault crime, and 5% were convicted of a non-sexual assault crime. Of those actually convicted of a sexual assault crime, 52% included a confession or guilty plea from the accused. Two case files included a confession of a sexual assault by the accused, yet one was set free and discharged without any other punishment, and the other was merely moved to another duty station and received no punishment.
  • Contrary to DoD claims that commanders need convening authority powers because they will more aggressively pursue courts-martial, this review finds that trials for individuals accused of sexual assault are rare. Instead of pursuing justice, it appears that in many cases, commanders do the exact opposite and use their powers to dispose of these troubling cases outside of a courtroom. For example, one victim reported that he was sexually assaulted by his former company commander. The military investigation established probable cause that the accused committed sodomy and cruelty of subordinates when he sexually assaulted the victim. The case went to Non-Judicial Punishment and the accused only received a written reprimand.
  • Survivors Discounted – Evidence Ignored by Commanders
  • An alarming number of cases are not pursued when the accused and alleged victim provide conflicting statements as to whether the sex was consensual. Of the 63 cases in which the accused told the authorities that the sex was consensual, or denied that the sex happened, the command took action just 15 times. In these cases, there were 7 convictions of sexual assault. Significantly, 48 of 63, or about 76%, of these cases did not go to trial. Many case files said that there was “insufficient evidence” or “no evidence,” even in instances with multiple victims, ignoring the well-established fact that survivor testimony is “evidence” routinely used to secure both trial and conviction. There are no data that bear out the military’s claim that commanders have been tougher on sexual assault cases than independent military prosecutors would be.
  • Low Case Numbers and Incomplete Data Provide Cause for Concern
  • Naval Station Norfolk provided a strikingly low number of reported cases in proportion to the number of service members stationed there. The true number of sexual assault reports at Wright Patterson Air Force Base is also unclear, and strikingly low, suggesting that there is underreporting. The case files provide an incomplete picture; for example, many of the Fort Hood case files do not provide even the most basic case narratives, and many cases are so fully redacted that no information can be properly analyzed. The services have all pledged that combatting sexual assault is a top priority, but they lack basic protocols for collecting, archiving, and analyzing their own data.

Below are several policy recommendations for the Congress to consider implementing via this year’s NDAA that would positively benefit the efficiency and effectiveness of the UCMJ in combating sexual assault:

•           Remove the decision to prosecute from the chain of command

•           Improve transparency of the military justice system

•           Ensure accurate accounting of crime statistics

•           Improve the proficiency of the military’s litigation field

•           Provide adequate supervision in complex cases

•           Adequately address retaliation against crime victims

•           Enhance punishment for offenders who abuse their authority