I want nothing more than to see the eradication of sexual assault from the military and society. But not at the expense of our constitutional rights.
If you are an outsider only loosely familiar with the concept of “sexual assault in the military,” then you may be susceptible to what seem to be altruistic proposals from advocacy groups and senators looking to change the laws surrounding sexual assault in our armed forces. But as a career military justice practitioner, both on the prosecutorial and defense sides, I would caution you to look closely at any proposals put forth to determine if they will actually prevent or reduce sexual assault in the military, or adjudicate the cases in a more “fair” manner.
Here’s what I mean.
Last week on Capitol Hill, the Senate Armed Services Committee held yet another hearing on military sexual assault. As usual, the committee hosted panelists on mainly one side of the issue: an echoing chorus of survivors, advocacy groups and military sexual assault prevention and response leaders, all there to tell you that the military is handling sexual assault allegations all wrong.
I’m here to tell you they’re wrong. They’re not necessarily wrong about bills that would shift the charging authority for felony cases from commanders to career prosecutors outside the accused’s chain of command. But the proposed legislation is not the point.
Close cases with uncertain outcomes
The military not only investigates sexual assault crimes at an extremely high rate, It also takes ‘close’ cases to trial, some that would likely surprise seasoned civilian prosecutors around the country. In fact, the military is notorious for taking cases that have been “dropped” by local prosecutors, and sending them to court-martial.
The military has a robust justice system regulated the Uniform Code of Military Justice, a federal law that lays out procedures and criminal offenses. Under the code, an Accused — the military term for a criminal defendant — must be convicted by proof beyond a reasonable doubt at their court-martial. This is the same standard of proof as any other criminal court in America. It is the highest burden of proof known to the law. Military members are tried by military judges or panels of members who have no prior involvement with the case.
If you have a low conviction rate in particular types of cases, the overarching reason should be pretty obvious — you’re taking close cases to trial. This is precisely the military’s formula. So, instead of telling certain alleged victims of sexual assault that their cases cannot be prosecuted (or will likely result in an acquittal), the military takes a wide swath of sexual assault cases to trial that vastly span the spectrum when it comes to evidentiary strength. That has yielded an acquittal rate of nearly 93% in recent years.
This isn’t just good defense lawyering. Nor is it some grand conspiracy to keep sexual offenders in the military without accountability. Military courts-martial for sexual assault crimes are tried hard on both sides of the aisle. There are exceptional prosecutors serving in every branch of the military today, and likewise very talented defense counsel.
The real reasons for low conviction rates in classic “he-said-she-said” sexual assault cases could fill volumes, but think of it this way: When law enforcement receives a report of sexual assault, often the sole direct evidence of the alleged crime is the word of the alleged victim. Good prosecutors find other evidence to corroborate these claims, and in strong cases, military members are not only convicted, but sentenced extremely harshly.
In other cases, no amount of further investigation or prosecutorial skill can overcome the lack of proof that the crime actually occurred. Whether that’s because it was a fabrication, a misunderstanding or any number of other possibilities is irrelevant to our Constitution.
Proving sexual assault isn’t easy
Today, there are hundreds of military members sitting in military confinement facilities — brigs — serving sentences of years behind bars, many for one-night drunk sex encounters. Suffice to say, there is plenty of accountability to go around.
Transferring disposition authority from commanders to career prosecutors in all likelihood will not increase the number of sexual assault prosecutions. But I am hopeful that, if passed, it will yield prosecutorial decisions that are solely evidence-based, without direct command influence. This model will relatedly result in higher conviction rates (if that’s actually a goal). But Congress and advocacy groups may still be unappeased because reports of sexual assault will continue to rise, with lower prosecution rates.
And while the constitutional rights of a person accused of a crime may not be in vogue in the current cultural environment, that does not make them any less critical. The presumption of innocence, burdens of proof, due process, fair trials, competent representation and the like are only buzz words until you’re the one with your actual freedom on the line.
When members of Congress bemoan the low conviction rates in military sex assault cases, what they are saying is this: Without analyzing the specific facts and circumstances of each and every case or sitting through the trials, I believe that these people were wrongfully found not guilty in a court of law that afforded these military members the same constitutional rights as anyone brought to justice in this country.
This should collectively shock us as a nation.
As a woman, mother of five young children and veteran myself, I want nothing more than to see the eradication of sexual assault from both the military and our society at large. But not at the expense of our constitutional rights, which apply to all accused of a crime in this country — even military members, and, yes, even in #MeToo cases.
Catherine Cherkasky (@CherkaskyKatie) is a military veteran, former special victims prosecutor and current criminal defense attorney who specializes in sexual assault defense. She is the co-owner of GoldenLawInc.com, a national news commentator and host of the podcast “Legally Bound.” Follow her on YouTube at “Legally Blondish.”