This report makes two key findings:
• There is not a systemic problem with the initial disposition authority’s decision either to prefer a penetrative sexual offense charge or to take no action against the subject for that offense. In 94.0% and 98.5% of cases
reviewed, respectively, those decisions were reasonable.
• 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.10 In
31.1% of cases reviewed that were tried to verdict on a penetrative sexual offense charge, the evidence in the materials reviewed did not meet that threshold.
The Committee’s three-year project revealed that of 235 penetrative sexual offense cases referred to trial by general court-martial that were tried to verdict, 73 did not contain sufficient admissible evidence to convict the accused Service
member of the penetrative sexual offense. Predictably, 71 of those cases resulted in acquittals of the accused on those offenses at trial. In one of the two cases that resulted in a conviction, the conviction was later overturned on appeal
because the evidence was factually insufficient.
The Committee recognizes that staff judge advocates and convening authorities are doing what the military justice system allows; however, the Committee criticizes the military justice system itself for allowing the referral of charges that are not
supported by sufficient admissible evidence to obtain and sustain a conviction. 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.
Report on Investigative Case File Reviews for Military Adult Penetrative Cases Closed in Fiscal Year 2017. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, October 2020.