Friday, March 23, 2012

Navy Times Supports Army Model for Sexual Assault Prosecutions

The Navy Times published an article comparing the prosecution rates and conviction rates across the armed services.  The Navy Times reporter states that the Army's prosecution rate has leapt 20 points from an abyssmal 6% in 2008 to 26% in 2010, and the Army's conviction rate (58%) is the highest of the armed services branches.

The reporter compares the Army's statistics to the other branches' statistics in order to make a case that the Army's model should be used across the armed services.  Specifically, the Army has prosecutors who are dedicated solely to the prosecution of sexual offenses.  Also, they have investigators who are dedicated to the investigation of sexual offenses.  The Navy, Marines, and Air Force do not, which explains the lower prosecution and conviction rates in those services.

It is important to understand these "prosecution" and "conviction" rate statistics.  First, certainly everyone has heard the old saying that "a persuasive prosecutor could indict a ham sandwich."  So, the prosecution rate increase could mean that the commander signs a piece of paper that "prefers" charges.  This is the first step in the court martial and is kind of like a prosecutor filing an information to charge the accused in the civilian world.  They only need reasonable grounds to do this.  The "referral" of the charge is akin to an "indictment" after the "Article 32 hearing," or the military equivalent of a "grand jury."  Once again, this is a very low burden of proof.

So, how are they counting the prosecution rate?  Is it the preferral of charges or the referral of charges to a court martial?  If the rate is based on the number of cases "preferred," then this statistic does not mean much as any commander could prefer charges very easily. 

If, however, it is based on the referral of charges, then at least the accused are afforded a hearing where they have the opportunity to argue that the case should be dismissed.  My guess is that the increase is based on the number of cases "preferred."

Second, notice what is included in the "conviction" rate: "convictions or other-than-honorable discharges in lieu of court-martial."  A conviction is easily understood, as a person is convicted when he or she is found guilty at a trial.  However, an other-than-honorable discharge in lieu of court-martial is by no means a conviction, i.e. there is no jail time, no dishonorable discharge, and, most telling,  no requirement to register as a sex offender.  A request for discharge in lieu of court-martial in accordance with Army Regulation 635-200, Chapter 10 can be submitted by the accused once charges are preferred. 

Sometimes, the Government will approach the accused's defense attorney and tell him or her that the Government will support the approval of the discharge in lieu of court martial request (Chapter 10 request) immediately after preferring charges.  If this happens, then the accused, who by this point is probably very disenchanted with the military, could submit the Chapter 10 request to avoid any chance of going to jail, getting a dishonorable discharge, or having to register as a sex offender, in exchange for getting kicked out of the military with an other-than-honorable discharge.  If the accused doesn't submit the Chapter 10 request, then he would likely face a court-martial and the possibility of a conviction, dishonorable discharge, and sex offender registration.  This is a tough position even for an accused who wants to stay in the Army, especially when it is a he said/she said consent case, because of the risk of what could happen if convicted. 

This would be akin to a civilian prosecutor agreeing to drop a rape case to simple battery for a plea of no contest and 3 months probation.  Everybody knows that it is a stupid case, but the prosecutor cannot dismiss the charges out of fear that the accuser will complain.

I imagine that the inclusion of the Chapter 10 discharges drastically increases the "conviction" rate, which is why the reporter included them.  In reality, the view that all of the other services should move towards the Army model would not be supported if the increase in prosecutions resulted in a lower actual conviction rate, especially when prosecutions have more than quadrupled. 

For instance, the table in the article linked below shows that between 2009-2010, Servicemembers in all five branches of the armed services faced court martial 551 times for sexual assault offenses, of which 147 were convicted of rape or a serious sexual offense.  This is a 27% conviction rate:

In the article which is the subject of this post, the reporter states that the service with the lowest conviction rate was the Marine Corps, which had a 30% conviction rate.  This means that the Navy Times reporter must have at least added the discharge in lieu of courts martials into the Army's rates.  In order for the Army to have a 58% conviction rate as stated in the Navy Times article, then the other services would have had to have a very low rate of conviction to result in the 27% conviction rate across the entire armed services as stated in the McClatchy article above.   That's impossible if the Marine Corps' conviction rate is 30%.

So, in conclusion, a Navy Times reporter published an article to support making the Army's model of sexual assault prosecutions the entire Department of Defense's model.  As evidence of this position, it uses statistics of a higher rate of convictions in the Army, which includes the disposition of cases where there was actually no conviction.   The truth is that the Army has quadrupled its prosecution rate for sexual assault reports.  However, we do not know whether there was actually an increase in convictions or a decrease in convictions.