Change is Coming, or Is it? – in Military Justice

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It is difficult to know yet whether the changes brewing in military justice will affect any substantial change.

So far, we are not seeing any meaningful difference in the way that felony level investigations are being conducted by Army CID, despite the “change” in the leadership from military to civilian.

We hear that soon military prosecution decision making (at least for sexual assault and perhaps non-military specific offenses) will be in the hands of someone other than the command. Who specifically that will be, remains to be seen.

For months I have been espousing that the number of trials will not increase with any of the proposed changes. In fact, I believe that if the process moves to one that is more civilian in its nature, then we will see even fewer prosecutions of sexual assault cases. My hypothesis is that many of those cases will continue to be handled in administrative remedies. My reflections are largely based on what I know of having dealt with the civilian prosecutors’ offices around Fort Riley, Kansas from when I handled special victim cases between 2010 and 2012. Unless the cases had a full confession and three witnesses who were on their way to church, the civilian counties punted to the military. Their prosecutors rely on conviction records for reelection. Punting the cases that were not assured conviction was all too easy for them, especially when they can assuage any cares with the idea that the military will take care of it.

Over the last year, I have seen an inordinate increase in the number of sexual assault cases being handled administratively, rather than judicially (in courts-martial). I don’t have worldwide data, but anecdotally there has already been an increase. Sexual harassment cases, cases with a potential sexual component and a one-time touching allegation, are being dealt with in administrative separation boards / boards of inquiry.

I do not see any of the changes on the horizon likely to change this trend, especially since no one is tracking the statistics of administrative separations. All they care about right now is the number of allegations being made (the number of “founded” cases by law enforcement) and the conviction rate. The conviction rate is in the toilet, according to the last round of numbers that I saw.

I am certainly open to the idea that I am wrong. I will be watching closely to see if anything changes in the wake of these “transformations.” I certainly do not envision there will be any difference in transparency, not so long as court filings remain non-public.

Despite the illusion of change, call me skeptical, but I just don’t see it happening. And especially not anytime soon.

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