If the military commanders are no longer in charge of sexual assault and domestic violence prosecutions, does that mean there will be fewer sexual assault and domestic violence cases that go forward to court-martial?

A: Perhaps. If a civilian heads military prosecutions for non-military specific offenses, we tend to believe that the number of courts-martial moving forward will decrease. However, we do not believe that allegations will decrease, and we highly suspect that those allegations will continue to be handled by military commanders in non-criminal, administrative actions. Those actions include administrative reprimands and elimination from the service through administrative separation packets and if required, by administrative separation boards / boards of inquiry. What is also troubling is that when sexual assault and domestic violence allegations are handled administratively, although the risks are lessened because there is no potential for jail time or sexual assault offender registration, the rights afforded to service members in administrative processes are substantially lessened. For instance, in cases we have handled that went an administrative route, even though we knew the Army CID file contained favorable evidence, the government is not required to hand over the entire file; they are only required to give what the commander based his decision to move forward with separation. And Army CID’s own regulation states that they may not release their file unless there has been a valid discovery request. Discovery requests are narrowly construed to mean a document that a defense counsel files in a criminal prosecution. Until these kinds of loopholes are resolved, members facing allegations of sexual assault and domestic violence will remain subject to the influence of their commanders, and the system remains deeply flawed.

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