Materials for Presentation of Fiscal Year 2015 Sexual Assault Adjudication Data

Transcription

1 Judicial Proceedings Panel Public Meeting April 7, 2017 Table of Contents Tab 1 Meeting Agenda Materials for Presentation of Fiscal Year 2015 Sexual Assault Adjudication Data Tab 2 Excerpt from the Judicial Proceedings Panel s 2016 Data Report Recommendations 37 and 38 from the JUDICIAL PROCEEDINGS PANEL REPORT ON STATISTICAL DATA REGARDING MILITARY ADJUDICATION OF SEXUAL ASSAULT OFFENSES (April 2016). Tab 3 History of Judicial Proceedings Panel (JPP) Data Collection JPP Staff document summarizing the Panel s previous data collection efforts, expert testimony received, and findings regarding sexual assault court-martial adjudication trends. Tab 4 JPP Request for Information, Set 11, Questions 164 and 165 Request for information submitted by the JPP to DoD on March 6, 2017, regarding sexual assault case data collection and reporting. Question 164 requested a written explanation of the status of JPP Recommendations 37 and 38 from the JUDICIAL PROCEEDINGS PANEL REPORT ON STATISTICAL DATA REGARDING MILITARY ADJUDICATION OF SEXUAL ASSAULT OFFENSES (April 2016). Question 165 requested information gathered in response to a May 4, 2016 Secretary of Defense Memorandum directing a Sexual Assault Data Collection Initiative to enhance the transparency and delivery of sexual assault data within the Department. Tab 5 Article 140a (New Provision) Case Management; Data Collection and Accessibility Excerpt from Military Justice Review Group (MJRG) Report released in December The report recommended adding a new Article to the Uniform Code of Military Justice that would require the implementation of case management, data collection, and data accessibility programs for the military justice system under standards and criteria prescribed by the Secretary of Defense. Article 140a was enacted as part of the Military Justice Act of 2016 (Public Law ). 1

2 Tab 6 Dr. Cassia Spohn, ADJUDICATION OF SEXUAL OFFENSES REPORTED TO THE MILITARY SERVICES IN 2015 (March 2017) Report prepared for the JPP by Dr. Cassia Spohn. The report analyzes data collected from case documents on characteristics, dispositions, and outcomes from 738 criminal cases completed in fiscal year 2015 involving preferral of at least one charge of a penetrative or contact sexual offense. Tab 7 Excerpt from Bureau of Justice Statistics Report: Felony Defendants in Large Urban Counties, 2009 Statistical Tables, December 2013 This report comprises the most recent, nation-wide compilation of state felony sentencing data available for the JPP s comparison of military, federal, and state sentencing statistics. Sentencing data is presented for 115 felony defendants convicted of rape The report defines rape as forcible intercourse, sodomy, or penetration with a foreign object. Nonviolent penetrative offenses and sexual contact offenses are not included in this analysis. Materials for Panel Deliberations on Victims Appellate Rights Tab 8 JPP Staff Document Combining (1) the Department of Defense Joint Service Committee on Military Justice s (JSC) Proposed Amendments to Rule for Courts- Martial (R.C.M.) 1103A, (2) the Current Version of R.C.M. 1103A, and (3) the Service Courts of Criminal Appeals Rules Governing Access to Sealed Materials Document highlighting the JSC s proposed changes to R.C.M. 1103A, which would prevent appellate counsel from reviewing sealed materials not disclosed to counsel at trial unless a reviewing or appellate authority, as defined by the rule, permits examination by appellate counsel for good cause. Tab 9 Section 547 of the Senate Version of the FY 2017 NDAA (S.2943) to Amend Article 6b of the UCMJ Proposed legislation in the Senate version of the FY 2017 National Defense Authorization Act (S.2943) that would amend Article 6b to provide victims with notice of appellate matters and the right to file appellate pleadings as a real party in interest. Tab 10 Article 6b, UCMJ with Proposed Language from Section 547 of the Senate Version of the FY 2017 NDAA (S.2943) Current military victims rights statute (Article 6b, UCMJ) with redline of the proposed language from Section 547 of the Senate version of the FY 2017 National Defense Authorization Act (S.2943). 2

3 JUDICIAL PROCEEDINGS PANEL PUBLIC MEETING AGENDA April 7, 2017 One Liberty Center, Suite N. Randolph Street Arlington, Virginia 8:30-9:00 Administrative Work (41 C.F.R , not subject to notice & open meeting requirements) 9:00-9:15 Welcome and Introduction - Designated Federal Official Opens Meeting - Remarks of the Chair 9:15-10:45 Deliberations on JPP Victims Appellate Rights Report 10:45-12:45 Presentation of FY 2015 Sexual Assault Adjudication Data 12:45-1:30 Lunch - Dr. Cassia Spohn, Professor and Director, School of Criminology and Criminal Justice, Arizona State University - Ms. Meghan Peters, Staff Attorney, Judicial Proceedings Panel 1:30-2:30 Presentation of FY 2015 Sexual Assault Adjudication Data (Con t) - Dr. Cassia Spohn, Professor and Director, School of Criminology and Criminal Justice, Arizona State University - Ms. Meghan Peters, Staff Attorney, Judicial Proceedings Panel 2:30-4:00 DoD Presentation on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses and DoD Update on JPP Recommendations 37 and 38 Regarding DoD Sexual Assault Data Collection and Reporting - Dr. Nathan Galbreath, Deputy Director, Sexual Assault Prevention and Response Office, U.S. Department of Defense - Ms. Kathy Robertson, LCSW, Family Advocacy Program Manager, Office of the Deputy Assistant Secretary, Military Community and Family Policy, U.S. Department of Defense 4:00-4:15 Public Comment 4:15 Meeting Adjourned

4 Excerpt from the Judicial Proceedings Panel s 2016 Data Report Recommendation 37: The Department of Defense collect and analyze case adjudication data using a standardized, document-based collection model, similar to systems used by the Judicial Proceedings Panel or U.S. Sentencing Commission, that incorporates uniform definitions and categories across all of the military Services. DoD does not collect sufficient adjudication data to fully assess how adult sexual assault cases are resolved through the military justice system. Other than case information entered by Service legal officers into DoD s database, DoD does not centrally collect and manage information about military justice processing in sexual assault cases. The military Services, however, have Service-specific systems, tailored to a decentralized, command-driven military justice system, to collect and manage information for cases that occur in their Service. The JPP developed an electronic database, modeled on the database used by the U.S. Sentencing Commission, for collecting and analyzing information from court-martial case documents. This system was used to accumulate procedural information from court-martial documents for the data analysis in this report. Collecting standard information from court-martial documents regarding dispositions, charges, outcomes, and punishments imposed in adult sexual assault cases could improve Service-level analysis and could be incorporated into DoD s reports to Congress. Because the Judge Advocate General s Corps administer military justice in each of the military Services, case adjudication data could be compiled and analyzed by the Services in a manner compatible with DoD s electronic database and congressional reporting requirements. At a minimum, analysis of how adult sexual assault cases are resolved through the military justice system would be improved by the collection of the following case information: o o o o o o o all sexual assault charges that were preferred and the outcome of each charge, including whether the charge was referred to court-martial, dismissed, or resolved by alternate means; type of court-martial held; pleas of the accused; trial forum; findings; sentence; and convening authority action on the findings and sentence. Because procedural data do not provide complete information about a case, they must be supplemented by potentially relevant case facts and evidentiary issues. Such information may include characteristics of the victim, the relationship between the accused and victim, whether the victim made a prompt report, whether the victim was willing to cooperate, whether the victim engaged in any risk-taking behavior around the time of the incident, and the presence of eyewitnesses or physical evidence.

5 Excerpt from the Judicial Proceedings Panel s 2016 Data Report Recommendation 38: The Department of Defense include legal disposition information related to all adult sexual assault complaints in one annual DoD report, changing its policy that excludes adult-victim cases that are handled by the Family Advocacy Program from Sexual Assault Prevention and Response Office reports. DoD SAPRO annually provides Congress with a description of the resolution of each unrestricted report of sexual assault covered by DoD s sexual assault prevention and response policy; however, that policy precludes reporting on adult sexual assault cases involving victims who are Service members spouses, intimate partners, or family members over the age of consent under the UCMJ (16 years of age), for whom the DoD Family Advocacy Program (FAP) provides victim advocacy services. FAP does not collect or report case adjudication data for the sexual assault reports it receives, even when FAP provides victim advocacy services through completion of a court-martial for a sexual assault crime. Because these cases are excluded from DoD s reports on the legal resolution of sexual assault cases, it is not possible to accurately determine how many sexual assault cases are handled through the military justice system. Requiring sexual assault case disposition and adjudication data from FAP to be reported by DoD in its annual report to Congress would ensure a complete accounting of all adult sexual assault cases involving a military member. The Response Systems to Adult Sexual Assault Crimes Panel, in its June 2014 report to the Secretary of Defense, examined this issue and similarly recommended it be corrected.

6 History of Judicial Proceedings Panel (JPP) Data Collection A. Background and Methodology for JPP Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses, April 2016 JPP staff collected court-martial documents for cases completed in fiscal years (FY) that were listed in the annual Department of Defense (DoD) Sexual Assault Prevention and Response Office (SAPRO) report JPP staff entered case information from the documents into an electronic database Dr. Cassia Spohn analyzed the data regarding case dispositions, outcomes, and punishments JPP reviewed conviction and punishment data for civilian sexual assault offenses JPP reviewed the information available in DoD SAPRO s annual report on low-level disciplinary actions, separations from Service, and appellate decisions issued in FY B. Testimony Received by the JPP Officials from the U.S. Sentencing Commission and Bureau of Justice Statistics discussed best practices for data collection and analysis (JPP Public Meeting on September 18, 2015) Criminologists explained the value of empirical data in understanding criminal justice systems (JPP Public Meeting on September 18, 2015) A federal judge, assistant U.S. attorney, and state prosecutor discussed the statutory framework for sentencing in sexual assault cases, the federal sentencing guidelines, and the type of statistics they publish or maintain internally on case outcomes (JPP Public Meeting on October 9, 2015) Senior military justice officials from each Service, and a DoD SAPRO official, explained how the military Services and DoD manage adjudication data for sexual assault cases. This Service data informs the annual DoD report to Congress (JPP Public Meeting on October 9, 2015) C. Findings in the JPP Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses, April 2016 DoD s data collection and reporting on sexual assault cases are insufficient to provide a comprehensive understanding of how sexual assault cases are handled within the military justice system (spouse/intimate partner cases are not included; analysis of judicial proceedings is not in depth; reporting practices across the Services are not uniform; quality control for the adjudication data is limited) Civilian conviction rate and punishment statistics are not comparable with military statistics due to systemic differences. Federal courts do not try many sexual assault cases and recent, nationally representative data are not available from state courts. Procedural case data are insufficient to assess the consistency and appropriateness of case outcomes Trend analysis would require consistent data collection over the course of several years Prepared by JPP Staff (March 31, 2017)

7 JUDICIAL PROCEEDINGS PANEL ONE LIBERTY CENTER 875 NORTH RANDOLPH STREET ARLINGTON, VA March 6,2017 Mr. Anthony Kurta Deputy Assistant Secretary of Defense for Military Personnel Policy 1000 Defense Pentagon Washington, D.C Dear Mr. Kurta: The Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel or JPP), a congressionally mandated federal advisory committee, is continuing its review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice (UCMJ) involving adult sexual assault and related offenses. We request your assistance with providing a presenter for the April 7, 2017 JPP public meeting. We also request written responses to the attached Judicial Proceedings Panel Request for Information, Set 11 by March 28, Question 164 requests information as to the extent to which, if any, the Department of Defense (DoD) has implemented the JPP recommendations to (1) use a document-based model for collecting and analyzing data on the adjudication of sexual assault cases, and (2) include information related to all adult sexual assault complaints in one annual DoD report. Question 165 requests information related to the Sexual Assault Data Initiative established by Secretary Carter in May Since the Judicial Proceedings Panel is an advisory committee under the Federal Advisory Committee Act, all comments received by the Judicial Proceedings Panel will be treated as publicly releasable and made available for inspection or copying by the public. My point of contact is Captain Tammy Tideswell, JAGC, U.S. Navy, JPP Staff Director, who may be reached at (703) or via at tammy.p.tideswell.mil@mail.mil. Attachment: Thank you for your support and assistance. Sincerely, f C Elizabeth Holtzman Chair Judicial Proceedings Panel Judicial Proceedings Panel Request for Information, Set 11

8 JUDICIAL PROCEEDINGS PANEL REQUEST FOR INFORMATION, SET 11 Responses requested by March 28, Judicial Proceedings Panel (JPP) Request For Information To the Department of Defense (DoD) I. The Judicial Proceedings Panel (JPP) requests written responses to Questions 164 and 165 below by March 28, In addition, the JPP requests a presentation from Dr. Elizabeth Van Winkle, Assistant Secretary of Defense for Readiness, at the April 7, 2017, JPP public meeting to explain the written responses and address any questions from the Panel. If Dr. Van Winkle is not available, please contact Captain Tammy Tideswell, JAGC, U.S. Navy, Staff Director, JPP to discuss options. Captain Tideswell can be reached at II. Question 164: Implementation of JPP Recommendations 37 and 38 regarding sexual assault case data collection and reporting A. Please provide a written explanation of the status of JPP Recommendations 37 and 38 which are provided as Attachment 1. If you have implemented the JPP recommendations, in whole or in part, please explain how. If you have not implemented the following JPP recommendations, please explain the reason(s) why not. B. Please provide a response to the following questions specific to JPP Recommendation 38: 1. Will legal disposition information for cases reported by the Family Advocacy Program (FAP) be included in the next annual report from the Sexual Assault Prevention and Response Office (SAPRO)? 2. Section 544 of the National Defense Authorization Act for Fiscal Year 2017 (FY17 NDAA), Extension of the Requirement for Annual Report Regarding Sexual Assaults and Coordination with Release of Family Advocacy Program Report, provides that the SAPRO and FAP annual reports to Congress shall be issued simultaneously. How does Section 544 affect SAPRO s coordination with the FAP office regarding the inclusion of legal disposition data on FAP cases in the annual SAPRO report, if at all? Note: The Response Systems to Adult Sexual Assault Crimes Panel, in its June 2014 report to the Secretary of Defense, similarly recommended that the SAPRO and FAP case data be combined in one report (RSP Recommendation 66). The Secretary of Defense issued a response to the RSP Report on December 15, 2014 (Attachment 2). The recommendation matrix lists the status of this recommendation as Refer to Working Group OPR: USD (P&R). III. Question 165: Results of the DoD Sexual Assault Data Collection Initiative As detailed in Attachment 3, the Secretary of Defense announced the partnership between the Defense Digital Service, SAPRO, and FAP. This partnership was designed to enhance the transparency and delivery of sexual assault data. Please provide the information gathered as part of the comprehensive discovery sprint and the recommendations made to the Secretary of Defense in response to this partnership, to include subsequent actions, orders, or policies implemented.

9 Judicial Proceedings Panel Recommendations 37 and 38 JPP Recommendation 37: The Department of Defense collect and analyze case adjudication data using a standardized, document-based collection model, similar to systems used by the Judicial Proceedings Panel or U.S. Sentencing Commission, that incorporates uniform definitions and categories across all of the military Services. DoD does not collect sufficient adjudication data to fully assess how adult sexual assault cases are resolved through the military justice system. Other than case information entered by Service legal officers into DoD s database, DoD does not centrally collect and manage information about military justice processing in sexual assault cases. The military Services, however, have Service-specific systems, tailored to a decentralized, command-driven military justice system, to collect and manage information for cases that occur in their Service. The JPP developed an electronic database, modeled on the database used by the U.S. Sentencing Commission, for collecting and analyzing information from court-martial case documents. This system was used to accumulate procedural information from courtmartial documents for the data analysis in this report. Collecting standard information from court-martial documents regarding dispositions, charges, outcomes, and punishments imposed in adult sexual assault cases could improve Service-level analysis and could be incorporated into DoD s reports to Congress. Because the Judge Advocate General s Corps administer military justice in each of the military Services, case adjudication data could be compiled and analyzed by the Services in a manner compatible with DoD s electronic database and congressional reporting requirements. At a minimum, analysis of how adult sexual assault cases are resolved through the military justice system would be improved by the collection of the following case information: all sexual assault charges that were preferred and the outcome of each charge, including whether the charge was referred to court-martial, dismissed, or resolved by alternate means; type of court-martial held; pleas of the accused; trial forum; findings; sentence; and convening authority action on the findings and sentence. 1

10 Judicial Proceedings Panel Recommendations 37 and 38 Because procedural data do not provide complete information about a case, they must be supplemented by potentially relevant case facts and evidentiary issues. Such information may include characteristics of the victim, the relationship between the accused and victim, whether the victim made a prompt report, whether the victim was willing to cooperate, whether the victim engaged in any risk-taking behavior around the time of the incident, and the presence of eyewitnesses or physical evidence. JPP Recommendation 38: The Department of Defense include legal disposition information related to all adult sexual assault complaints in one annual DoD report, changing its policy that excludes adult-victim cases that are handled by the Family Advocacy Program from Sexual Assault Prevention and Response Office reports. DoD SAPRO annually provides Congress with a description of the resolution of each unrestricted report of sexual assault covered by DoD s sexual assault prevention and response policy; however, that policy precludes reporting on adult sexual assault cases involving victims who are Service members spouses, intimate partners, or family members over the age of consent under the UCMJ (16 years of age), for whom the DoD Family Advocacy Program (FAP) provides victim advocacy services. FAP does not collect or report case adjudication data for the sexual assault reports it receives, even when FAP provides victim advocacy services through completion of a court-martial for a sexual assault crime. Because these cases are excluded from DoD s reports on the legal resolution of sexual assault cases, it is not possible to accurately determine how many sexual assault cases are handled through the military justice system. Requiring sexual assault case disposition and adjudication data from FAP to be reported by DoD in its annual report to Congress would ensure a complete accounting of all adult sexual assault cases involving a military member. The Response Systems to Adult Sexual Assault Crimes Panel, in its June 2014 report to the Secretary of Defense, examined this issue and similarly recommended it be corrected. 2

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12 Article 140a (New Provision) Case Management; Data Collection and Accessibility 10 U.S.C. 940a 1. Summary of Proposal This proposal would promote the development and implementation of case management, data collection, and data accessibility programs for the military justice system under standards and criteria prescribed by the Secretary of Defense. 2. Summary of the Current Statute There is currently no UCMJ provision addressing the standards and criteria for case management, data collection, or data accessibility programs. 3. Historical Background The military justice system developed as a highly decentralized process, with the primary responsibility for administration resting with local authorities. As a result, the responsibility for preparing records, collecting data, and providing public access to military justice information has been viewed largely as a local function, with funding responsibilities vested in officials at the installation level. Practices have varied widely among the services, and within the services, in terms of developing and implementing a modernized case management and data collection system. 4. Contemporary Practice The UCMJ currently does not require the services to collect and maintain data for the military justice system outside of the broad categories of data collected for the annual reports required by Article 146. Each service collects, manages, and makes disclosure decisions regarding court-martial case information and documents differently through service-specific systems. The services have different programs for providing information on court-martial cases through public affairs channels. Other information typically is released only upon a request that complies with the often time-consuming requirements of the Freedom of Information Act Relationship to Federal Civilian Practice Federal civilian practice currently uses an electronic service called PACER (Public Access to Court Electronic Records) for United States federal court documents. PACER is a fee-based system, with specified opportunities for waiver of fees. In the field of case management, the 1 5 U.S.C P age of 1300

13 REPORT OF THE MILITARY JUSTICE REVIEW GROUP PART I: UCMJ RECOMMENDATIONS Federal district courts use the Case Management/Electronic Case Files (CM/ECF) system. This system allows courts to accept filings and provide access to filed documents online. In the field of data collection, the National Criminal Incident Center maintains a computerized index of criminal incidents, including information on criminal offenders and on property. Civilian law enforcement agencies nationwide use and update this system. Additionally, the United States Sentencing Commission and the Administrative Office of the United States Courts maintain and publish data relating to federal sentences, criminal caseloads, and categories of cases. 2 State courts employ similar systems, with the degree of modernization, centralization, and cost of access varying from state to state. 6. Recommendation and Justification Recommendation 140a: Enact a new Article 140a requiring the development and implementation of case management, data collection, and data accessibility programs for the military justice system under standards and criteria prescribed by the Secretary of Defense. The separate case management, data access, and data collection practices currently in use by the services makes it difficult to collect and analyze military justice data on a systemwide basis very difficult. As noted by the Response Systems Panel in its 2014 Report to Congress,... the lack of uniform, offense-specific sentencing data from military courtsmartial makes meaningful comparison and analysis of sentencing outcomes in military and civilian courts difficult, if not impossible. 3 This proposal would require the development of standards in the Manual for Courts- Martial outlining the minimum data collection requirements for military justice activities and statistics from across the Department of Defense and the Coast Guard. A baseline of similarly collected and reported data would help facilitate periodic reviews of the military justice system by the Code Committee or its successor. This proposal would better align military justice data collection with the Uniform Federal Crime Reporting Act of 1988, the victim and witness notifications mandated under the Crime Victims Fund pursuant to 42 U.S.C , the Victim s Rights and Restitution Act of 1990, and the Brady Handgun Violence Prevention Act of Utilizing the experience of federal and state systems, there are significant opportunities to improve the efficiency of case management and the effectiveness of systemic analysis, by levering technology and best practices in the civilian sector. Similar considerations apply to the concept of accessibility. The civilian courts have developed systems that balance public access with the need to protect privacy, sensitive financial data, and classified information. There are well-developed models in the civilian sector which can be applied in a balanced manner to provide timely access to dockets, filings, and rulings. 2 See United States Sentencing Commission website, at Administrative Office of the United States Courts website, at 3 REPORT OF THE RESPONSE SYSTEMS TO ADULT SEXUAL ASSAULT CRIMES PANEL (June 2014) P age of 1300

14 LEGISLATIVE REPORT B. STATUTORY REVIEW & RECOMMENDATIONS Article 140a (New Provision) Case Management; Data Collection and Accessibility To ensure timely and effective action, the proposal requires the Secretary of Defense to develop a set of standards and criteria that would form the framework for modernization. The Services would have the capability to add service specific requirements to the baseline. The proposal would require the Secretary of Defense to develop standards and procedures within two years after enactment of the legislation, and the services would be required to implement new systems within four years after enactment of the legislation. 7. Relationship to Objectives and Related Provisions This proposal supports the GC Terms of Reference by incorporating the recommendations of the Response Systems Panel concerning military justice data reporting and collection. This proposal supports MJRG Operational Guidance by adopting standards and procedures applicable to criminal justice data collection in the civilian sector insofar as practicable in military criminal practice. The collection and analysis of that data will provide a critical foundation to the development of sentencing parameters and guidelines under Article 56, and would facilitate the periodic evaluation of the military justice called for in this report under Article 146. This proposal would enable military justice managers to better take advantage of the opportunities for efficiency created by the amendments proposed in this report. 8. Legislative Proposal SEC MILITARY JUSTICE CASE MANAGEMENT; DATA COLLECTION AND ACCESSIBILITY. (a) IN GENERAL. Subchapter XI of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended by adding at the end the following new section (article): 940a. Art. 140a. Case management; data collection and accessibility The Secretary of Defense shall prescribe uniform standards and criteria for conduct of each of the following functions at all stages of the military justice system, including pretrial, trial, post-trial, and appellate processes, using, insofar as practicable, the best practices of Federal and State courts: 1013 P age of 1300

15 REPORT OF THE MILITARY JUSTICE REVIEW GROUP PART I: UCMJ RECOMMENDATIONS (1) Collection and analysis of data concerning substantive offenses and procedural matters in a manner that facilitates case management and decision making within the military justice system, and that enhances the quality of periodic reviews under section 946 of this title (article 146). (2) Case processing and management. (3) Timely, efficient, and accurate production and distribution of records of trial within the military justice system. (4) Facilitation of access to docket information, filings, and records, taking into consideration restrictions appropriate to judicial proceedings and military records.. (b) EFFECTIVE DATES. (1) Not later than 2 years after the date of the enactment of this Act, the Secretary of Defense shall carry out section 940a of title 10, United States Code (article 140a of the Uniform Code of Military Justice), as added by subsection (a). (2) Not later than 4 years after the date of the enactment of this Act, the standards and criteria under section 940a of title 10, United States Code (article 140a of the Uniform Code of Military Justice), as added by subsection (a), shall take effect. 9. Sectional Analysis Section 1104(a) would create a new section, Article 140a (Case management; data collection, and accessibility), which would require the Secretary of Defense to prescribe uniform standards and criteria for case processing and management, military justice data collection, production and distribution of records of trial, and access to case information. The purpose of this section is to enhance the management of cases, the collection of data 1014 P age of 1300

16 LEGISLATIVE REPORT B. STATUTORY REVIEW & RECOMMENDATIONS Article 140a (New Provision) Case Management; Data Collection and Accessibility necessary for evaluation and analysis, and to provide appropriate public access to military justice information at all stages of court-martial proceedings. At a minimum, the system developed for implementation should permit timely and appropriate access to filings, objections, instructions, and judicial rulings at the trial and appellate level, and to actions at trial and in subsequent proceedings concerning the findings and sentences of courtsmartial. Section 1104(b) provides the timeline for implementation of Section 1104(a). In order to provide appropriate time for implementation, this section would require promulgation of standards by the Secretary of Defense not later than two years after enactment of Section 1104, with an effective date for such standards not later than four years after enactment P age of 1300

17 ADJUDICATION OF SEXUAL OFFENSES REPORTED TO THE MILITARY SERVICES IN 2015 Cassia Spohn, PhD School of Criminology and Criminal Justice Arizona State University

18 The Judicial Proceedings Panel (JPP) is tasked with reviewing and evaluating the response to sexual assault cases in the military. In 2016, JPP staff requested that the military services provide documents for cases involving a preferred charge of sexual assault that were completed in fiscal year The database includes 738 cases, all of which involve at least one charge of a penetrative (i.e., rape, aggravated sexual assault, sexual assault, forcible sodomy and attempts to commit these offenses) or contact (i.e., aggravated sexual contact, abusive sexual contact, wrongful sexual contact, and attempts to commit these offenses) sexual offense. There were 530 cases in which at least one charge for a penetrative offense was preferred; there were 208 cases in which the most serious charge was a contact offense. Case Characteristics Case Characteristics, Case Dispositions, and Case Outcomes The characteristics of the sexual assault cases, their dispositions, and outcomes are presented in Tables 1 and 2. As shown in Table 1, almost half (43.6%) of the cases were from the Army, 23% were from the Air Force, 16.4% were from the Navy, 12.7% were from the Marine Corps, and 4.2% were from the Coast Guard. Most of the accused were enlisted service members (92.7%) rather than officers (7.3%) and all but 5 (735 or 99.3%) were male. In terms of pay grade, more than two thirds of the accuseds who were enlisted service members were E-3, E-4 or E-5; 40 of the 54 (74.9%) of the accuseds who were officers were O-2, O-3, or O-4. Most of the accused were assigned to units in the United States or its territories (81.3%) rather than units outside the United States (18.7%) when charges were preferred. The number of victims in the case ranged from 1 to 15; most cases involved either one (614 or 83.2%) or two (88 or 11.9%) victims, and, reflecting this, the mean number of victims was Although most victims (90.9%) were female, there were 64 cases (8.7%) in which the victim(s) were male and 3 cases (0.4%) in which there were both female and male victims. About two-thirds (67.6%) of the cases involved victims who were members of military services; there were 211 cases in which the victim(s) were civilians (28.6%) and 28 cases involving both members of the military services and civilians (3.8%). Most cases (82.4%) did not involve victims who were the spouse or intimate partner of the accused. In a majority of the cases that did involve spouses or intimate partners the victim was a civilian (63.1%) rather than a member of the military services (32.3%). The number of charges and specifications per case ranged from 1 to 43; very few cases (69 or 9.3%) involved only a single charge but more than half of the cases (55.6%) involved four or fewer charges. The mean number of charges and specifications was 5.7. In 71.8% (N = 530) of the cases the most serious charge was a penetrative offense and in 28.2% (N = 208) of the cases the most serious charge was a contact offense. Of the 530 individuals charged with a penetrative offense, 137 (25.8%) were convicted of a penetrative offense. Of the 208 individuals charged with a contact offense, 37 (17.8%) were convicted of a contact offense. 2

19 TABLE 1 CASE CHARACTERISTICS: 2015 DATA Military Service of the Accused Air Force Army Coast Guard Marine Corps Navy Rank of Accused Enlisted Officer Pay Grade of Accused Enlisted E-1 E-2 E-3 E-4 E-5 E-6 E-7 E-8 E-9 N % Officer Cadet/Midshipman O-1 O-2 O-3 O-4 O-5 O-6 W-1 W-2 W-3 W-5 Sex of Accused Male Female Location of Unit to which Accused Assigned when Charges Preferred United States or Its Territories Outside of the United States Number of Victims (mean) [range: 1 15} 1.28 Sex of Victim(s) All Female 671 All Male 64 Female and Male 3 Status of Victim(s) All Military All Civilian Military and Civilian

20 Table 1, continued Victim Spouse or Intimate Partner Yes No Victim Was Spouse or Intimate Partner Military Victim Civilian Victim Both Military and Civilian Victims Number of Charges and Specifications (mean) [range: 1 43] 5.70 Accused Charged with Penetrative Offense a Yes No Accused Convicted of Penetrative Offense Yes No [Not Charged with Penetrative Offense] Accused Charged with Contact Offense b Yes No Accused Convicted of Contact Offense Yes No [Not Charged with Contact Offense] [208] [530] a Accused was charged with at least one count of rape, aggravated sexual assault, sexual assault, forcible sodomy, and attempts to commit these offenses. b The most serious offense with which the accused was charged was aggravated sexual contact, abusive sexual contact, wrongful sexual contact, and attempts to commit these offenses. Case Dispositions and Outcomes Descriptive data on the dispositions and outcomes of the sexual offense cases are presented in Table 2. Most (79.1%) of the cases that went to a court martial proceeding were disposed as a result of a general court martial; 13.5% were disposed as a result of a special court martial and 7.4% were disposed as a result of a summary court martial. In terms of the type of trial forum, 52.5% of the cases were adjudicated by a military judge, 40.1% were handled by a panel of military members, and 7.4 percent were adjudicated by a summary court martial officer. Article 32 hearings were held in most (69.7%) of the cases; the accused waived the hearing in 7.2% of the cases and an Article 32 hearing was not required in 23.1% of the cases. For each type of case (i.e., penetrative and contact offenses) we determined whether the accused was convicted of at least one charge of that type, was convicted of another charge, received an alternative disposition of some type, was acquitted of all charges, or whether all charges were dismissed without further action. Among individuals charged with penetrative offenses, 25.8% were convicted of at least one penetrative offense, 2.5% were convicted of at least one count of a sexual contact offense, and 21.5% were convicted of a non-sex offense only. The overall 4

21 conviction rate for those charged with at least one penetrative offense was therefore 49.8% (25.8% + 2.5% %). Among those charged with a penetrative offense who were not convicted, 14.2% received an alternative disposition, 21.3% were acquitted of all charges, and 14.7% had all charges dismissed without further action. The case outcomes for those charged with contact offenses were somewhat different. For example, 58.6% of these individuals were convicted of a sexual contact offense (17.8%) or a non-sex offense (40.9%). Of those who were not convicted, 22.1% received an alternative disposition, 13.0% were acquitted of all charges, and 6.3% had all charges dismissed without further action. For both penetrative and contact offenses, the most common types of alternative dispositions were nonjudicial punishment and either a resignation or discharge in lieu of a trial. Comparing the two types of cases, the conviction and alternative disposition rates were higher for cases involving contact offenses, but the likelihoods of acquittal and case dismissal were higher for cases involving penetrative offenses. We also calculated conviction and acquittal rates for cases that were referred to trial (these calculations did not include cases that resulted in alternative dispositions or dismissal of all charges). Among individuals referred to trial for penetrative offenses (N = 377), 36.3% were convicted of penetrative offenses, 3.4% were convicted of sexual contact offenses, 30.2% were convicted of non-sex offenses, and 30% were acquitted of all charges. Among those referred to trial for sexual contact offenses (N = 149), 24.8% were convicted of sexual contact offenses, 57% were convicted of non-sex offenses, and 18.1% were acquitted of all charges. The overall conviction rates for cases referred to trial were therefore 70% for penetrative offenses and 81.9% for contact offenses. Table 2 also presents data on the type and length of the sentence imposed on those who were convicted. Focusing on the approved sentence, 71.2% were sentenced to confinement, 59.8% received a punitive separation, and 52.1% received both confinement and a punitive separation. The mean sentence (approved sentence) of confinement was months; the range was from less than one month to 1000 months (i.e., life in prison). 5

22 TABLE 2 CASE DISPOSITIONS AND CASE OUTCOMES: 2015 DATA Type of Court Martial General Court Martial Special Court Martial Summary Court Martial Not Applicable Type of Trial Forum Military Judge Panel of Military Members Summary Court Martial Officer Not Applicable Article 32 Hearing Held Yes Waived No/Not Applicable [Unknown] Accused Charged with Penetrative Offense (N = 530] Convicted of Penetrative Offense Convicted of Sexual Contact Offense Convicted of Non-Sex Offense Alternative Disposition Acquitted of All Charges All Charges Dismissed Without Further Action (After Article 32 Hearing) Accused Charged with Sexual Contact Offense (N = 208) Convicted of Sexual Contact Offense Convicted of Non-Sex Offense Alternative Disposition Acquitted of All Charges All Charges Dismissed Without Further Action (After Article 32 Hearing) Outcomes for Cases Referred to Trial Accused Charged with Penetrative Offense (N = 377) Convicted of Penetrative Offense Convicted of Sexual Contact Offense Convicted of Non-Sex Offense Acquitted of All Charges N % [212] [212] [2] Accused Charged with Sexual Contact Offense (N = 149) Convicted of Sexual Contact Offense Convicted of Non-Sex Offense Acquitted of All Charges Adjudicated Sentence Included Confinement Yes No [Not convicted, dismissed, alternative disposition] Approved Sentence Included Confinement Yes No [Not convicted, dismissed, alternative disposition] Approved Sentence Included Punitive Separation Yes No [Not convicted, dismissed, alternative disposition] [352] [352] [352]

23 Table 2, continued Approved Sentence Included Confinement + Punitive Separation Yes No [Not convicted, dismissed, alternative disposition} [352] Length of Adjudged Confinement Sentence, in Months (mean) [range =.057 to (i.e., life in prison, with parole)] Length of Approved Confinement Sentence, in Months (mean) [range = 0.57 to (i.e., life in prison with parole] Analyzing Dispositions, Outcomes, and Sentences Descriptive data on case dispositions and case outcomes provide information regarding what happened in these sexual assault cases. In order to understand why cases were disposed as they were, it is necessary to conduct bivariate and multivariate analyses of the factors associated with case dispositions and case outcomes. Bivariate analysis is designed to determine if two variables are related (or correlated); it attempts to determine if one variable (the independent variable for example, the accused s military service) is a statistically significant predictor of another variable (the dependent variable for example, whether the accused was convicted). If there is a statistically significant relationship between the variables, we can conclude that the independent variable is related to, associated with, or predictive of the dependent variable. In multivariate analysis, one controls for several independent variables simultaneously. With this type of analysis, one can isolate the effect of one variable (e.g., the military service of the accused) while controlling for or holding constant other theoretically relevant variables (e.g., the, the seriousness of the offense, and the characteristics of the case, the accused, and the victim). In that sections that follow, we examine bivariate relationships between relevant independent variables and the type of case disposition and several indicators of case outcomes. Factors Associated with Case Dispositions and Case Outcomes: Results of the Bivariate Analyses Type of Disposition We begin by focusing on the disposition of Art. 120 sexual offenses, asking whether the type of disposition (i.e., the type of court martial) varied by the type of offense charged, the accused s military service, or the rank of the accused. As shown in Table 3, there are statistically significant differences in dispositions based on all three of these factors. Cases in which the accused was charged with a penetrative offense were more than twice as likely as those in which the accused was charged with a contact offense to be disposed at a general court martial; by contrast, cases involving contact offenses were substantially more likely than those involving penetrative offenses to be disposed at a special or summary court martial. Cases from the Army and Air Force were more likely than cases from the Coast Guard, Marine Corps or Navy to be 7

24 disposed at a general court martial. There also were differences across the military services in the use of special and summary court martials. All 43 cases involving officers were disposed via a general court martial; by contrast, the type of disposition was more varied for cases involving enlisted members of the services, with 77.2% of the cases disposed at a general court martial, 14.7% at a special court martial, and 8.1% at a summary court martial. TABLE 3 TYPE OF TRIAL BY OFFENSE TYPE, SERVICE AND RANK OF ACCUSED: 2015 DATA General Court Martial Special Court Martial Summary Court Martial Most Serious Type of Offense Charged N % N % N % Accused charged with penetrative offense Accused charged with contact offense only Differences in trial type by type of offense statistically significant; P <.05 General Court Martial Special Court Martial Summary Court Martial Military Service N % N % N % Air Force Army Coast Guard Marine Corps Navy Differences in trial type by military service statistically significant; P <.05. General Court Martial Special Court Martial Summary Court Martial Rank of Accused N % N % N % Officer Enlisted Differences in trial type by rank of accused statistically significant; P <.05. The next issue addressed is whether there were differences in the outcomes of sexual offenses based on the military service of the accused, whether the accused was an enlisted member or an officer, the gender and status of the victim, the relationship between the accused and the victim, and the accused s location. Because preliminary analyses revealed that outcomes varied depending on whether the accused was charged with a penetrative or contact offense, we conducted separate bivariate analyses for each type of offense. 8

25 Military Service of the Accused The results of the analysis of the relationship between case outcomes and the military service of the accused are presented in Table 4. As these results show, there were significant differences in outcomes by military service for penetrative offenses (because of small cell sizes, we could not calculate statistical significance for cases involving contact offenses). For cases in which the most serious charge was a penetrative offense, the overall conviction rate (i.e, convicted of a penetrative offense + convicted of a contact offense + convicted of a non-sex offense) was 73.7% for the Coast Guard, 56.5% for the Army, 51.5% for the Marine Corps, 47.1% for the Navy and 35% for the Air Force. The odds of being convicted of a penetrative offense were highest for the Army (32.8%) and lowest for the Marine Corps (13.6%). The likelihood that the accused would be acquitted of all charges was lowest for the Coast Guard (5.3%) and highest for the Air Force (29.9%) and Navy (27.1%); by contrast, the likelihood that the case would be dismissed without further action was lowest for the Army (8.3%) and highest for the Marine Corps (22.7%) and Navy (21.4%). The services also differed in their use of alternative dispositions; these dispositions were more common in the Army and Air Force than in the Coast Guard, Marine Corps, or Navy. The outcomes for cases in which the most serious charge was a contact offense were somewhat different. The overall conviction rates for these cases ranged from 53.1% (Army) to 55.5% (Air Force) to 60.7% (Navy) to 64.3% (Marine Corps) to 83.3% (Coast Guard, but note that there were only 12 contact cases from the Coast Guard). The use of alternative dispositions was more common and acquittals and dismissals were less common in cases involving contact offenses, regardless of the service of the accused. 9

26 TABLE 4 OUTCOMES OF SEXUAL OFFENSES BY MILITARY SERVICE OF ACCUSED: 2015 DATA Accused Charged with Penetrative Offense(s) (N = 530) Convicted of Penetrative Offense 32.8% Convicted of Sexual Contact Offense 1.7% Convicted of Non- Sex Offense 22.0% Acquitted of all Charges Alternative Disposition Army (N = 241) (79) (4) (53) 16.2% (39) 19.1% (46) Air Force 20.1% 2.2% 12.7% 29.9% 15.7% (N = 134) (27) (3) (17) (40) (21) Coast Guard 21.1% 0.0% 52.6% 5.3% 10.5% (N = 19) (4) (0) (10) (1) (2) Marine Corps 13.6% 7.6% 30.3% 21.2% 4.5% (N = 66) (9) (5) (20) (14) (3) Navy 25.7% 1.4% 20.0% 27.1% 4.3% (N = 70) (18) (1) (14) (19) (3) Differences in outcomes by military service statistically significant; P <.05 Case Dismissed without Further Action 8.3% (20) 19.4% (26) 10.5% (2) 22.7% (15) 21.4% (15) Accused Charged with Contact Offense(s) Only (N = 208) Army (N = 81) Air Force (N = 36) Coast Guard (N = 12) Convicted of Contact Offense 24.7% (20) 19.4% (7) 0.0% (0) Convicted of Non-Sex Offense 28.4% (23) 36.1% (13) 83.3% (10) Acquitted of all Charges 9.9% (8) 22.2% (8) 0.0% (0) Alternative Disposition 33.3% (27) 19.4% (7) 8.3% (1) Case Dismissed without Further Action 3.7% (3) 2.8% (1) 8.3% (1) Marine Corps (N = 28) 3.6% (1) 60.7% (17) 3.6% (1) 17.9% (5) 14.3% (4) Navy (N = 51) 17.6% (9) 43.1% (22) 19.6% (10) 11.8% (6) 7.8% (4) Cannot calculate statistical significance due to cells with counts less than 5. 10

27 Status of the Accused The results of the analysis of case outcomes by the status of the accused are presented in Table 5. Although the results are not identical for either type of offense, the differences by the status of the accused are not statistically significant. (This may reflect the relatively small number of cases involving accused individuals who were officers, especially for contact offenses.) For offenders charged with penetrative offenses, the overall conviction rates were 69.2% for officers and 48.3% for enlisted members; acquittals and alternative dispositions were more common in cases involving enlisted members than in cases involving officers, but the dismissal rates were similar. TABLE 5 OUTCOMES OF SEXUAL OFFENSES BY ACCUSED S STATUS: 2015 DATA Accused Charged with Penetrative Offense(s) (N = 530) Convicted Convicted Convicted of of Sexual of Non- Acquitted Penetrative Contact Sex of all Alternative Offense Offense Offense Charges Disposition Officer 33.3 % 5.1% 30.8% 12.8% 0.0% (N = 39) (13) (2) (12) (5) (0) Enlisted 25.3% 2.2% 20.8% 22.0% 15.3% (N = 491) (124) (11) (102) (108) (75) Differences in outcomes by status of accused not statistically significant Case Dismissed without Further Action 17.9% (7) 14.5% (71) Accused Charged with Contact Offense(s) only (N = 208) Officer (N = 15) Enlisted (N = 193) Convicted of Contact Offense 33.3% (5) 16.6% (32) Convicted of Non- Sex Offense 13.3% (2) 27.5% (53) Acquitted of all Charges 6.7% (1) 13.5% (26) Alternative Disposition 20.0% (3) 22.3% (43) Case Dismissed without Further Action 6.7% (1) 6.2% (12) Differences in outcomes by status of accused not statistically significant 11

28 Gender and Status of the Victim Table 6 reports the results of the analysis of the relationship between outcomes of sexual offenses and the gender and status of the victim. Because many cases involved more than one victim, there were some cases in which the victims were both females and males and both members of the military services and civilian. However, there were too few cases involving both female and male victims to analyze. As shown in Table 6, there were no significant differences based on the gender or status of the victim for either penetrative or contact offenses. For cases in which the accused was charged with a penetrative offense, the overall conviction rate was somewhat higher for cases involving male victims (57.1%) than for cases involving female victims (49.1%). For these more serious cases, the overall conviction rate was substantially higher for cases involving both military and civilian victims (80%) than for cases involving only civilian victims (55.2%) or only military victims (45.2%); this may be a reflection of the fact that cases with military and civilian victims by definition involved more than one victim. TABLE 6 OUTCOMES OF SEXUAL OFFENSES BY GENDER AND STATUS OF VICTIM: 2015 DATA Accused Charged with Penetrative Offense(s) (N = 530) Victim Gender All Females (N = 493) All Males (N = 35) Victim Status All Military (N = 336) All Civilian Convicted of Penetrative Offense 25.2 (124) 37.1 (13) 23.5 (79) 28.2 (49) Convicted of Sexual Contact Offense 2.2 (11) 5.7 (2) 1.5 (5) 4.0 (7) Convicted of Non- Sex Offense 21.7 (107) 14.3 (5) 20.2 (68) 23.0 (40) Acquitted of all Charges 21.3 (105) 22.9 (8) 22.6 (76) 20.1 (35) Alternative Disposition 14.2 (70) 14.3 (5) 15.8 (53) 12.1 (21) Case Dismissed without Further Action 15.4 (76) 5.7 (2) 16.4 (55) 12.6 (22) (N = 174) Military and Civilian (N = 20) (9) (1) (6) (2) (1) (1) Differences in outcomes by gender and status of victim not statistically significant 12

29 Table 6, continued Accused Charged with Contact Offense(s) only (N = 208) Victim Gender All Females (N = 178) All Males (N= 29) Victim Status All Military (N = 163) All Civilian (N = 37) Military and Civilian (N = 8) Convicted of Contact Offense 16.9 (30) 24.1 (7) Convicted of Non- Sex Offense 41.0 (73) 41.4 (12) Acquitted of all Charges 12.9 (23) 10.3 (3) Alternative Disposition 22.5 (40) 20.7 (6) Case Dismissed without Further Action 6.7 (12) 3.4 (1) 16.6 (27) 40.5 (66) 14.7 (24) 23.9 (39) 4.3 (7) (7) (14) (3) (7) (6) (3) (5) (0) (0) (0) Differences in outcomes by gender and status of victim not statistically significant Relationship between Accused and Victim The results of the bivariate analysis of case outcomes and the relationship between the accused and the victim are shown in Table 7. There were no statistically significant differences in case outcomes based on this factor for either penetrative or contact offenses (however, there were only 18 contact offense cases in which the victim was the spouse or intimate partner of the accused). Among cases in which the accused was charged with a penetrative offense, the overall conviction rate was 48.2% for cases in which the accused and victim were spouses or intimate partners and 50.3% for cases involving other types of relationships (or no prior relationship). 13

30 TABLE 7 OUTCOMES OF SEXUAL OFFENSES BY RELATIONSHIP BETWEEN ACCUSED AND VICTIM: 2015 DATA Accused Charged with Penetrative Offense(s) (N = 530) Spouse or Intimate Partner (N = 112) Other Relationship (N = 418) Convicted of Penetrative Offense 25.0% (28) 26.1% (109) Convicted of Sexual Contact Offense 2.7% (3) 2.4% (10) Convicted of Non-Sex Offense 20.5% (23) 21.8% (91) Acquitted of all Charges 23.2% (26) 20.8% (87) Alternative Disposition 8.0% (9) 15.8% (66) Case Dismissed without Further Action 20.5% (23) 13.2% (55) Differences in outcomes by accused/victim relationship not statistically significant Accused Charged with Contact Offense(s) only (N = 208) Convicted of Contact Offense Convicted of Non- Sex Offense Acquitted of all Charges Alternative Disposition Case Dismissed without Further Action Spouse or Intimate Partner (N = 18) 0.0% (0) 61.1% (11) 11.1% (2) 16.7% (3) 11.1% (2) Other Relationship (N = 190) 19.5% (37) 38.9% (74) 13.2% (25) 22.6% (43) 5.8% (11) Differences in outcomes by accused/victim relationship not statistically significant 14

31 Accused s Location The final factor examined with respect to its relationship to case outcomes is the accused s location at the time that charges were preferred. We differentiated between cases in which the accused was in the United States or its territories and cases in which the accused was on a base outside of the United States. As shown in Table 8, the accused s location did not affect case outcomes for either penetrative or contact offenses. TABLE 8 OUTCOMES OF SEXUAL OFFENSES BY ACCUSED S LOCATION: 2015 DATA Accused Charged with Penetrative Offense(s) (N = 530) United States or Territories (N = 432) Outside of United States 19.4% 5.1% 24.5% 19.4% 18.4% (N = 98) (19) (5) (24) (19) (18) Differences in outcomes by accused s location not statistically significant Accused Charged with Contact Offense(s) only (N = 208) United States or Territories (N = 168) Outside of United States (N = 40) Convicted of Penetrative Offense 27.3% (118) Convicted of Sexual Contact Offense 1.9% (8) Convicted of Contact Offense 17.3% (29) Convicted of Non- Sex Offense 20.8% (90) Convicted of Non- Sex Offense 43.5% (73) Acquitted of all Charges 21.8% (94) Acquitted of all Charges 13.1% (22) Alternative Disposition 13.2% (57) Alternative Disposition 20.2% (34) 20.0% (8) 30.0% (12) 12.5% (5) 30.0% (12) Differences in outcomes by accused s location not statistically significant Case Dismissed without Further Action 15.0% (65) 13.3% (13) Case Dismissed without Further Action 6.0% (10) 7.5% (3) 15

32 Factors Associated with Sentences: Results of the Bivariate Analyses The results of the bivariate analyses of sentences are presented in Tables 9 through 11. The dependent variables analyzed are whether the offender was sentenced to a term of confinement, whether the offender received a punitive separation, and the length of the confinement sentence. TABLE 9 FACTORS ASSOCIATED WITH APPROVED SENTENCE OF CONFINEMENT: 2015 DATA Military Service of Accused (NS) Army Air Force Coast Guard Marine Corps Navy Rank of Accused (NS) Officer Enlisted Gender of Victim(s) (NS) All Females All Males Status of Victim(s) (P <.05) All Military All Civilian Military and Civilian Relationship between Accused and Victim(NS) Spouse or Intimate Partner Other Relationship Type of Conviction Charge (P <.05) Penetrative Offense Contact Offense Other Offense No Confinement Confinement N % N % Number of Counts Preferred (mean) [NS] Number of Victims (mean) [NS] Type of Court Martial (P <.05) General Court Martial Special Court Martial Summary Court Martial Type of Trial Forum (P <.05) Military Judge Panel of Military Members Summary Court Martial Officer

33 Beginning with the factors associated with an approved sentence of confinement (Table 9), the likelihood of confinement was not affected by the military service of the accused, the rank of the accused, the gender of the victim, the relationship between the victim and the offender, the number of counts preferred, or the number of victims. By contrast, the likelihood of confinement was affected by the status of the victim, the type of conviction charge, the type of court martial, and the type of trial forum. A sentence that included confinement was more likely in cases involving civilian (82.1%) and military and civilian (79.2%) victims than in cases involving military victims only (65.3%). Not surprisingly, confinement sentences also varied by the type of conviction charge. Those who were convicted of penetrative offenses were significantly more likely than those convicted of contact or other offenses to receive a confinement sentence (90.4%, 60% and 61.5%, respectively). Finally, confinement sentences were more likely following general (76.6%) or special (73.7%) than summary court martials (26.3%) and following procedures involving military judges (83.7%) or a panel of military members (64%) than summary court martial officers (26.3%). The results of the analysis of punitive separations (see Table 10) are, with one exception, very similar. In contrast to the results for confinement, the likelihood of a punitive separation was affected by the military service of the accused. The percentages of sentences involving punitive separations ranged from 70.4% for the Army to 58.2% for the Air Force to 53.1% for the Navy to 48.1% for the Marine Corps to 29.2% for the Coast Guard. A sentence involving punitive separation was much more likely if the accused was convicted of a penetrative (90.4%) rather than a contact (62%) or other (39.1%) offense, if the case was resolved via a general court martial (72.5%, compared to 35.1% for cases resolved via a special court martial and 0% for cases resolved via a summary court martial), and if the sentence was imposed by a military judge (68.8% versus 62.2% for sentences imposed by a panel of military members and 0% for sentences imposed by a summary court martial officer). The likelihood of punitive separation also was greater if at least one of the victims was a civilian (70.1% for cases involving all civilians and 66.7% for cases involving civilian and military victims) than if all victims were members of the military (54.3%) 17

34 TABLE 10 FACTORS ASSOCIATED WITH APPROVED SENTENCE OF PUNITIVE SEPARATION: 2015 DATA Military Service of Accused (P <.05) Army Air Force Coast Guard Marine Corps Navy Rank of Accused (NS) Officer Enlisted Gender of Victim(s) (NS) All Females All Males Status of Victim(s) (P <.05) All Military All Civilian Military and Civilian Relationship between Accused and Victim (NS) Spouse or Intimate Partner Other Relationship Type of Conviction Charge (P <.05) Penetrative Offense Contact Offense Other Offense No Separation Separation N % N % Number of Counts Preferred (mean) [NS] Number of Victims (mean) [NS] Type of Court Martial (P <.05) General Court Martial Special Court Martial Summary Court Martial Type of Trial Forum (P <.05) Military Judge Panel of Military Members Summary Court Martial Officer

35 TABLE 11 FACTORS ASSOCIATED WITH LENGTH OF CONFINEMENT SENTENCE: 2015 DATA Military Service of Accused (NS) Army Air Force Coast Guard Marine Corps Navy Rank of Accused (NS) Officer Enlisted Gender of Victim(s) (NS) All Females All Males Status of Victim(s) (P <.05) All Military All Civilian Military and Civilian Relationship between Accused and Victim (P <.05) Spouse or Intimate Partner Other Relationship Type of Conviction Charge (P <.05) Penetrative Offense Contact Offense Other Offense Type of Court Martial (P <.05) General Court Martial Special Court Martial Summary Court Martial Type of Trial Forum (P <.05) Military Judge Panel of Military Members Summary Court Martial Officer Mean Sentence

36 The results of the analysis of the length of the confinement sentence, which are shown in Table 11, reveal a very similar pattern. Sentence length was not affected by the military service of the accused, the rank of the accused, or the gender of the victim; it was affected by the status of the victim, the relationship between the accused and the victim, the type of conviction charge, the type of court martial, and the type of trial forum. Mean sentences varied significantly in the following types of cases: There were both military and civilian victims (89.46 months) rather than only civilian (48.25 months) or only military (22.44 months) victims The victim was the accused s spouse or intimate partner (78.44 months) versus some other relationship or no prior relationship (27.13 months) The accused was convicted of a penetrative offense (65.96 months) rather than a contact offense (9.45 months) or a non-sex offense (12.94 months) The case was resolved via a general court martial (43.69 months) rather than through a special court martial (4.06 months) or a summary court martial (0.72 months) The sentence was imposed by a panel of military members (52.8 months) rather than a military judge (30.77 months) or a summary court martial officer (0.72 months). 20

37 Factors Associated with Case Outcomes: Results of the Multivariate Analysis We used logistic regression to analyze several binary outcome variables (that is, variables, such as whether the accused was convicted of a penetrative offense (coded 1) or not (coded 0)), that are coded 1 or 0. We used ordinary least squares (OLS) regression to analyze the length of the confinement sentence, which is an interval variable. These types of analysis are used to identify the statistically significant predictors of the outcomes. The analysis simultaneously controls for all of the variables in the analysis; therefore, if a particular variable affects the outcome, it does so while holding all of the other variables in the model constant. For example, the number of victims is a significant predictor of whether an offender who was charged with a penetrative offense was convicted of a penetrative offense; this is net of the effects of the military service of the accused, the accused s rank, the relationship between the victim and the accused, whether all victims were female, whether all victims were military, and the number of charges. 1 For the categorical variable (military service of the accused), the values for the included categories are compared to the reference category (Marine Corps). The positive coefficient for Army in Table 12 indicates that offenders who were in the Army were significantly more likely than those from the Marine Corps to be convicted of a penetrative offense. Analysis of the Likelihood of Conviction The results of the analysis of two indicators of the likelihood of conviction whether the accused was convicted of a penetrative offense and whether the accused was convicted of at least one charge (i.e., a penetrative offense, a contact offense, or a nonsex offense) are presented in Table 12. Only those who were charged with a penetrative offense are included in the analysis of conviction for a penetrative offense; the analysis of conviction for any charge includes those charged with both penetrative and contact offenses. The statistically significant predictors of conviction for a penetrative offense are the military service of the accused (Army versus Marine Corps), the number of victims and the number of counts. Conviction for a penetrative offense was about three times 1 Variables that are statistically significant predictors of outcomes are indicated with an asterisk. In the tables presenting the results of the logistic regression analyses, B is the logistic regression coefficient, SE is the standard error, and Exp(B) is the odds ratio. In the table (Table 14) presenting the results of the OLS regression, B is the unstandardized regression coefficient and can be interpreted as the change in the length of sentence due to a change in the independent variable. For example, the B-value for victim was a spouse or intimate partner is 31.42, which indicates that sentences averaged months longer if the victim was a spouse or intimate partner than if the victim was not a spouse or intimate partner. Beta is the standardized regression coefficient and indicates the strength of the relationship between the length of the sentence and the independent variable. The T-value indicates whether the relationship is statistically significant. 21

38 more likely (Exp(B) = 3.17) if the accused was in the Army rather than the Marine Corps. There were no differences in the likelihood of conviction for a penetrative offense between the Marine Corps and the other military services. The number of victims and the number of charges also affected the likelihood of conviction for a penetrative offense; as the number of victims and the number of charges increased, the likelihood of conviction increased. Variables that did not affect the likelihood of conviction for a penetrative offense were the rank of the accused, the relationship between the accused and the victim, and the gender and status of the victim. The statistically significant predictors of conviction for at least one charge are the military service of the accused (Coast Guard versus Marine Corps), the relationship between the accused and the victim, the status of the victim, the number of charges, and whether the accused was charged with a penetrative offense. Conviction was more than three times more likely (Exp(B) = 3.72) if the accused was in the Coast Guard rather than the Marine Corps. Conviction was less likely if the victim was a spouse or intimate partner and if the victim was a member of the military services. Conviction also was less likely if the accused was charged with a penetrative rather than a contact offense, and as the number of charges increased, the likelihood of conviction also increased. The likelihood of conviction for any charge was not affected by the rank of the accused, the gender of the victim(s), or the number of victims. 22

39 TABLE 12 LOGISTIC REGRESSION ANALYSIS: LIKELIHOOD OF CONVICTION Accused Convicted of a Penetrative Offense B SE Exp(B) Military Service of the Accused Marine Corps (reference) Army Air Force Coast Guard Navy * Accused Rank (Enlisted) Victim was Spouse or Intimate Partner Female Victim(s) Military Victim(s) Number of Victims * Number of Charges * Accused Convicted of At Least One Charge B SE Exp(B) Military Service of the Accused Marine Corps (reference category) Army Air Force Coast Guard Navy * 1.12 Accused Rank (Enlisted) Victim was Spouse or Intimate Partner * Female Victim(s) Military Victim(s) * Number of Victims Number of Charges * Accused Charged with Penetrative Offense * * P <.05 Analysis of Acquittals and Dismissals Table 13 presents the results of two additional indicators of case outcomes: (1) whether the accused was acquitted of all charges at trial and (2) whether all charges were dismissed without further action. Recall from Table 2 that 21.3% (N = 113) of those charged with penetrative offenses and 13% (N = 27) of those charged with contact offenses were acquitted of all charges; 14.7% (N = 78) of those charged with penetrative offenses and 6.3% (N = 13) of those charged with contact offenses had all charges dismissed without further action. 23

40 TABLE 13 LOGISTIC REGRESSION ANALYSIS OF ACQUITTALS AND DISMISSALS Accused Acquitted of All Charges B SE Exp(B) Military Service of the Accused Marine Corps (reference) Army Air Force Coast Guard Navy Accused Rank (Enlisted) Victim was Spouse or Intimate Partner Female Victim(s) Military Victim(s) * Number of Victims Number of Charges * Accused Charged with Penetrative Offense * Case Dismissed Without Further Action B SE Exp(B) Military Service of the Accused Marine Corps (reference category) Army Air Force Coast Guard Navy * 0.43* Accused Rank (Enlisted) Victim was Spouse or Intimate Partner * Female Victim(s) Military Victim(s) Number of Victims Number of Charges * Accused Charged with Penetrative Offense * * P <.05 As shown in Table 13, only two variables the number of charges preferred and whether the accused was charged with a penetrative offense affected the likelihood of acquittal at trial. Acquittal was less likely if there were more preferred charges but was two and a half times more likely (Exp(B) = 2.56) if the accused was charged with a penetrative rather than a contact offense. By contrast, the likelihood that the case would be dismissed without further action was affected by the military service of the accused (compared to individuals who were in the Marine Corps, those in the Army and Air Force were less likely to have all charges dismissed), whether the victim was a spouse or intimate partner (these cases had a higher likelihood of case dismissal), the number of charges (more preferred charges led to lower odds of case dismissal) and 24

41 whether the most serious charge was a penetrative offense (these cases were two and half times more likely than cases involving contact offenses to result in dismissal of the case). Analysis of Sentences The results of the logistic regression analysis of the likelihood that the approved sentence would include a period of confinement and the results of the ordinary least square regression analysis of the length of the approved confinement sentence are presented in Table 14. Only three variables whether the accused was in the Air Force rather than the Marine Corps, whether the accused was convicted of a penetrative offense and the status of the victim affected the likelihood that the accused would be sentenced to a term of confinement. Those who were in the Air Force were 2.8 times more likely (Exp(B) = 2.82) than those who were in the Marine Corps to be sentenced to confinement. Those who were convicted of a penetrative offense were 5.3 times more likely (Exp(B) = 5.31) than those convicted of non-sex offenses (which is the reference category) to be sentenced to confinement. Individuals convicted of crimes involving military rather than civilian victims had lower odds of receiving a confinement sentence. The only variables affecting the length of the approved confinement sentence were the type of conviction charge, the number of charges filed against the accused, and whether the victim was a spouse or intimate partner. As the B values in the table indicate, those convicted of penetrative offenses received sentences that were more than 55 months (B = 55.16) longer than the sentences imposed on offenders convicted of non-sex offenses. Sentences averaged 31 months (B = 31.42) longer if the victim was a spouse or intimate partner and every additional charge resulted in approximately a two-month (B = 2.26) increase in sentence length. The final analysis focuses on the likelihood that the approved sentence would include punitive separation (Table 15). The strongest predictor of the odds of punitive separation (based on the odds ratio) is whether the accused was convicted of a penetrative offense; those who were convicted of a penetrative offense were 14 times more likely (Exp(B) = 14.03) than those convicted of non-sex offenses (which is the reference category) to receive a punitive separation. Those convicted of contact offenses also were more than twice as likely (Exp(B) = 2.30) than those convicted of non-sex offenses to receive punitive separation. In addition, individuals who were in the Coast Guard had lower odds of punitive separation than did individuals who were in the Army, individuals convicted of crimes involving military rather than civilian victims had lower odds of punitive separation, and the odds of a punitive separation sentence increased as the number of victims increased. 25

42 TABLE 14 LOGISTIC AND OLS REGRESSION ANALYSIS OF CONFINEMENT AND LENGTH OF CONFINEMENT Approved Sentence Included Confinement B SE Exp(B) Military Service of the Accused Marine Corps (reference) Army Air Force Coast Guard Navy * Accused Rank (Enlisted) Victim was Spouse or Intimate Partner Female Victim(s) Military Victim(s) * Number of Victims Number of Charges Accused Convicted of Penetrative Offense * Accused Convicted of Contract Offense Length (in months) of Approved Confinement Sentence B Beta T-value Military Service of the Accused Marine Corps (reference) Army Air Force Coast Guard Navy Accused Rank (Enlisted) Victim was Spouse or Intimate Partner * Female Victim(s) Military Victim(s) Number of Victims Number of Charges * Accused Convicted of Penetrative Offense * Accused Convicted of Contact Offense *P <.05 26

43 TABLE 15 LOGISTIC REGRESSION ANALYSIS OF PUNITIVE SEPARATION Approved Sentence Included Punitive Separation B SE Exp(B) Military Service of the Accused Army (reference) Air Force Coast Guard Marine Corps Navy * Accused Rank (Enlisted) Victim was Spouse or Intimate Partner Female Victim(s) Military Victim(s) * Number of Victims * Number of Charges Accused Convicted of Penetrative Offense * Accused Convicted of Contract Offense * Summary of Descriptive Data and Results of the Analyses Descriptive Data on Case Characteristics and Case Outcomes The military service with the largest number of cases with preferred charges for sexual offenses during the 2015 fiscal year was the Army, followed by the Air Force, the Navy, the Marine Corps, and the Coast Guard. The typical accused was a male enlisted member who was located in the United States or its territories when charges were preferred, and the typical victim was a female member of the military services who was not the accused s spouse or intimate partner. Most cases involved multiple charges and in almost three fourths of the cases the most serious charge was a penetrative offense. More than three fourths of the cases that went to a court martial went to a general court marital. The overall conviction rate for individuals charged with penetrative offenses was somewhat lower than the rate for individuals charged with contact offenses. Dismissal of the case without further action was more common for individuals charged with penetrative rather than contact offenses, but there were more alternative dispositions and acquittals in cases involving individuals charged with contact offenses. A large majority of those who were convicted received an approved sentence that included a term of confinement and the average approved confinement sentence was three years. 27

44 Results of the Bivariate Analyses The results of the bivariate analyses, which addressed the relationships between case disposition and case outcomes and a single independent variable, revealed that the type of disposition (i.e., whether the case was disposed by general court martial, special court martial, or summary court martial) varied by the type of offense charged, and the military service and rank of the accused. Although there were some differences in case outcomes based on the military service of the accused (for penetrative offenses only), case outcomes did not vary by the status or location of the accused, the gender or status of the victim, or the relationship between the accused and the victim. The type of conviction charge, the status of the victim, the type of court martial, and the type of trial forum consistently affected the type and length of the sentence. The relationship between the victim and the accused also affected the length (but not the type) of the sentence. Results of the Multivariate Analyses Because the multivariate analyses control simultaneously for relevant characteristics of the case, the accused, and the victim, the results of these analyses provide more nuanced findings regarding the factors that affect case outcomes. In most analyses, the strongest predictor of outcome was whether the accused was charged with or convicted of at least one count of a penetrative offense. Those who were charged with penetrative offenses were less likely than those charged with contact offenses to be convicted of at least one charge, were more likely to be acquitted of all charges, and were more likely to have the case dismissed without further action. On the other hand, if the accused was convicted of a penetrative offense, he/she was more likely to be sentenced to confinement, more likely to receive a punitive separation, and faced a substantially longer sentence than those convicted of non-sex offenses. By contrast, neither the rank of the accused nor the gender of the victim affected any of the outcomes examined. Other variables that had statistically significant effects on outcomes were: the military service of the accused o conviction for a penetrative offense was more likely if the accused was in the Army than if the accused was in the Marine Corps o conviction for at least one charge was more likely if the accused was in the Coast Guard than if the accused was in the Marine Corps o cases were less likely to be dismissed without further action if the accused was in the Army or Air Force rather than the Marine Corps o individuals serving in the Air Force were more likely than those serving in the Marine Corps to receive a confinement sentence o individuals serving in the Coast Guard were less likely than those in the Army to receive a punitive separation the number of charges o the likelihood of conviction was higher for cases in which more charges were preferred 28

45 o the likelihoods of acquittal and dismissal were lower for cases in which more charges were preferred o the length of the confinement sentence was longer for cases in which more charges were preferred the number of victims o the likelihood of conviction was higher for cases in which there were more victims o the likelihood of a confinement sentence was higher for cases in which there were more victims the status of the victim o the likelihood of conviction was lower for cases in which the victim was a member of the military rather than a civilian o the likelihood of acquittal was higher for cases in which the victim was a member of the military rather than a civilian o the likelihood that the accused would receive either a sentence of confinement or a punitive separation was lower if the victim was a member of the military rather than a civilian the relationship between the victim and the accused o the likelihood of conviction was lower if the victim was the accused s spouse or intimate partner o the likelihood that the case would be dismissed without further action was higher if the victim was the accused s spouse or intimate partner o the confinement sentence was almost three years longer if the victim was the accused s spouse or intimate partner 29

46 Table 21 Adjudication outcome for felony defendants in the 75 largest counties, by most serious arrest charge, 2009 Convicted Felony Misdemeanor Not convicted Most serious arrest charge Number of defendants Total convicted Total Plea Trial Total Plea Trial Total Dismissed Acquitted Other outcome* All offenses 48,939 66% 54% 53% 2% 12% 11% --% 26% 25% 1% 9% Violent offenses 11,601 61% 49% 46% 3% 13% 12% 1% 33% 31% 2% 6% Murder Rape Robbery 3, Assault 5, Other violent 2, Property offenses 14,314 67% 55% 53% 2% 12% 12% --% 24% 23% --% 9% Burglary 4, Larceny/theft 4, Motor vehicle theft 1, Forgery 1, Fraud 1, Other property 1, Drug offenses 16,456 66% 56% 56% 1% 9% 9% --% 24% 23% --% 11% Trafficking 7, Other drug 9, Public-order offenses 6,568 73% 58% 57% 2% 14% 14% --% 22% 21% 1% 6% Weapons 1, Driving-related 2, Other public-order 2, Note: Table excludes cases that were still pending adjudication at the end of the 1-year study period. Data on adjudication outcome were available for 99.9% of cases that had been adjudicated. Detail may not sum to total due to rounding. --Less than 0.5%. *Includes diversion and deferred adjudication. Murder cases were tracked for up to 2 years. Source: Bureau of Justice Statistics, State Court Processing Statistics, Figure 16 Conviction percents for felony defendants in the 75 largest counties, by most serious arrest charge, 2009 All defendants Driving-related Drug trafficking Forgery Murder Burglary Rape Motor vehicle theft Weapons Robbery Larceny/theft Fraud Assault Percent of defendants convicted Source: Bureau of Justice Statistics, State Court Processing Statistics, Original felony charge Other felony charge Misdemeanor Felony Defendants in Large Urban Counties, Statistical Tables December

47 JPP Staff Document Combining (1) The Department of Defense Joint Service Committee on Military Justice s (JSC) Proposed Amendments to Rule for Courts-Martial (R.C.M.) 1103A, (2) The Current Version of R.C.M. 1103A, and (3) The Service Courts of Criminal Appeals Rules Governing Access to Sealed Materials

48

49 U.S. Department of Defense Joint Service Committee on Military Justice s Proposed Amendments to Rule for Courts-Martial 1103A R.C.M. 1103A is amended to read as follows: (a) In general. If the report of preliminary hearing or record of trial contains exhibits, proceedings, or other materials ordered sealed by the preliminary hearing officer or military judge, counsel for the government or trial counsel shall cause such materials to be sealed so as to prevent unauthorized examination or disclosure. Counsel for the government or trial counsel shall ensure that such materials are properly marked, including an annotation that the material was sealed by order of the preliminary hearing officer or military judge, and inserted at the appropriate place in the original record of trial. Copies of the report of preliminary hearing or record of trial shall contain appropriate annotations that materials were sealed by order of the preliminary hearing officer or military judge and have been inserted in the report of preliminary hearing or original record of trial. This Rule shall be implemented in a manner consistent with Executive Order 13526, concerning classified national security information. (b) Examination and disclosure of sealed materials. Except as provided in the following subsections to this rule, sealed materials may not be examined or disclosed. (1) Prior to referral. Prior to referral of charges, the following individuals may examine and disclose sealed materials only if necessary for proper fulfillment of their responsibilities under the Code, this Manual, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility: The judge advocate advising the convening authority who directed the Article 32 preliminary hearing; the convening authority who directed the Article 32 preliminary hearing; the staff judge advocate to the general court-martial convening authority; and the general court-martial convening authority. (2) Referral through authentication. Prior to authentication of the record by the military judge, sealed materials may not be examined or disclosed in the absence of an order from the military judge based upon good cause. (3) Authentication through action. After authentication and prior to disposition of the record of trial pursuant to R.C.M. 1111, sealed materials may not be examined or disclosed in the absence of an order from the military judge upon a showing of good cause at a post-trial Article 39(a) session directed by the convening authority. (4) After action. (A) Examination by reviewing and appellate authorities. Reviewing and appellate authorities may examine sealed materials when those authorities determine that examination is reasonably necessary to a proper fulfillment of their responsibilities under the Code, this Manual, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility. (B) Examination by appellate counsel. Appellate counsel may examine sealed materials subject to the following procedures: (i) Sealed materials released to trial government or defense counsel. Materials presented or reviewed at trial and subsequently sealed, as well as materials 1 Prepared by JPP Staff, December 2, 2016

50 reviewed in camera, released to trial government or defense counsel, and subsequently sealed, may be examined by appellate counsel upon a colorable showing to the reviewing or appellate authority that examination is reasonably necessary to a proper fulfillment of their responsibilities under the Code, this Manual, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility. (ii) Sealed materials reviewed in camera but not released to trial government or defense counsel. Materials reviewed in camera by a military judge, not released to trial government or defense counsel, and subsequently sealed may be examined by reviewing or appellate authorities. After examination of said materials, the reviewing or appellate authority may permit examination by appellate counsel for good cause. (C) Disclosure. Appellate counsel shall not disclose sealed material in the absence of: (i) Prior authorization of the Judge Advocate General in the case of review under R.C.M. 1201(b) or 1112; or (ii) Prior authorization of the appellate court before which a case is pending review under R.C.M and (D) For purposes of this rule, reviewing and appellate authorities are limited to: (i) Judge advocates reviewing records pursuant to R.C.M. 1112; (ii) Officers and attorneys in the office of the Judge Advocate General reviewing records pursuant to R.C.M. 1201(b); (iii) Appellate judges of the Courts of Criminal Appeals and their professional staffs; (iv) The judges of the United States Court of Appeals for the Armed Forces and their professional staffs; (v) The Justices of the United States Supreme Court and their professional staffs; and (vi) Any other court of competent jurisdiction. (5) Examination of sealed materials. For purposes of this rule, examination includes reading, inspecting, and viewing. (6) Disclosure of sealed materials. For purposes of this rule, disclosure includes photocopying, photographing, disseminating, releasing, manipulating, or communicating the contents of sealed materials in any way. 2 Prepared by JPP Staff, December 2, 2016

51 Current Version of Rule for Courts-Martial 1103A (a) In general. If the report of preliminary hearing or record of trial contains exhibits, proceedings, or other matter ordered sealed by the preliminary hearing officer or military judge, counsel for the government or trial counsel shall cause such materials to be sealed so as to prevent unauthorized viewing or disclosure. Counsel for the government or trial counsel shall ensure that such materials are properly marked, including an annotation that the material was sealed by order of the preliminary hearing officer or military judge, and inserted at the appropriate place in the original record of trial. Copies of the report of preliminary hearing or record of trial shall contain appropriate annotations that matters were sealed by order of the preliminary hearing officer or military judge and have been inserted in the report of preliminary hearing or original record of trial. This Rule shall be implemented in a manner consistent with Executive Order 13526, concerning classified national security information. (b) Examination of sealed exhibits and proceedings. Except as provided in the following subsections to this rule, sealed exhibits may not be examined. (1) Prior to referral. The following individuals may examine sealed materials only if necessary for proper fulfillment of their responsibilities under the UCMJ, the MCM, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility: the judge advocate advising the convening authority who directed the Article 32 preliminary hearing; the convening authority who directed the Article 32 preliminary hearing; the staff judge advocate to the general court-martial convening authority; and the general courtmartial convening authority. (2) Prior to authentication. Prior to authentication of the record by the military judge, sealed materials may not be examined in the absence of an order from the military judge based on good cause shown. (3) Authentication through action. After authentication and prior to disposition of the record of trial pursuant to Rule for Courts-Martial 1111, sealed materials may not be examined in the absence of an order from the military judge upon a showing of good cause at a post-trial Article 39a session directed by the Convening Authority. (4) Reviewing and appellate authorities. (A) Reviewing and appellate authorities may examine sealed matters when those authorities determine that such action is reasonably necessary to a proper fulfillment of their responsibilities under the Uniform Code of Military Justice, the Manual for Courts- Martial, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility. (B) Reviewing and appellate authorities shall not, however, disclose sealed matter or information in the absence of: (i) Prior authorization of the Judge Advocate General in the case of review under Rule for Courts-Martial 1201(b); or (ii) Prior authorization of the appellate court before which a case is pending review under Rules for Courts-Martial 1203 and Prepared by JPP Staff, December 2, 2016

52 (C) In those cases in which review is sought or pending before the United States Supreme Court, authorization to disclose sealed materials or information shall be obtained under that Court s rules of practice and procedure. (D) The authorizing officials in paragraph (B)(ii) above may place conditions on authorized disclosures in order to minimize the disclosure. (E) For purposes of this rule, reviewing and appellate authorities are limited to: (i) Judge advocates reviewing records pursuant to Rule for Courts-Martial 1112; (ii) Officers and attorneys in the office of the Judge Advocate General reviewing records pursuant to Rule for Courts-Martial 1201(b); (iii) Appellate government counsel; (iv) Appellate defense counsel; (v) Appellate judges of the Courts of Criminal Appeals and their professional staffs; (vi) The judges of the United States Court of Appeals for the Armed Forces and their professional staffs; (vii) The Justices of the United States Supreme Court and their professional staffs; and (viii) Any other court of competent jurisdiction. (5) Examination of sealed matters. For the purpose of this rule, examination includes reading, viewing, photocopying, photographing, disclosing, or manipulating the sealed matters in any way. 4 Prepared by JPP Staff, December 2, 2016

53 Army Court of Criminal Appeals Service Courts of Criminal Appeals: Rules Governing Access to Sealed Materials Rule 30.4: Sealed Records. Attorneys of record in appellate cases may access the sealed records of an original record of trial. Attorneys will request permission of the Clerk and coordinate review of sealed records with the Office of the Clerk of Court. Attorneys of record are responsible to return the sealed record matters, completely and without alteration, to the Clerk of Court's possession. Photocopies of sealed records are prohibited. Navy-Marine Corps Court of Criminal Appeals Rule 1.3(c): Requests to Examine Records of Trial and Other Official Documents. Requests by appellate counsel to examine unclassified original records of trial and other official documents (unprotected by judicial privilege) shall be made to the responsible panel secretary. Examination shall be done in the reception area in Suite 320 or space designated by the Court s staff. Removal of records of trial from the Court s chambers is discouraged. If removal is considered necessary, approval by the senior judge of the panel to which the case is assigned, or his/her designee, is required. Records of trial shall be logged out for no more than one workday. Note: The Navy-Marine Corps Court of Criminal Appeals does not have a specific rule on appellate counsel review of sealed materials in the record of trial. Air Force Court of Criminal Appeals Rule 23.3(f): Motion to Review Sealed Records. Counsel shall submit a motion to the Court requesting authorization to review sealed exhibits. Counsel must show cause for such a request. A motion to review sealed records shall be presented as a consent motion whenever feasible. The Court s administrative and paralegal staff maintains responsibility for resealing all sealed exhibits. Coast Guard Court of Criminal Appeals The Coast Guard Court of Criminal Appeals does not have a specific rule on appellate counsel review of sealed materials in the record of trial. 5 Prepared by JPP Staff, December 2, 2016

54 SECTION 547 OF THE SENATE VERSION OF THE FY 2017 NDAA (S.2943) TO AMEND ARTICLE 6b OF THE UCMJ SEC APPELLATE STANDING OF VICTIMS IN ENFORCING RIGHTS OF VICTIMS UNDER THE UNIFORM CODE OF MILITARY JUSTICE. (a) VICTIM AS REAL PARTY IN INTEREST DURING APPELLATE REVIEW. Section 806b of title 10, United States Code (article 6b of the Uniform Code of Military Justice), is amended by adding at the end the following new subsection: (f) VICTIM AS REAL PARTY IN INTEREST DURING APPELLATE REVIEW. (1) If counsel for the accused or the Government files appellate pleadings under section 866 or 867 of this title (article 66 or 67), the victim of an offense under this chapter may file pleadings as a real party in interest when the victim s rights under the rules specified in paragraph (2) are implicated. The victim s right to file pleadings as a real party in interest includes the right to do so through counsel, including through a Special Victims Counsel under section 1044e of this title. (2) Paragraph (1) applies with respect to the protections afforded by the following: (A) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim's sexual background. (B) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege. (C) Military Rule of Evidence 514, relating to the victim advocate-victim privilege. (3) In this subsection, the term victim of an offense under this chapter means an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice) and for which there was a guilty finding that is the subject of appeal under section 866 or 867 of this title (article 66 or 67).. (b) NOTICE OF APPELLATE AND POST-TRIAL MATTERS. Subparagraph (C) of subsection (a)(2)of such section (article) is amended to read as follows: (C) A court-martial and any appellate matters, including post-trial review, relating to the offense..

55 Article 6b, UCMJ With Proposed Language From Section 547 of the Senate Version of the FY 2017 NDAA (S.2943) Art. 6b. Rights of the victim of an offense under this chapter (a) Rights of a Victim of an Offense Under This Chapter.-A victim of an offense under this chapter has the following rights: (1) The right to be reasonably protected from the accused. (2) The right to reasonable, accurate, and timely notice of any of the following: (A) A public hearing concerning the continuation of confinement prior to trial of the accused. (B) A preliminary hearing under section 832 of this title (article 32) relating to the offense. (C) A court-martial relating to the offense. (C) A court-martial and any appellate matters, including post-trial review, relating to the offense. (D) A public proceeding of the service clemency and parole board relating to the offense. (E) The release or escape of the accused, unless such notice may endanger the safety of any person. (3) The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or investigating officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding. (4) The right to be reasonably heard at any of the following: (A) A public hearing concerning the continuation of confinement prior to trial of the accused. (B) A sentencing hearing relating to the offense. (C) A public proceeding of the service clemency and parole board relating to the offense. (5) The reasonable right to confer with the counsel representing the Government at any proceeding described in paragraph (2). (6) The right to receive restitution as provided in law. (7) The right to proceedings free from unreasonable delay. (8) The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.

56 (b) Victim of an Offense Under This Chapter Defined.-In this section, the term "victim of an offense under this chapter" means an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice). (c) Appointment of Individuals to Assume Rights for Certain Victims.-In the case of a victim of an offense under this chapter who is under 18 years of age (but who is not a member of the armed forces), incompetent, incapacitated, or deceased, the military judge shall designate a representative of the estate of the victim, a family member, or another suitable individual to assume the victim's rights under this section. However, in no event may the individual so designated be the accused. (d) Rule of Construction.-Nothing in this section (article) shall be construed- (1) to authorize a cause of action for damages; or (2) to create, to enlarge, or to imply any duty or obligation to any victim of an offense under this chapter or other person for the breach of which the United States or any of its officers or employees could be held liable in damages. (e) Enforcement by Court of Criminal Appeals.- (1) If the victim of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32) or a court-martial ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (4), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the section (article) or rule. (2) If the victim of an offense under this chapter is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order. (3) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals, by such means as may be prescribed by the President, and, to the extent practicable, shall have priority over all other proceedings before the court. (4) Paragraph (1) applies with respect to the protections afforded by the following: (A) This section (article). (B) Section 832 (article 32) of this title. (C) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim's sexual background. (D) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege. (E) Military Rule of Evidence 514, relating to the victim advocate-victim privilege. (F) Military Rule of Evidence 615, relating to the exclusion of witnesses. (f) VICTIM AS REAL PARTY IN INTEREST DURING APPELLATE REVIEW. (1) If counsel for the accused or the Government files appellate pleadings under section 866 or 867 of this title (article 66 or 67), the victim of an offense under this chapter may file pleadings as a real party in interest when the victim s rights under the rules specified in

57 paragraph (2) are implicated. The victim s right to file pleadings as a real party in interest includes the right to do so through counsel, including through a Special Victims Counsel under section 1044e of this title. (2) Paragraph (1) applies with respect to the protections afforded by the following: (A) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim s sexual background. (B) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege. (C) Military Rule of Evidence 514, relating to the victim advocate-victim privilege. (3) In this subsection, the term victim of an offense under this chapter means an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice) and for which there was a guilty finding that is the subject of appeal under section 866 or 867 of this title (article 66 or 67). (Added Pub. L , div. A, title XVII, 1701(a)(1), Dec. 26, 2013, 127 Stat. 952 ; amended Pub. L , div. A, title V, 531(f), 535, Dec. 19, 2014, 128 Stat. 3364, 3368; Pub. L , div. A, title V, 531, Nov. 25, 2015, 129 Stat. 814.)

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59 Judicial Proceedings Panel April 7, 2017 Speakers Biographies Dr. Cassia C. Spohn, Foundation Professor and Director, Arizona State University School of Criminology and Criminal Justice. Cassia Spohn received a Ph.D. in political science from the University of Nebraska Lincoln. Prior to joining the ASU faculty in 2006, she was a faculty member in the School of Criminology and Criminal Justice at the University of Nebraska at Omaha for 28 years. She is the author or co-author of seven books, including Policing and Prosecuting Sexual Assault: Inside the Criminal Justice System and How Do Judges Decide? The Search for Fairness and Equity in Sentencing. Dr. Spohn s research interests include prosecutorial and judicial decision making; the intersections of race, ethnicity, crime, and justice; and sexual assault case processing decisions. In 2013, she received ASU s Award for Leading Edge Research in the Social Sciences and was selected as a Fellow of the American Society of Criminology. Dr. Spohn is a consultant to the JPP on sexual assault data collection and analysis. Dr. Nathan Galbreath, Deputy Director, Sexual Assault Prevention and Response Office (SAPRO), U.S. Department of Defense. Dr. Galbreath is the Deputy Director for the Department of Defense Sexual Assault Prevention and Response Office (SAPRO). In this position, he is the Department s expert for prevention and response programs and their relationship to behavioral health, forensic science, criminal investigation, and sex offender assessment and treatment. Dr. Galbreath previously served as the Department s Highly Qualified Expert on Sexual Assault Prevention and Response from 2012 to He has been affiliated with SAPRO since May 2007 when he served as SAPRO s first military deputy director before retiring from the Air Force in Dr. Galbreath entered the Air Force in 1989 and served 11 years with AFOSI as an agent, a forensic science specialist, and a Detachment Commander (Special Agent in Charge) at Air Force base offices in New Mexico, Colorado, and Utah. Dr. Galbreath was competitively selected by the Air Force to earn a Master of Forensic Science from the George Washington University, Washington, DC (awarded in 1993), and a Ph.D. in Clinical Psychology, from the Uniformed Services University of the Health Sciences (USUHS), Bethesda, MD (awarded in 2004). He has been a primary author on the Department of Defense Annual Report on Sexual Assault in the Military since 2007.

60 Ms. Kathy Robertson, Family Advocacy Program Manager, Office of the Deputy Assistant Secretary, Military Community and Family Policy, U.S. Department of Defense. Ms. Robertson has the responsibility for policy, the oversight framework, and budget support of the Family Advocacy Programs (FAP) in the Military Departments supporting military families worldwide. FAP is the DoD program designated to address child abuse and domestic abuse in military families in cooperation with civilian social service agencies and military and civilian law enforcement agencies. She has responsibilities for responding to Congress on legislative/national Defense Authorization Act (NDAA) requirements. Prior to her current position, she was the Head of Policy and Strategy for the Department of the Navy Sexual Assault Prevention and Response Office (SAPRO), and she was the Navy s Deputy Manager for Counseling, Advocacy and Prevention (CAP) Programs which include the Family Advocacy Program, New Parent Support Program, Clinical Counseling and SAPR program. Ms. Robertson has testified before a Congressional Personnel subcommittee on the Navy SAPR program, and has briefed HASC, SASC, and White House staff on the Family Advocacy Program. Ms. Kathy Robertson has over 30 years of experience working in management and clinical services in military family programs (Army, OSD, and Navy). Ms. Robertson holds a Master s in Education with certification in Counseling from the University of Southern California and a MSW from University of South Carolina. She is a Licensed Clinical Social Worker in NC and VA.

61 Adjudication of Sexual Offenses: 2015 Data Cassia Spohn, PhD School of Criminology and Criminal Justice Arizona State University

62 Data for the Analysis of 2015 Cases All cases involving a preferred charge of sexual assault that were completed in FY 2015 (N = 738) At least one count of a penetrative offense (N = 530) or a contact offense (N = 208) Two thirds were from the Army (43.6%) or Air Force (23%) Navy 16.4% Marine Corps 12.7% Coast Guard 4.2%

63 Descriptive Portrait of Accused Typical accused was Enlisted service member (92.7%) Male (99.3%) Assigned to units in the US or its territories when charges were preferred (81.3%)

64 Descriptive Portrait of Victim(s) Number of victims ranged from 1 to 15 Most cases involved one (83.2%) or two (11.9%) victims Typical victim was Female (90.9%) Member of the military services (67.6%) Not the spouse or intimate partner of the accused (82.4%) 82 of the 130 victims who were spouses or intimate partners were civilians

65 Case Dispositions 526 (71.3%) cases were referred to court martial 121 (16.4%) received an alternative disposition 91 (12.3%) were dismissed without further action Of 526 cases referred to court martial 416 (79.1%)went to general court martial 71 (13.5%) went to special court martial 39 (7.4%) went to summary court martial Of 526 cases referred to court martial 276 (52.5%) decided by a military judge 211 (40.1%) decided by a panel of military members 39 (7.4%) decided by a summary court martial officer

66 Case Outcomes: All Penetrative Offenses (N = 530) convicted of penetrative offense convicted of contact offense convicted of non-sex offense acquitted 10 alternative disposition Penetrative Offenses dismissed

67 Case Outcomes: All Contact Offenses (N = 208) convicted of contact offense convicted of non-sex offense acquitted alternative disposition dismissed 0 Contact Offenses

68 Case Outcomes: Cases Referred to Trial convicted of penetrative offense convicted of contact offense convicted of non-sex offense acquitted Penetrative Offenses Contact Offenses

69 Approved Sentence Type Approved Sentence Approved Sentence Confinement Punitive Separation Confinement + Separation

70 Length of Sentence Adjudged Sentence Range = 0.57 months to life in prison Mean = Approved Sentence Range = 0.57 months to life in prison Mean = 36.08

71 Bivariate Analysis of Case Outcomes Designed to determine if two variables are related Example: Is the accused s military service a statistically significant predictor of the type of disposition (type of court martial)? Example: Is the relationship between the victim and the accused a statistically significant predictor of the case outcome?

72 Type of Disposition Bivariate Analysis Significant predictors were Type of Charge Penetrative offenses more than twice as likely as contact offenses to be disposed at general court martial Contact offenses more likely than penetrative offenses to be disposed at special or summary court martial Military Service of the Accused Cases from Army and Air Force more likely than cases from Coast Guard, Marine Corps or Navy to be disposed at general court martial Rank of the Accused All 43 cases involving officers disposed at general court martial Type of disposition more varied for cases involving enlisted members But 77.2% disposed at general court martial

73 Case Outcomes Bivariate Analysis Only significant predictor was Military Service of the Accused (penetrative offenses only) Outcomes (in bivariate analysis) not affected by Status of accused Gender and status of victim Relationship between accused and victim Location of accused when charges preferred

74 Case Outcomes by Military Service of Accused: Penetrative Offenses Dismissed Alternative Disposition Acquitted Convicted 20 0 Army Air Force Coast Guard Marine Corps Navy

75 Conviction Charge by Military Service of Accused: Penetrative Offenses Convicted of Penetrative Offense Convicted of Contact Offense Convicted of Non-Sex Offense 0 Army Air Force Coast Guard Marine Corps Navy

76 Case Outcomes by Military Service of Accused: Trial Cases & Penetrative Offenses Acquitted Convicted 20 0 Army Air Force Coast Guard Marine Corps Navy

77 Confinement Sentence Bivariate Analysis Significant predictors were Status of victim (confinement > likely if civilian victim(s)) Type of conviction charge (confinement > likely if penetrative offense charged) Type of court martial (confinement > likely if general court martial) Type of trial forum (confinement > likely if military judge or panel of military members) Confinement sentence not affected by Military service of accused Rank of accused Gender of victim Status of victim Relationship between accused and victim Number of counts preferred Number of victims

78 Confinement & Status of Victim Percent Confined Status of Victim Military Civilian Military & Civilian

79 Confinement & Conviction Charge Percent Confined Penetrative Offense Contact Offense Non-Sex Offense

80 Confinement &Type of Court Martial Percent Confined Type of Court Martial General Court Martial Special Court Martial Summary Court Martial

81 Confinement &Trial Forum Percent Confined Trial Forum Military Judge Panel of Military Members Summary Court Martial Officer

82 Length of Confinement Sentence Bivariate Analysis Significant predictors were Status of victim Relationship between accused and victim Type of conviction charge Type of court martial Type of trial forum Length of confinement sentence not affected by Military status of accused Rank of accused Gender of victim

83 Sentence Length & Status of Victim Sentence in Months Status of Victim Military Civilian Military & Civilian

84 Sentence Length &Relationship Between Accused and Victim Sentence in Months Spouse or Intimate Patrner Not Spouse or Intimate Partner 0 Relationship Between Accused and Victim

85 Sentence Length & Type of Conviction Charge Sentence in Months Penetrative Offense Contact Offense Non-Sex Offense 10 0 Type of Conviction Charge

86 Multivariate Analysis Used to identify the statistically significant predictors of outcomes Simultaneously controls for all variables in the analysis If a variable affects outcomes, it does so while holding all other variables in the model constant Example: number of victims is a statistically significant predictor of conviction for a penetrative offense This is net of the effects of the accused s military service, the accused s rank, the relationship between the accused and the victim, whether all victims were female, whether all victims were military, the number of victims and the number of counts

87 Likelihood of Conviction Conviction for a Penetrative Offense Military service of accused (3.2 times more likely if accused in Army rather than Marine Corps) Number of victims (more victims = greater likelihood of conviction) Number of counts preferred (more counts = greater likelihood of conviction) Conviction for any Offense Military service of accused (3.7 times more likely if accused in Coast Guard rather than Marine Corps) Victim was spouse or intimate partner (conviction less likely) Victim was a member of military services (conviction less likely) Accused charged with a penetrative offense (conviction less likely) Number of counts preferred (more counts = greater likelihood of conviction)

88 Likelihood of Acquittal and Dismissal of all Charges Acquittal at Trial Number of counts preferred (more counts = smaller likelihood of acquittal) Accused charged with penetrative offense (acquittal more likely) Dismissal of All Charges Military service of accused (those in Army and Air Force less likely than those in Marine Corps to have all charges dismissed) Victim was spouse or intimate partner (dismissal more likely) Number of counts preferred (more counts = smaller likelihood of dismissal) Accused charged with penetrative offense (dismissal more likely)

89 Confinement Sentence Whether accused sentenced to confinement Military service of accused (those in the Air Force more likely than those in the Marine Corps to receive confinement) Accused convicted of penetrative offense (confinement more likely) Status of victim (confinement less likely if victim was member of military services rather than civilian) Length of confinement sentence Accused convicted of penetrative offense (sentences months longer compared to accused convicted of non-sex offenses) Victim was spouse or intimate partner (sentences averaged 31 months longer) Number of counts preferred (each additional count = 2.26 months longer)

90 Punitive Separation Accused convicted of penetrative offense or contact offense rather than non-sex offense (punitive separation more likely for those convicted of penetrative or contact offenses) Military service of accused (punitive separation less likely for those in Coast Guard, compared to those in Army) Status of victim (punitive separation less likely for those convicted of crimes against military victims) Number of victims (more victims = greater likelihood of punitive separation)

91 Conclusions: Multivariate Analysis Strongest predictor of outcomes: whether accused charged with/convicted of penetrative offense Compared to those charged with contact offense, those charged with penetrative offenses were Less likely to be convicted of at least one charge More likely to be acquitted More likely to have all charges dismissed Compared to those convicted of non-sex offenses, those convicted of penetrative offenses Were more likely to be sentenced to confinement Were more likely to receive a punitive separation Faced longer confinement sentences By contrast, neither the rank of the accused nor the gender of the victim affected any outcomes

92 Conclusions: Multivariate Analysis Other variables had less consistent effects Military service of accused compared to those in Marine Corps Conviction for a penetrative offense more likely for those in Army Conviction for any charge more likely for those in Coast Guard Dismissal less likely for those in Army or Air Force Confinement sentence more likely for those in Air Force Number of charges cases with more charges preferred had Higher likelihood of conviction Lower likelihood of acquittal or dismissal Longer confinement sentences Number of victims cases with more victims had Higher likelihood of conviction Higher likelihood of confinement sentence

93 Conclusions: Multivariate Analysis Other variables had less consistent effects Status of the victim if the victim was military rather than civilian Likelihood of conviction was lower Likelihood of acquittal was higher Likelihood of confinement sentence was lower Likelihood of punitive separation was lower Relationship between accused and victim if the victim was spouse or intimate partner of accused Likelihood of conviction was lower Likelihood of case dismissal was higher The confinement sentence was 31 months longer

94 JUDICIAL PROCEEDINGS PANEL Courts-Martial Statistics 1

95 JUDICIAL PROCEEDINGS PANEL JPP Task (Sec. 576 of the FY13 NDAA) Review and evaluate current trends in response to sexual assault crimes whether by courts-martial proceedings, nonjudicial punishment and administrative actions, including the number of punishments by type, and the consistency and appropriateness of the decisions, punishments, and administrative actions based on the facts of individual cases. 2

96 JUDICIAL PROCEEDINGS PANEL JPP Task (Sec. 576 of the FY13 NDAA) Identify any trends in punishments rendered by military courts, including general, special, and summary courts-martial, in response to sexual assault, including the number of punishments by type, and the consistency of the punishments, based on the facts of each case compared with the punishments rendered by Federal and State criminal courts. 3

97 JUDICIAL PROCEEDINGS PANEL JPP Task (Sec. 576 of the FY13 NDAA) Review and evaluate court-martial convictions for sexual assault in the year covered by the most-recent report of the Judicial Proceedings Panel and the number and description of instances when punishments were reduced or set aside upon appeal and the instances in which the defendant appealed following a plea agreement, if such information is available. 4

98 JUDICIAL PROCEEDINGS PANEL Court-Martial Data Collection JPP Staff requested the military Services provide all sexual assault cases tried (findings or sentence adjudged), dismissed, or resolved in an alternate forum in FY15 Cases involve at least one preferred charge of sexual assault JPP staff requested specific court-martial documents to determine the procedural history of each case 5

99 JUDICIAL PROCEEDINGS PANEL Court-Martial Data Collection Differences between the FY15 data set and previous data: This year the staff requested all cases; prior JPP case data did not include sexual assaults between spouses or intimate partners One year of data (FY15) vs. three years (FY12-FY14) Case file documents verify that every case analyzed by the JPP was tried or resolved in FY15 6

100 JUDICIAL PROCEEDINGS PANEL Court-Martial Data Collection FY 15 Total Number of Cases Identified by Services Number of Cases in JPP Database Percentage Analyzed by JPP % FY12-14 Total Number of Cases Identified by Services Number of Cases in JPP Database Percentage Analyzed by JPP 2,360 1,761 74% 7

101 JUDICIAL PROCEEDINGS PANEL Court-Martial Data Collection FY15 Data by Military Service Military Service Number of Cases Identified By Service Number of Cases in JPP Database Percentage Analyzed by JPP Army % Air Force % Navy % Marine Corps % Coast Guard % 8

102 JUDICIAL PROCEEDINGS PANEL Court-Martial Data Analysis Entered information from case documents into the JPP s electronic database Provided the aggregate data to Dr. Cassia Spohn for analysis Dr. Spohn analyzed data for 738 cases 9

103 JUDICIAL PROCEEDINGS PANEL Other Information for the JPP s Consideration Request for Information from DoD: Implementation status of JPP Recommendations 37 and 38 DoD s Sexual Assault Data Initiative (May 2016) involving the Defense Digital Service Statistics from the FY15 DoD SAPRO Annual Report Article 140a, Case Management; Data Collection and Accessibility Proposed by DoD in December 2015 Covers all cases, not just sexual assault, at all stages of the military justice process Will take effect in 4 years 10

104 JUDICIAL PROCEEDINGS PANEL Questions? 11

105 JUDICIAL PROCEEDINGS PANEL Appellate Review of Court-Martial Convictions 12

106 JUDICIAL PROCEEDINGS PANEL JPP Statutory Task (Sec. 576 of the FY13 NDAA) Review and evaluate court-martial convictions for sexual assault in the years covered by the most-recent report required by subsection (c)(2) and the number and description of instances when punishments were reduced or set aside upon appeal and the instances in which the defendant appealed following a plea agreement, if such information is available. 13

107 JUDICIAL PROCEEDINGS PANEL Military Appellate Review Process Under UCMJ, an accused convicted by court-martial is entitled to automatic review of the trial (UCMJ Articles 65 through 76) Review by Service Courts of Criminal Appeals (CCAs) occurs when: The sentence includes confinement for one year or more; or includes death, dismissal, dishonorable discharge, or a bad-conduct discharge A case is referred to the CCA by the Service TJAG Note: the FY17 NDAA makes significant changes to the appellate review process 14

108 JUDICIAL PROCEEDINGS PANEL Data gathered: Appellate Data Collection Cases reviewed by the CCAs that involve a conviction under Article 120 or Article 125 involving adult victims, and attempts Opinion or summary disposition issued by an appellate court How JPP Staff gathered the data: CCA opinions are made publicly available by each of the military appellate courts on their websites Cases that are summarily affirmed without an opinion were requested separately by the JPP if not available on the CCA websites 15

109 JUDICIAL PROCEEDINGS PANEL Appellate Data Adult Sexual Assault Cases Reviewed by the Service Courts of Criminal Appeals in Fiscal Year 2015 Military Service Sexual Assault Convictions Relief Granted (Sexual Assault Conviction Set Aside or Sentence Reduced) Sexual Assault Convictions that did not Result in Relief for the Sexual Assault Conviction Total Sexual Assault Convictions Reviewed Army Air Force Marine Corps Navy Coast Guard TOTAL

110 JUDICIAL PROCEEDINGS PANEL Appellate Data Analysis: Most cases involving relief indicated a charge or specification was set aside Most common reasons for appellate action: Unreasonable multiplication of charges Factual insufficiency Post-trial delay Apparent UCI in counsel s argument Improper admission of MRE 413 evidence (other SA offense) 17

111 JUDICIAL PROCEEDINGS PANEL Appellate Data Relief Granted by Service Courts of Criminal Appeals Following a Plea of Guilty Service Number of Cases Army 2* Air Force 0 Marine Corps 0 Navy 0 Coast Guard 0 TOTAL 2 *Sentencing relief granted due to dilatory post-trial processing 18

112 JUDICIAL PROCEEDINGS PANEL Civilian Conviction and Punishment Data JPP reviewed FY12-14 Sentencing Commission data for the 2016 data report Sentencing Commission had relatively few cases to report Most recent nationally-representative state court data: Study of violent felony convictions in state courts in 2009 (Bureau of Justice Statistics report) 19

113 JUDICIAL PROCEEDINGS PANEL Non-Judicial Punishment (NJP) & Adverse Administrative Actions Case records not available to JPP for review/analysis Personnel records (Privacy Act) Records not centrally maintained Records disposition/destruction date varies NJP & Administrative Action information taken from DoD SAPR Annual Reports Total case reports where NJP and/or administrative action is indicated NJP & administrative action information not uniformly reported in SAPR Annual Report case reports 20

114 JUDICIAL PROCEEDINGS PANEL Questions? 21

115 DoD Sexual Assault Prevention and Response Office Fiscal Year 2015 Reports of Sexual Assault, Completed Investigations, and Subject Dispositions 1

116 Reports of Sexual Assault, Completed Investigations, and Subject Dispositions, FY15 Notes: 1. For incidents that occur on or after June 28, 2012, the term sexual assault refers to the crimes of rape, sexual assault, aggravated sexual contact, abusive sexual contact, forcible sodomy, and attempts to commit these offenses. 2. The number of investigations initiated in FY15 is lower than the number of victim reports referred for investigation because: there can be multiple victims in a single investigation, some investigations referred in FY15 did not begin until FY16, and some allegations could not be investigated by DoD or civilian law enforcement. 3. The analysis of G, H, and I is a new process and subject to review. Accordingly, these numbers may be adjusted in the future. 2

117 Subjects outside DoD Legal Authority, FY15 3

118 Dispositions of Subjects under DoD Legal Authority, FY15 4

119 Dispositions of Subjects against Whom Sexual Assault Court-Martial Charges were Preferred, FY15 Notes: 1. Percentages for some categories do not sum to 100% due to rounding. Punishments do not sum to 100%, because subjects can receive multiple punishments. 5

120 2. The Services reported that 926 subjects of sexual assault investigations had court-martial charges preferred against them for a sexual assault offense. 3. Of the 926 subjects who had court-martial charges preferred against them, 113 subjects were still pending court action at the end of FY Of the 813 subjects whose courts-martial were completed and reported in FY15, 543 subjects proceeded to trial, 159 subjects were granted a discharge or resignation in lieu of court-martial, and 111 subjects had court-martial charges dismissed. 5. In cases in which a discharge in lieu of court-martial is requested and approved, the characterization of the discharge is UOTHC, unless a higher characterization is justified. 6. Of the 111 subjects with dismissed charges, commanders imposed nonjudicial punishment on 22 subjects. An additional four subjects had a nonjudicial punishment initiated, but were subsequently dismissed. Most of these 22 subjects received two kinds of punishment: a reduction in rank and a forfeiture of pay. 7. Of the 543 subjects whose cases proceeded to trial, 413 were convicted of at least one charge. Conviction by court-martial may result in a combination of punishments. Consequently, convicted Service members could be adjudged one or more of the punishments listed. In most cases, they received at least four kinds of punishment: confinement, a reduction in rank, a fine or forfeiture of pay, and a punitive discharge (i.e., bad conduct discharge, dishonorable discharge, or dismissal (officers)). The National Defense Authorization Act (NDAA) for FY13 now requires mandatory administrative separation processing for all Service members convicted of a sexual assault offense. 6

121 Dispositions of Subjects against Whom Sexual Assault Court-Martial Charges were Preferred by Crime Charged, FY15 Notes: 1. Percentages for some categories do not sum to 100% due to rounding. Punishments do not sum to 100%, because subjects can receive multiple punishments. 2. The outcomes for the attempts to commit cases were: one charges dismissed, one RILO/DILO, one convicted of a non-sexual assault offense (punishments received: confinement, reductions in rank, and punitive discharge/dismissal). 7

122 Dispositions of Subjects Receiving Nonjudicial Punishment, FY15 Note: Punishments do not sum to 100% because subjects can receive multiple punishments. 8

123 Dispositions of Subjects for Whom There was Only Probable Cause for Non-Sexual Assault Offenses, FY15 Notes: 1. Some percentages do not sum to 100% due to rounding. Punishments do not sum to 100% because subjects can receive multiple punishments. 9

124 2. The Military Services reported that investigations of 576 subjects only revealed evidence of misconduct not considered a sexual assault offense under the UCMJ. 3. Of the 576 subjects, 64 subjects had court-martial charges preferred against them, 338 subjects were entered into nonjudicial punishment proceedings, 55 subjects received a discharge or separation, and 119 subjects received adverse administrative action. 4. Of the 64 subjects with court-martial charges preferred, 49 subject cases proceeded to courtmartial and 44 subjects were convicted of the charges against them. 5. Of the 338 subjects considered for nonjudicial punishment, 11 cases were still pending completion and commanders ultimately found 315 guilty. 10

125 Percentage of Subjects Considered by Military Commanders for Action 100% 80% 60% 40% 20% 0% Non-Metric 1b: FY15 Completed Command Actions by Crime Investigated 14% 4% 1% 42% 39% Penetrating Crimes N= % 10% 19% 22% 21% Sexual Contact Crimes N=1382 FY15 Actions for non-sexual assault offenses Administrative discharges and actions for sexual assault offenses Nonjudicial punishments for sexual assault offenses Court-martial charges preferred for sexual assault offenses Command action not possible Note: This figure only includes command actions in which the action was completed in FY15. Command actions pending completion (e.g., court-martial preferred but pending trial) are not included in this graph. Additionally, 31 completed command actions could not be classified as penetrating or sexual contact crimes because the crime charged was attempted sexual assault. 11

126 Family Advocacy Program Domestic Abuse-Related Sexual Assaults April 7, 2017 Kathy Robertson, LCSW OSD FAP Program Manager Office of Military Family Readiness Policy Office of the Deputy Assistant Secretary of Defense Military Community & Family Policy

127 Inclusion of Domestic Abuse-Related Sexual Assaults in DoD Annual Report (JPP recommendation 38) Domestic abuse - related sexual assaults (sexual abuse) of spouses and intimate partners falls under the purview of the Family Advocacy Program (FAP) FAP Domestic Abuse - Related Sexual Assaults are included in the FY 2015 and 2016 DoD Sexual Assault in the Military Report (SAPRO). The FAP reports do not include investigative or legal dispositions. FAP incident data is tracked by the Military Services and reported to the Department through the FAP Central Registry maintained by DMDC. FAP is responsible for prevention, identification, reporting, and treatment for allegations of domestic abuse and child abuse and neglect in military families.