Expect a Spike in Military Discharges Due to Sexual Assault Allegations

By most accounts, it appears that decisions on military sexual assault prosecutions are going to be taken out of military commanders’ hands and given to independent military lawyers.  Those in Congress who support this move believe it will lead to a reduction in the number of sexual assaults that occur in the Armed Forces each year.  Whether that’s true or not is not the purpose of this article.  Instead, this piece is about how that move, if made, is probably going to drastically increase the number of military service members that are discharged—one way or another—from the military each year as a result of sexual assault allegations.  Here is how it will likely play out.  

Military Sexual Assault Prosecutions Will Likely Increase Drastically

The “independent” military lawyers given this prosecutorial power are going to be under an enormous amount of pressure to prosecute and convict more military service members accused of sexual assault than has occurred in the past.  That’s their purpose.  And they surely aren’t going to want to report that the number of sexual assault prosecutions and convictions decreased upon them taking over.  This will create a huge dilemma.  

On the one hand, prosecutors don’t like taking weak cases to trial because, if they lose, it hurts their win-loss record.  On the other hand, if they only take the strongest sexual assault cases to court martial (the ones they are extremely confident they can win), the number of prosecutions could decrease, and it’s hard to imagine that being tolerated by the powers that be. 

One potential way around this dilemma—and it’s a way that should be feared—is for these independent military prosecutors to be hand-picked because they are the very best court martial lawyers the military has.  This would essentially be stacking the deck: the government gets the best lawyers, the defense (and the accused service member) gets the leftovers.  Thus, accused military service members may be on the wrong side of this often cited quote about trials:

“A jury consists of twelve persons chosen to decide who has the better lawyer.”

Regardless of how each service handles the oversight of these independent prosecutors, it’s really difficult to fathom that their implementation will result in anything other than an increase in sexual assault prosecutions and convictions, and that would not be a good thing if the results were driven by one side being stacked with the best active duty court martial attorneys.   

Boards of Inquiry (BOI) and Administrative Separation Boards for Sexual Assault Allegations Will Also Spike

Whatever sexual assault allegations that the independent prosecutors decide are just too weak to take to court martial are almost guaranteed to result in administrative separation proceedings—BOI for officers and an Administrative Separation Board for enlisted.  There, the burden of proof is much lower.  The government must only prove by a preponderance of the evidence (51%) that a sexual assault occurred.  If it does, an other than honorable (OTH) discharge is next to certain to follow.  And if the deck is indeed stacked in a way that the best military law attorneys are suiting up for the prosecution, the number of other than honorable discharges will likely skyrocket.     

The Convening of a BOI or Administrative Separation Board for Service Members Acquitted at Trial are Also Likely to Increase

You may or may not know it, but even if a service member is found not guilty of sexual assault at a court martial, they can still be processed for administrative separation.  In the past, this has generally not been a course of action that was pursued by commanders.  Expect that to change under the new independent prosecutor scheme.  Because these military prosecutors will be starting from scratch, every number will count and Congress will be watching.  

Under these circumstances, it’s probably going to be a very scary time for Soldiers, Sailors, Marines, Airmen, and Coast Guardsmen.  Military service members will need to do everything in their power to protect their military careers and their futures, especially if accused of sexual assault.