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Mr. Herbert rips DOD for suggesting that the increase in reported sexual assaults "is encouraging." He writes:
The Department of Defense has taken a peculiarly optimistic view of the increase in the number of reported sexual attacks. The most recent data is contained in the annual report that the department is required to submit to Congress. The report says that "the overall increase in reports of sexual assault in the military is encouraging," and goes on to explain:It is difficult to understand how DOD could purport to know that "increased reports of sexual assault do not reflect a rise in annual incidents of sexual assault." While a rise in the reported number of assaults might not reflect a rise in the actual number of assaults, how could DOD know that it doesn't?
"It should be noted that increased reports of sexual assault do not reflect a rise in annual incidents of sexual assault. Sexual assault is one of the most under-reported crimes in the United States. Estimates suggest that only a small percentage of sexual assaults are ever reported to the police. The department suspects that the same is true for military society as well. An increase in the number of reported cases means that the department is capturing a greater proportion of the cases occurring each year."
How's that for viewing hideous statistics through rose-colored glasses? If the number of reported cases of rape goes sky-high over the next fiscal year, that will mean that the military is doing an even better job!
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Any good defense attorney knows that the key to winning a "not guilty" verdict is to cross examine, and discredit, the victim's credibility. This is also what prevents other victims from coming forward, at least in part. So....defense attorneys are responsible, partly, for the problem of underreporting. This has been helped,a little, by MRE 412. Yet, at defense counsel conferences at the Naval Justice School, instruction is given as to how to circumvent MRE 412.
I agree, even Mr. Rumsfeld would admit this is an known unknown that you can't know. Am I using htat correclty, CK?
If some authorities can purport to know that the great majority of sexual assaults are never reported, I'd think DOD could purport to know that "increased reports of sexual assault do not reflect a rise in annual incidents of sexual assault."
If nothing else, the statement might simply reflect DOD's judgment on the credibility of the increased reports (i.e. there are more reports, but they are so incredible that DOD is confident that they do not reflect an actual increase in sexual assaults).
There are lies, damn, lies, and statistics. DOD is also getting beat up based upon statistics that suggest DOD conviction rates for sexual assaults are less than some of those reported in the civilian sector. Thus the anti-DOD cabal cries that we're not taking sexual assault seriously and our counsel aren't properly trained. OK, I can push the conviction rate up easily by not trying the difficult cases, but rather only the ones I'm sure I know I'll obtain a conviction. Happy now? Or is that counter productive to actually addressing the issue of sexual assault. DAs and US Attys are under similar pressure. If you want to try the really hard cases (he said, she said - everyone is drunk, no physical evidence kinda cases), you gotta pretty much expect a lower conviction rate. Maybe that "sends a message" that we don't tolerate sexual assault, but I don't think you can have it both ways.
I've got an idea, why don't we rewrite 120?
Better yet, if as many of 80 percent of sexual assaults in the armed forces are really going unreported, why not let it be known that we'll start strictly enforcing the "report all known offenses" regulations against the victims of these crimes?
I actually don't fault DoD here. For DoD, it's one of those "Damned if you , Damned if you don't" situations.
If the number of reported cases goes down, "they" will just say that's because the program is not working and the number of unreported sexual-assault incidents are going up. If the number of reported cases goes up, then "they" will say it's because the military is doing a poor job of preventing them and the number of sexual-assault incidents are rising. The "they" are those who have a poor view of the military no matter what it does to actually makes improvements.
TWe may never know whether sexual assaults are on the rise or decline (if you go witht he assumption that many sexual assaults go unreported). But the purpose behind the new DoD sexual assault reporting scheme was to increase the number of reports and reduce the number that go unreported. Naturally, if it is a success, then the number of reported sexual assaults will go up. So go ahead DoD, do the spin, in this case, DoD has nothing to lose.
In nothing in this post should be read to relfect an opinion by me that there is not a sexual assault problem in the military. It is still a male dominated culture and I would like to see the incidents of sexual assault reduced. I have a daughter who may someday want to follow her father's footsteps and serve as well, I would want her service to be a safe from sexual assaults as possible.
From an every-day practitioner in this area, let me just say this: not all of these claims of sexual assault that are made are well-rooted in fact. The government wins fewer than half of the litigated sex assault cases, which led to the "new" Article 120. Still, they don't win more than half of the cases brought. Why? Poor litigation skills? Maybe, but they convict a large portion of drug cases.
Sex assault is a hot-button issue, and the DoD takes a lot of flack for how it handles them, and rightly so. In my opinion, though, they take too many of them to trial, not too few. As a former Circuit Trial Counsel, the worst experiences on the job have been telling a complaining witness that "their case" was acquitted. He said/she said cases are losers, pure and simple.
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