Military’s dubious stats on false sex assault cases cloud prosecutions, debate
By ERIK SLAVIN | STARS AND STRIPES Published: October 5, 2013
Chastened by lawmakers and commentators for having thousands of sexual assault reports, military leaders are arming themselves with statistics to “get tough” on the problem, while encouraging their subordinates to do the same.
But those statistics are far from scientific and, in the case of false reports, the numbers and definitions vary wildly.
The Navy Commander’s Guide to Sexual Assault Prevention and Response, for example, states that “false allegations of sexual assault are 3% per NCIS data,” referring to the Naval Criminal Investigative Service.
There is no footnote citing where the data originated, and an NCIS spokesman said that the statistic didn’t come from them.
Nevertheless, this unconfirmed statistic has been cited at Navy commands and in courts-martial worldwide.
The Defense Department has no publicly available, academically rigorous studies on false reporting like those that exist among civilians. A false report is one in which evidence conclusively shows that a crime was not committed or attempted after a thorough investigation, according to definitions used by many academics and the International Association of Chiefs of Police.
The Pentagon’s 2012 annual report on sexual assault states that 17 percent of all cases were determined to be “unfounded” or “baseless” by investigators or by commanders, who under the Uniform Code of Military Justice can decline to prosecute. However, “unfounded” and “baseless” often mean something other than false.
There may not be enough evidence to prosecute, or an alleged victim may not cooperate with investigators, among other reasons.
Biases and stereotypes among investigators about what constitutes rape have also colored how cases are classified, said Kimberly Lonsway, research director for End Violence Against Women International. “Especially when talking about sex assault, if I come in thinking it’s 50/50, or that most are false, I’m going to do my job differently,” said Lonsway, whose group also trains military investigators.
Such nuances are not always picked up on by senior leaders, leading some to operate with incomplete or inaccurate numbers.
The result of the misinformation, according to court testimony and interviews with experts, is that it becomes harder to try sexual assault cases fairly.
In March, Force Master Chief Petty Officer Earl Gray Jr. issued a flier to sailors at the Navy Recruiting Command citing the 3 percent figure on false reporting, which a recruiting command spokesman told Stars and Stripes was taken straight from the commander’s handbook.
The flier states that because 3 percent are false, “97 percent of allegations are true” — a statement that makes no allowance for reclassified charges, lack of evidence, lack of jurisdiction and other reasons that sexual assault allegations don’t go to trial.
No defense attorney wants a 97 percent chance of guilt aimed at a client.
Gray’s flier has since become part of a now-standard defense argument in sexual assault trials: unlawful command influence. Under military law, a judge can dismiss charges if the court finds that a senior commander has influenced the proceedings, whether through implied expectations or a direct order.
Although no judge has ruled that the flier has unlawfully influenced anyone — no one at the trials where his comments arose was under his command — the comment is still shaping the views of prospective jurors half a world away.
During jury discovery at a Yokosuka Naval Base trial in July, defense counsel Lt. Brandon Sargent asked a senior chief petty officer whether he had heard a statistic stating that “97 percent of all charges are true.”
“That would be one that would come to my mind, and that’s remarkable,” the senior chief replied.
However, the lack of a clear Pentagon figure on false reports can also hurt prosecutors’ ability to obtain convictions, as shown by other sailors’ responses.
In that same jury discovery, lawyers asked a different senior chief to guess how many sexual assault reports might be false.
“50/50 would be my best guess, sir,” he stated.
Marine Corps sexual assault cases have also been affected by speculation on the percentage of false reports.
“I know fact from fiction,” said Marine Commandant Gen. James Amos, according to a transcript of an April 2012 speech obtained by McClatchy Newspapers. “The fact of the matter is 80 percent of those are legitimate sexual assaults.”
Dozens of court challenges based on unlawful command influence were raised soon afterward, based on that comment and others made by Amos about sexual assault.
Although few scientifically sound studies exist on the percentage of false sexual assault reports in the civilian world, researchers are growing more comfortable with between 2 percent and 10 percent.
There are multiple problems with many existing studies. Police departments have been using different definitions of “false,” “unfounded” and “baseless” for years when reporting to the Federal Bureau of Investigation database, according to a 10-year study of false sexual assault allegations headed by University of Massachusetts professor David Lisak.
Lisak’s study, which included independent review of case files and investigator notes at a northeastern U.S. police department, found a 5.9 percent incidence of false reporting.
To classify a case as a false allegation, a thorough investigation must yield evidence that a crime did not occur, Lisak states. In many past studies, reports were classified as false for other reasons.
Lonsway and retired police Sgt. Joanne Archambault published a 2009 study that collected data from eight cities over an 18- to 24-month period. Researchers trained police departments on coding false reports and separating them from unfounded or baseless cases.
Lonsway and Archambault’s study found a 6.8 percent incidence of false reports, while their overview of studies in Canada, Britain and Australia placed the average between 2 percent and 8 percent.
Researchers and attorneys who spoke with Stars and Stripes say they aren’t sure whether military false reports would be higher or lower than those among civilians.
False reports tend to fade out of the civilian system more easily because police have more leeway in how far they can take an investigation.
“[Military] investigators have less discretion to make it disappear,” Lonsway said. “They have to write it up and they have to investigate it.”
Sexual assault victims are often removed from their unit, which could provide an incentive for servicemembers wanting to escape a deployment or an uncomfortable environment, Lonsway and others said.
Michael Waddington, a civilian attorney who tries courts-martial, questioned whether an accurate accounting of false reports is even possible, given how people interpret evidence differently.
Recanting is unlikely because servicemembers can be charged under the UCMJ for filing a false official statement, Waddington said. In recent months, at least two servicemembers have been investigated for doing so, including one in Okinawa.
“You have the [sexual assault response coordinator], the prosecutors, the chain of command all around you … basically, they’re not letting you recant,” Waddington said. “You’re going to go through the motions.”
On the other hand, military discipline may lead to lower rates of false reporting than in the greater population, Lonsway said.
Other disincentives include the lack of anonymity and the length of the process. Word spreads quickly throughout units when crimes are alleged. Sexual assault proceedings often last more than year. Victims may find themselves shuttling back to a former duty station to deal with the case, which interrupts their career duties.
They repeatedly retell their stories to investigators, lawyers and eventually, in front of the accused while taking the stand.
“This firestorm happens, and it’s not a pleasant experience for anyone,” Lonsway said.