An Empirical Look at Commander Bias in Sexual Assault Cases
22 Berkeley J. Crim. L. 1, (2017)
46 Pages Posted: 5 Oct 2016 Last revised: 8 Nov 2017
Date Written: November 2017
In response to the American military’s perceived inability to handle sexual assault cases, the Uniform Code of Military Justice is undergoing its most significant restructuring since its creation in 1950. Critics point to the high rates of sexual assault case attrition as a sign that the system is failing sexual assault victims. The theory is that commanders are predisposed to believe the offenders, who are often good soldiers, and to disbelieve the victims, who may have behaved in ways that commanders dislike. This bias then causes high levels of attrition as the commanders undervalue the cases and divert them away from the legal process.
This study tests that causal inference. It measures the attrition of sexual assault cases in the precise phase of the case processing that the commanders control – the decision to take action in the case. Using data that I received from the Army through the Freedom of Information Act, this study measures how commanders disposed of every founded sexual assault and sexual contact offense in the Army from 2008-2011. Further, this study tests the counterfactual – how commanders treated other similar cases: homicides, robberies, and assaults.
This study finds that commanders treat non-penetrative sexual assaults the same or more seriously than they treat simple assaults. Further, when commanders decide to take action on penetrative sexual assault cases, commanders send more of those cases to trial than they do with comparable crimes. However, commanders decide to take no action in penetrative sexual assault cases more frequently than they do with other comparable crimes. This study includes a secondary finding that commanders treat domestic violence cases more seriously than they treat other similar assault cases.
The results of this study should inform the national debate on whether Congress should remove commanders from the process. These results suggest that step may not be necessary, and research and reform efforts should focus on how military law enforcement handles these cases.
Keywords: Criminal Law, Military Justice, Sexual Assault Cases, Sexual Assault Attrition, Sexual Assault Victims, Commanders and Legal Process
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