Earlier this week, an investigative article by ProPublica and The Texas Tribune published its findings on the pretrial confinement rates for sexual assault in the US Army. What they found was quite concerning.
The latest Manual for Courts-Martial defines pretrial confinement as physical restraint imposed by order of competent authority or depriving a person (soldier) of freedom pending disposition of offenses. This physical restriction will only be allowed if there is a probable cause, which includes reasons of (1) an offense triable by court-martial has been committed; (2) the person confined committed it; and (3) confinement is required by the circumstances.
The researchers have sorted through over 8,000 cases filed in the last decade to the Army’s general courts-martial and special courts-martial, which are commonly compared to felony and misdemeanor courts, respectively, in the civilian system.
Their extensive research revealed that people suspected of minor misdemeanors and drug-related crimes are “more likely to be placed in pretrial confinement than those accused of sexual assault.”
“That gap held up even when narrowing in on certain types of sexual assault cases that we suspected might be more likely to result in pretrial confinement.”
Unlike the civilian legal process, the military justice system adheres to the decisions of commanders—who are not necessarily required to be trained lawyers. They have the discretion to either detain soldiers while pending trial or not. This is also known as pretrial confinement.
In a separate article, the Texas Tribune explained that the system was created to help commanders keep their fighting forces in line, even as far back as the American Revolutionary period.
New: A first-of-its-kind analysis reveals that, on average, Army soldiers had to face at least eight counts of sexual offenses before their commanders jailed them ahead of trial as often as soldiers charged with drug or burglary crimes. https://t.co/rEy0N9nhh1
— ProPublica (@propublica) August 11, 2022
It started as straightforward management of minor transgressions like “desertions or neglect of duty.” Court-martial changed during the American Civil War so that it could prosecute Union soldiers who were accused of crimes in Confederate states. However, the gap between the military justice system and the civil legal system widened throughout the First and Second World Wars to the point where the public became unfamiliar with it.
In the 1950s, Congress passed the Uniform Code of Military Justice, granting the military—particularly commanders—the authority to try crimes such as murder and sexual assault in court-martials regardless of whether a war is underway. This custom has endured to the present day.
According to its findings, pretrial detention rates for drug offenses are 18 percent, whereas those for sexual assault are only 8 percent. In addition, even soldiers accused of infractions as minor as disrespecting an officer or causing damage to non-military property had more excellent rates of pretrial detention than those suspected of sexual assault.
“The analysis showed that, on average, soldiers had to face at least eight counts of sexual offenses before they were placed in pretrial confinement as often as soldiers charged with drug or burglary crimes.”
What’s more concerning is that, even though the researchers downsize their limitations to only those charged “with the most violent sexual offenses, the pretrial confinement rate remains well below that of drug offenses.”
NEW: 5 takeaways from a @propublica–@TexasTribune project on military justice, including that in the Army, soldiers were more likely to be confined for drugs and other offenses than for sexual assault — a stunning finding. https://t.co/pAM8R0KBsE
— Steve Mills (@smmills1960) August 11, 2022
As previously stated, pretrial confinement is only necessary if the circumstances warrant it—then why aren’t sexual assault offenders being held away and prevented from committing their crimes again?
An example here is the case of Christian Alvarado, a 20-year-old soldier in Fort Bliss, TX. Despite two victims coming forward and filing a case against him for the sexual assault, not to mention Alvarado himself admitting in a sworn statement that he committed the crime, he wasn’t detained.
Instead, he was allowed to go and roam freely as long as he stayed at least a hundred feet away from his two victims. Had his commander placed him in detention or under any restrictions, his third victim wouldn’t have been spared from the trauma the rogue soldier would eventually inflict on her a month later.
Another soldier from Fort Bliss also had a similar disposition but wasn’t detained. Instead, he was ordered to live on post and have to check in by phone three times a day, and that’s it.
When both ProPublica and The Texas Tribune questioned the system, an Army official defended it, explaining that soldiers accused of violent crimes aren’t inherently more likely to get pretrial confinement because this isn’t the only element they are evaluating.
When reporters asked, Army officials defended the system. https://t.co/jNFSIIPTCJ
— Kengo (@kengos) August 11, 2022
In an email sent to the Texas Tribune, Lt. Col. Brian K. Carr, chief of the operations branch at the Office of the Judge Advocate General’s Criminal Law Division, stated that: “The nature of the offense is one factor to consider in a decision to put someone in pretrial confinement, but it is not the sole factor.”
You can read the full analysis report here.