Military Justice:

Oversight and Better Collaboration Needed for Sexual Assault Investigations and Adjudications

GAO-11-579: Published: Jun 22, 2011. Publicly Released: Jun 22, 2011.

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The crime of sexual assault has serious consequences for both the aggrieved and the accused. The severity of these consequences underscores the importance of impartially administering justice in order to promote accountability and confidence that such allegations are taken seriously. GAO was asked to address the extent to which (1) the Department of Defense (DOD) conducts oversight of the military services' investigative organizations and (2) the services provide resources for investigations and adjudications of alleged sexual assault incidents. GAO also identified an issue relating to the military's criminal code during this review. GAO analyzed relevant DOD and service policies and procedures; reviewed applicable laws, including provisions of the Uniform Code of Military Justice; and interviewed senior DOD and service officials, including a total of 48 judge advocates and DOD civilian lawyers, at the headquarters level and at five selected military installations.

Pursuant to the National Defense Authorization Act for Fiscal Year 2005, the Office of the Secretary of Defense (OSD) developed a policy on sexual assault prevention and response. In June 2006, OSD published DOD Instruction 6495.02, which specifies that the DOD Inspector General's Office shall develop policy and oversee sexual assault investigations and related training for the DOD criminal investigative organizations. However, the Inspector General's Office has not performed these responsibilities, primarily because it believes it has other, higher priorities. For example, GAO found no evidence of Inspector General oversight at the service level for any of the 2,594 sexual assault investigations that DOD reported the services completed in fiscal year 2010. Without a policy and plan for conducting oversight, the Inspector General's Office will remain limited in its ability to help ensure consistency and accountability, and that training is being conducted in the most effective manner. Consistent with the Secretary of Defense's priorities for sexual assault prevention and response, each service provides various resources to support investigations and adjudications of alleged sexual assault incidents. Specifically, each service has provided personnel who advise and assist on investigations and adjudications of sexual assault incidents. Each service's investigative and legal organizations also received funding, above their operating budgets, for efforts to enhance investigations and adjudications of sexual assault. For example, in fiscal year 2009, Army investigators received $4.4 million to redesign training on sexual assault investigations. However, the services' investigative and legal organizations are not fully capitalizing on opportunities to leverage each other's expertise and limited resources. For example, the Secretary of Defense, as part of the Base Realignment and Closure process, recommended that the services' investigative organizations co-locate to achieve operational synergies. However, the services currently have no plan for using opportunities such as the co-location--a move that has cost over $426 million and reportedly saved about $53 million for infrastructure support from fiscal years 2006 through 2011--to better leverage expertise and limited resources. Judge advocates also collaborate on some initiatives, but do not have a plan for leveraging resources either. Without a plan, the services cannot help ensure that resources are sustained and efficiencies are maximized. GAO met with judge advocates who consistently expressed concerns, similar to those noted in a 2009 Defense Task Force report, that a 2007 amendment to Article 120 of the Uniform Code of Military Justice complicates sexual assault prosecutions and may be causing unwarranted acquittals. Specifically, judge advocates stated that there is a lack of clarity with regard to the meaning of certain terms in the amended article, which makes it more difficult to prosecute these cases. Further, recent opinions issued by the Court of Appeals for the Armed Forces addressed constitutional issues that may arise related to the burden of proof in certain situations. For fiscal year 2012, DOD proposed revisions to Congress intended to remedy some of these issues. GAO is recommending that DOD develop policy and provide oversight for sexual assault investigations and related training, and for the services to develop a plan to better leverage expertise and limited resources. DOD and the Inspector General concurred with the recommendations, although the Inspector General disagreed with the characterization of its performance. GAO believes its findings are accurate, as addressed more fully in the report.

Status Legend:

More Info
  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: To provide oversight of the services' criminal investigative organizations, the Secretary of Defense should direct the DOD Inspector General, in conjunction with the military services, to develop and implement a policy that specifies procedures for conducting sexual assault investigations.

    Agency Affected: Department of Defense

    Status: Closed - Implemented

    Comments: On January 25, 2013, DODIG published DOD Instruction 5505.18, which establishes policy, assigns responsibilities, and provides procedures for the investigation of sexual assault incidents involving adults.

    Recommendation: To provide oversight of the services' criminal investigative organizations, the Secretary of Defense should direct the DOD Inspector General, in conjunction with the military services, to develop and implement clear goals, objectives, and performance data for monitoring and evaluating the services' sexual assault investigations and related training.

    Agency Affected: Department of Defense

    Status: Open

    Comments: On Friday, February 3, 2012, we met with officials in the DODIG office to discuss the steps they had taken to address our recommendations related to sexual assault in the military services. As follow-up to that meeting, DODIG provided us with a memo that identified it began an evaluation of the military criminal investigative organization's (MCIO) training on sexual assault investigations. We consider this recommendation to be partially implemented because it shows DODIG's progress towards evaluating the MCIO's sexual assault investigation training, but did not include evidence that the DODIG had developed clear goals, objectives, or performance data to monitor and evaluate actual investigations conducted by the services. In February 2013, DODIG issued a report (DODIG-2013-043) that summarized its findings on training provided to military criminal investigators on conducting sexual assault investigations. However, the DODIG has not implemented goals, objectives and performance data for monitoring and evaluating the services' sexual assault investigations.

    Recommendation: To help ensure the most efficient use of resources for investigations and adjudications of alleged sexual assault incidents, the Secretary of Defense should direct the service secretaries to develop a plan for leveraging each other's resources and expertise for investigating and adjudicating alleged sexual assault incidents, such as by consolidating training programs and sharing resources, including highly qualified experts who are used to advising criminal investigators and judge advocates.

    Agency Affected: Department of Defense

    Status: Open

    Comments: On Friday, February 3, 2012, we met with officials in the DODIG office to discuss the steps they had taken to address our recommendations related to sexual assault in the military services. DOD officials told us that they are in the process of implementing this recommendation. Further, in its response to our June 2011 report, DOD stated that representatives from each service are working together to identify areas in which they can better leverage each others resources. As of July 2013, the service secretaries have not directed the development of a plan to help ensure the most efficient use of resources for investigations and adjudications of alleged sexual assault incidents.

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