Military Justice: Oversight and Better Collaboration Needed for Sexual Assault Investigations and Adjudications
Published: 2011-06-22T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.
section_title: What GAO Recommends
paragraphs: 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.

section_title: Letter
paragraphs: Sexual assault is a crime that can lead to serious physical, emotional, and  psychological consequences for the aggrieved and severe punishment for  the accused. The military services’ handling of alleged sexual assault  incidents is particularly important because it promotes good order and  discipline, demonstrates a commitment to accountability, and helps to  engender confidence that such allegations are taken seriously. According  to judge advocates from each of the military services, the administration  of justice in sexual assault cases is often complicated by the limited  availability of forensic evidence and by conflicting testimonial accounts by  the parties involved. In light of the unique challenges that arise while  investigating and adjudicating these types of cases, a vigilant approach is  vital in order to help ensure the proper administration of justice and to  send the appropriate message to servicemembers regarding sexual assault  prevention and response in the military services.
Since 2004, Congress has passed various legislative provisions related to  the military services’ investigation and adjudication of sexual assault  incidents. For example, provisions in the Ronald W. Reagan National  Defense Authorization Act for Fiscal Year 2005 required the Department of  Defense (DOD), among other things, to develop a comprehensive policy  that covers topics such as the investigation of alleged sexual assault  incidents, and to conduct a review of how sexual assault offenses are  covered by the Uniform Code of Military Justice. Additionally, we have  conducted a number of reviews to help inform congressional deliberations  on issues related to sexual assault in the military. In 2008, we issued two  reports that generally address the prevention of and response to sexual  assault: the first, issued in January, addresses sexual assault at the DOD  and Coast Guard academies, and the second, issued in August, addresses  sexual assault in the military and Coast Guard services. In February 2010  we reported on DOD and Coast Guard efforts to strengthen the  implementation and oversight of their respective sexual assault prevention  and response programs, and on the status of their efforts to implement the  recommendations made in our August 2008 report. As a supplement to  these reports, we testified three times before the Subcommittee on  National Security and Foreign Affairs, House Committee on Oversight and  Government Reform, on our findings. A list of these and other related GAO  products is included at the end of this report.
In October 2009, the National Defense Authorization Act for Fiscal Year  2010 included a mandate for GAO to review various aspects of the  military services’ investigations and adjudications of alleged sexual  incidents involving servicemembers. In October 2010, we satisfied our  mandate by providing the House and Senate Committees on Armed  Services with a briefing that detailed our observations. The House Armed  Services Subcommittee on Military Personnel requested that we build on  the observations in our briefing to include an assessment of how the  military services’ investigative and legal policies and procedures are being  implemented at military installations. This report responds to the  Subcommittee’s request and expands on our observations of the military  services’ investigations and adjudications of alleged sexual assault  incidents. Specifically, it addresses the extent to which (1) DOD is  conducting oversight of the military services’ investigative organizations  assault  and (2) the military services provide resources for investigations and  adjudications of alleged sexual assault incidents. During the course of our  review, we identified an additional issue regarding revisions to the  Uniform Code of Military Justice that may be complicating the  adjudication of alleged sexual assault incidents.
For our first objective, we reviewed and analyzed Office of the Secretary  of Defense (OSD) and DOD Inspector General policies, guidance, and  procedures to identify department-level oversight responsibilities for the  military criminal investigative organizations. We also reviewed and  analyzed each of the service’s investigative policies and procedures to  identify the extent to which similarities and differences exist in their  respective processes for conducting sexual assault investigations. Further,  we interviewed senior officials in OSD, the DOD Inspector General’s  Office, and the military services to gain their perspectives on  responsibilities for and oversight of the military criminal investigative  organizations, and how the services’ investigative policies and procedures  compare. For our second objective, we reviewed OSD, DOD Inspector  General, and the military services’ policies to identify responsibilities and  processes for providing personnel and fiscal resources for investigations  and adjudications of alleged sexual assault incidents. We obtained and  analyzed budget information from OSD and the military services to  determine the extent and consistency of funding that has been provided to  enhance investigations and adjudications of alleged sexual assault  incidents. We also interviewed OSD, DOD Inspector General, and senior  military service officials to obtain their perspectives on the provision of  resources for investigations and adjudications of alleged sexual incidents.  To address the additional issue regarding a 2006 revision to Article 120 of  the Uniform Code of Military Justice, we reviewed the text of the statute  and the corresponding sections of the Manual for Courts-Martial that  were effective before and after the amendment. We also reviewed DOD’s  fiscal years 2011 and 2012 legislative proposals for amending Article 120 in  order to understand DOD’s concerns with the current version of Article  120. We also interviewed senior officials from OSD and a total of 48 judge  advocates and DOD civilian lawyers at the services’ headquarters and at  five selected installations to gain their perspectives on the impact of the  amended Article 120 on adjudications of sexual assault cases. Further  information on our scope and methodology can be found in appendix I.
We conducted this performance audit from April 2010 through June 2011  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: The Military Justice System
paragraphs: The military justice system is governed by a collection of statutes and  regulations, including the Uniform Code of Military Justice, which is  codified in Title 10 of the United States Code. According to the Manual  for Courts-Martial, the purpose of military law is to promote justice, to  assist in maintaining good order and discipline in the armed forces, to  promote efficiency and effectiveness in the military establishment, and  thereby to strengthen the national security of the United States. All  members of the armed forces are subject to the Uniform Code of Military  Justice, including the punitive articles that define specific offenses. The  punitive articles include offenses similar to those found in civilian criminal  law (e.g., murder, rape, wrongful use of controlled substances, larceny,  and drunken driving) as well as other offenses that specifically affect good  order and discipline in the military (e.g., absence without leave, disrespect  toward superior commissioned officer, or dereliction of duty).
When a servicemember is accused of an offense such as sexual assault,  military criminal investigators, commanding officers, and military  lawyers—known as judge advocates—have responsibilities related to the  investigation and adjudication of the alleged criminal conduct. An  investigation is usually conducted by one of the three military criminal  investigative organizations—the U.S. Army Criminal Investigation  Command, the Naval Criminal Investigative Service, or the Air Force  Office of Special Investigations. Each organization has criminal  investigators who are responsible for interviewing witnesses, alleged  victims, and suspects, and gathering physical evidence. These  investigators present the results of the completed investigation to the  commanding officer of an accused servicemember for disposition. Military  commanding officers are responsible for good order and discipline in their  commands, and they have a number of judicial and administrative options  at their disposal. Commanding officers have access to judge advocates  who may advise throughout the process of determining an appropriate  disposition for an alleged offense, but ultimately, commanding officers are  accountable for disposing of allegations of offenses in a timely manner and  at the lowest appropriate level of disposition using one of the following  options:    No action: A commanding officer may decide to take no action.
Administrative action: A commanding officer may elect to take  administrative actions, which include corrective measures such as  counseling, admonition, reprimand, exhortation, disapproval,  criticism, censure, reproach, rebuke, extra military instruction, the  administrative withholding of privileges, or any combination of the  above.
Nonjudicial punishment: Article 15 of the Uniform Code of Military  Justice allows for a number of disciplinary actions, or “nonjudicial  punishments,” that are more serious than corrective measures taken in  an administrative action, but less serious than a trial by court-martial.  Nonjudicial punishments include admonition, reprimand, reducing a  member’s grade, forfeiture of pay, adding extra duty, and imposing  restrictions on freedom.
Court-martial: This option provides for the most severe punishments,  including death, prison time, forfeiture of pay and allowances,  reduction in rank, and punitive separation from military service.  Commanders may choose from three types of courts-martial— summary, special, or general. While commanders have access to judge  advocates who may advise them throughout the process of  determining the appropriate disposition for an alleged offense, other  judge advocates serve as trial and defense counsel in both special and  general courts-martial.
section_title: Investigative and Judge Advocate Guidance and Procedures
paragraphs: The military services’ guidance addressing investigative procedures along  with the Uniform Code of Military Justice are generally applicable to  criminal activity involving servicemembers. Further, each service provides  sexual assault–specific guidance as well as standard operating and  reporting procedures for responding to alleged sexual assault incidents.  Guidance for each military criminal investigative organization  specifically provides details on how sexual assault incidents should be  investigated, and stipulates that investigative personnel must respond to all reported sexual assault complaints.
DOD and military service policies and procedures for investigating and  adjudicating alleged sexual assault incidents also apply to combat areas of  interest. DOD Directive 6495.01 notes that it is DOD’s policy to provide  an immediate, trained response capability for each report of sexual assault  in all locations, including deployed locations, and it charges the  secretaries of the military departments with programming appropriate  resources to enable the combatant commands to achieve compliance with  the policies set forth in the directive. Each military service also deploys  investigators and conducts sexual assault criminal investigations in  combat areas of interest and investigations in multiservice environments,  and these investigations often cross service lines. Given the  preponderance of Army personnel among servicemembers in theater,  however, most sexual assault criminal investigations involving personnel  from any service are initiated by the Army. Each military service also  provides legal support in combat areas of interest, but the availability of  judge advocates and the conduct of criminal justice proceedings in combat  areas of interest vary, according to service component and operational  needs. Service policies for military operations describe ways in which  legal support is provided to the deployable force, sourced either through  the deployment of personnel or by personnel situated at another location.
section_title: Roles and Responsibilities of the DOD Inspector General
paragraphs: The DOD Office of the Inspector General was established by the  Department of Defense Authorization Act of 1983 to, among other things,  serve as the principal adviser to the Secretary of Defense on matters  relating to the prevention and detection of fraud, waste, and abuse, and to  be an independent organization responsible for conducting and  supervising audits and investigations of the programs and operations of  the department. DOD Directive 5106.01 specifies that the DOD Inspector  General shall establish policy and provide guidance on all DOD activities  relating to criminal investigations and law enforcement programs, which  include activities of the U.S. Army Criminal Investigation Command, the  Naval Criminal Investigative Service, and the Air Force Office of Special  Investigations. The DOD Inspector General’s Office is divided into the  following areas, each of which is headed by a deputy, assistant, or special  inspector general: auditing; investigations; policy and oversight;  intelligence; administration and management; communications and  congressional liaison; general counsel; office of professional  responsibility; special plans and operations; administrative investigations;  and southwest Asia.
section_title: DOD’s Sexual Assault Prevention and Response Program
paragraphs: Within OSD, the Under Secretary of Defense for Personnel and Readiness  has the responsibility for developing the overall policy and guidance for  the department’s sexual assault prevention and response program except  for criminal investigative policy matters assigned to the DOD Inspector  General. Under the Office of the Under Secretary of Defense for Personnel  and Readiness, OSD’s Sexual Assault Prevention and Response Office  (within the Office of the Deputy Under Secretary of Defense for Plans)  serves as the department’s single point of responsibility for most sexual  assault policy matters. DOD guidance defines sexual assault, for  purposes of specified guidance and sexual assault prevention and  response awareness training and education, as intentional sexual contact,  characterized by the use of force, threats, intimidation, or abuse of  authority, or by situations in which the victim does not or cannot consent.
Sexual assault includes rape, forcible sodomy (oral or anal sex), and other  unwanted sexual contact that is aggravated, abusive, or wrongful (to  include unwanted and inappropriate sexual contact), or attempts to  commit these acts. The definition generally encompasses offenses  classified under Articles 120 and 125 of the Uniform Code of Military  Justice.
The Secretary of Defense is required by law to implement a centralized,  case-level database for the collection and maintenance of information  regarding sexual assaults involving members of the armed forces, and to  make that database available to the Sexual Assault Prevention and  Response Office. The law specifies that the database include information,  if available, about the nature of the assault, the victim, the offender, and  the outcome of any legal proceedings associated with the assault. In  February 2010, we reported on and testified that although the office had  taken preliminary steps to develop this database, it had not been  implemented by the statutorily mandated deadline of January 2010.  Further, we made a number of recommendations in our February 2010  report pertaining to DOD’s adherence to key system acquisition best  practices when developing this database. DOD concurred with all of these  recommendations. In March 2011, the Under Secretary of Defense for  Personnel and Readiness provided Congress with a status report of the  department’s efforts to implement the database. Specifically, the status  report noted that a contract was awarded in August 2010 for the  development, implementation, and maintenance of the database, and that  the database was expected to be functional by August 2012. The report  also highlighted the department’s adherence to key information  technology management practices, and that its actions were consistent  with the recommendations in our own February 2010 report.
section_title: DOD Inspector General’s Office Has Not Performed Its Designated Policy Development and Oversight Responsibilities for Sexual Assault Investigations
paragraphs: The DOD Inspector General’s Office has not carried out its responsibilities  pursuant to DOD Instruction 6495.02, which was required by statute.  The instruction directs that office to develop policy for the DOD criminal  investigative organizations, to oversee sexual assault investigations, and to  provide oversight over sexual assault training within the DOD investigative  community. Specifically, the DOD Inspector General’s Office has  developed some guidance on the general conduct of criminal  investigations, but it has not developed a policy specifically for  investigations of sexual assault incidents. Further, the DOD Inspector  General’s Office is not monitoring or evaluating the services’ investigations  of sexual assault and the related training of investigators.
subsections: section_title: DOD Inspector General’s Office Has Not Developed a Policy for Sexual Assault Investigations
paragraphs: The National Defense Authorization Act for Fiscal Year 2005 required the  Secretary of Defense to develop a comprehensive policy for sexual assault  prevention and response that addresses, among other things, command  and law enforcement personnel’s investigation of such complaints. In  response to this requirement, in June 2006, OSD’s Sexual Assault  Prevention and Response Office published DOD Instruction 6495.02, in  which it specifies that the DOD Inspector General’s Office shall develop  sexual assault–related policy for the services’ criminal investigative  organizations. While the DOD Inspector General’s Office has developed  some guidance on the general conduct of criminal investigations, it has not  developed policy that specifically addresses sexual assault, as required by  DOD’s instruction. For example, the DOD Inspector General’s Office has  developed an instruction that outlines responsibilities and requirements  for collecting DNA in criminal investigations and another that prescribes  procedures for reporting offender criminal history data.
These instructions and other guidance from the DOD Inspector General’s  Office have relevance to investigations of sexual assault, but neither is  tailored to the unique circumstances that are typically associated with this  crime. For example, the DOD Inspector General’s instruction on DNA  collection generically delineates requirements for consulting with a judge  advocate before testing evidence, where evidence should be sent for  testing, and that Privacy Act information must be provided to any  individual providing a DNA sample. However, the instruction does not  identify procedural differences associated with evidence collection in  cases of sexual assault. Senior officials from the DOD Inspector General’s  Office stated that when the services’ military investigative organizations  notify their office of a concern regarding investigative practices, the office  then takes action, which has in the past resulted in guidance being issued.  The officials also confirmed, however, that there is no DOD-level policy or  guidance specifically addressing how sexual assault investigations should  be conducted.
Absent DOD-level guidance, the services have individually developed and  implemented their own guidance, and in some cases they take different  approaches in conducting their investigations. Specifically, we determined  that the services differed in their approaches with regard to six out of nine  elements of investigative policies and procedures, which we selected  based on their applicability to sexual assault investigations and the  consistency with which they were discussed by agency officials. For  example, the Army’s Criminal Investigation Command will assess a case as  founded or unfounded—that is, whether the alleged criminal offense is  substantiated by an investigation—prior to forwarding it for adjudication.  In contrast, the Navy’s and Air Force’s investigative organizations told us  that they do not make a similar determination because they believe that it  would conflict with their role as independent fact finders. Additionally,  each service has experts available for consultation during a sexual assault  investigation, but only the Air Force requires its investigators to consult  with such experts. See figure 1 for more examples of the variances that we  identified in the military services’ investigative policies and procedures.
We discussed the services’ investigative policies and procedures with  senior officials in the DOD Inspector General’s Investigative Policy and  Oversight Office who told us that a DOD-level policy on criminal  investigations is unnecessary, since each of the service’s criminal  investigative organizations has developed and implemented its own policy.  These officials further stated that they do not believe the quality or the  outcome of the services’ criminal investigations to be substantively  affected by the differences that we identified. However, senior officials  from the services’ investigative organizations told us that there is no one  person in charge of the services’ criminal investigative organizations at the  DOD level, and noted that it may be a problem at the DOD level because it  limits, if not eliminates, the execution of centralized oversight. Without a  DOD-wide investigative policy, the DOD Inspector General’s Office does  not have a foundation on which it can base such a determination and help  assure decision makers that sexual assault investigations are being  consistently conducted.
section_title: The DOD Inspector General’s Office Is Not Conducting Oversight of Sexual Assault Investigations or Related Training
paragraphs: In addition to its responsibilities for developing policy, DOD Instruction  6495.02 also specifies that the DOD Inspector General’s Office shall  oversee sexual assault investigations and related training within the DOD  investigative community. However, the DOD Inspector General’s Office is  not performing these responsibilities primarily due to its reported focus on  other, higher priorities. For example, DOD reported that in fiscal year  2010, the services’ criminal investigative organizations collectively  completed 2,594 investigations of alleged sexual assault. However, we  found no evidence that the DOD Inspector General’s Office conducted  oversight of any of these investigations—a finding with which senior  officials in the Inspector General’s Office concurred. We also found that  the DOD Inspector General’s Office is not conducting its designated  oversight responsibilities for the services’ sexual assault–specific training  programs. For example, each of the services has developed and  implemented sexual assault–specific training for its respective  investigators, but the DOD Inspector General’s Office has not worked with  the services to assess the content or the effectiveness of the training that  is being provided. Further, the DOD Inspector General’s Office has not  assessed the training that is provided by the services on sexual assault  investigations, such as evaluating how many agents are currently meeting  a minimum standard of competency. (For a discussion of the services’  sexual assault–specific training initiatives, see a later section of this  report.)
In August 2010, the DOD Inspector General’s Office published its  Requirements Plan for Increased Oversight Capabilities, in which it  noted that proactive evaluations of the services’ criminal investigative  organizations had been lacking for several years because of other, higher  priorities, such as an increase in demand for Inspector General services to  support the department’s overseas contingency operations. The  Requirements Plan includes a general outline of program objectives and  funding that the DOD Inspector General’s Office estimates are needed to  augment its oversight capabilities, but it does not specify plans for  conducting oversight of sexual assault investigations, including goals,  implementation steps, key milestones, or performance standards. Our  prior work has demonstrated that substantive planning is necessary to  establish clear goals and objectives as well as performance data that are  needed for gauging program progress and identifying weaknesses.  However, senior officials in the DOD Inspector General’s Office told us  that they had no plans to expand its oversight of the services’ investigative  efforts, including those related to sexual assault, because they do not  expect to receive any additional resources, given the current fiscal  challenges of the federal government. Until the DOD Inspector General’s  Office develops and implements an action plan, which includes a process  or standards by which it can evaluate the performance of the services’  investigative organizations, it will remain limited in its ability to oversee  and initiate any needed corrective action, and to help ensure consistency  and accountability.
section_title: The Services Are Not Maximizing Opportunities to Leverage Resources Provided for Investigations and Adjudications of Sexual Assault Incidents
paragraphs: Consistent with the Secretary of Defense’s priorities for sexual assault  prevention and response, the military services provide various resources  to support their investigations and adjudications of alleged sexual assault  incidents. Specifically, the services have provided experts who advise and  assist personnel in the investigation and adjudication of sexual assault  incidents, as well as fiscal resources to enhance investigators’ and judge  advocates’ response to such incidents. However, the services’ investigative  organizations and judge advocate offices are not fully capitalizing on  available opportunities to leverage each other’s expertise and limited  resources.
subsections: section_title: The Military Services Provide Personnel Who Advise and Assist on Investigations and Adjudications of Sexual Assault
paragraphs: The military services’ investigative and judge advocate offices are largely  organized and resourced according to their general responsibilities for  investigating and adjudicating all criminal activity involving  servicemembers. But each service has provided its investigators and judge  advocates with additional resources that are specifically designed to  enhance investigations and adjudications of alleged sexual assault  incidents. In fiscal year 2008, the Secretary of Defense identified four  priorities for sexual assault prevention and response programming,  including one to help ensure investigator training and resourcing and  another to help ensure trial counsel training and resourcing. In  accordance with these priorities, the military services have provided  personnel who support investigators’ and judge advocates’ handling of  alleged incidents of sexual assault. Specifically, the Army, the Navy, and  the Air Force have authorized additional positions within their respective  investigative organizations for personnel who will focus primarily on  handling sexual assault cases. See table 1 for details on the services’  efforts to augment sexual assault investigative expertise.
Senior officials at each of the service’s investigative organizations  provided positive perspectives on the addition of sexual assault–specific  positions. For example, senior Army officials at Fort Jackson, South  Carolina, told us that the civilian special investigators are especially  important in that they provide continuity at the installation’s criminal  investigation offices, whereas military investigators typically rotate in and  out every 2 years. We met with Navy investigators in the Family and  Sexual Violence Program at Camp Lejeune, North Carolina, who told us  that their senior-level investigators share their expertise with junior  investigators by serving as mentors, which ultimately enhances their  sexual assault investigative skills. Further, the Air Force employs forensic  science consultants and requires its investigators to work with a  consultant immediately after being notified of a sexual assault incident.  Investigators at Sheppard Air Force Base in Texas told us that the  consultants have attained master’s degrees in forensic science, and that  these consultants provide valuable insights on conducting sexual assault  investigations.
The military services’ judge advocate offices have also taken steps to  enhance the expertise of counsel assigned to sexual assault cases.  Specifically, each military service has created positions within its  respective trial counsel office for personnel who specialize in the  prosecution of sexual assault cases. For example, in fiscal year 2009, the  Secretary of the Army directed that 15 special victim prosecutor positions  be authorized—all of which have been filled—to enhance the Army’s focus  on the litigation of sexual assault and family violence cases. Senior  officials in the Army’s Judge Advocate General’s Office and at Army  installations we visited told us that the personnel filling these positions are  high-demand assets in the prosecution of sexual assault cases, and that the  Army has authorized 8 additional special victim prosecutor positions  because of the program’s success. In addition, the Army hired a total of  seven civilian highly qualified experts to provide assistance and training to  both trial and defense counsel. The Navy hired two civilian sexual assault  litigation specialists who provide support to Navy trial counsel handling  sexual assault cases at installations worldwide. The Marine Corps’ judge  advocate division was denied its request for a sexual assault litigation  expert in fiscal year 2011 because of funding limitations; however, senior  Marine Corps judge advocate officials told us that they have access to and  utilize the Navy’s experts. The Air Force established a group of 16 senior  trial counsel who travel to installations to assist junior litigators in  prosecuting sexual assault cases. These are positive examples of the  services’ continued efforts to address sexual assault. It is too early to  assess their effectiveness, however, as the services are still in the process  of funding these initiatives and, as we have previously reported,  performance measures for sexual assault prevention and response  programs are still being developed.
section_title: Investigative and Legal Organizations Receive Fiscal Resources to Enhance Investigations and Adjudications of Sexual Assault Incidents
paragraphs: In addition to personnel, the services’ investigative and legal organizations  have received fiscal resources, beyond their regular operating budgets, for  initiatives to enhance investigations and adjudications of alleged sexual  assault incidents. These funds are provided through multiple sources and  vary annually relative to other programmatic priorities. According to the  Army Sexual Harassment/Assault Response and Prevention Program  Manager, in fiscal year 2009, the Army’s Criminal Investigation Command  received $4.4 million above its general operating budget to redesign  investigator training. The Naval Criminal Investigative Service received  approximately $22,000 in fiscal year 2010 from the Department of the  Navy’s Sexual Assault Prevention and Response Office, to send its  investigators to a class, put on by its Mobile Training Team, related to  sexual assault investigations. Additionally, the Naval Criminal  Investigative Service funded an 8-day advanced family and sexual violence  training course, which was attended by 42 investigators. Senior officials  from the Air Force Office of Special Investigations told us that they  utilized a portion of their $1.1 million fiscal year 2010 advanced  investigations training budget—including $300,000 received from the Air  Force Sexual Assault Prevention and Response Program—to fund training  courses related to the investigation of sexual assault. These courses  included two 2-week advanced general crimes investigations courses that  covered such topics as victim sensitivity and how to process reports  containing inconsistencies, as well as a special agent laboratory training  course that covered advanced protocols for collecting physical and  biological evidence in sexual assaults cases and other crimes of violence.
Judge advocates, like military criminal investigators, have received  funding from multiple sources to conduct initial and periodic refresher  training on their responsibilities in responding to an alleged sexual assault  and for other advanced courses designed to improve their ability to litigate  sexual assault cases. For example, OSD’s Sexual Assault Prevention and  Response Office provided the Navy, the Marine Corps, and the Air Force  with nearly $3 million in fiscal years 2009 and 2010 to support service  efforts to enhance training for trial counsel on the prosecution of sexual  assault cases. Each of the services used this and other service-level  funding to implement training initiatives for judge advocates handling  sexual assault cases. For example, the Army judge advocate office used  the $2.1 million it received from the Army’s Sexual Harassment/Assault  Response and Prevention program in fiscal year 2010 for the improvement  of sexual assault litigation efforts, including conducting seven conferences  led by subject matter experts who trained Army prosecutors on the  litigation of special victim sexual assault cases. The Navy’s judge advocate  office used a portion of the $350,000 that it received from OSD’s Sexual  Assault Prevention and Response Office in fiscal year 2009 to provide a  course at the Naval Justice School for Navy and Marine prosecutors on  handling complex sexual assault cases. In addition, the Navy’s judge  advocate office used some of its general program funds to send defense  counsel to the defense-specific portions of this sexual assault litigation  course. The Air Force’s judge advocate office used nearly half of the $2.3  million provided to the services by OSD’s Sexual Assault Prevention and  Response Office in fiscal year 2009 to develop joint training on sexual  assault prosecution for each of the service’s trial counsel. Separate Air  Force funds were also applied to the development of this joint training  program, which includes modules on collaborating with criminal  investigators, case strategy, and working with victims, among other topics.
section_title: Service Investigative Organizations and Judge Advocate Offices Are Not Maximizing Opportunities to Leverage Expertise and Limited Resources
paragraphs: The services have taken positive steps to enhance investigations and  adjudications of alleged sexual assault incidents, but they have not fully  capitalized on existing opportunities to leverage each other’s expertise and  limited resources. Our prior work has shown that by exploring ways to  collaborate, including leveraging resources, organizations can obtain  additional benefits that would not have been available if they were  working separately. Recognizing the potential to achieve such benefits,  the Secretary of Defense recommended, as part of the 2005 Base  Realignment and Closure process, that the services’ investigative  organizations colocate to Marine Corps Base Quantico. According to the  justification set out by the Secretary of Defense in the Base Realignment  and Closure Commission’s report, the co-location would produce  operational synergies by locating entities with similar or related missions  in one place. The Base Realignment and Closure Commission  subsequently adopted a modified version of the Secretary’s  recommendation. However, senior officials from each service’s  investigative organization told us that there are currently no plans to use  opportunities such as this co-location to develop joint initiatives, including  advanced-level training on investigating sexual assaults, that could allow  the services to better leverage each other’s expertise and limited resources  to achieve the operational synergies noted by the Secretary of Defense.  Further, the services reported in their fiscal year 2012 budget justifications  to Congress that the co-location efforts have cost over $426 million, and  produced a total of about $53 million in savings from fiscal years 2006 to  2011, which were derived, in part, through the reduction in costs to  support infrastructure. An additional $5.6 million in net annual recurring  savings is projected after this co-location is completed in fiscal year 2011.  However, as we have previously reported, we believe that DOD’s net  annual recurring savings estimates may be overstated because they  include savings from eliminating military personnel positions without  corresponding decreases in end strength. The low amount of savings  estimated relative to the high cost of implementing the initiative  underscores the importance of continued efforts by the services to  maximize and extend the cost saving once the co-location is completed by  September 2011.
Like investigators, judge advocates perform similar responsibilities that  are based on a common set of legal principles. During our review, senior  officials in the judge advocate general offices told us that the services’  judge advocates regularly communicate on issues such as sexual assault  and collaborate, where appropriate. For example, in fiscal year 2010, the  services collaborated to develop an interactive training program that uses  a simulated court-martial trial for a sexual assault offense to develop and  test judge advocates’ competence at each stage of the trial. While this is a  positive step toward better leveraging of each other’s expertise and  resources, the services have no formal plan to help ensure that such  efforts will be sustained. Without such plans for mutually leveraging  resources, the efficiencies to be achieved from efforts such as a co- location will be limited.
section_title: DOD Has Expressed Concerns with Article 120 Revisions
paragraphs: During the course of our review, service judge advocates consistently told  us that a 2007 revision to Article 120 of the Uniform Code of Military  Justice, the article encompassing most sexual assault crimes, has  complicated the process for adjudicating sexual assault incidents.  Concerns about the 2007 revision have also been raised by the 2009  Defense Task Force on Sexual Assault in the Military Services and the  Joint Service Committee on Military Justice. Additionally, the Court of  Appeals for the Armed Forces has recently issued opinions addressing  issues with the application of Article 120.
The Ronald W. Reagan National Defense Authorization Act for Fiscal Year  2005 directed the Secretary of Defense to review the Uniform Code of  Military Justice and the Manual for Courts-Martial in order to determine  what changes were required to improve the ability of the military justice  system to address issues related to sexual assault, and to conform those  authorities more closely to other federal laws and regulations that address  such issues. The Secretary of Defense subsequently submitted a report,  as required, on the review that included proposed revisions as well as the  rationale for those revisions. Following that review, the National Defense  Authorization Act for Fiscal Year 2006 amended Article 120, effective  October 1, 2007. Among other things, the amendment brought certain  types of sexual misconduct into the category of sexual assault, including  indecent assault, indecent acts or liberties with a child, indecent exposure,  and indecent acts with another, which were previously addressed by the  Uniform Code of Military Justice’s General Article, Article 134.
In a December 2009 report, the Defense Task Force on Sexual Assault in  the Military Services recommended a review of the effectiveness of Article  120 after learning that practitioners had concerns with the revised article.  According to the report, the task force noted that significant issues had  evolved related to lesser included offenses as well as the Constitutionality  of Article 120. The task force also reported that practitioners consistently  advised its members that the new Article 120 is cumbersome and  confusing, and stated that prosecutors had expressed concern that the  new Article may be causing unwarranted acquittals. Although the task  force did not elaborate on these issues, judge advocates consistently  expressed similar concerns to us during the course of our work. For  example, service judge advocates told us 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. Moreover, recent  opinions issued by the Court of Appeals for the Armed Forces addressed  issues that were raised in our discussions with judge advocates, including  constitutional issues that may arise related to the burden of proof in  certain situations.
Subsequently, the Joint Service Committee on Military Justice, which  includes representatives from each of the military service’s judge advocate  offices, completed a review in fiscal year 2010 in response to the task  force’s 2009 recommendation and submitted to Congress proposed  amendments to Article 120 along with the rationale for the proposed  revisions. Among other changes, the revisions they proposed would have  split Article 120 into three parts: rape and sexual assault of any person,  rape and sexual assault of a child, and other sexual misconduct. According  to the committee’s proposal, the suggested language would have simplified  the statutory treatment of consent, simplified definitions overall, and  reduced the number of offenses. Section 561 of a bill for the National  Defense Authorization Act for Fiscal Year 2011 (S. 3454) contained  language that would have amended Article 120 consistent with the  committee’s proposal. However, that bill was not enacted. In April 2011,  DOD submitted a new proposal for revisions to Article 120 as part of the  legislative proposals provided to Congress in conjunction with the  department’s fiscal year 2012 spending request.
section_title: Conclusions
paragraphs: Given that sexual assault crimes undermine the core values of the military  services and degrade mission readiness, the effective and efficient  administration of military justice for addressing these offenses is essential  to the maintenance of good order and discipline in the armed forces, and  consequently contributes to the national security of the United States. The  inherent complexities of administering justice in sexual assault cases  requires the focused attention of DOD and service personnel in order that  the investigations and adjudications are properly conducted. DOD and the  services have taken a series of positive steps toward enhancing the  investigations and adjudications of alleged sexual assault incidents.  However, the DOD Inspector General’s Office has not instituted oversight  of criminal investigations or established comprehensive guidance for  conducting sexual assault investigations—both of which are requirements  specified in DOD’s sexual assault prevention and response policy. If these  issues are not addressed, the DOD Inspector General’s Office will not be  poised to help ensure that a consistent and effective approach is being  applied to sexual assault investigations across the services. Further, the  current budgetary environment may jeopardize the sustainability of  funding for DOD’s and the services’ initiatives to enhance investigations  and adjudications of sexual assault, and until a plan is developed to  leverage resources and generate operational synergies among the  respective offices, DOD will not be in the best position to help support the  continuation of these efforts. Finally, concerns raised by judge advocates  and others related to Article 120 and their resolution will continue to be  important in the ongoing debate about the need for any future revisions to  the Uniform Code of Military Justice.
section_title: Recommendations for Executive Action
paragraphs: We recommend that the Secretary of Defense take the following three  actions:    To provide oversight of the services’ criminal investigative  organizations, 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 and  clear goals, objectives, and performance data for monitoring and  evaluating the services’ sexual assault investigations and related  training.
To help ensure the most efficient use of resources for investigations  and adjudications of alleged sexual assault incidents, 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.
section_title: Agency Comments and Our Evaluation
paragraphs: In written comments on a draft of this report, the Office of the Under  Secretary of Defense (OSD) for Personnel and Readiness concurred with  all three of our recommendations and provided technical comments,  which we addressed where appropriate. The DOD Inspector General’s  Office also provided written comments on a draft of this report in which  the Inspector General concurred with the two recommendations that are  relevant to its organization. OSD’s written comments are reprinted in  appendix II, and the DOD Inspector General’s Office comments are  reprinted in appendix III.
In concurring with our first recommendation that the DOD Inspector  General, in conjunction with the military services, develop and implement  a policy that specifies procedures for conducting sexual assault  investigations, the DOD Inspector General’s Office noted its commitment  to ensuring that the necessary policies are in place. The DOD Inspector  General’s Office further added that it is currently coordinating with the  military services to develop overarching policy guidance on sexual assault  investigations that will address the responsibilities of military  commanders and the services’ criminal investigative organizations that are  critical for successfully responding to sexual assault investigations. We  commend the DOD Inspector General’s Office for taking immediate steps  to address our recommendation, and encourage it to continue taking  positive action toward its full implementation.
In concurring with our second recommendation that the DOD Inspector  General, in conjunction with the military services, develop and implement  clear goals, objectives, and performance data for monitoring and  evaluating the services’ sexual assault investigations and related training,  the DOD Inspector General’s Office commented that it is currently  preparing its fiscal year 2012 oversight plans, which will include initiatives  that correspond to its newly developed policy on sexual assault  investigations that is currently in coordination with the military services.  Further, the DOD Inspector General’s Office noted that it is currently in  discussions with the services to develop a peer review–type process that  will provide oversight of the services’ criminal investigative organizations,  including sexual assault investigations. In addition, the DOD Inspector  General’s Office noted that during fiscal year 2012, it plans to initiate an  evaluation of sexual assault training provided to criminal investigators  within DOD.
However, while the DOD Inspector General’s Office agreed with our  recommendations and described actions it plans to take in response, in its  comments it stated that our draft report mischaracterized its performance  of its responsibilities. We disagree with this statement and believe our  report accurately reflects oversight exercised by the DOD Inspector  General’s Office. Our report is solely focused on the DOD Inspector  General’s Office responsibilities for developing policy and conducting  oversight of sexual assault investigations. Specifically, we reviewed DOD  Inspector General’s Office policies related to criminal investigations,  including the five it notes in its comments, and our report credits the DOD  Inspector General with developing some guidance on the general conduct  of criminal investigations that has relevance to investigations of sexual  assault. Further, we recognize that the DOD Inspector General’s Office  initiated other efforts related to sexual assault during our review,  including hosting forums, that it notes in its comments, facilitated the  development of standardized definitions for sexual assault investigation  reporting requirements. However, as we note in our report and it concurs  with in its response, the DOD Inspector General’s Office has not developed  a policy or a process to monitor and evaluate sexual assault investigations  and related training, as is specified in DOD guidance. Further, we disagree  with the DOD Inspector General’s Office comment that investigative  policies and procedures are the same for all criminal investigations,  including those conducted on incidents of sexual assault. DOD has  established policies specific to sexual assault incidents, such as restricted  reporting, which necessitates that first responders, including criminal  investigators, distinguish how they respond to sexual assault incidents.  Additionally, we reiterate that Congress, in the National Defense  Authorization Act for Fiscal Year 2005, directed the development of a  comprehensive policy to address sexual assault–specific matters in a  variety of areas, to include investigations of sexual assault complaints.  Finally, the DOD Inspector General’s Office is correct in noting that it  completed five evaluations from 2003 through 2011 related to sexual  assault in the military; however, none of these evaluations were self- initiated but rather were conducted at the direction of others, such as  Congress. For all of these reasons, we maintain that our report accurately  reflects the extent to which the DOD Inspector General’s Office has  performed its designated policy development and oversight  responsibilities for sexual assault investigations.
In concurring with our third recommendation that the service secretaries  develop a plan for leveraging each other’s resources and expertise for  investigating and adjudicating alleged sexual assault incidents, DOD noted  that representatives from each service’s criminal investigative organization  currently meet on a regular basis to share best practices, collaborate, and  leverage each other’s expertise. The department further noted that as part  of the co-location of the services’ criminal investigative organizations at  Quantico, Virginia, the Army’s Criminal Investigation Command has  volunteered to lead this working group in the development of a plan for  leveraging each service’s resources and expertise for investigating sexual  assaults. We commend the department for taking immediate steps in  response to our recommendation, and encourage it to continue taking  positive actions toward helping to ensure the most efficient use of  resources for investigations and adjudications of alleged sexual assault  incidents.
We are sending copies of this report to interested members of Congress;  the Secretary of Defense; the Under Secretary of Defense for Personnel  and Readiness; the Secretaries of the Army, the Navy, and the Air Force;  the Commandant of the Marine Corps; and the DOD Inspector General.  The report also is available at no charge on the GAO Web site at  http://www.gao.gov.
If you or your staff have any questions about this report, please contact me  at (202) 512-3604 or farrellb@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made major contributions to this report are  listed in appendix IV.
section_title: Appendix I: Scope and Methodology
paragraphs: To determine the extent to which the Department of Defense (DOD) is  conducting oversight of the military services’ investigative organizations,  we reviewed and analyzed relevant Office of the Secretary of Defense  (OSD) and DOD Inspector General policies, guidance, and procedures to  identify department-level policy development and oversight  responsibilities for the services’ military criminal investigative  organizations. We also reviewed and analyzed each service’s investigative  policies and procedures to identify the extent to which similarities and  differences exist in their respective processes for conducting sexual  assault investigations. To supplement our analyses, we interviewed senior  officials in OSD, the DOD Inspector General’s Office, and the military  services to gain their perspectives on responsibilities for and oversight of  the military criminal investigative organizations, and the extent to which  the services’ investigative policies and procedures compare.
To determine the extent to which the military services provide resources  for investigations and adjudications of alleged sexual assault incidents, we  reviewed OSD, DOD Inspector General, and the military service  investigative and legal policies to identify responsibilities and processes  for providing personnel and fiscal resources to initiatives that relate to  investigations and adjudications of alleged sexual assault incidents. We  also obtained information on personnel and fiscal resources from OSD and  the military services to determine the extent and consistency of funding  that has been identified and provided to enhance investigations and  adjudications of alleged sexual assault incidents. For the purposes of our  report, we found that data on the military criminal investigative  organizations’ status of efforts to augment sexual assault investigative  expertise were sufficiently reliable to report. To supplement our analyses,  we interviewed senior-level officials in OSD’s Sexual Assault Prevention  and Response Office about previous and current efforts to provide the  services with funding to support initiatives to enhance investigations and  adjudications of alleged sexual assault incidents. We also interviewed  senior officials in the DOD Inspector General’s Office and in the military  services to gain their perspectives on the extent to which such initiatives  are provided the resources necessary to investigate and adjudicate alleged  sexual assault incidents and the impact of fiscal challenges on current and  planned initiatives.
To address the additional issue regarding a 2007 revision to Article 120 of  the Uniform Code of Military Justice, we reviewed the prior version of  Article 120 as well as the current version adopted in 2007 in order to better  understand how the two versions differ. We also reviewed proposed  legislative amendments to Article 120 and the accompanying analysis in  the fiscal year 2010 report of the Joint Service Committee on Military  Justice to further inform our understanding of the issues arising from the  2007 revision that were intended to be addressed by the proposed  legislative amendments from fiscal year 2010. To supplement our analyses we interviewed senior officials from OSD and spoke with a total of 48  judge advocates and DOD civilian lawyers, between the services’  headquarters and at selected installations, to gain their perspectives on the impact of the revisions made in 2007 to the Uniform Code of Military  Justice as well as their recommendations for any suggested modifications.
The installations that we visited during our review were selected based  on  multiple criteria, including the number of sexual assaults reported at each  installation, the size of its military population, its function (i.e., training  base), and its geographical location. Using these criteria, we i subsequently visited the following five installations: Fort Bragg, North  Carolina; Fort Jackson, South Carolina; Naval Station Norfolk, Virginia;  Marine Corps Base Camp Lejeune, North Carolina; and Sheppard Air  Force Base, Texas.
subsections: section_title: Department of Defense
section_title: Department of the Army
section_title: Department of the Air Force
section_title: Department of the Navy
paragraphs: Naval Criminal Investigative Service, Washington Navy Yard,  Washington, D.C.
United States Navy Office of the Judge Advocate, Washington N Yard, Washington, D.C.
section_title: United States Marine Corps
paragraphs: United States Marine Corps Office of the Judge Advocate to the  Commandant, Arlington, Virginia    United States Marine Corps Sexual Assault Prevention and Response  Office, Quantico, Virginia    Camp Lejeune, North Carolina We conducted this performance audit from April 2010 through June 2011  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  c onclusions based on our audit objectives.
section_title: Appendix II: Comments from the Department of Defense
section_title: Appendix III: Comments from the Office of the DOD Inspector General
section_title: Appendix IV: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, key contributors to this report  include Marilyn K. Wasleski, Assistant Director; Melissa Blanco; K. Nicole  Harms; Kim Mayo; Jeanett Reid; Norris Smith; Terry Richardson; Cheryl  Weissman; and Elizabeth Wood.
section_title: Related GAO Products
paragraphs: Military Personnel: DOD’s and the Coast Guard’s Sexual Assault  Prevention and Response Programs Need to Be Further Strengthened.  GAO-10-405T. Washington, D.C.: February 24, 2010.
Military Personnel: Additional Actions Are Needed to Strengthen DOD’s  and the Coast Guard’s Sexual Assault Prevention and Response  Programs. GAO-10-215. Washington, D.C.: February 3, 2010.
Military Personnel: Actions Needed to Strengthen Implementation and  Oversight of DOD’s and the Coast Guard’s Sexual Assault Prevention  and Response Programs. GAO-08-1146T. Washington, D.C.: September 10,  2008.
Military Personnel: DOD’s and the Coast Guard’s Sexual Assault  Prevention and Response Programs Face Implementation and Oversight  Challenges. GAO-08-924. Washington, D.C.: August 29, 2008.
Military Personnel: Preliminary Observations on DOD’s and the Coast  Guard’s Sexual Assault Prevention and Response Programs.   GAO-08-1013T. Washington, D.C.: July 31, 2008.
Military Personnel: DOD and the Coast Guard Academies Have Taken  Steps to Address Incidents of Sexual Harassment and Assault, but  Greater Federal Oversight Is Needed. GAO-08-296. Washington, D.C.:  January 17, 2008.