An opinion piece from our Director in the Sunday Telegraph: ‘There’s nothing about rape in the military that requires specialist military expertise to prosecute it’.

11th Jan 2021

‘There’s nothing about rape in the military that requires specialist military expertise to prosecute’

Opinion Piece, Sunday Telegraph, 10 January 2021

Parliament never intended that the military justice system should handle rape cases in the UK, writes Emma Norton, Director of the Centre for Military Justice.

It always intended that they should be investigated by the civilian police, prosecuted by the CPS and heard before a jury at Crown Court.

The military justice system was only ever supposed to handle these kinds of cases under exceptional circumstances, such as when they took place overseas.

The Minister of State for Defence at the time expressly said, “we do not propose that, under the Bill, murder, rape or treason alleged to have been committed by a serviceman in the UK will normally be investigated and tried within the service system”.

The then Armed Forces Select Committee welcomed this assurance, expressing concern at the negative impact on public confidence, were such cases to be handled by the military.

But in the years since that assurance was given, the number of UK rape cases handled by the military justice system has risen steadily, year on year.

That is what our three clients, all rape survivors, are challenging in court.

Why is it so important? First, it’s a matter of principle.

There is nothing about rape in the military that requires specialist military expertise to investigate or prosecute it.

The determination of the Armed Forces to cling on to the handling of military rape cases gives the unfortunate impression that they have something to hide and don’t want civilian police and courts picking over what goes on there.

That may be unfair, but it was exactly the concern identified by the Armed Forces Committee. Second, there is undoubtedly serious under-reporting of sexual offending in the military.

You only have to look at the number of women that described a ‘particularly upsetting experience’ to the 2018 Army sexual harassment survey, and compare it to the number of formal reports made to the police that year, to see that only a tiny number actually come forward.

If they knew there was a police force that was entirely unconnected to the military to whom they could report, they might be more inclined to do so.

Third, because the service population in the UK is relatively small, this means that the service police and prosecutors that handle these cases are just not getting a sufficient volume of casework experience to be considered expert – in 2019 the service police only handled 178 sexual offences.

The service police will be handling these cases alongside all their other important military policing duties and they are ‘soldiers first’. Compare that to a busy specialist unit in a civilian force where the officers do nothing but sex crime work all the time.

The same issue is true of military prosecutors, something highlighted with real concern in a recent review by an independent judge.

Fourth, the impact on rape survivors inside their units can be catastrophic.

Military life is all encompassing in a way that civilians find hard to imagine and which leaves rape survivors nowhere to seek sanctuary.

The chain of command can become closely involved in a rape case at many levels: receiving updates as the investigation progresses, able to obtain access to witness statements, and tasked with ensuring care is provided to both the victim and the accused often at the same time, a virtually impossible task.

It can be very hard to maintain confidentiality. Sometimes, the chain of command wants to do the right thing but is simply out of its depth.

At other times, ill-informed opinions, infused with very old-fashioned ideas about how women ought to behave, particularly around alcohol, can make life miserable for survivors.

Victim-blaming is common.

Excising the units and chain of command from these cases will make such impacts less severe.

Finally, outcomes in the military justice system are poorer for rape cases than in the civilian system – this is in stark contrast to non-rape cases, where the conviction rate is broadly similar across the military and civilian justice systems.

The MoD’s own evidence shows that of all the rape cases that got to court martial between 2017 and 2019, just 10 percent resulted in a conviction for rape.

While the civilian justice system has serious problems of its own, the MoD states that the civilian figure for contested rape cases for the same period, was 50 percent.

Not good enough, but a lot better than 10 percent.


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