Second-Best Justice For Victims Of Sexual Abuse In U.K. Military Court

Since 2009, British military courts have been able to try rape and other sexual abuse cases. However, recent studies suggest that victims of sexual harassment and abuse within the military receive a substandard level of expertise, independence and ultimately, justice, from the army’s current judicial system – from the primary investigation process to their day in court.


Court Martial is a separate, parallel entity to the Crown Court – the civilian judicial system in the U.K. – and was established to discipline and prosecute members of the armed forces. This is necessary as military personnel are subject to a different justice code than their civilian counterparts because of the extraordinary demands of their occupation.


In 2006, the Armed Forces Act established the Court Martial as a permanent standing court with jurisdiction over all of the branches of the British Army, effective 2009 onwards. As a consequence, they have since had the jurisdiction to hear cases on any ‘service’ offences which includes both military disciplinary offences and civilian law offences committed by army force members. The latter is what now grants court-martial to try cases involving sexual crimes within their forces.


According to Emily Norton, director of the Centre for Military Justice, this power to try rape and other serious crimes was originally intended to provide a way to effectively handle offences committed by forces overseas. It was passed on the grounds that there would be outstanding circumstances where the civilian court would not be in a position to conduct these trials. The understanding was that civilian law would still take precedence where an alleged offence took place in the U.K.


In practice, despite the fact that the vast majority of sexual offences take place on British soil, they are nonetheless being tried in military court. According to the Guardian, the number of rapes and other sexual offences dealt within the military system is increasing – rising from 95 to 178 between 2015 and 2019.


The failings of Court Martial


Worryingly, when it comes to sex crime cases, investigations and trials carried out by the military have been criticized as substandard.


According to Reuters, rape cases heard at trial in military court have been shown to result in a lower rate of conviction compared to the civil system. Ministry of Defence (MoD) statistics show that 10% of rapes tried in court-martial between 2015 and 2019 resulted in a conviction. This is compared with 56.9% to 63.4% in civilian courts over the same period. Critics point to this disparity as evidence of unjust trial procedure.


A Services Justice review carried out in 2019, criticized the ‘consistency of approach’ of the service police in their investigations of domestic abuse, rape and serious sexual offences. The same review also recommended that murder, manslaughter and rape should no longer be tried by court-martial where the offence has taken place in the U.K.


In May this year, three women brought a legal challenge against the MoD for the mishandling of their allegations of sexual assault. After being victims of rape or serious sexual assault from their colleagues, they claim that their trauma was further compounded by the way that the military justice system dealt with their cases.


“The military police service and prosecutors lack experience and expertise in dealing with such crimes,” Emily Norton, the women’s lawyer, told the Thomson Reuters Foundation in May this year, “this amounts to second-best justice for victims.”


The MoD’s response


The MoD has repeatedly rejected claims that their judicial system is unjust. In response to the Service Justice Review’s recommendations, they stated that they would not act on its proposal to return to the previous system.


Following the accusations made by the three servicewomen, the MoD insisted that it provided “fair and effective justice” and denied that its service was second rate. “All sexual offences are unacceptable and will not be tolerated in the armed forces,” a spokesman said.


Rather than direct its efforts at improving investigatory and court procedures, the institution has announced new measures to persuade victims to come forward and has set out a strategy for 2023, No Defence for Abuse, that provides instruction to the chain of command on how to deal with these incidents. There will also be a new, compulsory diversity and inclusion training and a harassment survey to be introduced in 2021 as part of a “shift in culture.”

The U.K. Defence Journal reported Lieutenant General Nick Pope, Deputy Chief of the General Staff, saying, “We are absolutely committed to tackling this issue and our new action plan, developed with experts from the public and private sector, includes a range of initiatives to stamp out inappropriate behaviour.”

“These include stepping up our education and awareness programmes, reviewing our internal disciplinary procedures and raising awareness amongst personnel of where support is available.

“Anyone failing to meet the clear standards of behaviour I or the Army expects will be dealt with robustly and may face dismissal.”


A worrying state of affairs


Both currently and historically, levels of sexual harassment and abuse within the military are staggeringly high.


While both servicemen and women are victims of this abuse, women made up roughly three-quarters of victims in reported sex offences in the military last year. A 2018 Army Sexual Harassment report found that 73% of women questioned reported inappropriate and unwelcome comments and that 20% had experienced inappropriate sexual touching. It also found that 8% of women had been involved in a serious sexual assault and 3% reported being raped.


More worrying still is the lack of faith in the formal complaint procedure. High rates of dissatisfaction were reported in terms of how well a complaint outcome was communicated to the victim, the follow-up action taken against the person responsible and the amount of time taken to resolve the complaint.


Furthermore, about three-quarters of those who made a formal complaint said that they had suffered negative consequences as a result, while 9 out of 10 thought about leaving the army altogether.


The underlying issues


The dynamics and structure of the Armed Forces have long relied on an environment in which toxic masculinity, competition, aggression and unquestioning submission to authority is encouraged. The Guardian reported that the Armed Forces suffer from unacceptable levels of sexual offences, discrimination and bullying because of a pack mentality among the mostly white, middle-aged men who make up the senior rank.


Unfortunately, yet undeniably, these dynamics still permeate every facet of the Armed Forces, including their investigational procedures and courts. The MoD’s plans to reduce levels of harassment and foster a safer environment in which to report these abuses is vital. However, numerous reports, reviews and studies have shown that the military court is currently not fit to carry out these cases with due diligence and independence.


If the Armed Forces were serious about providing their servicemen and women with justice, they would be prepared to allow the cases to pass through the civilian system, as was originally intended, rather than steadily increase the number of cases handled by court-martial. By continuing to do so, they demonstrate a shocking lack of commitment to protecting their members and seeking justice for victims of sexual abuse.

Rafaela Alford
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