The handling and adjudication of sexual offenses in the military have drawn much public and Congressional interest in recent months following the disclosure of several high profile cases involving allegations of sexual assault by U.S. service members. Several proposals for reforming the way such allegations are handled within the U.S. military justice system have been put forward, “including a measure that would strip commanders of their input in such cases.”
The Law Library’s Global Legal Research Center has just published a report titled Military Justice: Adjudication of Sexual Offenses, which describes the military justice systems of several foreign countries and the procedures that apply in adjudicating alleged sexual offending by service members. The report adds to the list of reports posted on the Law Library of Congress website under “Current Legal Topics” where you can also find a range of other comparative law reports on various topics.
The Military Justice: Adjudication of Sexual Offenses report includes studies of the systems of the following countries:
Of the countries surveyed, Israel is the only one where both men and women are equally subject to a military draft system (subject to some exceptions that are not based on gender). There is therefore a relatively high percentage of women in the Israel Defense Forces (IDF). Addressing sexual offending in the military is viewed there as essential for maintaining military morale and improving performance. In Israel’s military justice system, decisions on whether to adjudicate sexual offenses in disciplinary proceedings can only be made by the Military Advocate General’s attorneys and not by commanding officers, and any proceedings are presided over by officers with special training. Sexual assault offenses are typically investigated by the Military Investigative Police and adjudicated by courts-martial.
Like in Israel, sexual offense charges against Canadian military personnel are generally adjudicated by service tribunals. Since the 1990s, Canada has sought to reduce the role of commanders in its military justice system and enhance the independence of courts-martial.
For example, changes were made that preclude commanding officers from trying cases which they have personally investigated, and the offense jurisdiction of such officers has been reduced. In addition, the Canadian Military Prosecution Service was established to decide which cases should proceed to court-martial and to prosecute those cases. Where sexual misconduct is alleged, the commanding officer must contact the military police, who may then also involve civilian police authorities depending on the nature of the allegations.
The United Kingdom has operated a system of military courts-martial for centuries and, effective in 2009, created a Court Martial as a permanent, standing court for military matters. While UK law preserves the traditional military structure of discipline from within the chain of command for some offenses, commanders’ authorities have been significantly narrowed by recent legislative acts. In particular, decisions regarding the prosecution of serious crimes, sexual assault included, have been removed from the chain of command and placed in the hands of the independent Director of Service Prosecutions, who may be a civilian lawyer. Specially trained prosecutors are tasked with prosecuting any rape cases.
In Australia, a standing military court was established in 2006, removing proceedings for serious offenses from the chain of command. However, the new court system was abolished in 2009 following a successful constitutional challenge. Attempts have been made to re-establish a permanent court through subsequent bills. The current system for serious offenses involves hearings by courts-martial and Defence Force Magistrates, with an independent Director of Military Prosecutions (DMP) determining whether to initiate prosecutions. Sexual assault complaints are always referred to the DMP who must report certain alleged offenses to civilian prosecution authorities. These cases are therefore usually handled within the civilian justice system, rather than within the military justice system.
Unlike in other countries surveyed, the French military justice system is organized according to whether the country is in a time of peace or a time of war. In addition, the administration of military justice, with regard to offenses committed by military personnel, makes a further distinction based on whether the service member committed the offense on French soil or on foreign soil, as well as whether the service member was on duty or off duty.
In Germany criminal offenses, including sexual offenses, committed by soldiers are generally tried in the ordinary courts.
We invite you to read our report and learn about the experience of other countries in this area of law.