Prosecutors, military or civilian, can only charge people with a crime if they have a “reasonable likelihood of success on the merits.” The American Bar Association’s rule regarding the standards for prosecutors (Standard 3-4.3) states that a prosecutor cannot file charges unless the prosecutor believes the charges are supported by probable cause (the only standard for commanders), and that the evidence “will be sufficient to support a conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.”
There are, undoubtedly, thousands of cases that can be brought under a “probable cause” standard, but cannot be pursued under a “reasonable doubt” standard. Sexual assault cases are difficult enough to investigate and prove in court.
If commanders are stripped of their authority to send sexual assault cases to court-martial under a probable cause standard, then far fewer cases can, or will, be sent by lawyers, who must abide by the much higher standard.
Sexual assault is a cancer that destroys military units and individuals. It is intolerable in the military. Every commander has the responsibility to create an atmosphere of trust and respect in their unit, and to hold those accountable to meet that standard.
Placing that responsibility in the hands of lawyers, while appearing to be an easy solution, would directly weaken the ability of military commanders to rid their units of sexual assault.
This article by Thomas Spoehr originally appeared at The Daily Signal. This article first appeared in 2019.