There are those – fuddy duddies no doubt – who always did think that putting women into the military was going to cause problems. An, almost by definition, aggressively male environment is going to be different from the world outside. Thus it’s entirely believable that rape and other sexual assaults are somewhere between handled differently and not handled well within the military justice system.
We could also, maybe, note that the military justice system was hanging people for rape long after the civil justice system.
However, we still have this problem of evidence. And things like numbers convicted at trial used as evidence have a certain problem with them. Nit many convicted might be a reflection of the system not being willing to convict. Sure, that’s possible. But exactly the same numbers can also be read as the system prosecuting, to trial, too many weak cases.
If we’re willing to move a little bit off the insistence of certain feminists that every allegation of rape or sexual assault is, by dint of having been made, proof that is. So, we are starting with the possibly unfashionable assumption that some allegations are not true, some cannot be proven, some are true and can be proven to the required standard. At which point we get these numbers:
Armed forces personnel are twice as likely to be cleared at trial of sexual assaults, a Telegraph investigation can reveal, which is leaving victims reluctant to report allegations.
Figures unearthed by this newspaper show just 29 percent of the 59 military personnel tried at court martial for sexual offences in 2019 were convicted, compared to 65 percent of the 7,742 defendants who appeared before the Criminal Justice System for the same offences in the same year.
There are calls for civilian courts to take on cases after victims told The Telegraph that military boards were failing them because they consist of “old white men who are long in the tooth”.
So, there are – just to keep things easy for our argument here – two points at which a claim of rape can end up not resulting in conviction. The first is in moving from report and claim to trial – whether in a civilian or military court. The second is that it passes this hurdle to actually result in a trial, at which point the verdict can be guilty or not guilty.
It’s possible to tune the system either way. To filter stringently at that decision to prosecute stage, leaving few either way or even weak cases to go to trial. Or to filter stringently the other way, and to insist that all even very weak cases go to trial. Then there’s the courts – will they convict or not on how much evidence?
And here’s the thing. We don’t know, in fact cannot judge, that conviction in court behaviour without knowing about the filter applied before it. It’s the system as a whole that matters, not the one part of it. Because it’s the system as a whole that deals with the report and claim to outcome, not just the trial part of it.
So, imagine, only strong cases get to court. Very few he said/she said without independent evidence do. The conviction rate in the courts will be high, even as the numbers from report to disposal are low. Or, equally, imagine that any report which can even vaguely stand up gets to court. The conviction rate at court is going to be low. But now think about this. Imagine that there is some x number of reports, that y are real and should be punished. Either method of doing it could – could! – be equally efficient at getting to y from x. But complaining about only the court part won’t show that. Just as complaining only about the decision to go to court part won’t.
The numbers presented to us – a low number of convictions in court – is consistent with our weak filter on charging, with any case that has any legs at all moving to trial. It’s also consistent with no one giving a shit about rape in the military justice system.
Because that numerical evidence is consistent with both explanations we cannot use it as proof that it’s the no shit answer.
A low conviction rate can be – again, can be, not is – evidence of taking every allegation seriously and moving most of them to trial. Which is, if we’re honest about it, strange evidence to be using to condemn the system.