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”.
“These are men and women who have served alongside the accused and have a vested interest in protecting their fellow servicemen and women,” one victim said.
Caroline Nokes, Chairwoman of the Women and Equalities Committee, said: “The statistics are appalling and there is a real case for the Ministry of Justice, the Ministry of Defence and the Home Office to get their act together to help these victims.
“They need justice and clearly they are being failed by the military courts and it is the Government’s duty to help them.”
Ms Nokes added: “When you have a culture of victims not having confidence in the system to come forward then that’s a massive problem that needs to be addressed urgently. We wouldn’t accept this in civilian life so we shouldn’t in the military either.”
Emma Norton, Director of the Centre for Military Justice (CMJ), told this newspaper that she has clients “that have said that they would never again report a sexual assault to the military police; and would advise against any colleague who is thinking of doing so”.
She said: “Clients have also described how common the experience of serious sexual harassment or assault is amongst their female colleagues.
“The last major sexual harassment survey conducted by the Army in 2018 indicated that there was a large amount of sexual offending behaviour that went unreported to the military police.”
The Telegraph has spoken to a number of victims who saw their attackers walk free after reporting what had happened.
They all felt that if their cases had been handled by the CPS the outcomes would have been different.
In 2018, of the 55 defendants who appeared in court marshals on sexual offences charges, 38 percent were found guilty.
Whereas in 2015, 41 percent of the 51 defendants charged with sexual offences were found guilty, suggesting that conviction rates are getting worse.
Earlier this year The Telegraph revealed that the MoD had agreed to consider proposals to a legal challenge brought by three women who claim that they were victims of rape while serving in the Armed Forces.
They sought a judicial review after the Defence Secretary, Ben Wallace, announced in February that he would not act on the recommendation by Judge Shaun Lyons in his Service Justice System Review, that cases involving rape, murder and manslaughter in the UK be tried by the Crown Prosecution Service (CPS).
However at the beginning of last month Mr Wallace gave a written ministerial statement in which he said he had “taken a decision to maintain jurisdictional concurrency when dealing with cases of murder, manslaughter and rape when committed by Service personnel in the UK”.
He said he had concluded that “the SJS is capable of dealing with these offences when they occur in the UK, as well as overseas”.
Mr Wallace added that the MoD “will lead an exercise with SJS and CJS policing and prosecutorial authorities to revise all current guidance around jurisdiction for criminal offending by service personnel in the UK”.
Ms Norton, who is the solicitor representing the three women calling for the changes, added: “There is nothing about military rape that requires military expertise to investigate and prosecute it.
“Parliament never meant for these kinds of cases to be kept inside the military justice system. It would be better for both survivors and the Armed Forces if such cases were handled by civilian police, the CPS and Crown Court. The MoD’s desire to cling on to these cases is inexplicable.”
An MoD spokesman said: “Serious crimes such as sexual assault are not tolerated in the Armed Forces.
“We have every confidence in the Service Justice System and both jurisdictions provide a fair and effective route to justice.
“It is important to note that decisions on where cases are dealt with, in either the Service Justice System or Civilian Criminal Justice System, are made independently by the relevant policing and prosecutorial authorities.”
Behind the story
“If my daughter came to me today and said she wanted to join the Armed Forces I’d be horrified,” a former senior soldier with more than a decade’s service in the British Army has said.
After a night of socialising just over two years ago she says she was raped by a colleague and continues to have a number of serious concerns regarding the way the military police investigated the attack and how her Chain of Command responded.
“There are conversations happening off the record between the Chain of Command and the service police, before investigations get underway, which risk undermining evidence. It’s very corrosive and the system is unfair and unjust,” she says.
“It’s like their own internal kangaroo court.”
The Service Prosecuting Authority (SPA) decided not to charge her assailant and despite a victim’s right of review they refused to change the decision and she was ultimately suspended, before being signed off sick. The assault and the way it was handled has cost her her career.
“We work in such a unique institution – we have to abide by both military and civilian law, but it seems that military law takes precedence, which in cases like this is really unfair,” she adds.
“It amounts to self-protection for the military and it minimises the seriousness of what has happened. Having cases heard in the Crown Court and run by the CPS would be a good start because it would reduce the fallout.”
The sexual harassment started the moment she joined the Royal Navy.
From having men in senior ranks break into her cabin, to having hotel rooms booked for her without her permission, it was completely relentless.
As a young female sailor she was told “it gets better” after reporting the abuse.
When she finally got an opportunity to report her concerns to her Chain of Command she said she was asked: “Do I really want to ruin two men’s lives? Is there any way I could just forgive and forget? There was no thought given to my mental health or the effect of these horrid experiences on my career.”
Her complaints are yet to be upheld and after years of feeling “exhausted and terrified”, she had a mental breakdown which left her feeling suicidal and left the Navy.
“The Armed Forces police are good for petty thefts and breaking up fights but they just aren’t properly trained to be able to deal with sexual offences or nasty sexual harassment,” she said.
“An internal police force is always going to be biased. These are men and women who have served alongside the accused and have a vested interest in protecting their fellow servicemen and women.
“I have repeatedly been told ‘you’ll never change this culture’.”
‘There’s nothing about rape in the military that requires specialist military expertise to prosecute’
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.