WASHINGTON – U.S. Senators Joni Ernst (R-IA), Chuck Grassley (R-IA), and Kirsten Gillibrand (D-NY) are probing the Department of Defense for apparent failure to ask victims of sexual assault if they would prefer their case to be tried in a civilian or military court. Such notifications are required by law, but a recent inspector general report found a widespread lack of compliance and failure to record the victim’s preference.

“The findings in this inspector general report are simply unacceptable. Victims of sexual assault must be heard. For this to happen, they must be asked their preference for venue of prosecution” said Senator Ernst, Chairman of the Senate Armed Services Subcommittee on Emerging Threats and Capabilities. “As a former company commander and retired lieutenant colonel, I strongly believe we need to take concrete steps to encourage reporting of sexual assault within our ranks; failure to listen to victims will only serve to discourage them from doing so.”

“Informing victims of their options is an important piece of making sure justice is served. Every failure to give a victim their options makes that justice harder to achieve, and every failure to properly handle a case will weigh on those deciding to come forward and report in the future. Those who choose to serve their country in the armed forces deserve the best we can give them. The inspector general’s findings show that’s not what they are getting,” said Senator Chuck Grassley.

“When survivors of military sexual assault come forward to tell their stories, they have the right to say whether they want their case tried in either a military or civilian court. This right is protected by a law that passed years ago, but the recent OIG report reveals that the Department of Defense is too often failing to record the preferences of survivors or to even tell them that they have this option at all,” said Gillibrand, Ranking Member of the Senate Armed Services Personnel Subcommittee. “This is unacceptable and shows a disrespect for the survivors of military sexual assault, which is why I am calling on the Department of Defense to implement this law without further delay. I will always do everything in my power to combat sexual assault in the military.”

For more than four years, the law has required that the proper authorities ask military sexual assault victims whether they prefer to try their case in civilian or military courts. Providing victims this choice of venue could improve the overall reporting rates. But in a review of 86 cases published in March, the Department of Defense Office of the Inspector General found that 21 victims had not been given the venue options and only five cases could be verified as fully complying with the law.

In a letter to the Acting Secretary of Defense, the senators are seeking information about what rules are in place to ensure that victims are properly notified and how often prosecution in these cases takes place in the victim’s preferred venue. The senators also ask whether the department disagrees with any of the inspector general’s recommendations and which recommendations will not be implemented.

Full text of the senators’ letter follows or can be found HERE.

April 8, 2019


Patrick M. Shanahan

Acting Secretary of Defense

3010 Defense Pentagon

Washington, DC 20301-3010

Dear Acting Secretary Shanahan:

Under section 540(b) of the FY 2015 National Defense Authorization Act, military authorities are required to ask victims of sexual assault if they prefer their case to be tried in civilian or military courts.[1]  However, according to a recently released Department of Defense Office of the Inspector General (DOD OIG) report, the Department of Defense (Department) is failing to notify and record the preferences of the alleged victims in accordance with this provision.[2]

The DOD OIG audit found that at least 21 victims had not been asked their preference prior to the prosecution of their case.[3]  In another 56 cases, officials stated that the victims were asked, but little or no documentation exists to indicate the victims’ preference for the record.[4]  This audit suggests that multiple victims were deprived of their ability to provide input on the venue for their case, and because the sample size was limited to one installation from each of the military branches, it is possible that the problem is more widespread than the audit suggests.[5]

While the victim’s preference as to jurisdiction is non-binding, these statistics are disconcerting as some advocates and victims believe that providing victims the ability to offer input concerning court venue could increase overall victim reporting rates.[6]  It is important that victims have a voice and that their wishes are carefully considered by those in positions of authority.  Noncompliance with section 540(b) ensures that those important voices will not be heard.

The widespread nature of these violations suggests an institutional failure rather than an isolated instance.  The IG audit supports this notion, as it states in the report that the “[Department] did not establish a [Department] wide process to ensure that victims of alleged sexual assault were asked about their preference for prosecution…”[7]  It also points to the lack of victim prosecution preference tracking by the Department’s Sexual Assault Prevention and Response Office (SAPRO) as a contributing factor to this problem.[8]  Only 5 out of 82 cases reviewed were found to have been handled correctly.[9]

To confirm that victims of sexual assault are appropriately notified of their ability to be consulted on their preferred venue, as required under the law, please answer the following questions by April 22, 2019:

1.         What specific Department or Service rules implement the statutory consultation requirement? 

a.         Do the Department’s requirements designate a specific individual or office as responsible for consulting with the victim regarding venue preference, and a timeframe in which to do so?  If not, why not?

b.         What training is provided to the relevant civilian and military personnel that are tasked with consulting with the victim on his/her venue preference in sexual assault cases?   Please provide policy and training document examples.

c.         Does the Department require authorities to use a specific form to indicate, for the record, a victim’s preference in venue? If not, why not? Which personnel, if any, are trained in the use of this form? Does this form require the victim’s signature? If not, why not?

2.         The DOD OIG report states that the Department, “generally agreed with the recommendations” suggested by the OIG. Are there any elements of the DOD OIG’s recommendations that the Department does not plan to implement? If so, which elements and why? 

3.         How frequently does the prosecution take place in the victim’s preferred venue?  Out of the total number of sexual assault cases prosecuted each year since implementation, how many were prosecuted in the victim’s preferred venue?  Please explain under what circumstances the Department does not honor the victim’s preference.

Should you have any questions, please contact Daniel Boatright of my Committee staff at (202) 224-4515.  Thank you for your attention to this important mater.