50.50: Analysis

Should the UK military be removed from handling sexual violence cases?

As the armed forces’ justice system comes under renewed scrutiny, allegations of sexual violence could be passed to civilian courts

Isobel Thompson
4 December 2021, 10.33am
A woman captain in the British army
Jim Gibson / Alamy Stock Photo. All rights reserved

In November, the UK defence secretary Ben Wallace met with senior members of the British army to address the numerous allegations of harassment and sexual violence hanging over the country’s armed forces. Recent claims that a British soldier murdered a Kenyan woman in 2012 were preceded by a report on the lived experiences of British servicewomen, published by the defence select committee in July. Of the 4,200 women who submitted evidence for the report, 62% said they had experienced some form of abuse when serving.

This abuse took the form of bullying, sexual harassment, sexual assault and rape, “some of which – even more disturbingly – involved senior officers acting as wrongdoers,” said the report. Women also spoke about procedural failures in the handling of allegations, including concerns over disclosure of sensitive details by the service police to the chain of command, and the reluctance of the chain of command to report a sexual assault to the service police. “When things go wrong, they go dramatically wrong,” the report said.

But change is coming – maybe. This Monday, 6 December, the House of Commons will be debating the Armed Forces Bill 2021, in which they will discuss moving serious sexual offences away from the military justice system and into the civilian system.

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To fully understand the context, let’s take a dive into the past.

In 1987, Labour MP Jack Ashley gave a speech to parliament about bullying in the armed forces. “The human costs are heavy,” Ashley said. Soldiers had sent him anonymous letters about their experiences, fearing reprisals.

“Such an atmosphere of intimidation means that few soldiers are willing to complain and even fewer to give evidence,” he explained. “That is why I say that we only see the tip of the iceberg and why I believe that the problem is far larger than it appears to be at present.”

More than 30 years later, Ashley’s words remain relevant. Today, many servicewomen don’t feel comfortable reporting harassment and sexual violence that they have experienced at work.

Some fear that speaking out would damage their careers, that nothing would be done, or that the military justice system (which has its own police and courts) might not provide them with the same access to justice as the civilian system.

“There are also serious problems with how the Service Justice System handles criminal sexual offences – most of which (76% in 2020) involve female victims,” read the defence select committee’s report. “Female veterans are living with the legacy of their Service. While most go on to lead satisfying lives and benefit from their Service, some have life-changing trauma in consequence.”

The scale of the problem

Back in 2000, the Equal Opportunities Commission Report advised a change to “the culture of the Services, which acts to dissuade serving women from making complaints of harassment for fear of displaying weakness, demoralising the team structure or damaging her own or another's career.”

In 2012, a leaked document written by a senior army figure noted that every female officer his “Comd Sgt Maj” had spoken to claimed to have been the subject of unwanted attention.

In 2019, Forward Assist (an organisation that provides therapy to servicewomen) published a report called No Man’s Land, which was drawn from interviews with 100 former and current servicewomen. Of the women interviewed, a quarter (26%) reported being physically assaulted while serving. More than half (52%) said they had sustained “sexual trauma” while serving in the military.

One interviewee alleged that she became pregnant after being raped by a colleague. “I was offered pre-voluntary discharge due to pregnancy. I found out I was pregnant, had a meeting on the Monday and was discharged by the Wednesday. Just like that […] gone without so much as a goodbye, thank you for your service. All that time gone with no help. I left broken.”

Changes after the Deepcut barracks deaths

Over the years, the UK military has implemented various measures to try and change its culture, encourage reporting and improve its justice system. Often, these measures have been catalysed by tragedy.

Between 1995 and 2002, four young army recruits died from gunshot wounds at the Deepcut barracks in Surrey. At a later inquest, the military vowed that recruits would be informed of their right to report serious assaults to the civilian police, rather than to the military authorities.

Unfortunately, the family of private Sean Benton (one of those who died by suicide) recently discovered this did not happen.

“The evidence we heard at all the Deepcut inquests was that our young people just did not know they could [go to the police] and had nowhere to go for help,” they told The Guardian. “Now we learn, three years later, that the army did nothing. To our families, this feels like contempt.”

In 2009, corporal Anne-Marie Ellement reported that she had been raped by two colleagues. She died by suicide soon after the army decided there wasn’t enough evidence to prosecute. Following her death, the army admitted they had made mistakes during the investigation and, among a raft of changes, appointed an ombudsman to oversee the complaints process.

The armed forces have pledged to train recruits in sexual consent and double the number of female personnel

Recently, as the armed forces’ handling of sexual violence has attracted renewed scrutiny, a raft of new measures has been introduced. These include pledges to train recruits in sexual consent, double the number of female personnel, and remove the chain of command from dealing with complaints of a sexual nature, as well as the creation of a new “outsourced investigation service” and a Defence Serious Crime Unit.

Emma Norton, a lawyer who runs the Centre for Military Justice (CMJ), welcomes these measures, but believes faster and further-reaching action is required. “As long as the Government ducks the big changes that so many agree are needed, it will stand accused of picking lower hanging fruit over fundamental reform,” she wrote on the CMJ website.

What hasn’t changed?

Some, like Norton, believe that the military should, in most cases, be removed from the handling of sexual violence cases altogether. This move was recommended by both the defence select committee report, and also the Lyons review into the service justice system (published 2020), which argued that “service personnel remain citizens and in these serious cases when the civil courts are available to them they should be tried in that forum.”

In fact, this was the norm until the Armed Forces Act of 2006, which established a single system of service law and created the court-martial as a standing court. This meant that military courts could handle crimes committed between service people in the UK. The only exceptions were “very serious crimes”, which must be passed to the civilian police.

Terrorism, murder and manslaughter were defined as very serious crimes, but rape and sexual assault were not. As a result, even though servicewomen are not actively prohibited from going to the civilian police, many of those who do report turn to the military police and see their cases move through the military courts.

For those who support sexual offences being handled by the civilian system, this year promised the possibility of change because the latest Armed Forces Bill was moving through parliament (as it does every five years to be debated, reviewed and altered).

Hopes of changing the law faded, however, when MPs voted against the proposal, bolstering the stance of the Ministry of Justice, which supports the system of concurrent jurisdiction and argues that the military system is capable of handling serious crimes.

What happens next?

Next Monday, MPs are scheduled to debate the issue again, providing another potential avenue for amending the law. This is because the House of Lords opposed the government and backed the notion of passing serious sexual violence allegations to the civilian system (unless authorised otherwise by the attorney general), so the bill has returned to the Commons.

"Every service person should have the same protection by his or her day in court as a civilian counterpart. Our forces are now much closer to those in civilian life than they were and should have the same rights, hallowed and developed over centuries, as civilians,” argued one peer, Lord Morris of Aberavon.

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