The U.S. armed services failed to consistently assign certified lead investigators and special prosecutors to sexual assault and domestic violence cases for two years, according to a recent watchdog report released at a time when lawmakers are pushing to make significant changes to the military justice system.

The U.S. Department of Defense's Office of Inspector General said in a report released Wednesday that from June 2018 to May 2020, military branch units did not comply with federal law and department policy requiring them to designate certified investigators and specially trained prosecutors in some sexual assault and domestic violence cases.

By not assigning appropriate personnel to special-victims cases, the military increased the risk of commanders making prosecutorial decisions based on insufficient crime investigations and poor legal advice, according to the report.

"The prosecutors assigned to handle the cases we reviewed were generally junior in grade, less experienced and lacking specialized training specific to special-victim cases," the report said.

Lawmakers in the House and Senate are currently pushing for military justice system changes to be included in the 2022 National Defense Authorization Act. The proposed changes include removing commanders from prosecutorial decisions on nonmilitary felony offenses and added training for prosecutors and criminal investigators on sexual assault and domestic violence cases, according to the bills.

The report was conducted to ensure that the Defense Department and the armed services were complying with federal law and department policy, which requires each military branch to have special-victim investigation and prosecution services for sexual assault and domestic violence cases, the watchdog said.

According to the report, out of 447 special-victim investigations, the military failed to assign certified investigators in 118 cases — more than a quarter of the total.  Of all the military branches, the Air Force had the highest percentage of special-victims case for which it did not designate certified investigators — 66%, the report found.

Even fewer qualified prosecutors were assigned to special-victims cases, according to the report. Of the 447 investigations, the military failed to place specially trained prosecutors on 258 cases — more than 50%, the report says.

The OIG found that qualified prosecutors and investigators were not consistently assigned to such cases as required by the law because, even though the number of cases had increased over the years, the military hadn't allocated more funding and trained personnel to handle the increased workload.

The watchdog also found that criminal investigators didn't consistently document their communications with prosecutors and victims, as required by federal law. Investigators failed to document 24- and 48-hour communications with prosecutors and victim advocates in more than 80% of the 447 cases, and failed to record monthly communications with prosecutors in 54% of those cases and with victims in 34% of cases, according to the report.

Investigators either overlooked the requirement to communicate with prosecutors and victim advocates, or they did not properly document their communications, the watchdog said.

If criminal investigators do not consistently communicate with prosecutors in an investigation of a covered offense, "they increase the risk that victims may not receive the services available to them, such as mental health counseling," the OIG said.

The military did fulfill federal law and department policy requirements to provide sexual assault and domestic violence victims with certified advocates and information about advocacy resources, according to the report.

The inspector general's report is one of 17 reviews conducted in the last five years by the U.S. Government Accountability Office, the Defense Department, the Office of Inspector General and the Air Force on investigation and prosecution of special-victim cases and treatment of victims, according to the watchdog.

Earlier this year, the Independent Review Commission on Sexual Assault in the Military, established by the Defense Department, released a nearly 300-page report with more than 80 recommendations for how the military can improve its handling of sexual assault cases.

The Defense Department promised to implement all the commission's recommendations, including removing commanders' prosecutorial authority over military sexual assault cases, but former military attorneys, victims and advocates told Law360 that military justice system problems go beyond sexual assaults.

Retired Air Force Col. Don Christensen, a former military chief prosecutor and current president of Protect Our Defenders, a nonprofit dedicated to ending sexual violence in the military, told Law360 in an interview Friday that the watchdog's findings were not surprising. He said that when he established the Air Force's special-victim prosecution program in 2012, the branch had 10 specially trained prosecutors for 90 military installations.

Christensen said that when he was a chief prosecutor, he prosecuted cases to the dismay of his colleagues. Usually, military attorneys prosecute for one to three years at the beginning of their career and never again, he said.

"Anyone who is very experienced in this understands the best way to potentially get justice is to have the most experienced investigators and most experienced prosecutors," Christensen said.

The inspector general recommended that the military review the resources needed to train and certify more investigators, standardize how investigators document communications and consider reinstating a policy that requires specially trained prosecutors to participate in investigators' documented communications. As of September 2020, those prosecutors are no longer required to do so, according to the report.

In response to the OIG report, military officials disputed the watchdog's findings that specially trained prosecutors were not assigned to sexual assault and domestic violence cases as required by law.

Air Force Maj. Gen. Charles Plummer said in a Sept. 17 letter in response to a draft of the report that it was unclear how the inspector general calculated the Air Force's rate of compliance.

"In our review, it appears that 16 of the 114 cases on the list the DOD OIG considered were cases in which the military lacked jurisdiction, civilian authorities handled disposition, or the offenses did not meet special-victims investigation and prosecution criteria," said Plummer, who is also a deputy judge advocate general.

The Army, Navy and Marine Corps also disagreed with the watchdog's findings. According to letters included in the report from the military branches, specially trained prosecutors were assigned to 100% of the 66 reviewed Marine Corps cases and 92% of the 152 reviewed Amy cases, and the inspector general didn't account for supervisory roles specially trained prosecutors had in the Navy cases.

Acting DOD Inspector General Sean O'Donnell said in a statement Friday that his office found that the Defense Department "cannot ensure that all victims of sexual assault are receiving support services available to them." 

"We also found that the DOD cannot ensure that all commanders and investigators are making decisions based on the best possible information because of, among other things, inexperienced or untrained prosecutors," O'Donnell said.

--Editing by Karin Roberts. Graphics by Jason Mallory and Ben Jay.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.