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Human Rights Research Center

Bridging Psychology and Law: Forensic Psychologists in Military Courts

October 8, 2024


[Image credit: Steven Robertson / Getty Images]

Abstract


Forensic psychologists play a critical role in determining accountability and criminal liability in both military and civilian courts. Their expertise in understanding coping skills, cognitive processes, and trauma responses is valuable, specifically in cases involving military discipline and administrative law. This article highlights the significance of incorporating forensic psychologists within military justice systems and addresses challenges and opportunities in their recruitment and retention.


Introduction


Forensic psychology is defined by the American Psychological Association (APA) as “the application of clinical specialties to the legal arena” (Ward, 2013). Forensic psychologists use methods, discoveries, and ideas from psychology to address legal issues “throughout their career, such as individuals who have become depressed and anxious from a traumatic incident, acquired a brain injury from domestic violence attack, committed robbery for food to survive,” killed someone with intent or out of rage, or young people partaking in illegal activity (Pinto, 2018).


Forensic psychologists act as necessary assets when dealing with legal disputes by offering insights into psychological factors that influence behavior and decision-making. Their involvement is particularly helpful in military courts because they can help assess the mental state and psychological coping of service members involved in court cases. This article explores the importance of forensic psychologists in military justice and identifies strategies to enhance their integration within the armed forces.


The Role of Forensic Psychologists in the Military


Examining the relationship between psychology and law in military courts-martial reveals a shifting landscape within the military justice system. While criminal jury trials in civilian contexts have largely diminished, military courts remain arenas for challenging legal battles. Psychologists are participating in courts-martial in a growing number of cases involving sexual assault and intimate partner violence in the military, “from consulting on strategy and jury selection; to educating military panels on the science of memory, suggestibility, and coercive control; to performing forensic assessment for competency to stand trial and recidivism” (Stein & Younggren, 2019). In light of these developments, the presence of psychologists in the military justice system is more crucial than ever (Stein & Younggren, 2019).


Forensic psychologists’ involvement extends beyond everyday discussion; they play an essential role in evaluating psychological factors relevant to blameworthiness and criminal liability in military courts. By assessing coping skills, developmental influences, and trauma responses, they provide necessary insights for decision-making in legal actions. Moreover, their documentation of psychological coping with physical injury or traumatic events holds significance across various military proceedings, including cases of military discipline and administrative law disputes (Nolan, 2020). Hence, the integration of forensic psychologists within the military justice system is essential for ensuring comprehensive and informed judgments in legal matters.


Challenges and Opportunities


Civilian psychologists are hesitant to participate in a military system they are unfamiliar with, while others mistakenly think that the various legal systems have things in common. While having a psychologist on the trial team is more standard, many attorneys lack the skills necessary to make the most of this useful tool (Stein & Younggren, 2019).


Despite their importance, the recruitment and retention of forensic psychologists within the military face significant challenges. While this may not appear to be a human rights issue, it intersects with several fundamental problems related to labor and employment rights, such as low compensation, limited growth opportunities, and overwhelming workloads that hinder efforts to attract and retain qualified professionals. These conditions not only undermine their professional development but also infringe upon their rights to fair and equitable working conditions. Addressing these issues is essential to ensure that these professionals are treated with the respect and dignity they deserve, aligning with broader human rights standards related to fair labor practices and occupational well-being. However, there are opportunities to address these challenges through initiatives such as offering student loan repayment programs, signing bonuses, and enhanced benefits packages.


Addressing Sexual Assault Cases within the Armed Forces


Understanding victim behavior and offender characteristics within the military context is crucial for discerning potential patterns that may arise as service members transition out of the military.

Military courts are increasingly handling cases involving sexual assault and intimate partner violence, highlighting the need for forensic psychologists in these proceedings (Stein & Younggren, 2019). By leveraging their skill, forensic psychologists can assist in educating military panels on crucial scientific principles and conducting vital forensic assessments (Stein & Younggren, 2019). Encouraging interdisciplinary cooperation between forensic psychologists and other military personnel can further enhance their impact on comprehensive military plans.


According to a report from the Defense Department, in 2021, more than 8% of female service members experienced unwanted sexual contact, marking the highest rate since the department began recording data in 2004 (Myers, 2022). Similarly, for men, the figure was the second highest at 1.5% (Myers, 2022). Despite these alarming statistics, the Department of Defense documented only 7,260 sexual assault reports in the calendar year 2021, out of an estimated 35,900 incidents, indicating a reporting rate of just 20% (Myers, 2022). Although fewer are being legally punished, the number of perpetrators given nonjudicial punishment, or administrative punishment including involuntary separation, has increased (Myers, 2022). Some of that may reflect survivors becoming more comfortable with disciplinary options, rather than participating in a court-martial process (Myers, 2022). The findings suggest that decisive action is needed to tackle sexual assault cases within the armed forces. Leadership and influence are crucial in reforming reporting mechanisms, support systems, accountability, and justice for survivors. A culture of trust, respect, and accountability can create a safe environment for service members to report incidents.


The Army's Department of Defense's director of force resiliency, Beth Foster, said, “This is really tough, and we’re going to talk through that…But we've got the way forward. We just need to double down on our efforts to get after this. After more than ten years of "don't rape" lectures, the services have started to focus more on prevention. (Myers, 2022) There are suggestions for how to make the system better, such as evaluating commanders and leaders in greater detail (Myers, 2022). Making the results of courts-martial for sexual assault or harassment public demonstrates to offenders and victims that the chain of command is open and visible (Myers, 2022).


Conclusion


Embracing forensic psychologists in our military justice system is not only essential but important, particularly in addressing complex issues such as sexual assault and intimate partner violence. Their expertise in understanding psychological factors influencing behavior and decision-making plays a role in ensuring fair legal proceedings. As Foster of the Army's Special Operations Division emphasized, the path forward requires a concerted effort focused on prevention and accountability. Evaluating commanders and leaders more thoroughly in court-martial is an important strategy to reinforce a culture of accountability and justice.


In conclusion, the role of forensic psychologists in military justice goes beyond the courtroom; it is important to provide a safer environment in our armed forces. Through collaborative efforts, the military can continue to progress toward a system that upholds the well-being and rights of all service members.


 

Glossary

  • Adjudicate: To make an official decision about a legal case or dispute. It involves a judge or court determining the rights and obligations of the parties involved based on the evidence and arguments presented.

  • Competency: Refers to a person's mental capacity or ability to understand and participate in legal proceedings, such as standing trial or making decisions about their legal representation.

  • Courts-martial: Military justice proceedings for military personnel accused of violating the law. They adjudicate serious offenses like desertion, disobedience, misconduct, and violations of regulations.

  • Nonjudicial: Refers to actions, processes, or decisions that do not involve a court of law or judicial proceedings. It often implies resolution or handling outside of the formal legal system.

  • Perpetrators: Individuals who commit an offense, typically a crime or a harmful act against another person or entity.

  • Recidivism: The tendency of a convicted criminal to re-offend, or commit another crime, after being released from punishment or correctional supervision.

 

Sources


  1. Ferguson, C. T. (2008, December). Caring for sexual assault patients in the military: Past, present, and future. Journal of Forensic Nursing, 4(4), 190–198. https://doi.org/10.1097/01263942-200812000-00009 

  2. Kime, P. (2019, December 3). Why the US military can’t recruit more mental health professionals. Military Times. https://www.militarytimes.com/pay-benefits/2019/12/02/why-the-us-military-cant-recruit-more-mental-health-professionals/

  3. Kolaja, C., Castañeda, S. F., Woodruff, S. I., Rull, R. P., & Armenta, R. F. (2022). The relative impact of injury and deployment on mental and physical quality of life among military service members. PLOS One, 17(9), e0274973. https://doi.org/10.1371/journal.pone.0274973 

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  5. Myers, M. (2022, September 2). The military’s sexual assault problem is only getting worse. Military Times. https://www.militarytimes.com/news/your-military/2022/09/01/the-militarys-sexual-assault-problem-is-only-getting-worse/

  6. Nolan, M. (2020). Generalisable advice to forensic psychologists in a guide about US courts-martial: a similar volume is needed for Australians. Psychiatry, Psychology, and Law, 27(4), 695–711. https://doi.org/10.1080/13218719.2020.1862003

  7. Pinto, B. (2018, October 5). What role does forensic psychology play in a sexual assault case?  The Chicago School of Professional Psychology Insight Digital Magazine. https://www.thechicagoschool.edu/insight/psychology/forensic-psychology-sexual-assault/  

  8. Puri, B. K., & Treasaden, I. H. (Eds.). (2014). Forensic Psychiatry: Fundamentals and Clinical Practice. CRC Press. 

  9. Ritchie, E. C. (Ed.). (2014). Forensic and Ethical Issues in Military Behavioral Health. Borden Institute, US Army Medical Department Center & School.

  10. Stein, C. T., & Younggren, J. N. (Eds.). (2019). Forensic Psychology in Military Courts. American Psychological Association.

  11. Thomsen, C. J., Stander, V. A., Foster, R. E., & Gallus, J. A. (2017). Understanding and Addressing Sexual Harassment and Sexual Assault in the US Military. In S. Bowles & P. Bartone (Eds.), Handbook of Military Psychology (pp. 357-373). Springer, Cham. https://doi.org/10.1007/978-3-319-66192-6_21 

  12. U.S. Department of Defense. (n.d.).  In Manual for Courts-Martial. https://jsc.defense.gov/Portals/99/2024%20MCM%20files/MCM%20(2024%20ed)%20-%20TOC%20no%20index.pdf?ver=b7JVpxV5rbIHg0ENlCRVKQ%3D%3D 

  13. Ward, J. T. (2013, September). What is forensic psychology? American Psychological Association. https://www.apa.org/ed/precollege/psn/2013/09/forensic-psychology

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