When the person who filed a report declines to participate in the prosecution, military investigators and trial counsel face a significant evidentiary problem. Unlike in some civilian jurisdictions where domestic violence cases proceed on the basis of physical evidence and prior statements alone, sexual assault prosecutions typically depend heavily on the complaining witness. A victim who refuses to cooperate, who becomes unavailable, or who recants creates real obstacles for the government.
Those obstacles do not automatically end a prosecution. The UCMJ framework allows prosecutors to attempt to proceed on other available evidence, and in some cases the military has tools to compel cooperation that civilian prosecutors do not. Understanding what the government can and cannot do when the key witness goes silent is important for assessing how a case is likely to develop and what the defense should expect at each stage.
The Prosecution’s Options When a Victim Is Uncooperative
When the person who filed an unrestricted report declines to cooperate further, prosecutors face a choice between proceeding without them and seeking to compel their participation. The first option requires building a case on whatever evidence exists independent of the complaining witness’s live testimony, which in sexual assault cases is often limited. The second option involves issuing a subpoena and potentially seeking a material witness order if the witness fails to respond or indicates they will not testify.
Military prosecutors have used both approaches. In cases with strong physical evidence, recorded statements, or prior sworn testimony from the Article 32 hearing, proceeding without the witness’s active cooperation is feasible. In cases that depend entirely on the complaining witness’s account, the practical ability to prosecute without that witness is severely constrained. A witness who cannot be compelled to appear, who is unavailable, or who clearly intends to recant if called presents a different problem than one who is simply unresponsive, and prosecutors must evaluate the evidentiary foundation carefully before deciding how to proceed.
Whether the Military Can Compel Victim Testimony
The military’s ability to compel testimony from a reluctant complaining witness depends on the witness’s status. A service member who has filed a report and then becomes uncooperative is still subject to military authority and can be ordered to appear and testify. Failure to comply with a lawful order can result in its own UCMJ charge. A civilian complaining witness, including a military dependent, can be subpoenaed through the military court’s process, and failure to comply with a valid subpoena can result in contempt proceedings.
In practice, compelling an unwilling witness to testify productively is different from compelling them to appear. A witness who appears under legal compulsion but who testifies in ways that contradict or undermine their original account has not helped the prosecution and may have helped the defense. Prosecutors who force an uncooperative witness to testify must assess whether the compelled testimony will support their case or damage it, and in cases where the answer is uncertain, proceeding without the witness may be the more prudent choice.
How Cases Proceed on Other Evidence Alone
Sexual assault prosecutions that proceed without the live testimony of the complaining witness must be built on whatever other evidence is available. This includes recorded statements made to investigators, which may be admissible under hearsay exceptions if the witness is unavailable in the legal sense and the statements bear adequate indicia of reliability. Medical and forensic evidence, the testimony of first responders and SARC personnel who received the initial disclosure, and any physical evidence of the alleged assault can all be used.
Courts have permitted prosecutions to proceed on this basis in some cases and have found the evidence insufficient in others. The strength of a case that proceeds without the complaining witness’s live testimony depends entirely on what the other evidence establishes and whether it is sufficient to prove each element of the charged offense beyond a reasonable doubt. Defense counsel in this situation must assess whether the non-testimonial evidence, standing alone, is capable of supporting a conviction and must structure the defense accordingly.
The Defense Implications of a Non-Cooperating Complaining Witness
A complaining witness who is uncooperative creates real problems for the prosecution and potential opportunities for the defense. The defense must assess whether the witness’s non-cooperation reflects a genuine change of view about what occurred, external pressure that the defense can document and use, or a strategic posture adopted on advice that the defense can challenge. Each of these possibilities requires a different response.
A witness who has genuinely changed their account because their original report was inaccurate presents one of the strongest possible defense scenarios. A witness who has been pressured by the accused or their representatives presents a scenario where the defense must be extremely careful not to create additional exposure for obstruction or witness tampering. A witness who is simply unavailable through no fault of the accused leaves the prosecution to build its case on other evidence, and the defense’s task is to ensure that other evidence is insufficient.
Prior Statements and Their Use When the Witness Goes Silent
When the complaining witness becomes unavailable or uncooperative, the government may attempt to introduce their prior recorded statements under the hearsay exceptions in the Military Rules of Evidence. MRE 803 and 804 contain exceptions for statements made under specific circumstances, and the Confrontation Clause of the Sixth Amendment limits the government’s ability to introduce testimonial statements without giving the accused an opportunity to cross-examine the declarant.
The Supreme Court’s Crawford framework, which applies in military proceedings, requires that testimonial hearsay statements be subject to cross-examination before they can be used against the accused at trial. Statements made to law enforcement investigators for the purpose of investigating a crime are generally considered testimonial and are subject to this requirement. If the complaining witness is unavailable and has not previously been cross-examined by the defense, introducing their prior statements to investigators may be constitutionally prohibited. This is a significant limitation on the government’s ability to proceed without the witness’s active cooperation, and it is one that defense counsel must be prepared to assert and litigate.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.