Ruth's Truth #11: What Happens When the OSTC Declines to Prosecute a Case?

Since December 2023, the OSTC has had exclusive authority to decide whether to prosecute cases of sexual assault, domestic violence, murder, kidnapping, retaliation (a UCMJ offense since 2019), and related crimes. Although I feel confident that there will be a slight uptick, the prediction is that there will not be any groundbreaking, earth-shattering change in the number of cases that are prosecuted. Understandably, to some degree, if the OSTC believes the evidence can't meet the criminal standard of proof of beyond a reasonable doubt, they most likely will decline to prosecute.

So what happens then? In these cases, the investigation is returned to the command, which must then decide whether to take administrative action instead.

On Burdens of Proof

• Criminal: Beyond a reasonable doubt (very high standard).
• Administrative/civil: Preponderance of the evidence ("more likely than not," or 51% vs. 49%).

Example: O.J. Simpson was acquitted criminally but still found liable in civil court.

It will be interesting to see how many commanders are interpreting an OSTC declination as meaning that "nothing happened," leading to revoked protective orders and the accused resuming normal duties, despite evidence that may justify administrative consequences. Time will be (and is) telling.