U.S. Army soldiers accused of sexual assault are less than half as likely to be detained ahead of trial than those accused of offenses like drug use and distribution, disobeying an officer or burglary, according to a first-of-its-kind analysis by ProPublica and The Texas Tribune.

The news organizations obtained data from the Army on nearly 8,400 courts-martial cases over the past decade under the Freedom of Information Act and analyzed pretrial confinement, a process in which commanders decide whether service members accused of crimes should be detained while awaiting trial. The resulting investigation of the nation’s largest military branch revealed a system that treats soldiers unevenly and draws little outside scrutiny.

On average, soldiers had to face at least eight counts of sexual offenses before they were placed in pretrial confinement as often as those who were charged with drug or burglary crimes, the news organizations found. 

That disparity has grown in the past five years. The rate of pretrial confinement more than doubled in cases involving drug offenses, larceny and disobeying a superior commissioned officer, but it remained roughly the same for sexual assault, according to the analysis.

“Justice that’s arbitrary is not justice,” said Col. Don Christensen, a former chief prosecutor for the Air Force. “It shouldn’t come down to the whims of a particular commander.”

Dating to the days of George Washington, the military justice system initially handled only offenses like desertion or dereliction of duty as a way of helping commanders keep their fighting forces in line. As the system evolved, it began handling a broader slate of crimes that gave commanders extraordinary discretion over cases such as sexual assault and murder.

Recent congressional reforms stripped some authority from military commanders, but they continue to control various aspects of the judicial process, including pretrial confinement.

As a whole, the Army has used pretrial confinement in about 1 in every 10 cases handled by the branch’s highest trial courts over the last decade, but some posts employ it at a significantly lower rate than others, the news organizations found. For example, at Fort Bliss in El Paso, Texas, defendants were confined ahead of trial 5% of the time in cases involving sexual assaults, while soldiers at another large Texas installation, Fort Hood, were confined almost 12% of the time in the same type of cases.  

Army officials say that pretrial confinement should be a last resort because it detains service members before they’re convicted of a crime. But commanders have held some soldiers for relatively minor infractions while leaving free others who are accused of violent crimes. 

At Fort Huachuca, Arizona, a 19-year-old private named Olivia Ochoa was placed in pretrial confinement for more than three months for using drugs and mouthing off to her superiors, while Fort Bliss commanders opted against detaining a staff sergeant named Randall S. Hughes, who was accused of raping the wife of a soldier in his command at a Super Bowl party in 2017. After he transferred to a post in  New Jersey, accusations emerged that he’d allegedly sexually and physically assaulted multiple women, most of them years earlier. He still wasn’t put in pretrial confinement. 

In a March 2021 plea deal, Hughes admitted to a number of charges, among them raping the soldier’s wife at the Super Bowl party and one of his ex-wives. He did not plead guilty to other charges, including several sexual assault allegations from other women. A judge sentenced him to almost 14 years in prison and dishonorably discharged him. 

A Fort Huachuca spokesperson said Army officials would neither discuss nor “second guess” commanders’ decision to put Ochoa in pretrial confinement. Ochoa and her attorney maintain that commanders treated her unfairly and that the length of time she spent in pretrial confinement was excessive. Matt Leonard, an Army spokesperson, said Hughes’ commanders “took appropriate action” to ensure the staff sergeant showed up at trial and stayed away from the alleged victims. Hughes’ attorney did not respond to requests for comment. 

In another Fort Bliss case, commanders waited until Christian Alvarado, a private first class, was accused of sexually assaulting five women before placing him in pretrial confinement. 

During a daylong interrogation with a military investigator at Fort Bliss in July 2020, Alvarado admitted in a sworn statement to sexually assaulting a fellow soldier named Asia Graham, the first woman to accuse him. 

“She was drunk and so was I,” Alvarado wrote about the December 2019 encounter. “We had sex, but she passed out.”

Alvarado told the military investigator that he continued to have sex with the woman because he “was in the moment.” 

In the same interrogation, Alvarado acknowledged having sex with another woman while she was intoxicated. He said it was wrong but would not agree to a sworn statement about the second assault allegation because he believed it would just be “icing on the cake.”

At the end of the interrogation, Alvarado’s commanders didn’t place him in detention or under any restrictions beyond the orders he had already received to stay at least 100 feet away from the two women who had accused him of assault, according to records.

A month later, Alvarado assaulted another woman, a civilian who asked to be identified by her middle name, Lee. 

Had Alvarado’s case been handled by civilians and not the military, his written admission about assaulting Graham could have been enough evidence to quickly issue an arrest warrant and bring a criminal charge, according to two lawyers who previously worked for the El Paso County district attorney’s office.  

“I would have felt comfortable charging at that point,” said Penny Hamilton, who led the Rape and Child Abuse Unit at the district attorney’s office and later served as an El Paso County magistrate judge.

In Texas’ civilian system, Alvarado would have then gone before a magistrate judge, who’d set a bail amount that could have been in the tens of thousands of dollars. He’d only be released if he could pay the bond. 

The Army eventually charged Alvarado with the three sexual assaults in late October 2020 and ordered him to stay 100 feet away from Lee. Still, he was not detained. 

Lt. Col. Allie Scott, a former Fort Bliss spokesperson, said that the conditions to justify placing Alvarado in pretrial confinement were not met after the three assault accusations. She declined to answer additional questions seeking clarification, saying Fort Bliss would not comment on internal deliberations. 

Army officials defended the pretrial confinement system to ProPublica and the Tribune. The nature of the offense is just one factor commanders consider when deciding whether to detain someone ahead of trial, Lt. Col. Brian K. Carr, chief of the operations branch at the Office of the Judge Advocate General’s Criminal Law Division, said in an email. 

He said that, under military regulations, commanders must first decide whether there’s good reason to believe that a soldier committed a crime and is either likely to flee before trial or engage in serious criminal misconduct. Commanders also have to consider whether other restrictions, such as directing soldiers to remain in military housing or requiring regular check-ins with superiors, are sufficient to keep them out of trouble. 

Alvarado wasn’t placed in pretrial confinement until four months after he was charged, when two more women came forward and accused him of sexually assaulting them years earlier in Arizona. 

A military judge later found him guilty of sexually assaulting Graham and Lee, of strangling Lee and of lying to investigators. He was sentenced to more than 18 years in a military prison and a dishonorable discharge. 

Because of the dishonorable discharge and the length of his sentence, Alvarado’s case is under automatic appeal. A decision is still pending and he remains in custody. He told ProPublica and the Tribune in a letter that he is innocent but declined to answer questions. 

The fact that Alvarado is behind bars gives Lee little comfort. She still relives the moment when he pinned her down on her couch and wrapped his hand around her throat while her two children slept across the house.

“If something had been done sooner, he would have never gotten the chance to hurt me,” Lee said.

If you or someone you know has been sexually assaulted, you can receive confidential help by calling the Rape, Abuse & Incest National Network’s 24/7 toll-free support line at 800-656-4673 or visiting its website. You can be connected to a hotline staff member in your area or to the Department of Defense’s Safe Helpline.

ProPublica is a nonprofit newsroom that investigates abuses of power. The Texas Tribune is a nonprofit, nonpartisan local newsroom that informs and engages with Texans.

Vianna Davila is a reporter with the ProPublica-Texas Tribune Investigative Initiative. Lexi Churchill is a research reporter for the ProPublica-Texas Tribune Investigative Initiative. Ren Larson is a...