The vast majority of military sex-assault cases referred to gardaí under rules introduced following the Women of Honour controversy are being sent back because they do not meet the criminal standard for prosecution.
Under regulations introduced in April 2023, the Defence Forces is obliged to refer all cases against serving members to the Garda for investigation and possible prosecution in the civilian courts.
Previously these cases were dealt with under military law through the court martial system.
The new measures were introduced following allegations of widespread abuse and misconduct in the Defence Forces made by a group of female veterans known as the Women of Honour, as well as allegations that complaints were covered up and that victims were penalised.
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About 17 cases have now been referred by the military to An Garda Síochána for investigation, it is understood.
However, all but a handful of these cases have been sent back to the Defence Forces due to a lack of evidence of a criminal offence.
When a case is referred back, the military police must reinvestigate and assess if the case meets the standard of criminality under military law.
Military law operates differently to civilian law regarding criminal matters. Incidents that may not amount to an offence in the civilian world are often treated as a criminal offence by military authorities.
“If a civilian touches someone on the back without their consent, they probably wouldn’t face charges. In the military, that person could be brought in on a number of charges,” a source said.
This includes “conduct prejudicial to good order and discipline”, a broad ranging, vaguely defined charge under military law that has no equivalent in civilian law.
It often takes the civilian authorities months to assess if a case meets the standard for prosecution in the ordinary courts before referring it back to the Defence Forces.
This delay is a source of frustration for military investigators as the passage of time often makes it more difficult to gather evidence for their inquiries.
“The personnel of Óglaigh na hÉireann are held to a higher standard of accountability than civilians, reflecting the unique responsibilities of military service,” a Defence Forces spokesman said when asked about the issue.
“The main purpose of military law is to regulate the behaviour of military personnel, having regard to the unique requirements and demands of military life, in order to ensure that the required standard of discipline is maintained at all times. Members of the Permanent Defence Forces are subject to military law at all times.”
He said that since 2023, the military refers all cases “of a sexual nature” to gardaí for investigation.
“In some instances, the threshold is not met to warrant an An Garda Síochána investigation. However, given the high standards expected of our personnel, these cases will then be investigated by the military police and appropriate disciplinary action will be taken under the military justice system.”
He added that since 2024, the Defence Forces have the power to place serving personnel “who are the subject of cases involving serious assault, sexual assault or rape” on leave with immediate effect while an investigation takes place.
Previously, there was no provision in military law to place a Defence Forces member on leave during an investigation.
Meanwhile, a judge-led tribunal set up following the Women of Honour revelations to examine the handling of complaints of abuse within the military is expected to begin hearing evidence next year.
It is currently in the investigative stage and has interviewed more than 140 people.
Last October, the sole member of the tribunal, Ms Justice Anne Power, ordered military authorities and civil servants to hand over the identity and contact details of people who may have blocked or ignored complaints of abuse within the armed forces.
