Brian Lewis, a former Navy petty officer third class, was raped by a superior non-commissioned officer, then ordered by his commander not to report the crime. Afterwards, Lewis was misdiagnosed with a personality disorder and given a general discharge. Filing retaliation claims proved unsuccessful.
Lewis was the first male survivor of military sexual trauma to testify before Congress regarding the issue of sexual assault in the military. Unfortunately, his story is all too common. According to a report by the Department of Defense, an estimated 26,000 service members were sexually assaulted in 2012—a 37 percent increase from the previous year. An estimated 86 percent of victims chose not to report the crime, many out of fear of retribution. Only 2,558 victims filed an unrestricted report, while only 302 proceeded to trial.
The military justice system prosecutes a smaller percentage of reported sexual assault cases than civilian courts. According to research by Cassia Spohn, professor of criminology and criminal justice at Arizona State University, civilian courts prosecute 50 percent of sexual assault cases, compared to 37 percent by military courts. An Associated Press analysis of sexual assault cases on military bases in Japan from 2005 to 2013 found that, of 244 recorded punishments, only one-third of offenders were incarcerated. In 21 cases, the offenders were simply given a letter of reprimand.
The underreporting of sexual assault and the all-too-light punishments for convicted offenders are problems compounded by the pervasiveness of backlash against victims who do file reports. Many survivors explain that they are met with retribution for speaking out. In an interview with the HPR, Nancy Parrish, president of the military sexual assault survivors advocacy group Protect Our Defenders, said, “The victim is often victimized twice—once when they are raped and then when they are disbelieved or retaliated against. Too many victims are discharged due to minor infractions or being diagnosed with an errant medical diagnosis, such as personality disorder.” In fact, according to POD, 47 percent of victims who chose not to report the sexual assault did so out of fear of retaliation.
In response, Congress has attempted to reform the military justice system. These efforts began with Senator Kirsten Gillibrand’s (D-N.Y.) Military Justice Improvement Act and Senator Claire McCaskill’s (D-Mo.) response, the Victims Protection Act of 2014. On March 6, MJIA was filibustered, while VPA cleared the Senate on March 10. Although VPA’s passage represents an important step, Gillibrand and other proponents of MJIA argue that the situation remains dire and cannot be resolved without further serious efforts.
AN UNDERESTIMATED CRISIS
The issue of sexual assault in the military is even more serious and complex than it seems. According to a report by the Center for American Progress, the Department of Defense may have underestimated the number of sexual assaults in 2012. First, the estimate of 26,000 victims does not include sexual assaults that took place at service academies, where sexual violence may be more common. Second, the DoD survey does not count “less serious” sexual misconduct, called “unwanted gender-related behavior.” Eight percent of surveyed women in the military reported such behavior, including quid pro quo situations in which job security or career advancement threats were used to pressure them into engaging in sexual acts. Third, the data only considers crimes committed by military personnel against active-duty personnel, not against civilians such as intimate partners or minors on military bases. Lastly, the data is based on the number of victims, rather than the number of perpetrators. This may understate the scope of sexual violence: according to the survey, 26 percent of victims report that they were sexually assaulted by multiple offenders. Moreover, the survey does not consider repeated sexual abuse against a victim by one perpetrator or multiple assaults against a victim by various perpetrators.
Contrary to common assumptions, military sexual assaults affect at least as many military men as women. According to a report by the Veterans Health Administration, the majority (54 percent) of the 26,000 estimated military sexual assault victims in 2012 were male, equaling about 14,000 male survivors. In 2003, over 30,000 of the VHA’s male patients suffered “military sexual trauma,” and by 2010, nearly 50,000 male patients did. Moreover, men tend to report assault less frequently than women. Female victims accounted for approximately 88 percent of the report filings. At the same time, it is important to recognize that sexual assault in the military disproportionately affects women. Over 20 percent of women in the military reported unwanted sexual contact, according to a 2013 DoD survey.
MILITARY REFORM EFFORTS
In order to curb the incidence of sexual assault, military academies incorporate sexual harassment and assault prevention training programs into their curricula. According to United States Military Academy sexual assault response coordinator Laureen Barone, students at West Point receive training on sexual harassment and assault prevention and take courses related to the issue. Another component of the education program is Cadets Against Sexual Harassment/Assault, a grassroots program in which cadets openly discuss different topics relating to sexual harassment and assault.
Moreover, the discourse at military academies may be opening up with regard to sexual assault. Lissa Young is a West Point graduate, a former career Army aviator, and currently a professor at West Point. In an interview with the HPR, she said that the issue of sexual assault “was talked about with much discomfort back when I was here [at West Point], but now … folks are much more willing to embrace it—to identify … and eradicate the root causes. It’s definitely a part of the organization’s culture of dialogue.”
In addition to incorporating prevention training into its academies, the military has demonstrated some willingness to institute procedural reforms. Maia Goodell is a former Navy officer, a leading member of the advocacy group Service Women’s Action Network, and a supervising attorney at MFY Legal Services. In an interview with the HPR, Goodell suggested that the military is not resisting reforms altogether. She cites reforms undertaken by the Air Force Academy—an institution plagued by sexual assault scandals in recent years—including the creation of the Special Victims’ Counsel Program to provide victims with legal counsel.
A CALL FOR CHANGE
In March 2013, Gillibrand led a congressional hearing, hosted by the Senate Armed Services Committee’s Subcommittee on Personnel, to investigate the pervasiveness of sexual assault. Since then, she has been advocating for the passage of MJIA. The bill has garnered bipartisan support: among its 55 co-sponsors are Republican senators such as Ted Cruz (R-Texas) and Rand Paul (R-Ky.). In addition, advocacy groups such as Parrish’s POD and Goodell’s SWAN have endorsed the bill. Goodell praised MJIA as “a much-needed reform to the military justice system,” expressing hope that it “will make victims more likely to come forward about sexual assault.”
The most substantial difference between MJIA and McCaskill’s VPA concerns the placement of convening authority—the power to decide whether to bring a complaint to trial. MJIA would move convening authority out of the hands of the victim’s unit commander and into the hands of specially trained prosecutors who would be within the military but outside the involved parties’ chain of command. This could resolve the problem of bias and remove potential conflicts of interest.
As long as commanders retain convening authority, Gillibrand and groups like POD and SWAN argue, the U.S. military justice system will remain unable to effectively address the problem of sexual assault. The DoD report reveals that 25 percent of female and 27 percent of male victims indicated that their assailant was someone in their military chain of command. The commanders may prove biased, especially if they have close ties to the accused or if the victim’s rank is lower than that of the accused. They may also sweep potential conflicts under the rug in order to maintain cohesion within their units. Moreover, reports of sexual assault may negatively impact the commanders’ own careers, giving them a personal interest in covering up the crime. In addition to potentially being biased, the commanders who possess convening authority lack legal expertise. Finally, the process lacks transparency: there is no way to track commanders’ convening authority records in order to hold them accountable for their decisions.
Based on his personal experience with sexual assault, Lewis feels strongly that convening authority should be taken away from unit commanders. In an interview with the HPR, he argued, “Any system of justice where one officer is playing all of the major roles in the judicial process is bound to fail. There’s no independence or oversight in the decision-making.”
RESISTANCE TO CHANGE
The military has been highly resistant to change. According to Parrish, “the military still chooses to deal with [the issue of sexual assault] as a public relations problem instead of finding a solution that goes to the heart of the matter.” Opponents of MJIA see the bill as a threat to the military chain of command.
Young expressed her personal qualms about taking the authority out of commanders’ hands: “For me, it’s uncomfortable because it’s so fundamental for leaders to be responsible for what their units do and do not do.”
Critics of MJIA have also questioned the efficacy of removing convening authority from commanders. In January, the Response Systems to Adult Sexual Assault Crimes Panel, created by Congress and Defense Secretary Chuck Hagel, released a report on Gillibrand’s bill. According to the report, “the evidence does not support a conclusion that removing authority to convene courts-martial from senior commanders will reduce the incidence of sexual assault or increase reporting of sexual assaults in the Armed Forces.” Seven of the nine panelists agreed with this conclusion.
McCaskill shares their view, arguing that convening authority should rest with commanders, not with prosecutors. Thus, VPA merely strengthens prosecutors’ role in advising commanders in their convening decisions. Another major provision of the bill bans the use of the “good soldier defense,” which allows defendants to use their soldierly conduct as proof of their innocence.
TAKING THE HILL
Gillibrand’s bill has faced stiff competition from McCaskill’s more moderate alternative. Interestingly, as the disagreement between the two Democratic women indicates, opinion on the issue is not split along gender or party lines. Instead, the political arena is divided along lines of seniority, with older senators more likely to oppose MJIA and younger senators more likely to support it. This may be due to junior senators’ greater willingness to change the status quo and challenge traditional sources of authority.
Despite considerable support for MJIA, Gillibrand has been unsuccessful in passing the bill. At the end of 2013, Congress passed the 2014 National Defense Authorization Act, which included reforms such as providing victims with legal counsel and criminalizing retribution against victims who report crimes. However, the bill did not include Gillibrand’s proposal, which was strongly criticized by the Pentagon and many legislators. President Obama has also failed to support Gillibrand’s bill, only acting to initiate a yearlong review of sexual assault in the military.
With 55 senators voting in favor and 45 against, the Senate fell short of the 60-vote threshold required to invoke cloture and end the filibuster of MJIA. Opponents of the bill included McCaskill and Senate Armed Services Committee Chairman Carl Levin (D-Mich.). By contrast, McCaskill’s bill passed 97-0 in the Senate a few days later. The bill must now be approved by the House of Representatives and may take months to be enacted into law.
However, Lewis believes that McCaskill’s reform efforts are misguided and too slow. Lewis argued that McCaskill “really misunderstood what … survivors wanted. … Her bill does not comprehend the military justice system.” He added that “she is attempting to address this in an incremental fashion, and unfortunately incremental changes are still leaving us with 26,000 survivors every year and an untold number of survivors over the past fifty years.”
THE WAY FORWARD
While Gillibrand voiced her disappointment with the Senate’s failure to pass MJIA, she has vowed to continue fighting to protect military sexual assault survivors, including trying to attach her bill to the 2015 National Defense Authorization Act. Young remains optimistic regarding the prospects for reform: “I think it’s a tragedy, but it’s not unfixable. It’s not hopeless. I believe in the Army’s commitment to its soldiers.” Both Parrish and Goodell agree: Parrish claimed that “it’s just a matter of time before this changes,” and Goodell asserted that the military is “finally beginning to recognize and name this problem.”
It is important to keep in mind the purpose of reforming the military justice system: the assurance of justice to both past and future survivors. As Lewis explained, “There are two parts: the people who will come after us and those who have already walked this trail.” In an interview with Politico, Parrish called McCaskill’s bill “an important change and absolutely necessary.” Yet much work remains to be done. Despite the filibuster of MJIA in the Senate, its advocates continue to push for more fundamental reform of the military justice system. The battle will be arduous, but with so much at stake, hopes are high that action will be taken in the years to come.