Changing the Way the Military Handles Sexual Assault Or How Not To Leave the Fox Guarding the Henhouse

Given the more than 60 Democratic and Republican votes lined up, the Senate is poised to move forward with a new bill that would change the way the military handles sexual assault and other felony crimes by service members. Sponsored by Kirsten Gillibrand (D-NY) and Joni Ernst (R-IA), the new law would assign decision-making on sexual-assault cases and a host of other felonies, including some hate crimes, to a specially trained team of uniformed prosecutors. While the bill will indeed inch the military away from its antiquated practice of allowing commanders to decide whether to prosecute their own officers and soldiers on sexual-assault allegations, if baffles me that it’s still allowed to handle its own violent crimes rather than having them dealt with through our criminal justice system.

Why should our troops enjoy such protected status, as though they exist in a separate reality from the rest of society? Arguably, in these years, the face of America has indeed been militarized, whether we like it or not. After all, we’ve just lived through two decades of endless war, American-style, in the process wasting significantly more than $6.4 trillion dollars, more than 7,000 uniformed lives, and scores of health- and safety-related opportunity costs.

Meanwhile, it’s taken years for the public and members of Congress to begin to recognize that it matters how the military treats its own — and the civilians with whom they interact. (After all, many felonies committed by such personnel against civilians, at home and abroad, are prosecuted within the military-justice system.) That Congress has taken so long to support even such a timid bill in a bipartisan fashion and that few think to question whether felonies committed by American soldiers should be prosecuted within the military, suggests one thing: that we’re a long, long way from taking responsibility for those who killmaim, and rape in all our names.

I’m a military spouse. My husband has been a U.S. Navy officer for 18 years. During the decade we’ve been together, he’s served on two different submarines and in three Department of Defense and other federal staff jobs in Washington.

In many ways, our family has been very fortunate. We have dual incomes that offer us privileges the majority of Americans, let alone military families, don’t have, including being able to seek healthcare providers outside the military’s decrepit health system. All this is just my way of saying that when I critique the military and my experiences in it, keep in mind that others have suffered so much more than my family.

The Military Criminal Justice System

Let me also say that I do understand why the military needs its own system for dealing with infractions specific to its mission (when, for instance, troops desert, defy orders, or make gross errors in judgment). The Uniform Code of Military Justice (UCMJ) is federal law enacted by Congress. Analogous to our civilian legal system, it is of no small importance, given the potential cost to our nation’s security should the deadly equipment the military owns not be operated with the utmost sobriety and discretion.

In such cases, the standards listed in the UCMJ are implemented according to procedures outlined in another document, the Manual for Courts-Martial (MCM). Essentially, the MCM provides a framework for trying alleged offenses of various kinds within the military, laying out the maximum penalties that may be imposed for each of them.

Included in this are procedures for nonjudicial punishments in which a commanding officer, rather than a court-martial judge and a panel of other personnel (functionally, a jury), determines what penalties are to be imposed on a service member accused of a crime. Crucially, the results of such nonjudicial punishment do not appear on an officer’s criminal record.

Among other things what this means is that a commanding officer can decide that a soldier accused of sexual assault will be subjected to nonjudicial punishment rather than a military trial. In that case, the public will have no way of knowing that he committed such an act. No less crucially, the MCM leaves it entirely up to the commanding officer of a soldier’s unit whether or not such allegations will be dealt with at all, no matter the format. That’s why the Senate bill under consideration is of importance. At least it will remove the decision-making process on prosecuting reported assault cases from officers who may have a vested interest in covering up such assaults.

Because here’s the grim reality, folks: sexual assault in the military is a pandemic all its own. According to a 2018 Defense Department survey across five branches of the armed services (the most recent such document we have), 20,500 assaults occurred that year against active duty women and men. Yet fewer than half of those alleged crimes were reported within the military’s justice system and just 108 convictions resulted.

What this tells us is that commanding officers exercise a stunning decision-making power over whether allegations of rape get tried at all — and generally use it to suppress such charges. Consider, for example, that, of the 2,339 formally reported sexual assaults that military investigators recommended for arbitration in 2019, commanders took action in only 1,629 of those cases. In other words, they left about a third of them unexamined.

Of the ones brought to the military justice system, fewer than half were actually tried in front of a judge through the court-martial system. At worst, the remainder of the accused received nonjudicial punishments from commanders — extra duties, reductions in pay or rank — or were simply discharged from the service.  And all this happened entirely at the discretion of commanding officers.

Those same commanders, who have the power to try (or not try) allegations of violence, generally have a vested interest in covering up such accusations, lest they reflect badly on them. And while you might think that sexual-assault survivors would have a say in command culture, as it happens their “anonymous” contributions to such reports sometimes turn out not to be anonymous at all. In smaller units, commanders can sometimes figure out who has reported such incidents of violence and misconduct, since such reports regularly include the gender and rank of those who have come forward.

All of this explains why the Gillibrand-Ernst bill is a welcome departure from a classic case of the fox guarding the henhouse. At least those with less of a conflict of interest and (hopefully) more than just a token amount of training when it comes to sexual assault, harassment, and other forms of violence will be assigned the job of deciding whether or not to try alleged felonies.

Let’s Take This Further

And yet, while that bill is far better than nothing, it’s distinctly a case of too little, too late. The real problem is that Americans generally view the military just as the military views itself — an island apart from the general populace, deserving of special allowances, even when it comes to sexual crimes.

I recently spoke with a young female Air Force recruit who saw the military as her sole means of paying for a four-year university without carrying crippling debt into middle age. What struck me, however, was how much more she feared attacks by male airmen than the possibility that she might ever be wounded or killed in a combat zone. And in that ordering of fears, she couldn’t be more on target, as the stats on combat deaths and reported sexual assault bear out.

In addition, these days, new recruits like her enter the military in the shadow of the bone-chilling murder of Spc. Vanessa Guillen, a 20-year-old Army soldier. She went missing in April 2020 from Fort Hood, Texas, shortly after reporting that a superior officer had sexually solicited her, repeatedly made an example of her after she refused him, and finally approached her while she was taking care of her personal hygiene. Her dismembered body was later found in a box on the base. Her alleged killers included a soldier who had been accused of sexual harassment in a separate case and his civilian girlfriend. An Army report on Guillen’s murder and the events that led to it concluded that none of her supervisors had taken appropriate action in response to her allegations of sexual harassment.

The murder sparked public outrage, including among women in the armed services who quickly coined the Twitter hashtag #IamVanessaGuillen, and went public with their own accounts of being assaulted while in the military. Her case would, in fact, be a major catalyst driving the Senate bill, which has attracted support from a striking range of sponsors, including Elizabeth Warren (D-MA) and Ted Cruz (R-TX).

Though I never thought I’d find myself quoting Ted Cruz, let me echo his reaction to the bill: “It’s about damn time.”

A Small Start

Yet Guillen’s murder and the legislation it sparked begs this question: If it took the death of a young woman who reported sexual harassment to launch such a relatively timid bill, what will it take to move the judging of violent crimes entirely off military bases and into the regular court system? I shudder to think about the answer to that question.

The morning I went into labor with my daughter, my husband was on a military base a few minutes away, carrying out his duties as executive officer on a ballistic missile submarine. As the pains grew stronger with each passing hour, I phoned the base to let him know that I was in labor. I was eager to reach him in time to be taken to the hospital before a pending snow storm made driving through the foothills of the Cascade Mountains treacherous.

His colleagues repeatedly insisted that he was unavailable, even to them. Finally, I said to one of them between gasps, “Oh for Christ’s sake, just tell him I’m in labor and I need him to drive me to the hospital!”

Four hours later, having heard nothing from the base, I watched my husband, looking beleaguered and sad, walk through the door. No one had even bothered to give him my message. As I sat up on the floor where I was trying to cope with the pain, he slumped momentarily on the couch in his blue camo uniform and told me that he’d been called upon to assist in the hearing of a sexual-abuse and possible rape case involving the daughter of one of his sailors. I listened, while he prepared to take me to the hospital, as he described what he had dealt with. I could see the stress on his face, the drawn look that came from hours of listening to human suffering.

At least, that case was heard. However, another point is no less important: that a group of men — my husband and other commanding officers with, assumedly, zero knowledge about sexual assault — had been placed in charge of hearing a case on the possible rape of a child.

In scores of other cases I’ve heard about in my years as a military spouse and as a therapist for veterans and military families, I’ve been similarly struck by the ways in which male commanders without training have treated the survivors of such assaults and women more generally. I’ve seen some of those same men joke about how women’s behavior and moods, even abilities, change depending on their “time of the month” or pregnancy status. I’ve heard some make sexist or homophobic jokes about female and gay service members or heard about them threatening to “rip them another asshole” when fellow shipmates failed to meet expectations. Within the military, violence is the first thing you notice.

That day, trembling with the pangs of late-stage labor as my husband rushed me through the falling snow to the hospital with our daughter about to be born, I thought: Where will she be safe in this world? Who’s responsible for protecting her? For protecting us? I hugged my belly tighter and resolved to try to do my part.

And today, years later, I still wonder whether anyone beyond a group of senators and military advocates will show an interest in holding service members accountable for respecting the dignity of the rest of us.

Reprinted with permission from TomDispatch.com.

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