The junior U.S. senator from New York has found herself in rarefied air recently. Sens. Rand Paul (R-Ky.) and Ted Cruz (R-Tx.) — both strongly favored by the Tea Party — have come forward in support of Sen. Kirsten Gillibrand’s (D-N.Y.) proposal to remove the investigation and prosecution of military sexual assaults from the chain of command. Under Gillibrand’s proposal, sex crimes in the military would be handled by an independent office.
Like Paul and Cruz, Gillibrand is being touted as a possible presidential candidate in 2016, and she has made military sexual abuse legislation her signature agenda item in recent months. Her first attempt last month was foiled by heavy opposition from the Pentagon, which feels that delegating authority on this issue will break the trust between subordinates and commanders.
“The key to cultural change in the military is the chain of command,” said Senate Armed Services Committee Chairman Carl Levin (D-Mich.) in defense of the Pentagon. “The military services are hierarchical organizations: The tone is set from the top of that chain, the message comes from the top, and accountability rests at the top.”
“But addressing a systemic problem like sexual assault requires action by all within that chain, and especially by the commanders of the units,” he added. “Only the chain of command has the authority needed to address any problems with command climate that foster or tolerate sexual assaults. Only the chain of command can protect victims of sexual assaults, by ensuring that they are appropriately separated from the alleged perpetrators during the investigation and prosecution of a case. And only the chain of command can be held accountable if it fails to change an unacceptable military culture.”
A call for action
Gillibrand, however, feels that the military has failed to effectively handle this problem, which is now embarrassing the nation. According a report by the Department of Defense inspector general, about 33 percent of the 2,263 sexual assault cases closed by the military in 2010 resulted in “no action taken.” Of the 560 subjects sampled by the inspector general’s analysis, no action was taken against 187 and 141 were classified as “unknown” or accused of “unfounded offenses.” Forty percent of the sampled suspects received some form of “adverse action,” which could include discharges from service, firings, reprimands or mandated counseling. Only 11 percent were actually convicted of sexual assault or a lesser non-sexual assault offense.
The same review found that nearly three-quarters of all military sexual assaults cases were not properly investigated and 11 percent had “significant errors,” including failure to collect and secure key evidence and witness interviews.
Other critics point to what they see as a culture of intimidation within the military that prevents the full extent of the problem from being known. According to a 2012 report from the Department of Defense Sexual Assault Prevention and Response Office, 62 percent of respondents who have experienced unwanted sexual contact feel that they were also victims of retaliation. In fiscal year 2012, an estimated 26,000 incidents of sexual assault happened within the military, but only 3,374 sexual assault reports were filed that year. It is not uncommon for victims who report abuse to their commanders to be singled out, targeted for more abuse or ridiculed.
Earlier this month, Congress passed a bill that that extends to victims of military sexual assault the same rights afforded to any other military whistleblower — retaliation for reporting the incident is prohibited and the inspector general is expected to investigate any reports of retaliation. How effective this bill will be in encouraging more victims to report their abuse is yet to be seen.
“Some say that we have no bipartisan cooperation around here, and I disagree,” Paul said in a joint press conference with Gillibrand and Cruz on why he is supporting Gillibrand’s proposal. “I think this is a great example of how people from both sides come together and are willing to work on a problem and look honestly at what the problem is.”
Gillibrand’s proposal has 32 co-sponsors, including Sens. Chuck Grassley (R-Iowa), Susan Collins (R-Maine), Mike Johanns (R-Neb.) and Lisa Murkowski (R-Alaska).
“This is not a Democratic idea. It is not a Republican idea,” Gillibrand said. “It is a good idea that meets the needs of the victims, creates transparency and accountability and creates the needed objectivity that this issue deserves.”
Gillibrand still faces a steep climb. Even with the support of the Democratic and Tea Party caucuses, mainstream Republicans are hesitant to support anything that weakens the Pentagon’s authority, calling such actions “anti-military.”
A national embarrassment
The debate comes in light of recent reporting that the U.S. Naval Academy at Annapolis finally charged three of its football players with the sexual assault of a female midshipman — a full year after the assault allegedly happened.
As reported by the Associated Press: “The alleged assault occurred in April 2012 at an off-campus house in Annapolis. The woman’s attorney, Susan Burke, has said the woman woke up with bruises after a night of heavy drinking and later learned from friends and social media that three football players she considered friends were claiming to have had sex with her while she was intoxicated and blacked out.”
The academy justifies the delay in prosecution by saying that the female student was unwilling to cooperate with an investigation. The woman’s lawyer counters this by stating that the woman was told not to cooperate due to disciplinary actions for drinking when she reported the case to the Naval Criminal Investigative Service.
The woman’s lawyer sent the following statement to the Atlantic Wire: “My client and I are cautiously optimistic that justice will finally prevail in this case. Even if this case is successfully prosecuted, the larger problem remains: rape cases in the military are controlled by untrained and biased commanders whose career interests may be served by covering up incidents like this one. The Naval Academy’s handling of this case raises troubling questions about how the victim and the football players were treated. This case reflects why rape victims are fearful and skeptical of the military justice system. Our military academy students and all service members deserve better. They deserve a fair and impartial system of justice, not the broken system we have that only protects perpetrators and further punishes victims.”
For a very long time, this “broken system” shielded some of the worst offenders from public scrutiny. In Fort Bragg, N.C., Brig. Gen. Jeffrey Sinclair is facing court martial for eight charges, including “forcible sodomy, wrongful sexual conduct, attempted violation of an order, violations of regulations by wrongfully engaging in inappropriate relationships and misusing a government travel charge card, violating general orders by possessing alcohol and pornography while deployed, maltreatment of subordinates, filing fraudulent claims, engaging in conduct unbecoming an officer and a gentleman and engaging in conduct prejudicial to good order and discipline, or of a nature to bring discredit upon the armed forces.”
The majority of these charges involve Sinclair’s actions against a female captain who served under the general’s command in Iraq and Afghanistan.
Court martials of general staff are rare, as the jurors must be of superior rank to the accused. In the United States, the number of generals is capped at 230 and most generals are deployed and cannot be easily summoned back for jury duty. A minimum of five jurors is needed to seat a jury.
In 2012, 173rd Airborne Unit Brigade Combat Maj. Rodney Lipscomb was charged with six counts of sexual assault with additional charges for sodomy, cruelty and maltreatment against a female officer. In the same year, former 31st Fighter Wing inspector general Lt. Col. James Wilkerson was sentenced to a year in confinement for aggravated sexual assault.
According to Stars and Stripes: “Prosecutors had urged the jury to imprison the 44-year-old fighter pilot for at least five years, as well as dismiss him from the Air Force. He’d shown striking hubris and recklessness by assaulting the woman with his wife and 9-year-old son sleeping under the same roof.”
“We have a problem we need to address,” said Lieutenant General Keith Walker, a deputy commanding general at the Army Training and Doctrine Command. “We have folks who are predators, and those predators know how the system works. That makes them hard to find.”