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Sexual Assault and Military Justice: Competing Reform Proposals. Please weigh-in.

Uploaded: Nov 3, 2013
This month we celebrate Veterans Day (every year on 11/11, as the Armistice ending World War One went into effect in the eleventh hour on that date, 1918). It is a time to honor and support all veterans, living and dead, who have served in the US military. More than 1.4 million men and women on active duty deserve and receive thanks for doing their duties well and faithfully. We can argue about the politics that put them in peril, but few would withhold gratitude for their sacrifice.

This may also be either an excellent or inopportune time to consider a tumor that threatens to sully the reputations of the vast majority of US military and vets. Your mileage may vary, but I was struck this week by the developing Senate push to address sexual misconduct in the ranks. It is important because the statistics are grim and deteriorating, and because there are currently two competing reform proposals sponsored in Congress by women of the same political Party.

First, the stats. In May, the Pentagon estimated that 6.1% of woman and 1.2% of men had been subjected to sexual assault while on active duty, meaning roughly equivalent raw numbers of men and women in the sordid total of 26,000 such cases. That's up 40% and 33%, respectively from 2010. And while sexual assault is broadly defined, reported rapes constitute a substantial fraction: 3,374 last year alone. The Pentagon also estimated that as many as 7 in 10 sexual assaults go unreported.

Some might conclude that these stats simply reflect greater numbers of men and women of prime reproductive age and inclination working and living in close proximity. That dismissive approach, however, fails to comprehend that rape is not a crime of passion, but a life-threatening attack with a peculiarly devastating real and potential consequences. More men and women together in the ranks is a place to start the concern, not to end it ? especially as the roles of women in combat are broadening. The problem urgently needs to be addressed; business as usual won't do.

And as bleak as the numbers are, stories beat statistics The assault problem was made ?much ? worse and more visible when the Air Force officer in charge of preventing it was himself arrested for drunkenly, brazenly groping a woman in a parking lot. Was he a fox in the proverbial henhouse? In fairness, his charges have been changed to functionally equivalent assault and battery, dropping the sexual component. However, the incident highlighted the unbecoming character of the issue and broadened its circulation among the public.

Rape, sexual assault and other crimes within the ranks are governed by the Uniform Code of Military Justice. Most of what's known about the UCMJ is not known to me, but I am at least aware of the crucial role of chain-of-command in that system. Commanding officers have much more control over the initiation, conduct and disposition of charges than their civilian counterparts ? say, mayors or governors -- could exercise.

And therein lies a primary difference between reform proposals offered by Democrat Senators McCaskill of Missouri, and Gillibrand of New York. The McCaskill bill would remove authority of commanders to overturn jury verdicts, and would mandate dishonorable discharges for those found guilty. She is widely supported by the brass, as well as the Senate Armed Services Committee. Gillibrand goes farther: she would remove commanders' discretion over whether to pursue charges at all, and turn that decision over to military prosecutors. Victims' Rights groups generally applaud that approach.

Now, as a general matter, self-policing is a poor means of addressing serious problems. It is too prone to rationalization and excuses born of self-interest, and that's when it is played straight. It is also easily, privately manipulated. Lord knows we've borne witness to other institutions' failure to adequately come to grips with internal problems of sexual misconduct ? with equally tragic results. That said, I'm not a military man, although immediate family members served. I'm personally unfamiliar with the uniqueness of the military culture, in which battlefield survival can depend upon command, control and coordination.

So I'm particularly interested in readers' thoughts on the competing proposals, especially the opinions of veterans. Are chain-of-command and cohesion so crucial to military effectiveness that Any change in command decision-making would compromise capabilities? Or is this limited exception sufficiently isolated that it will not significantly impact performance ? except where it is supposed to do exactly that? Has this problem languished for so long, and become so deeply embedded that it requires a radical response, or can it be handled as another important goal to be achieved ? yet another hill to be taken? Is there even an argument that such matters are so far afield from the military mission, and justice so far so elusive, that civilian courts ought to be entrusted with their handling?

We ask a lot of our armed services personnel. The military was ordered racially desegregated well before Brown v. Board of Education, gays in-service recently enjoy greater freedom from discrimination than that provided by civilian federal law, and women are being prepared to participate in mortal combat alongside their brethren-in-arms. There is no doubt that this organizational challenge can be met, as well. But to do so will require at least a new and different kind of commitment demonstrated up and down through the ranks, and a priority it has not commanded, until now. When that's done, it will bring more, well-deserved honor to military personnel.

Veterans ? do you agree it can be done? And what approach do you favor?
What is it worth to you?


Posted by J Wileon, a resident of Blackhawk,
on Nov 4, 2013 at 5:21 am

Commanders get out of the way.
Sexual assault is a criminal issue not a discipline problem.
Thank you for the opportunity to comment on this important subject. It would be only aiding and abetting the commanders in their patently irresponsible behavior of the past to continue it unabashedly, if Senator McCaskill's proposal is adopted. She means well but is making a compromise that will not help the situation in the short or long run. The Commanders are the problem. They need to be removed from the decision making process regarding prosecution. Senator Gillibrand recognizes this and has addressed it in her proposed legislation. Sexual abuse for the most part is about oppression and there is nothing more oppressive than an authoritarian group or environment. The argument that this Ms. Gillibrand's proposed legislation would some how undermine the Commander's authority in all things other than this seems absurd. It is just one more irrelevant slippery slope argument that is put forth in an effort to hold on to undeserved power, which is not unlike a host of issues in our society today

Posted by Tom Cushing, a resident of Alamo,
on Nov 4, 2013 at 7:09 am

Received with a suggestion that it be passed-on to the readership (language slightly coarse):

PROTECT OUR DEFENDERS Senate Armed Service Committee Hearing, June 4, 2013

A female soldier?s story: January, 2013 Case 62009

?I was medically discharged on Dec 27, 2012. I was on my second deployment doing missions in
Iraq when I was initially harassed and finally raped?He was from reserve unit and I was Active
Duty?I had noticed that a tire on my trailer needed changing and I pulled out the required tools
when he appears?.I crawled into the back of my cab to grab a bottle of water out of my cooler[in
the back seat]?.he asked me to wait a few because he wanted to talk to me?.thought nothing of it.
Right up until he combat locks the door and out comes a knife at me. My weapon was in front,
otherwise he would be dead. He had his though but the knife is what he used?.I got raped by this
bastard, to this day I play it over in my head?.wondering why I didn?t do enough to protect
myself?.When I tried to talk to my squad leader I got shut down and reminded that he was a
Senior NCO and I was NOT to be talking sh.t about him like that?.I waited til we got back down
to [location] and spoke with my platoon SFC and Lt., I thought for sure they had my back. I then
got told if I say another word to ANYONE about it than I was going to be charged with Adultery
and get an AR 15 for it?.I shut down inside, I was lead Vic in Convoy and kept hoping to hit an
IED after that?. (I told my roommate, she got moved away after speaking out) Again I get shut
down with threats?.started getting put on BS details?.they won. I got injured when I was raped,
I have a scar on my left breast to remind me of it daily. Can?t miss it, size of a 50 cent piece. In
May, 2012 I was sent back to the states over injuries sustained on a mission and tried to pursue it
then, I told my squad leader at the time? and the next thing ya know I get told they are chaptering
me on an adjustment disorder?.I write all this to you so that you can attempt change. I am one of
the ?Unreported statistics? but not without trying?.He is free and able to do it again as long as he
wears the Uniform, the Uniform represents a Protective Shield if you?re a rapist with rank.?

Request from a commander, 2012
Mrs Parrish.
I have a young female Soldier that will be filing a Congressional complaint on the investigation
conducted regarding an incident. She lives in [town] and I live on the [name] Coast. I was
wondering if there is any specific Congressional Representative that has been key in your efforts
and would give more than lip service to her issue.

As her Commander I have supported and encouraged her reporting, but have been disappointed in
the way it has been handled and the lack of support given to her by her command ( higher than

I would appreciate any direction you could advise. As I am still in the Command discretion would
be appreciated.

Web Link

Web Link

Posted by Judith Avocades, a resident of Another Pleasanton neighborhood,
on Nov 4, 2013 at 11:21 am

The blogger's view is curiously pinched. Why narrowly define the problem as one involving the military when rape, and women's general fear of gender-based violence, is of far greater note? 3.8% of college women, 18-24 years in age, are raped or victims of intended rape every six months. That means over 3 in 10 college women 18-24 stand a good chance of being raped or victims of attempted rape over their time in college.

Yes, the military has been bad for many women. But should this surprise anyone when women still, today, cannot leave their homes late at night for a bit of late-night shopping without constantly looking over their shoulders in fear?

No institution has a monopoly on gender-based violence. It is pervasive in all quarters of society, and this because the very idea of (dominant) males and (subordinate) females is still deeply entrenched in our vocabulary and thought processes. Females who show independence from their historically subordinated gender roles are swatted down (violence, ridicule, discrimination); males who deviate from dominant maleness are subject to the same kinds of violence women must live with.

The problem isn't reducible to WHOM victimized women are to register their complaints and appeals for justice. The problem, rather, is that the very idea of rape is inextricably intertwined with sex (see, Tom Cushing's garbled definition of rape above). Rape is not sex, nor should it in any way be construed as a sexual crime. It is a crime of violence. Period.

Women refrain from reporting rapes not merely because they so often speak to the tin ears of authoritative males, but that they have to overcome the lurid connotations of 'alleged woman's consent', 'alleged participation in violent sex', 'alleged sexual looseness' -- all these brought forward by defendants' lawyers in order to inject sex into the equation of violence. (Less than 1% of rapes lead to a conviction.)

One does not consent to being murdered or beaten. There is no ambiguity about that. One does not plead for a punch that breaks one's teeth. Juries have no difficulty assigning culpability in such matters. There SHOULD be no ambiguity regarding rape. One does not consent to rape. Rape is no less an act of violence than beating someone in a back alley.

Until the discourse of law bends to this reality -- viz., rape is violence, no more no less -- the purported 'sexuality' intertwined with our understanding of the criminal act will continue to confuse juries, military, civilian, male, female, it really doesn't matter. In short, as long as the mystique of sex is allowed to accompany the hideousness of gender-based violence systematically directed against women (and males who fail to satisfy the heterosexual 'standard'), women are going to continue to endure gender-based violence and muddled juries who can't get past 'maybe it was consent' or 'maybe she WAS asking for it' like the defendant is claiming.

Toy with jury and judge compositions all you want. Until the law takes into account and defines rape as a non-ambiguous violent act, juries will be unable to clearly sort through the facts of the case.

Posted by Tom Cushing, a resident of Alamo,
on Nov 4, 2013 at 12:43 pm

Here is another article from a reader:

Web Link

Posted by Currently Serving, a resident of Another Pleasanton neighborhood,
on Nov 4, 2013 at 8:23 pm

I support the proposal to remove commanders from the charging decision and having that function performed by experienced military prosecutors. However, I do not believe that doing so will result in more prosecutions.

The fact of the matter is that the military jurisdiction prosecutes sexual offenses aggressively. Cases are taken to trial that civilian jurisdictions would not try due to insufficient evidence. The prototypical military sexual assault case involves two very drunk young people who have a sexual encounter in a room by themselves, and the next morning tell-tale signs of sexual activity are discovered but no memory of the event exists. There almost never is any physical injury or DNA evidence. Yet, despite those tough facts, military commanders order prosecutions, often over the contrary advice of their prosecutors. Nevertheless, the military's conviction rate remains comparable to civilian jurisdictions who are much more selective in their prosecution philosophy.

However, the reason the military achieves the same rate of conviction despite the charging of riskier cases has nothing to do with the quality of its prosecution corps or the ineptitude of military defense counsel. The reason for the unreasonably high conviction rate is simple - the commander ordering the prosecution gets to choose who is on the jury rather than having a random representative sample of the community, the jury is comprised of as few as three members rather than 12, and a conviction only requires 2/3 majority concurrence rather than a unanimous vote. Courts-martial are stacked against the accused, geared to render quick convictions even on shaky evidence. The Supreme Court has long acknowledged that we permit basic due process deficiencies in military tribunals that would be patently abhorrent to our Constitution in a civilian criminal justice context.

If prosecutors rather than commanders were to control charging, I believe we would have fewer weak cases sent to trial. That would go a long way to helping correct the due process abuses build into the system.

Posted by Gina, a resident of Walnut Creek,
on Nov 5, 2013 at 6:42 am

Yawn---no surprise since men and women were thrown together in the military. Watch gays cry abuse when they move on a straight and get slapped around. Mess with nature--get consequences.

Posted by Tom Cushing, a resident of Alamo,
on Nov 5, 2013 at 6:57 am

@currently: appreciate your opinions about the military justice system, in general -- is there evidence for the "prototypical case" claim? Any way to gauge the "aggressive prosecution" statement? That is at-odds with the intent of moving the prosecution decision away from the Commanders. Where does one go for statistics on cases brought, convictions, etc.?

BTW, what is the military standard of proof in such a case -- does it mirror the 'beyond a reasonable doubt" standard in civilian courts?

Posted by Huh?, a resident of Danville,
on Nov 5, 2013 at 9:45 am

Hey, guess what, Gina? I want your stuff. All of it. I want your car, your house, your money - everything. I'm bigger than you. I have a gun. I guess that's the "consequences" you get for having stuff I want. Just "nature", you know. Nothing to "cry" about. Yawn.

Posted by spcwt, a resident of Danville,
on Nov 5, 2013 at 12:51 pm

I?m going to chime in, even though I?ve never served in the military. Many of my family members have though, in almost every U.S. war, going back to the Civil War (a.k.a. the War of Northern Aggression).

Leave it to Democrats to propose ?top down? solutions. Tweaking how the top brass respond to rape charges seems like a rather reactive approach. The best way to stop rape is before it happens. This requires a change in culture. It would seem increased sensitivity training would be a good place to start. And change work rules to minimize situations where two people are left alone.

Someone should also ask the obvious questions about recruiting criteria and its relevance to rape.

Only the foolish would ask whether military demographics have anything to do with the military?s rape problem, of course. Certain lines of thought are best kept to yourself.

Don?t ask who is likely to commit rape. You might not like what you find.
Web Link

You probably shouldn?t even ask who serves in the military. Web Link

Maybe you should ask who does NOT serve in the military.

For example, according to U.S. census records, only 0.01% of the population of Danville, California serves in the military, compared to around 1% of Americans overall. Web Link

If you stare at that statistic long enough, you might find something worth pondering.

Posted by Butterfly Kitten, a resident of another community,
on Nov 5, 2013 at 1:38 pm

Some chains of command are great. Others are not. As a victim, I rather they stay out of the way. They are not trained and definitely not equipped to handle this. It also does not help that they are alot closer to the situation. It has to be hard when they have a perpetrator and a victim both in their command, especially if they are friends with the perpetrator. I\'ve seen it happen way too often. Sometimes, it is the person that is least suspected that goes on to commit vile crimes. However, everyone thinks they were too nice to do what they were accused of. I see it everyday.

Posted by Cholo, a resident of Livermore,
on Nov 6, 2013 at 12:47 pm

The rape of children, women, and men is quite common.

It's my impression that most if not all elected American officials are detached from the realities of rape.

A rapist can be male, female, adults and an under 21 yr. old American.

very sad indeed...

Posted by Maria, a resident of Siena,
on Nov 6, 2013 at 1:38 pm

It seems that only one feminist has written anything here, but the feminist is the only writer who has been ignored by the others. Hmmmmmm. Well, let's let the guys have their say about this subject they know so well.

I liked your comments very much Judith. They remind me of another feminist. Judith Butler. Many of the writers here might try reading her as well as other feminists who write on rape and the inadequacy of law.

Posted by Cholo, a resident of Livermore,
on Nov 7, 2013 at 8:17 am

There is an EXCELLENT book entitled "Prostitution, Research, and Education" by Dr. Melissa Farley. It deals with the multiple issues of rape.

Web Link

Judith Herman,MD from Harvard also addresses issues of rape.

It seems to me that American law makers care minimally about the issue of sexual violence and the victims of rape.

how sad...

Posted by Cholo, a resident of Livermore,
on Nov 7, 2013 at 8:20 am

Trauma And Recovery, Judity Herman, MD - EXCELLENT BOOK!

Posted by Cholo, a resident of Livermore,
on Nov 7, 2013 at 8:35 am

Feminist Attorney Katheryn McKinnon: Web Link

This Feminist Attorney knows all about rape and rape laws.

Posted by Cholo, a resident of Livermore,
on Nov 7, 2013 at 8:41 am

Pandora's Project: Web Link

Info re: sexual assault and other resources.

Posted by Lee, a resident of Another Pleasanton neighborhood,
on Nov 7, 2013 at 9:57 am

It is a sad but very real issue for the military to deal with. It won't change until the public demands it does. I see this as a two layer problem. First layer is the accountability of the aggressor for their behavior, and the second layer is the victim must have a clear path to attain justice.

At present that clear path is the issue. I don't see how the military can ever be responsible for their own people on this level, as there are too many ambiguous areas of concern. I think this has to be handled by a civilian court that has no previous knowledge of the people involved, and therefore can be objective about the situation and focus on the facts.

Posted by Cholo, a resident of Livermore,
on Nov 7, 2013 at 10:56 am

More Male than Females RAPED IN US Military:

Web Link

Posted by spcwt, a resident of Danville,
on Nov 7, 2013 at 12:03 pm

Cholo, Good points. Thanks for the links.


You don?t need to be female to be a feminist. Web Link

Or to be a rape victim.

Some psychoanalysts have provided theories to explain why certain people who lack male anatomy make irrational comments about men. Web Link

Posted by Cholo, a resident of Livermore,
on Nov 7, 2013 at 3:18 pm

Today, not too many psychotherapists take what Freud and his pals had to say about penis envy. It doesn't matter who has a penis. Or, tits for that matter.

If a therapist is dumping a pile of crap on anybody, run for your life!

Trust that you have enuf common sense to split asap.


Posted by Maria, a resident of Siena,
on Nov 7, 2013 at 3:21 pm

It's always nice hearing about what feminism is from someone who obviously isn't a feminist and is so clueless that he thinks his boorishness is cute. Having a little bit of trouble with women in your life, or lack thereof, these days spwgt? The link you provided, with emphasis on the small size of a man's (your own?) part, and combined with your disrespect for women, suggests that your Wikipedia education hasn't helped elevate you from the swamp in which you reside.

If you have problems with feminism, or treating women with respect, why not spell them out instead of resorting to snide innuendo and other expressions of juvenile foolishness? Or do you have difficulty expressing a coherent thought?

Posted by spcwt, a resident of Danville,
on Nov 7, 2013 at 3:38 pm

?Clueless, boorishness, having trouble with women, small-sized man part, disrespect for women, reside in a swamp, problems treating women with respect, snide, juvenile foolishness, difficulty expressing coherent thought.?

Wow, that was truly an epic eruption of insults.

Please, continue. What else do you know about me?

Not sure what?s funnier, my sarcasm or when someone doesn?t get my sarcasm. Ha ha.

Posted by Jane, a resident of Downtown,
on Nov 7, 2013 at 4:54 pm

Why would one choose to be sarcastic about rape? Is it supposed to be funny? Only someone who downplays the seriousness of violence against women could be so, well, boorish. My New England background discourages saying here what I'd like. I do think, however, that Maria could have unloaded a lot more upon spcwt.

Posted by Cholo, a resident of Livermore,
on Nov 7, 2013 at 5:11 pm

Katheryn McKinnon:

Web Link

An excellent definition of rape.

Posted by Cholo, a resident of Livermore,
on Nov 7, 2013 at 5:27 pm

24 hrs. without rape in the USA...possible? NOT!

Web Link

Posted by spcwt, a resident of Danville,
on Nov 7, 2013 at 6:16 pm

Wasn?t sarcastic about rape. Wouldn't do that.

Posted by Cholo, a resident of Livermore,
on Nov 7, 2013 at 7:05 pm

Impact of RAPE: Web Link

Posted by Tom Cushing, a resident of Alamo,
on Nov 8, 2013 at 7:20 am

Here's an update article, with a Pentagon report showing another large increase in reported cases of sexual assault, defined differently from the prior report. Pentagon ascribes part of the growth in claims to more victims now reporting the incidents.

The competing bills are set for floor action in the Senate later in November. Web Link

Posted by mljucmj, a resident of another community,
on Nov 8, 2013 at 7:43 am

What I find interesting, one of many points is that Congress does not trust commanders to deal with military sexual assault cases, so that power must be taken away.
Why then do they trust them to decide who the jury will consist of? Under present rules the commander who refers charges to trial also appoints the members of the panel (the jury) that will decide guilt or innocence or sentence. This is the same as the local DA deciding to prosecute someone in local court and getting to pick and assign the jury. Would a civilian accept that?

Posted by Cholo, a resident of Livermore,
on Nov 8, 2013 at 10:19 am

New York Times:

Web Link

Everybody is vulnerable. Be mindful. Seek proper medical attention and also report incidents to the police asap.

I don't agree that the US military is capable of holding anybody accountable for raping another individual. If anything, the US military does not care who get raped...male or female.

Posted by Rawclyde!, a resident of another community,
on Nov 10, 2013 at 1:16 pm

At the post where I served in the U.S. Army (I only served 4 years & saw no combat), I recall two culprits by whom the women were bothered. It wouldn?t have bothered me one bit ~ to have seen one of these buffoons, anyway, serve some brig time, lose some rank, or even get booted-out for his misdeeds. I don?t know what finally happened to him if anything. The other feller, of higher rank & more professional airs, got sent to another post somewhere ~ which, I believe, is a typical first-solution for dealing with such goons. As for the proposed congressional legislation by the two senators ~ one or the other ~ go ahead!

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