Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
I saw this story during this past week and I have to admit, that it made my stomach turn. Despite the increased interest some in Congress and in the Pentagon have shown in how accusations of rape by female members of the military are treated, women can still jeopardize their careers and their mental well-being if they bring charges against their alleged attackers.
‘”For roughly 30 hours over several days, defense lawyers for three former United States Naval Academy football players grilled a female midshipman about her sexual habits. In a public hearing, they asked the woman, who has accused the three athletes of raping her, whether she wore a bra, how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse “for being a ho.”’ New York Times
While I understand that defense attorneys must defend their clients to the best of their ability, and that defendants are innocent until proven guilty, how many legitimate victims of sexual crimes in the military would come forward when they can be subjected to 30 hours of disgusting grilling that may not be allowed in a criminal court outside of the military? It can be argued that part of the problem in dealing with sexual crime allegations is the use of Article 32 proceedings, under military law, which are used to determine if a case should go to a court-martial.
“The aggressive tactics on display this month and last are part of a case that has generated intense public scrutiny and raised alarms about what are called Article 32 proceedings, which help determine whether cases are sent to courts-martial. Article 32 hearings permit questions not allowed in civilian courts and can include cross-examinations of witnesses so intense that legal experts say they frighten many victims from coming forward.” New York Times
In the case of the Naval Academy student noted above, the military judge who is handling the charges will not make the decision whether a court-martial should be held. The judge forwards the case to the superintendent of the Naval Academy and Vice Admiral Michael H. Miller will make what many would consider a judicial decision and decide if the case should be tried.
Does it make sense that a third-party, who in many cases is the commanding officer of the parties involved and who is not involved in the Article 32 proceedings, can decide if defendants are brought to trial? Would it be a concern to female victims that the vast majority of the commanding or supervising officers who are making these decision, are men?
The military has a spotty history in taking care of this sexual assault crisis. The following case with the Air Force is just one example how the system can be tilted against female victims.
“The Defense Department says that 68 percent of sexual assault cases were sent to court-martial last year, compared with 30 percent in 2007. But those increases have been accompanied by a series of controversies that have roiled the system, including one at Lackland Air Force Base in Texas in which more than 40 female trainees were abused by their instructors, as well as the arrest in May of the director of the Air Force’s sexual response unit, Lt. Col. Jeffrey Krusinski, for what the police said was his groping of a woman he did not know in a parking lot. A recent Pentagon survey found that an estimated 26,000 sexual assaults took place in the military last year, up from 19,000 two years before.” New York Times
There is some hope in the future for all victims of sexual abuse in the military. In the instant case, the victims attorney has filed a federal lawsuit in an attempt to remove the superintendent’s jurisdiction over this case. There has also been some movement in amending or reforming Article 32 hearings to afford rape victims more protection.
“The Joint Service Committee on Military Justice, which reviews potential changes to military law, is considering a proposal that would give sexual assault victims in Article 32 hearings new protections to shield them from the kind of questioning the midshipman experienced” New York Times
We will await the results of the Joint Service Committee’s review and see if legitimate reforms are proposed and instituted. I believe the Senate hearings held in June of this year may help hasten the reforms that are needed to protect all victims of sexual assault in the military. The proof will be in the reforms that actually come out of the Senate hearings and the Pentagon’s review process.
Do you think that a supervising officer should have the power to make a judicial decision on whether a criminal case should or should not go to trial? What reforms do you think are necessary to allow full justice for any victim of sexual assault in the military?
Additional Resources: Uniform Code of Military Justice; Article 32 of the UCMJ.
nick,
Many of the individuals who have been assaulted while serving in the military were males.
***
In Debate Over Military Sexual Assault, Men Are Overlooked Victims
By JAMES DAO
Published: June 23, 2013
http://www.nytimes.com/2013/06/24/us/in-debate-over-military-sexual-assault-men-are-overlooked-victims.html?pagewanted=all&_r=0
Excerpt:
Sexual assault has emerged as one of the defining issues for the military this year. Reports of assaults are up, as are questions about whether commanders have taken the problem seriously. Bills to toughen penalties and prosecution have been introduced in Congress.
But in a debate that has focused largely on women, this fact is often overlooked: the majority of service members who are sexually assaulted each year are men.
In its latest report on sexual assault, the Pentagon estimated that 26,000 service members experienced unwanted sexual contact in 2012, up from 19,000 in 2010. Of those cases, the Pentagon says, 53 percent involved attacks on men, mostly by other men.
Men, except in rare instances, are not sexually assaulted. So, their promiscuity in that regard is irrelevant.
raff, I agreed w/ you in my first sentence. However, my goal w/ my daughter was to teach her not to put her in a situation where a man could assault her. Do we want to philosophize about what should be. Or, do we want to protect our sisters, daughters, etc. I say the latter. I also taught my son to treat women w/ respect. But for chrissake, do we live in the same world? Men want sex. Some men are willing to use force. Add alcohol and the odds of being assaulted go up exponentially. Regarding a promiscuous female, it’s a simple matter of probability and odds. The more sex and the more partners, the more likely they will be assaulted.
i don’t mean to be crude but if a woman has sex with ten men and says no to the eleventh and he does it anyway that’s rape.
if you force a prostitute to have sex with you, that’s rape.
no means no. always. with anyone.
When she got out of high school, my youngest toyed with the idea of going into the service, specifically the Coast Guard. Both her older brothers were Coasties. They are great role models, and she admires them so much. This is despite the fact the younger of the two boys sleeps forever on a windy hill in the National Cemetery. She liked the idea of search and rescue as the primary mission of the USCG. While I was proud of her aspirations, I had serious doubts aside from the fact it can be dangerous work, because I read the news. She finally decided not to go, but to continue her education instead.
pdm,
The reforms are necessary, no matter who is being abused.
It seems a better solution would be to have a military equivalent of a prosecutor’s office which handles all criminal cases independant of the chain of command. That would at least address someone some undue influence and some arbitrary actions by superiors who might have an ulterior motive to influence a case one way or the other.
The military justice system, from reading this article, is certainly in need of a Rape Shield protection for victims.
Pretty disgusting. No, make that very disgusting.
Pretty soon the Professor may have to include the United States in his roll call of knuckle-dragging countries that tolerate the sexual abuse of women.
Though as far as the military goes, I don’t think it is just against women. Just a few days ago (sorry, too lazy to look for the link) I read of a man in the military who had been raped repeatedly by some superior 18 years ago. I think the military does bad things to a lot of people (especially when those they have trained then have to go into combat where there is lots of contact with civilans) and I think those people are now populating our police forces.
rafflaw,
Regarding sex in the military…and other venues: Boys will be boys. Girls will be sluts. This may be the 21st century–but many people in this country still have provincial views about women and sex.
nick and RWL,
Can’t the men be “guilty” of being promiscuous also? It does not matter what they are wearing or what they have done in the past, men do not have a right to force sex on women. I would think that no still means no in the military.
Promiscuity may not invite rape, but it sure the hell doesn’t prevent it either.
Legally and philosophically correct. Real world situations regarding alcohol, I didn’t teach my daughter “the law” I taught her how to firstly, avoid situations of risk, and secondarily how to protect herself if a situation arose.
Marsha: Exactly; promiscuity does not invite rape, and no amount of voluntary sexual conduct constitutes permission for somebody to force sexual activity.
What reforms do you think are necessary to allow full justice for any victim of sexual assault in the military?
Even when in the military at 18, I was not very familiar with the Military Code of Justice, so it is hard to say what “reforms” are necessary.
However, I see no particular justification, on charges of sexual harassment or rape, for the military to deviate from civilian court rules on questioning or admissibility of evidence or testimony. I think a jury trial should be held, automatically, the military judge can be a referee only, using some recent version of civilian court rules and let the jury decide.
If we need a decision on whether charges are warranted and a trial should be held, do something like a grand jury; have peers hear some evidence and vote on whether the preponderance of evidence indicates wrong doing or not.
RWL,if the women in the services are as promiscuous as the men, how does that translate to them bringing false charges? If they are interested in having sex with the men and the men are interested in having sex with them and then they actually have sex, why would the women then bring false charges? Are the promiscuous men bringing false charges of rape against the women?
Raff,
What Justice Holmes & Nick said (about not having his daughter in the military)!
On the other hand, my wife’s cousin is in the Navy, and a few years ago, he was informing us how promiscuous the ‘females’ (just like the males) are. Although he (my wife’s cousin) has been happily married for 14 years (same amount of time he has been in the Navy), he has informed us that many of his naval buddies have a wife at home, and a girlfriend in the Navy (and the navy girlfriend is aware of the spouse, and doesn’t mind ‘fooling around’. The wife doesn’t know about the girlfriend).
I can remember how promiscuous (and aggressive) the women were when I used to live on college campus a few decades ago. I heard that it has become much worse (although, at that time, I didn’t have a problem with it, but now that I have a 19 year old, daughter, I do…lol).
How do we know for certain who is telling the truth?
I do believe that we need to have an independent judge/jurour look at these cases, but our legal system is so compromised by so many internal and external forces that I don’t see how justice will served either way.
There’s no way I would want my daughter to be in the military w/ this predatory environment.
There needs to be an independent ombudsman for all branches of government to make the decision on charges, And, I think it would be smart to have those be women.
Military, justice, military intelligence, military music – is it necessary to continue?
The military isn’t serious about dealing with the rape problem in their midst any more than Obama is concerned about dealing with war crimes, financial crimes or lying to congress by his staff or appointees. All the talking does not make it so. Rhetoric seems to be the stock and trade of this administration as well as our vaunted military leaders who are more interested in making sure they making good connections for their retirement than they are protecting their own soldiers. There is nothing difficult about this problem. The military certainly knows how to punish people; they just don’t think the bad people really need to be punished.