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It’s Very Hard To Prosecute Rape In The Military — Trust Me, I Know
Editor’s Note: The following article was published on the condition of anonymity. The author’s identity and background was vetted and verified by Task & Purpose.
Rape is hard. It’s a hard thing to endure and it’s a hard thing to prosecute. I say this from two perspectives: From my own experiences as a victim, and from my experience as a military prosecutor. I will be the first to say that the military has a lot to answer for when it comes to failing to protect its members from this heinous, unspeakable crime. At the same time, having experienced the difficulties of prosecuting sexual assault crimes in general, I think at times victims advocacy groups turn a blind eye to some of the systematic compromises we make for the good of our justice system as a whole, and that’s not necessarily the military’s fault.
Here is what no spokesman for the military will ever admit, even though it’s widely acknowledged to be the case within the military prosecution community: Rape cases are difficult to prove. In the U.S. criminal justice system, the standard is beyond a reasonable doubt. This standard means no other logical explanation can be derived from the facts except the defendant committed the crime, thereby overcoming the presumption a person is innocent until proven guilty. Too often, juries look at two competing narratives between two individuals and come to the conclusion what happened is what usually happens: Two consenting adults had sex. In jury members’ minds, it’s the logical explanation. Jury members do not believe rapists can be our family members and friends, and even if they do, they want to see bruises or some other kinds of evidence the victim resisted.
Even when rapists leave bruises, the natural desire of the victim is to repress what happened and move on with her life. To fight the instinct to rid herself of her rapist’s bodily fluids; to fight the soldier’s mantra to “suck it up and drive on” she’s been indoctrinated with since day one of basic training; to fight the desire to prove oneself unchanged in spite of the way he changed her requires superhuman strength and a presence of mind very few human beings possess, particularly when they are 19 or 20 or 21.
When her mind goes blank after having been assaulted, she reverts to routine: showering, going to bed, getting up, and doing physical training. She replies “hooah” when her sergeants ask how she’s doing. Because that’s what a good soldier does. We ignore our individual desires for the good of the organization. We do what we know, because we know not what else to do.
And though this attitude might get a soldier who’s been victimized through the next day, or the next week, or the next month, until she finally confides in a friend or her squad leader or the sexual assault response coordinator, from a prosecutorial standpoint, this natural reaction makes for a very difficult case to try. Even with physical evidence, the government is faced with the burden of proving the sex was nonconsensual. Very many happy, healthy adults partaking in consensual acts end up with contusions afterward. More often than not in rape cases, there is no physical evidence — not a blemish, not a scrape, not a tear. Often the victim was intoxicated when the assault takes place, and she can’t remember what happened. Sometimes it’s just a hangover, a fuzzy memory and a feeling something is wrong.
Upon entering a courtroom, the deck is stacked against the victim. The victim, behaving as she has been taught from day one to be the type of soldier who shows up to the right place at the right time in the right uniform, is held to be disingenuous because she doesn’t “act like a victim.” The soldier whose life is falling apart, who can’t force herself to get out of bed because of crushing depression, the one who develops a drinking problem in order to erase the memories of her assault, is accused of trying to “get over” on the system by “crying rape” when she gets in trouble.
When a victim looks at a jury, she will see that’s mostly senior-ranking officers and noncommissioned officers, male, and more often than not, the same age as the victim’s father. In the rare instance there is a female panel member, more often than not, women are harder on their fellow females than men. They think they would know how they would react if they were raped. They are wrong.
The panel members have seen CSI. They want hard evidence, not words.
During trial, the victim’s behavior is held against her. All of the fibers and hairs and semen washed down the drain in her attempt to feel clean again. Blankets and covers, stained with vomit — thereby proving there was probably little to no desire to have sex — bundled and tossed hurriedly in the washing machine. The soldier’s desire to get back to soldiering so she can once again be part of her Army family compels her to destroy physical evidence in a Faustian bargain to regain control.
The jury is left with the statements of the victim. Sometimes there are witnesses at the club, the ones who saw her dancing with her attacker. “She seemed like she was really into him,” they might say. “They talked/danced from the moment we walked in the door.” But anyone who has been in a mature adult relationship with mutual respect between partners knows it’s a long way between dancing and talking to consenting to sexual intercourse. Or maybe not. It just depends.
Her alleged attacker is not obligated to speak in his own defense, protected by the Fifth Amendment. He is assumed to be innocent until proven guilty beyond a reasonable doubt. It’s the same standard for rape as it is for murder. I believe in the greater good of this system; it should protect the rights of the accused. The government has the monopoly on the legal use of force; it has the ability to lock him up for the rest of his life or at the very least label him as a sex offender. The greater resources of the government should be balanced out by a thumb on the scale of the defense until the government meets its burden. Due process is a good thing.
However, with rape, a crime committed in private, without witnesses, a crime where the victim’s determination to reclaim her bodily autonomy can undermine the need for the government to meet its burden of proof, the wonders of the Fifth Amendment can make it very hard to get a conviction. Even when model soldiers are victimized by crime, the jury wants more than one person’s statement before convicting another soldier.
The government attempts to educate panel members on counterintuitive behaviors. We try to show them that their preconceived notion of what they would do if they were a 19-year-old female private as opposed to a 40-something, white male with the resources and power of an Army battalion at his fingertips is not necessarily what is typical or even desirable for victims of sexual assault. We call in experts: sexual assault nurse examiners, psychologists, and psychiatrists. Unsurprisingly, a lot of times one cannot change an opinion formed by 30 or 40 years experience with an hour or even a day or two’s worth of testimony. It just doesn’t happen.
This does not even scratch the surface of what the victim experiences. Having gone through this myself, I can honestly say there is nothing more intrusive, nothing more simultaneously humiliating, painful, and soul searing as being the victim of a sexual assault preparing for trial. It’s a wonder why anyone comes forward at all.
It begins with the decision to come forward: Do you come forward? Do you rip apart the bonds of comradeship and trust, forged by training and battle, with allegations one among you is a traitor? Do you expose yourself to shame and ignominy of having to speak of your deepest, most intimate violation to your (usually male) team leader/squad leader/platoon sergeant, knowing that it will ultimately be passed among your peers and leaders like so much juicy gossip? Do you subject yourself to the urging of the sexual assault response coordinator or your first sergeant or company commander or battalion commander or CID to prosecute even if you are not mentally or physically prepared to do so? Do you not wash yourself, even with the smoke still in your hair and his semen inside you, even though that is the one thing you desperately want to do more than anything in the world?
Do you subject yourself to the rape examination, the clipping and the combing and the invasive internal examination? The shots: Hepatitis B, Penicillin? The drawing of blood for an AIDS test? Do you go to a therapist, knowing whatever you say to him or her could be open for viewing by the defense attorney; his client, twisted, sharpened, and used like a knife against your most deepest and darkest vulnerabilities?
If you do decide to tell, do you ask for a transfer? Would you rather look your rapist in the eye every day at morning formation or lose every friend you’ve spent making over the past year, friends you’d die for?
And the questions by the commander: well-meaning, but intrusive, equal parts caring leader and voyeur. Repeating it over and over again, “And then what happened? And then what happened?” and “Why did you do that? Why did you wash yourself? Why did you not tell anyone? Why did you say hi to your rapist?”
The truth is, I don’t know what the answer is. I don’t know how we prosecute a crime occurring behind closed doors and meet the burden of beyond a reasonable doubt while simultaneously protecting the rights of the victim and the accused. Right now, despite our best intentions, we seem to be failing. We force victims to come forward when they are not ready. We isolate them from their support systems by transferring them with the intention of protecting them from their rapists. We trample on fragile psyches in order to drive all rapists from our ranks and to have enough information to brief at command and staff.
We’re the Army. It’s what we do: We come in with overwhelming force to annihilate a problem. Our collateral damage is the victims we leave in our wake. Those kids we want so badly to take care of, the ones we are ready to maim, kill, give our own lives for, we are failing them. Even if we win the case, we might lose the soldier. The best we can do for them is to stop it from happening in the first place.
‘I made promises to the people that I lost’— How the Iraq war forged a Navy SEAL’s path to Harvard Medical School and NASA
Navy Lt. Jonny Kim went viral last week when NASA announced that he and 10 other candidates (including six other service members) became the newest members of the agency's hallowed astronaut corps. A decorated Navy SEAL and graduate of Harvard Medical School, Kim in particular seems to have a penchant for achieving people's childhood dreams.
However, Kim shared with Task & Purpose that his motivation for living life the way he has stems not so much from starry-eyed ambition, but from the pain and loss he suffered both on the battlefields of Iraq and from childhood instability while growing up in Los Angeles. Kim tells his story in the following Q&A, which was lightly edited for length and clarity:
New Vietnam War movie 'The Last Full Measure' takes some well-deserved shots at the military’s award process
Todd Robinson's upcoming Vietnam War drama, The Last Full Measure, is a story of two battles: One takes place during an ambush in the jungles of Vietnam in 1966, while the other unfolds more than three decades later as the survivors fight to see one pararescueman's valor posthumously recognized.
On April 11, 1966, Airman 1st Class William H. Pitsenbarger (played by Jeremy Irvine) responded to a call to evacuate casualties belonging to a company with the Army's 1st Infantry Division near Cam My during a deadly ambush, the result of a search and destroy mission dubbed Operation Abilene.
In the ensuing battle, the unit suffered more than 80 percent casualties as their perimeter was breached. Despite the dangers on the ground, Pitsenbarger refused to leave the soldiers trapped in the jungle and waved off the medevac chopper, choosing to fight, and ultimately die, alongside men he'd never met before that day.
Decades later, those men fought to see Pitsenbarger's Air Force Cross upgraded to the Medal of Honor. On Dec. 8, 2000, they won, when Pitsenbarger was posthumously awarded the nation's highest decoration for valor.
The Last Full Measure painstakingly chronicles that long desperate struggle, and the details of the battle are told in flashbacks by the soldiers who survived the ambush, played by a star-studded cast that includes Samuel L. Jackson, Ed Harris, and William Hurt.
After Operation Abilene, some of the men involved moved on with their lives, or tried to, and the film touches on the many ways they struggled with their grief, trauma, and in the case of some, feelings of guilt. For the characters in The Last Full Measure, seeing Pitsenbarger awarded the Medal of Honor might be the one decent thing they pull out of that war, remarks Jackson's character, Lt. Billy Takoda, one of the soldier's whose life Pitsenbarger saved.
There are a lot of threads to follow in The Last Full Measure, individual strands of a larger story that feel misplaced, redacted, or cut short — at times, violently. But this is not a criticism, quite the opposite in fact. This tangled web is part of the larger narrative at play as Scott Huffman, a fictitious modern-day Pentagon bureaucrat played by Sebastian Stan, tries to piece together what actually happened that fateful day so many years ago.
At the start, Huffman — the person who ultimately becomes Pitsenbarger's champion in Washington — wants nothing to do with the airman's story, the medal, or the Vietnam veterans who want to see his sacrifice recognized. For Huffman, it's a burdensome assignment, just one more box to check before he can move on to brighter and better career prospects. Not surprising then that Pentagon bureaucrats and Washington political operators are regarded with skepticism throughout the movie.
When Takoda first meets Huffman, the Army vet grills the overdressed and out-of-his-depth government flack about his intentions, calls him an FNG (fucking new guy) and tosses Huffman's recorder into the nearby river where he's fishing with his grandkids.
Sebastian Stan stars as Scott Huffman alongside Samuel Jackson as Billy Takoda in "The Last Full Measure."(IMDB)
As Huffman spends more time with the grunts who fought alongside Pitsenbarger, and the Air Force PJs who flew with him that day, he, and the audience, come to see their campaign, and their frustration over the lack of progress, in a different light.
In one of the movie's later moments, The Last Full Measure offers an explanation for why Pitsenbarger's award languished for so long. The theory? Pitsenbarger's Medal of Honor citation was downgraded to a service cross, not because his actions didn't meet the standard associated with the nation's highest award for valor, but because his rank didn't.
"The conjecture among the Mud Soldiers and Bien Hoa Eagles is that Pitsenbarger was passed over because he was enlisted," Robinson, who wrote and directed The Last Full Measure, told Task & Purpose.
"As for the events in the film, Pitsenbarger's upgrade was clearly ignored for decades and items had been lost — whether that was deliberate is up for discussion but we feel we captured the spirit of the issues at hand either way," he said. "Some of these questions are simply impossible to answer with 100% certainty as no one really knows."
The cynicism in The Last Full Measure is overt, but to be entirely honest, it feels warranted. While watching the film, I couldn't help but think back to recent stories of battlefield bravery, like that of Army Sgt. 1st Class Alwyn Cashe, who ran into a burning Bradley three times in Iraq to pull out his wounded men — a feat of heroism that cost him his life, and inspired an ongoing campaign to see Cashe awarded the Medal of Honor.
There's no shortage of op-eds by current and former service members who see the military's awards process as slow and cumbersome at best, and biased or broken at worst, and it's refreshing to see that criticism reflected in a major war movie. And sure, like plenty of military dramas, The Last Full Measure has some sappy moments, but on the whole, it's a damn good film.
The Last Full Measure hits theaters on Jan. 24.
With ISIS trying to reorganize itself into an insurgency, most attacks on U.S. and allied forces in Iraq are being carried out by Shiite militias, said Air Force Maj. Gen. Alex Grynkewich, the deputy commander for operations and intelligence for U.S. troops in Iraq and Syria.
"In the time that I have been in Iraq, we've taken a couple of casualties from ISIS fighting on the ground, but most of the attacks have come from those Shia militia groups, who are launching rockets at our bases and frankly just trying to kill someone to make a point," Grynkewich said Wednesday at an event hosted by the Air Force Association's Mitchell Institute for Aerospace Studies.
The Defense Department just took a major step towards making the dream of a flying drone carrier a reality.
The Defense Advanced Research Projects Agency's air-launched and recoverable X-61A Gremlins Air Vehicle finally conducted a maiden flight in November 2019, Gremlin contractor Dynetics announced on Friday.