One year into the Trump administration, what are the most complex challenges facing the U.S. military? This is the last installment of THREAT WEEK, our brief series spotlighting some of the Pentagon’s biggest obstacles ahead of President Donald Trump’s first State of the Union address.
Months before the media exposed the sexual abuses perpetrated by film producer Harvey Weinstein and sparked a national reckoning on sexual harassment in the workplace, the Department of Defense was grappling with its latest gender-related PR crisis: the Marines United nude photo-sharing scandal. As American institutions from Hollywood to the mainstream media have looked inward to address their own problems of sexism and misogyny, so has the DoD. A May Marine Corps directive established new rules that would potentially punish sexual harassment with separation; in June, one Marine was sentenced to 10 days confinement for revenge porn in a judicial first. More recently, a proposed update to the Uniform Code of Military Justice would address modern phenomena like revenge porn across the entire armed forces. After months of talking the talk, military leaders finally appear to be walking the walk.
Such a shift has been a long time coming. A 2017 DoD report found that 4.3% of female service members (and 0.6% of men) experienced some kind of sexual assault or harassment in 2016. The estimated number of military assaults in 2017 actually dropped to 14,900 from 20,300 in 2014, alongside a 9% increase in reporting rates — and those reports will only increase as “silence-breakers” continue to speak out. This is an objectively good thing: A recent DoD study on gender integration recommended that the Army continue incorporating servicewomen into all MOSes and identified sexual misconduct by their male colleagues as a threat to unit cohesion, morale, and readiness.
But in order to fully address sexual assault in the armed forces, the DoD will have to tackle its biggest institutional challenge yet: reforming the concept of unlawful command influence detailed in Article 37 of the Uniform Code of Military Justice.
The UCI concept, intended to prevent military leaders from interfering in court-martial proceedings, was shaped as a due-process protection in 1950, when the UCMJ replaced the Revolutionary War-era Articles of War and Articles for the Government of the Navy. But critics say it has since evolved into a double-edged sword that gives control of judicial proceedings to unit commanders, who may end up derailing justice for their own reasons.
“The fact that commanders are in control of the process hampers leaders from being able to address the appropriateness about sexual assault,” Don Christensen, a retired Air Force chief prosecutor and president of advocacy organization Protect Our Defenders, told Task & Purpose. “In an independent system, commanders can actually lead as opposed to staying silent, but the current military leadership has refused to be self-reflective about the process. [They] push the virtues of the command-and-control system without ever thinking about the problems it causes.”
When it comes to sexual assault in the ranks, according to Christensen, the problem is a two-pronged chilling effect. Leaders’ statements to U.S. service members on sexual assault tend to be overly broad and muted, out of fear their remarks could constitute UCI and potentially overturn a court-martial conviction. A series of recent court-martial proceedings has slowly but surely created a precedent that any public statement by any government official could constitute UCI.
Second — and more immediately troubling to rank-and-file troops — the UCI puts the power to actually convene a court-martial in the hands of a platoon’s commanding officer: Someone who likely has contact with both accuser and accused, and, therefore, is not the best impartial arbiter of proceedings. Even as sexual-assault reports in the armed forces have doubled in the last three years, 5 out of 10 of victims declined to report their assaults in an “unrestricted” manner to their chain of command out of fear of retribution; 70% of cases considered for courts-martial were simply never referred to proceedings by a commanding officer.
“In the military, when a lower-ranking service member is assaulted by someone in a position of power, they must report this to their supervisor (through their chain of command) in order to file a complaint,” as Nichole Bowen-Crawford explained to Task & Purpose readers last month. “Sometimes this ‘supervisor’ can include the perpetrator or a friend who is close to them.”
These factors mean that the more senior you become, Christensen says, the less accountability there is, and the more protection you have. That’s a gap in the UCMJ that has allowed sexual predators to eat away at the armed forces from the inside. The DoD may tout a decline in the estimated number of sexual assaults, but “if you want to be in the military, you’re reluctant to speak because it’s a career ender,” says Christensen.
“Leadership may say that reporting is up because of something they’re doing, but there’s no data to suggest that,” he says. Survivors are “coming forward now because they have the media, organizations like us, and members of Congress paying attention.”
The prolonged media and political attention galvanized by the #MeToo movement may translate into substantive action on sexual assault in the ranks. Sen. Kirsten Gillibrand, Democrat from New York, has already become an outspoken voice on military sexual assault issues in the Senate, introducing the Military Justice Improvement Act for the fourth consecutive year, would transfer sexual assault court-martial proceedings from commanders to those independent, third-party military prosecutors that Christensen described. And with military advocates braving the vicious cold to protest outside the Pentagon on Jan. 8, it’s clear the conversation around sexual assault in the military isn’t losing momentum anytime soon.
The one thing everything’s missing: Even if UCI regs undergo a major facelift, it’ll take real leadership to actively induce a corresponding cultural shift — leadership the DoD lacks, Christensen says. With the #MeToo movement, the “come-to-Jesus moment” gained momentum, but if Weinstein’s crimes had come to light while he was serving on active duty, “the military’s response wouldn’t be to go after him, but the mic-check guy at the studio,” Christensen says. “They never go after the top, and that’s where the military will fail. Look at the message it sent in the movie industry when you take down the big man at the top.”
Christensen pointed to the case of disgraced Col. Daniel Wilson, the three-star recently convicted on multiple counts of child sexual abuse, who found himself still enjoying the trappings of his rank, accompanied by a junior escort, when he arrived at his proceedings. Military leaders “have had an opportunity time and again to send the message to the force that this is zero tolerance,” he said, “but they have failed to do it every time.”