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Understanding Sexual Assault In The Armed Forces Requires Looking Outside The Military
I deployed to Iraq with three women eight years ago who would become my best friends. We didn’t know each other very well then, but we became sisters in arms. Deployments have that effect on people. So when one of them reached out to me early one morning, and said she had been raped by someone she considered a brother, I didn’t hesitate to support her decision to seek justice. All of us, along with our old platoon sergeant, came together again, two years later and watched our friend, humiliated but defiant, testify in court against her attacker.
While she was still in the military, the alleged perpetrator was not, so the case went to civilian court. The complexities and shortcomings of both the military and the civilian systems were juxtaposed during the process, a process that made me question the deeper root causes of this type of violence and why so few cases see a guilty verdict. The spotlight has been on the military, but if we view the military as a microcosm of society and reflect on our own civilian world, there are more similarities than differences.
The “sexual assault problem” is not a military problem, it is a societal one.
According to the Rape, Abuse, Incest National Network, or RAINN, there is an average of 293,066 victims, age 12 or older, of rape and sexual assault each year in the United States. Ten percent of victims are male, two-thirds of victims know their attacker, and 98% of rapists will not spend a night in jail. The last statistic reflects a disturbing trend. According to Scott Berkowitz, the president and founder of RAINN, “Research suggests that there are serial criminals committing an enormous number of these crimes and they are doing it with impunity.”
While there are no doubt serial offenders who have skirted justice and repeat their crimes, there are also destructive mindsets and cultural norms that facilitate sexual assault in the first place. In order to see any sort of positive change, a cultural shift along with a systemic one needs to occur in our society.
The military received a lot of attention about this issue after the release of 2012 documentary “The Invisible War” and the growing numbers of victims within its ranks, yet we as a society still grapple with this as well. This is an issue of both culture and understanding. Even the definition of what rape really is seems contested. “Sexual assault” is even more ambiguous because both definitions have changed over time and depend on the jurisdiction.
“Rape” was once a crime against property — a woman’s chastity was the property of her husband — and later evolved into a crime against a person. Only recently, in 2012, did the Federal Bureau of Investigation expand its terminology to include men as potential victims of rape. Marital rape has also recently been recognized as a crime.
The understanding of “sexual assault” and the issue of “consent” is currently changing and we see this played out on university campuses around the country. Sexual assault can vary in its legal definition. However, it can encompass vaginal, anal, oral penetration by a penis or an object, as well as groping, or unwanted/non-consensual sexual interaction. All of which is considered an invasion of the person, and an assault.
Dr. Callie Rennison, a violence against women expert at the University of Colorado, Denver, said in an interview with Task & Purpose, “Sexual assault is violence, but it is too often viewed as something other than rape.” Therefore, sexual assault is often viewed as “regretted sex,” instead of the violent act that it is.
This is largely because the issue gets sexualized too often. Male victims have the difficulty of reporting their abuses due to stigmas associated with male-on-male assault. However, female victims face the difficulty of being sexualized due to deep cultural biases against female agency demonstrated with the history of the very term “rape.” For instance, in any given rape case, questions quickly emerge about what she wore, how drunk she may have been, and her relationship with the attacker or previous sexual history. Dr. Rennison explained that society tends to view rape as binary. Either it’s "real rape” or not rape; real rape meaning the victim had a knife to her throat. Whereas if the victim was seriously impaired or unconscious, the incident is somehow a “sexual misunderstanding,” not rape or assault.
Charles Feldmann, a former prosecutor and defense attorney in the U.S. Marine Corps and now a defense lawyer with Feldmann-Nagel law firm in Colorado, has tried hundreds of rape and sexual assault cases. He told Task & Purpose that the majority of these crimes are not “stranger assaults,” but that the victim knows the perpetrator. Alcohol is also usually involved. And most often the victim is female. He personally has not seen many serial offenders, but what is often evident in these cases is the assumption that a woman passed out or too drunk to stand is “fair game.”
Feldmann, who taught a legal course on trying sexual assault cases, asked the prosecutors to look at the bigger picture, “What are we teaching our society?” If a woman drinks alcohol to the point she can no longer consent, it is not okay, nor is it simply “regretted sex.” It is assault. It is rape. Feldmann acknowledged that in order to combat this, however, you have to change mindsets.
If a sexual assault does go to trial there are even more obstacles to overcome. Pervasive myths surrounding rape and what a victim should act like, impede unbiased trials. It is easier to believe bad things happen to bad people, rather than we exist in a world where “every two minutes another American is sexually assaulted.”
Rennison explained, “To first accuse the abuser, we must acquit the victim.” When a sexual assault victim is put on the stand, all the biases of society come out to play. According to Jennifer Long’s personal experience, a prosecutor and director of AEquitas, an organization that advises prosecutors on sexual violence cases, “It is very typical for the victim to be put on trial.” She explained that it is fairly easy to defend the rapist, “Just pull out the doubts or myths the jury already has about what a real rapist looks like, and how a victim is supposed to react.”
Rape myths are abundant in our society: Bad things don’t happen to good people; she/he should have fought back, or told the police sooner. These biases are ingrained in our society, but can be more mitigated through education on how trauma influences behavior.
There is an acute need for trauma-informed responses to sexual assault cases. Many victims of sexual violence report “freezing” during the attack, which is a normal response to trauma, however, without expert testimony this is not easily understood by a jury.
Furthermore, people tend to view stranger assault as more violent than intimate-partner assault or attacks involving alcohol, when in fact the victim still experiences trauma. The victim is likely to “self-blame” and delay reporting the crime.
Sexual assault and rape cases are the most difficult to try in court whether inside the military or not. This is for cultural, but also technical reasons: lack of evidence, jury bias, and the will of the victim to see the trial through. However, structural factors also play a role.
The military specifically has made improvements in allowing victims to report assaults as unrestricted or restricted, meaning they can report the incident without their chain of command ever knowing. The Department of Defense has also partnered with RAINN to create a hotline for military victims. They can access either online or by phone. And Safe Helpline is completely confidential with trained personnel to answer the call 24 hours a day.
But while the military has made improvements in victim care, the structure of the legal system is inherently justice-averse. This is because the power of prosecution solely resides in the hands of the commander.
Greg Jacob from Service Women’s Action Network, in an interview with Task & Purpose, explained that while a commander may seek legal counsel on a sexual assault incident under his/her command, ultimately he/she does not have to comply. This essentially turns military leaders into justice experts, which they are not, and leads to inherent bias against either the victim or alleged abuser — a far cry from justice. Jacob explained, “I wouldn’t tell a lawyer to lead a platoon in battle nor should we employ commanders as lawyers.”
The civilian legal system also encompasses civil court in which a victim may sue for restitution when the criminal case fails. The military does not have this process in place. So if the commander doesn't like the victim for some reason, or thinks order is best achieved without a trial, it will not go to court. Feldmann noted that, “The military is still a good ol’ boys system” and its main objective is not justice, but “good order and discipline.”
This system became evident during my friend’s case. She was told by leadership her attitude was negative, despite having told them about her assault. Her commander likened her situation to “sexual harassment” rather than assault, demonstrating the fallacy that sexual assault is “something other than rape.” Maintaining “good order” took precedence over a soldier’s personal care. Which is counterintuitive. A sign of quality leadership is the maintenance of your troops’ mental and physical fitness and that means caring about what happens to them on and off the battlefield. The “good ol’ boys system” failed her and many like her. When the commander does not support a soldier who has been victimized in this way, they quickly become marginalized, and can lead to long-term, devastating consequences.
The military also needs to better address male victims. They are largely left out of training and on sexual assault and left out of the discussion. According to RAND, 1 in 10 Navy men were sexually assaulted last year and 1 in 12 Army men.
These are issues that organizations like Service Women’s Action Network hope to change. One such avenue of change could be Sen. Kirsten Gillibrand’s Military Justice Improvement Act that will go before Congress again this year. It has been rejected before due to an unwillingness to take power away from military commanders. This is seen as a tradition in the military and a way of keeping order. According to Gillibrand’s Senate page, the act would move the decision “to prosecute any crime punishable by one year or more in confinement to independent, trained, professional military prosecutors,” including sexual assault. This would transfer the power to prosecute a sexual assault case outside the chain of command where decision making can be much less objective.
In order to move forward and impact change, Jacob said, “You have to deal with sexual violence as a whole.” We must address the cultural and structural problems inherent in both military and civilian systems.
But how do we know we are getting closer to solving the problem? Should we see higher conviction rates? Should we rely on numbers?
According to AEquitas, conviction rates are a poor way of measuring success because so many of these cases rarely get to the courtroom. Additionally, prosecutors may only be trying “safe cases,” those cases they know will likely end with a guilty verdict. Sadly, most cases go unreported and while higher rates in the military suggest more victims are coming forward, numbers offer a limited understanding to where we are.
The best approach seems to be multifaceted and needs to include educating people, teaching our society and young people about assault, along with prosecuting more cases. Even though every case may not get a guilty verdict, it may deter future assaults if there are perceived consequences.
Prevention is also key. RAINN’s website has a page dedicated to protection against assault. This is essential, but often ignored. Society must get better at education and prevention rather than just reaction.
It is easier for us as a society to view sexual assault in the military or at universities as isolated incidents — a result of hyper masculinity and all-male fraternities. And while those environments exacerbate already-inherent issues, they originated from a society that continues to think an intoxicated woman automatically consents, a society that still judges victims based on their actions during and after trauma. And a society that does not see sexual assault as violence, but simply as “regretted sex.”
After my friend’s trial, I asked her if the process was worth it and she said, “Yes, if it helps get more women to come forward.” We call her, “the woman on the horse” because she never gave up, despite going through several investigators, prosecutors, and counselors. It ruined her will to stay in the military. But her story is one of thousands who are just like her.
CORRECTION: Sen. Kirsten Gillibrand’s Military Justice Improvement Act proposes to remove commanders from all criminal cases punishable by one year or more in confinement, not just sexual assault cases, which was previously implied in an earlier version (4/16/2015; 1:43 pm).
Editor's Note: This article by Hope Hodge Seck originally appeared on Military.com, a leading source of news for the military and veteran community.
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