By: Andrew Jarnagin
The sexual assault epidemic within the American armed forces is well-documented and undisputed. Thanks to several widely-published studies, documentaries, and a crusade led by Sen. Kirsten Gillibrand (D-N.Y.), the systematic failure of military authorities to prosecute sex crimes within its ranks has become a hot-button issue. But the system is still broken.
The numbers are astounding: an anonymous Department of Defense survey found that 26,000 service members reported being victims of sexual assault in 2012. Of those, only 2,558 had filed official reports, and just 302 cases went to trial. Even at the height of the Iraq and Afghanistan wars, a woman in the military was more likely to be assaulted by a fellow soldier than killed in combat, and in 2010, nearly 50,000 male veterans screened positive for “military sexual trauma.”
The current system of investigating sexual assault in the military falls entirely within the chain of command, whereby victims notify their commanding officer, who has total discretion in deciding whether or not to pursue the allegations. This creates perverse incentives for both the victim and officer to keep sexual assault quiet. Assailants may be close to the commanding officer, and in some cases the officer who is responsible for handling assault cases is also the assailant. Both situations create enormous conflicts of interest. Reporting assaults also reflects poorly on an officer’s ability to maintain order and discipline within his unit. For the victim, there is always the threat of retaliation for speaking out.
The prevalence of assaults is staggering and the miscarriages of justice are countless. Assault became a public issue after the Tailhook scandal in 1991, in which 83 women and seven men were sexually assaulted during a Navy convention. Since then, the situation has not improved, and all levels of the chain of command are implicated: generals have tossed out convictions without explanation, autopsies discovering lye burns on genitals and evidence of struggle have been declared suicides, and soldiers have been discharged and diagnosed with personality disorders in response to reporting assault.
This summer, the Senate Armed Services Committee was the scene of a fierce debate over proposals to reform internal military prosecution methods to be appended to the 2013 National Defense Authorization Act (NDAA). Sen. Gillibrand’s proposal, backed by victims’ advocacy groups, sought to remove the reporting and prosecution of rape and sexual assault from the chain of command and place that authority with independent prosecutors. Her amendment was opposed by the Joint Chiefs of Staff and the committee Chairman Carl Levin (D-Mich) on the grounds that the chain of command is the most effective method for rectifying the problem, and was ultimately deleted from the bill in committee hearings.
But Gillibrand isn’t done. She is now gathering support for her proposals under the auspices of the Military Justice Improvement Act, which is currently backed by 46 senators. In a surprising twist for ultra-polarized Washington, her most recent converts are Sens. Rand Paul (R-Ky) and Ted Cruz (R-Texas), while Levin, a Democrat, continues to oppose her. Gillibrand’s insistence of transferring prosecutorial authority to an independent group has now been endorsed by three retired generals.
However, most of the military establishment continues to disapprove of Gillibrand’s reforms and prefers that any reforms remain within the structure of the chain of command. General Dempsey, Chairman of the Joint Chiefs of Staff, stated, “The commander’s ability to preserve good order and discipline remains essential to accomplishing any change without profession. Reducing command responsibility could adversely affect the ability of the commander to enforce professional standards and, ultimately, to accomplish the mission.” Secretary of Defense Chuck Hagel has been outspoken on the problems of sexual assault; he also aims to keep the prosecution structure intact. He has described sexual assault as “a stain on the honor of our men and women who honorably serve our country, as well as a threat to the discipline and the cohesion of our force.” He holds weekly meetings on the subject of sexual assaults and has enacted some measures to improve victims’ legal representation. But the system’s culture of impunity has yet to be addressed.
Hagel’s honest engagement and attention to the issue is laudable, but his solution is wholly illogical. When an institution has systematically failed to address a problem of this scale over the course of decades, the solution is not to give it another chance. He argues that “you can’t take [accountability] away or out of the institution because this is all about accountability…that chain of command has failed over the years, obviously, for a lot of reasons. But if it’s going to get fixed, it has to get fixed here in this culture, in this institution, in each service.”
This reasoning would never be accepted in any other area of life, and it should not be accepted here. If a business manager is exposed after presiding over labor abuses for 20 years, the solution is not to let him keep his job and give him the opportunity to show accountability, but to put him in jail. If a group of government officials are found to have embezzled public funds, the solution is not to allow them to self-audit while continuing to control the money and expect a new course of action. Accountability is the enforcement of laws, and permitting military commanders to manage their own sexual assault cases prevents accountability and hinders justice. Accountability directly derives from trust and independence, from the knowledge that sexual assaults will be reported and prosecuted, and from a system that puts checks on authority.
The military establishment worries that Gillibrand’s reforms will weaken the chain of command and military discipline. This retort completely bypasses the issue: if 26,000 soldiers are being sexually assaulted every year, maybe the chain of command is in need of re-evaluating. The British and Israeli militaries have not sacrificed effectiveness by empowering independent investigative and prosecutorial bodies (this information changed Sen. Cruz’s vote).
It is foolish to continue to believe that our military is composed solely of Americans of exemplary moral character. That vision, however reassuring it may be, has been proven false by the military’s continued failure to address its sexual assault epidemic. Members of the armed forces are normal people. They are capable of great acts of valor, as well as great acts of depravity, but we hold them to a higher standard of behavior. Checks and balances on power have preserved the American experiment. Now they are necessary to save her military.
