Here’s a link to today’s WaPo article by Melinda Henneberger discussing a Service Women’s Action Network conference on Tuesday concerning military sex offenses.

11 Responses to “WaPo article on “Sexual violence in the U.S. military””

  1. Anonymous says:

    Justice remains “nearly impossible” to come by, says SWAN executive director Anu Bhagwati, because of the likelihood of retaliation within the chain of command. “There’s still no deterrent to sexual assault in the military,’’ and no access to the kind of civil remedies that civilian victims can pursue, because service members can’t sue for damages.

    This from a Yale grad?  Surely a federal conviction, lengthy imprisonment, dishonorable discharge, and sex registration for life is some deterrent.  And of course military members can sue for damages; nothing prohibits them from accessing the civil courts.  Finally, the idea that commanders will retaliate against an alleged victim for accusing another servicemember of rape, is as unfounded as the rest of Ms. Bhagwati’s claims.     

  2. Lieber says:

    what I found bizarre was the assertion that if the victim had revealed she was a lesbian during her CM testimony that she would have received a “dishonorable discharge”…either someone is given to hyperbole or she received horrible sea lawyer advice.

    as for service members suing the DoD…Bhagwati is more or less right that they can’t…the MCA doesn’t contain any judicial review and although Bivens actions, etc., are theoretically possible, so far they’ve been rejected by the courts out of deference.  what would be more interesting would be if a SM brought a civil tort action against another SM for sexual assault…(as opposed to the CoC)…off the top of my head I can’t think of a legal bar…(obviously state jurisdictional requirements would have to be met)

  3. Anonymous says:

    Lieber:

    But she did not say that they can’t sue the DOD.  She said they can’t sue for damages.  That is just not true.  She can take the alleged perpetrator into civil court and sue for damages under a host of tort theories.

  4. Lieber says:

    Right. As I noted above — assuming that state jurisdictional requirements are met. Which could be aproblem if it happened on a post with exclusive federal jurisdiction or at sea or deployed…

  5. stewie says:

    Well, unless the crime, offender, and the victim all happened/reside on exclusive federal jurisdiction…

    I concur that the article wildly overstates, well just about everything.

  6. Cleo says:

    This article is garbage, minus one thing.  The woman that, under Don’t Ask, Don’t Tell, couldn’t say that she “didn’t want it” b/c she was lesbian, was put in a bad position.  But this situation was created and controlled by elected officials, not the military.  In any event, the rest of the article is trash.  It makes the military sound like it condones sexual assault, which could not be further from the truth.  Ms. Henneberger takes issue with the fact that, of the sexual assault claims that go to trial, “fewer than half result in convictions.”  Does she want a 75% conviction rate?, or would 95% be more acceptable?  Or maybe we should just dispense with trials altogether and assume that every allegation is based in truth.  
    What Ms. Henneberger and her lot fail to understand is that the military prosecutes sexual assault claims more vigorously than civilians do.  A DA wouldn’t touch many of the cases we take to court-martial b/c they are weak he-said-she-said cases.  And so nobody should be surprised when such cases result in not-guilty findings.
     

  7. JAE says:

    I never cease to be amazed at the chasm between my personal experiences as an active duty Army JA (as Trial Counsel, Chief of Justice, Defense Counsel, and Senior Defense Counsel) and the media’s coverage of this issue.  The coverage is deeply distressing to me as it paints a picture of a military that is not serious about these types of offenses, and I just don’t think that’s the case.  I suppose any of us could only provide anecdotal evidence, and the Army’s a big place, but from my perspective commands did not shy away from pushing these types of cases forward, almost to a fault.  As a defense counsel I considered the sex offense cases ripe for acquittals or favorable results, as the command would pursue nearly any colorable case if at all possible.   I have seen some media reports citing statistics that look really really bad– so bad that they don’t seem to correctly reflect reality and I wonder about our figure-gathering mechanisms. 

    The UCMJ of course is a creature of Congress, and this is THE area of military justice where, rightly or wrongly, Congress does not believe in us right now.   I have even heard rumblings of movements to take jurisdiction from the uniformed services in the area of sexual assault offenses.  This would obviously be a catastrophy.   

  8. stewie says:

    Well Cleo for those on the victim advocate side of things, they fervently believe that only two percent of all sexual assault allegations are false, so given that world-view, you can then understand why a less than fifty percent conviction rate would be infuriating. Ostensibly, she wants a 98% conviction rate.
    Now, I think that assertion is not based in any reality I know, but I don’t profess to know what the true rate is, and it probably varies a bit depending on the cohort examined.
    It certainly is fair to ask, what is the civilian rate, because my understanding is that it is sub 50 percent by quite a bit.

  9. Babu says:

    JAE, I have yet to see any judge advocate with recent experience (last 15 years) concur that there is an institutional problem with not taking these cases “seriously.”  Doesn’t mean there aren’t any though.  So for an unscientific sampling, I would ask that any experienced JA who reads this blog and agrees with SWAN to throw down and post their agreement here.  I would like to hear from just one.  And by “experienced,” let’s say you have been a party to at least 100 courts-martial, as a TC, DC, MJ or SJA drafting the SJAR. 

  10. k fischer says:

    I can’t believe that I would actually agree with Ms. Baghwati, but to a certain extent she is correct that there is virtually no civil remedy for those who are sexually assaulted.  For instance, if Carla Butcher’s attacker had been a OBGYN at a hospital who was accused previously of sexual assault be two women, then she might be able to sue the hospital for negligently keeping him on staff and collect from the deep pockets of the Hospital.  Suing the individual for sexual assault probably wouldn’t net her much because he doesn’t have deep pockets, nor would an attorney take the case on a contingency basis unless there was some means to collect.  Suing the military, on the other hand, would be quite profitable if wasn’t Feres barred.

    With regards to the rest of the article, I agree that there is a deterrant to sexual assault as to the offender based on the punishment an accused would receive if convicted.  However, Baghwati seems to indicate that the deterrant should be with the military in preventing sexual assault and that allowing Servicemembers to sue the military when they are sexually assaulted is the ticket.  I think that the Pentagon has gone well beyond taking sexual assault allegations seriously to the point where the military prefers charges, no matter how absurd they sound.  One look at who they hired as HQE’s shows that the military seems willing to err on the side of the accuser.  http://www.rogercanaff.com & http://articles.courant.com/2009-10-31/news/charges-dropped-1031.art_1_murder-case-key-witness-superior-court

    Although I do not meet the criteria Babu puts forth, I have had my fair share of clients accused of sexual assault, more than half of whom were never charged, charges were dismissed after the Article 32 hearing, or they were acquitted at their court-martial.  I think the military goes above and beyond prosecuting Servicemembers when they are accused of sexual offenses. 

    As far as there being a widespread institutional problem, my personal opinion is that the problems occur within particular commands or posts and are dependent on a combination of who the Post or Base Commanding Officer, SJA, SUV, CID/NCIS/AFOSI are and what the culture regarding sexual allegations is like. 

    I think that we are seeing the “sweep the problem under the rug” mentality as being a significantly minority view nowadays.  I don’t see how having the civilians handle sexual offense allegations will be better, as most civilians wouldn’t touch the cases I’ve seen preferred by the military with a 10 foot pole.  Also, the inconsistency of prosecutions between offices within DOJ would be just as prevalent as they are in the military, unless every US Attorney has a kool-aid drinking, never knew a victim who lied mentality.

  11. Anonymous says:

    K Fischer:

    Being “right to a certain extent” is not the point.  What she said is inaccurate.  And your OBGYN example compares apples and oranges.  That is a “scope of employment” theory for going after the hospital.  That theory would rarely apply in the military context.  Of course, it would apply where a female soldier was assaulted by her military OBGYN.   In that instance the scope of employment theory might apply, but for the Ferres Docrtine.  But a doctor would likely have assets that the victim could go after in civil court.  And even if those assets were small, no legal principle dictates that a victim has a right to become rich for what happened.   

    Moreover, the majority of sexual assaults claims in the military, like anywhere else in the world, involve alcohol being used by both parties and the government advancing a charge on “substantial incapacitation” grounds.  In no way would a victim in such a situation be able to collect damages in civil court under the “scope of employment” theory.  And this needs to be pointed out.        

    The entire article has a tone indicating that the military does not take sexual assault seriously; that it has created an atmosphere where victims are afraid to report because they will be punished by the command for doing so; and that military prosecutors don’t know what they are doing.  Because this is plainly wrong, it is irresponsible for the author and contributors to say otherwise.