I watched the documentary “The Invisible War” today. I had already noted several discrepancies when I was struck by a graphic at the end of the movie stating that Secretary of Defense Panetta saw the film on April 14, 2012 and “two days later, he took the decision to prosecute away from commanders.” No, no he didn’t. That characterization reflects a fundamental misunderstanding of who continues to make prosecutorial decisions (military commanders of at least the rank of O-6). A DOD news report on Secretary Panetta’s April 16 announcement emphasizes the point that prosecutorial discretion remains with commanders: “That change will ensure that sexual assault cases receive high-level attention and that cases remain in the chain of command, Panetta said.” How did the movie get that point — bragging about its own impact — so wrong?
That error is a blow to the film’s credibility — not that it had a great deal of credibility before that point. Well, not that it had a great deal of credibility with me. Based on the audible reactions in the Brookline, Massachusetts theater, most (and maybe all) of the rest of the audience were aghast with DOD as a result of the film. Of course, there’s probably an enormous self-selection bias in who goes to see such a film.
It’s also understandable why an audience would be aghast. While the film presents the stories of many alleged military sexual assault victims, Kori Cioca receives the lion’s share of the screen time. She’s a former Coast Guard enlisted member who describes being raped by a superior. She comes across as both sincere and sympathetic. That said, no doubt there’s another side to the story, but that other side wasn’t presented by the film. So the audience sees only the sympathetic former Coast Guard member who describes being abandoned by her command and who the film actually shows unsuccessfully attempting to obtain VA benefits as a result of her injuries sustained during the rape.
I’ll probably write more about the movie in a few days, but here are some of the problems. The film maker shows the husband of a Marine officer who was allegedly raped talking about the power of the military commander. To make the point about how much control the commander exercises, he says that the commander picks the players in the court-martial process, including the defense counsel. Of course, that’s not true. I don’t blame the husband for not knowing that. But did the film maker not know that? Or did he know it but include that false information without a correction anyway? Neither answer to that question is a good one.
The film also has a voiceover while presenting a complex flowchart on handling of sexual assault allegations. It refers to roughly 2,600 unrestricted reports and 700 and some restricted reports. The voiceover says something like more than 700 complaints are shunted off as restricted reports so the perpetrators aren’t prosecuted. But it isn’t the system that creates that result; it’s the alleged victim. My understanding is that restricted reporting was adopted to provide greater control to alleged victims. Yet the film didn’t portray it that way. Rather, an uninformed viewer of the film would likely come away thinking that military commanders handed out more than 700 get-out-of-jail-free cards in the form of restricted reports.
Speaking of uninformed, the film includes a former NCIS agent providing a wildly inaccurate discussion of military crimes, felonies, and sex offender registration requirements. During that discussion, a camera pans over a spreadsheet of sexual assault case outcomes, lingering on an acquittal. The message seemed to be that we should be outraged that a servicemember who had been fully acquitted didn’t have to register as a sex offender.
The film opened with a graphic saying that all of the statistics in the movie came from U.S. government reports. I’ll try to run some of those to the ground. For now, let’s just say that some of the stats raised questions in my mind — and given other inaccuracies in the film, I’m unwilling to simply accept the stats on faith.
The film discussed a lawsuit filed by Susan L. Burke on behalf of Ms. Cioca and others against former Secretaries of Defense Rumsfeld and Gates for allegedly fostering an atmosphere that allowed the plaintiffs to be sexually assaulted. Cioca v. Rumsfeld, No. 1:11-cv-l 51-1.0-‘l’CB (E.D. Va.). The film once again evoked an audible reaction — almost a collective gasp — from the audience when it said that the case was dismissed on the grounds that rape is an occupational hazard of military service. While the phrase “occupational hazard” wasn’t in quotes, the way the information was presented seemed to create the impression that that’s what the court said. In fact, film critic Roger Ebert interpreted it in just that way in his review of the film: “A recent court decision held that rape was an ‘occupational hazard’ of the job.” Guess what? Not only is that phrase not in the court’s ruling dismissing the case, but that concept is entirely absent from the decision, which I’ve linked here.
Here’s the judge’s actual rationale for dismissing the case:
In the present case, the Plaintiffs sue the Defendants for their alleged failures with regard to oversight and policy setting within the military disciplinary structure. This is precisely the forum in which the Supreme Court has counseled against the exercise of judicial authority. Where the Supreme Court has so strongly advised against judicial involvement, not even the egregious allegations within Plaintiffs’ Complaint will prevent dismissal. See [United States v. Stanley, 483 U.S. 669, 683 (1987)] (“[I]t is irrelevant to a ‘special factors’ analysis whether the laws currently on the books afford [the Plaintiff], or any other particular serviceman, an “adequate” federal remedy for his injuries. The special factor that counsels hesitation is not the fact that Congress has chosen to afford some manner of relief in the particular case, but the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.”) (internal quotations omitted).
Cioca v. Rumsfeld, No. 1:11-cv-l 51-1.0-‘l’CB, slip op. at 2 (E.D. Va. Dec. 9, 2011) (second and third alterations in original).
It’s demagoguery to present that decision as a ruling that rape is an occupational hazard of military service. And yet the film did. That may tell us all we need to know about “The Invisible War.” But I’ll bet it wins an Oscar.