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.

17 Responses to ““The Invisible War”: uninformed, dishonest, or both?”

  1. N says:

    Both.

  2. Paul LeBlanc says:

    The film also failed to discuss the  486 cases that are outside of DoD jurisdiction. 

  3. Peanut Gallery says:

    I found it disturbing on a number of levels.  I thought all of the victims were very sympathetic.  Nobody should ever have to experience what they experienced.  But I also thought it was a hatchet-job.  I remain unconvinced that the “superiors” who perpetrated or otherwise turned a blind eye to these incidents are the norm.  I think they are an anomaly.  There will always be bad people and bad leaders. 
    I did get a laugh when Ms. Cioca tried to convince the young waitress that she should forego the military and go to college instead because of the “occupational hazards” that exist in the military.  Yep…rape never occurs in frat houses or on college campuses, right?  Weren’t roofies invented in college?

  4. Just Sayin' says:

    I agree the CAs who botch these cases are not the majority.  The problem, in my opinion, is that when they do botch it, and they botch it colossally, there is no accountability. Instead, because the discretion of the CA to make bad decisions is sacrosanct, the military looks for more junior people, like trial counsel, RLSO COs, and SJAs to scapegoat over fairly trivial but inevitable administrative or procedural errors to satiate the public bloodlust over decisions that were not theirs to make.
    This needs to be a two part solution.  The military needs to start holding the people responsible accountable (and letting someone quietly retire as a 2 star is not accountability) and they need to stop pushing BS cases out of terrified fear they will be painted as weak on assault.  Prosecute aggressively those that warrant prosecution, and hold people accountable when they put the cost of new office furniture or their own TAD/TAR budget over justice.
    Or just follow the UK model and turn the whole damn thing over to local authorities and be done with it.

  5. stewie says:

    well your last solution won’t solve anything as the local authorities in many places need video proof of a rape before they will do anything. You wanna talk about not caring about victims, go to my local civilian authorities. They plain won’t believe victims period.

  6. Peanut Gallery says:

    Stewie, that’s just the point.  If local authorities won’t prosecute, why aren’t we weeping and gnashing teeth over those decisions?  Where is the outrage when the DA says “thanks, but no thanks?”  This whole thing is a solution looking for a problem. 

  7. stewie says:

    Well because sometimes the local authorities are ate up and they should be prosecuting?
    I agree there should be outrage, but you don’t have a decade of detailed statistics for the local authorities, you do have them for a military.
    It’s the equivalent of looking for your car keys under the light pole not because you think you lost them there but because that’s where the light is.

  8. Dan says:

    I think you should forward this to the director, Kirby Dick.  See if he responds…
    info@chaincamera.com

  9. Just Sayin' says:

    @ Stewie, yes, but at least then the military could stop wasting resources proving how tough it is on sexual assault to an audience that will never listen…is it passing the buck? Yeah. 

  10. Babu says:

    I haven’t seen the movie, but regardless of subject matter, anything that relies on single-source reporting should be treated with an inherent skepticism until the facts are objectively cross-checked.  

  11. Nancy Truax says:

    I thought it odd that Cioca (a Coast Guardsman) was the lead plaintiff in a complaint that did not name Janet Napolitano or Michael Chertoff or whomever was Secretary of DHS when all this conduct took place.

  12. Tami says:

    You are correct in thinking it’s the alleged victim’s choice to file a restricted report or an unrestricted report.  A restricted report necessarily means there are restrictions on who knows about the allegations, i.e. the commander and law enforcement are not informed, therefore the case doesn’t get prosecuted.  But there would still be a record so if an issue of medical treatment comes up later, there is a piece of paper to verify that it got reported.  Also, someone who filed a restricted report can change his/her mind later and make it an unrestricted report (capable of investigation by law enforcement which may or may not lead to prosecution), but someone who files an unrestricted report cannot later change it to restricted.

  13. k fischer says:

    If we went the route of allowing the civilians to prosecute, then at least the military would not be blamed for failing to prosecute.  The DOJ and the local prosecutors would be blamed.  The local communities who would make up the members of the jury would then becomee jaded if the DOJ or local DA prosecuted sexual offenses with the ferocity that the military does.  Then, when the locals got selected on a jury for a ‘military rape case’ they would roll their eyes and think, “Oh, great.  Another military ‘rape’ case.”  The military member would then be forced to hire a civilian attorney or be stuck with a public defender.  Every OSJA could cut down on lawyers for TDS and do away with the SVP program.  All of these advocacy groups could then move onto blaming the civilians for lack of prosecutions in rape cases and the military would be in the clear. 

    Sounds like a great solution to me. 

  14. stewie says:

    Which I think is something that should be allowed (changing an unrestricted report to a restricted report).

  15. Frustrated says:

      Thank GOD someone is addressing the very one-sided nature of this movie (I rufuse to call it a documentary – documentaries typically show many sides to a story, not just one side). Although I will say, the inflammatory nature of this movie has brought much needed attention to the topic of sexual assaults in the military at a high level in all the Services. The thing the movie didn’t show was the great efforts and advances that have been made in the sexual assault prevention and response programs in the military.
      Peanut Gallery, you’re absolutely right! Sexual assaults take place worldwide, but I guess the military is held to a higher standard (as it should be). I think people would be surprised to see how well the military does with punitive or other actions taken against accused members, particularly with cases that have very little or no physical evidence and/or eye witnesses to the reported crimes. The civilian authorities don’t have as many options of disciplinary actions against those accused of crimes that the military does.
      Lastly, THANK YOU Dwight Sullivan, for at least putting some of the other side of the story out.

  16. k fischer says:

    How many defense counsel have handled a case with facts like these?  Vic texts accused 2 seconds after interrupted alleged forcible oral sodomy. 
    http://www.delcotimes.com/articles/2012/07/11/opinion/doc4ffceca548727852255654.txt?viewmode=default

    I would hope that if this were a court-martial, it would have gotten dismissed at the Article 32.  Of course, this could be considered ‘counterintuitive victim behavior’ that the government would have found an expert to explain why this evidence is not exculpatory.

  17. Sam says:

    I too read the judge’s rationale in the case dismissal and was confused by the “occupational hazard” reasoning given in the film considering the two page dismissal discusses the court’s decision to avoid judicial involvement
    However, if you read the defense’s motion to dismiss (which the judge ultimately grants), you have a clearer picture for the reasoning given by the filmmakers.  The defense argues that the Plaintiff’s have may not bring a suit for events that arose out of military service because the victims claims are “incident to military service” and “inherently connected to their military service.”
    The fillmmakers were using effective language which evoked an audience reaction. No quotes. Ebert should have done his homework.