Let me follow the report by Dwight “My Liege” Sullivan on The Invisible War.

1.  I attended a showing at the Naro Cinema in Norfolk today.

2.  The seating is for 500, I would say the place was about 85-90% seated.  The average age was about 45-50, with an audience primarily of women.  It appears that a large number were members of AAUW.  That there was a discussion and presentation afterwards by a AAUW legal person, some others involved in ODU rape crisis efforts, and a director of the local YWCA office that is a core resource in the area for sexual assault victims, may have been part of the reason.

Holly Kearl is legal advocacy fund project manager in the Washington, DC office for AAUW, an advocacy group advancing social and economic equity for women.

Joann Bautti is the Assistant Director of the Women’s Center at Old Dominion University, where she runs the Sexual Assault Free Environment Program.

This will be somewhat stream-of-consciousness, in other words normal for me.

1.  The primary stories were certainly compelling and emotional; even allowing for them being one-sided there was an element of believability.  (During the post-discussion a serving Marine L/Cpl gave her personal story.)

2.  As illustrated by some of the questions and commentary there was little understanding of the military and military justice from the audience (there were a few active duty persons in attendance, including a Navy JA and another who are members of the training teams the Navy has sent out – they spoke about the Navy’s training.  The other presenters had no idea what training, if any was being done by the Services, yet they were quite willing to extemporize on the military situation equating it to experiences in ODU and other college campuses) (A Marine colonel, line, showed up in uniform, and made a quite rational statement of how the Marines are trying to address the issues.  This was particularly interesting in view of the emphasis put on the 8th & I allegations in the movie).

3.  “Chatting” with DMLS leads me to believe I heard the same OMG’s and such from the audience as he did.  Keep in mind that this showing was one of  five in a “New Non-Fiction Film Series,” there was a poster and pre screening brief to this effect (you have to know the Naro, it is an eclectic movie house famous for off-beat, off the wall, foreign, Merchant-Ivory type, etc., films.  They have an excellent regular Friday Rocky Horror night, where yes, people dress for the occasion – perhaps some of my former NLSO NORVA colleagues might remember that).

4.  The NCIS agent.  Actually My Liege, I don’t think he was NCIS.  I think, along with some other errors in the show, he was mislabeled and was likely a former CID agent.  Regardless.  His recitation of sex offender registration was seriously flawed – like he had no idea.  He seemed to believe that you only had to register if convicted of a felony – let alone the point about the sorry state of affairs when an acquitted rapist doesn’t have to register.  Well, as we know that’s not true about the felony.  The AWA makes it clear that registration is based on a lot of things and it is irrelevant whether it be felony or misdemeanor, SPCM or GCM, or not.  Will people not learn that conviction at SPCM could be a felony, or that conviction at a GCM might not be a felony – it depends on the charge and a comparison to state law.

5.  The husband.  Ditto.  I can understand his confusion.  (I still cringe every time I hear a TC read from the trial script that I am “detailed to this court-martial” when I appear as civilian counsel in a case.  Well, it’s in the script so it must be right and read.  So . . .)  Besides, considering the compelling testimony from the husband this is a little inside baseball.  The fault would be the producer, director, and consultants and an absence of fact-checking.

6.  The best spin about the “quote” from the court’s opinion in the civil case is that they were expressing an interpretation of the ruling rather than quoting.  The film and the audience aren’t there to be entertained by a discussion of the Feres Doctrine, etc.  But it appears clear they actually mean to quote the judge.  And yes it got a lot of OMG’s.  Why wouldn’t it, that was the intent.

7.  Ms. Kearl commented on the litigation.  Cioca v. Rumsfeld, No. 1:11-cv-l 51-1.0-’l’CB, slip op. at 2 (E.D. Va. Dec. 9, 2011).

She repeated the line as if from the court opinion, which as readers of the opinion will know is not in the opinion.  And as a sort of party to the litigation you’d think she had read the opinion.  This seems to have become a part of the messaging about the occupational hazard.

The tenor of her remarks was that they did not expect to win.

Also, and keep in mind this was her and NOT the attorney representing the claimants.  She basically said, “She (meaning the attorney) doesn’t intend to win.  This is done for the media attention.” When she said that the immediate thought in my mind was frivolous litigation.  But, I caution, it was not the attorney saying this, and it may have been a Biden (I think I’m going to recommend that for a new addition to the Urban Dictionary, “to do a Biden.”  OMg, I just checked, it’s already there – sort of.

8.  A question from the audience was why no death penalty for these people?  The discussants didn’t know if death was an authorized sentence (and I had my hand up).  But here’s the explanation had the mike got to me.  So there was an interesting discussion of executing rapists and also outing all of the alleged rapists named in the court case.

The death penalty is an authorized punishment for rape.  However, since Coker v. Georgia, the military and all civilian jurisdictions have not sought a DP in an adult victim rape where there was no murder following the rape.  Check out the discussion to R.C.M. 1004, in Appendix 21, MCM.  I acknowledge there’s still an open question about rape of a child.

9.  We are told that 15% (without citation to a source) of men have raped or tried rape prior to entry into service.

10.  We are told that all military rapists are predators and that they are attracted and act in the same way as child abusers in the way they stalk and coach.  They did reference that one of the relevant rapists had raped again once he was out of the military, and that wasn’t prosecuted either by the civilians.

11.  I thought that it was interesting no mention at all about alcohol.  We were left with the impression that all of the 3000 plus military sexual assaults were similar to the persons presented in the movie.  Alcohol likely doesn’t matter.  The ODU person says that the college experience is that the rapists on college campuses are serial rapists and have raped up to 300 times before being caught.  And without any actual knowledge the discussants then said that it must be the same in the military, but perhaps worse because of the atmosphere of control.

12.  The YWCA person indicated they assisted about 2700 sexual assault victims last year, and about 11% had declared themselves to be active duty.

13.  The chart.  Ditto.  They seemed to convey the impression and the audience believed that it was the command that put the case in the “restricted” column.  But as we know it is the complaining witness who does that, it is her/his choice.

14.  It was interesting to note that the two male victims were, based on the uniforms and the background of the pictures, from some years ago.  Nothing current.  Not sure if that is meaningful at all, I suspect it isn’t.  Rather perhaps a factor that male victims are even less likely to come forward than females and may not want to go public.

15.  While a lot of statistics were put out in the movie and by the discussants, the only one with citations was to the 2010 DoD report.  I concur that taking the statistics as gospel may not be a good idea.  I’d love to see the research/study that finds 15% of male enlistees are prior rapists or sexual assaulters.  Zach Spillman did something with stats (perhaps he can make those documents available, or the links at least).

16.  The movie, and audience reaction was critical of DoD as is expected.

17.  The victims from the movie were shown meeting with various congresspersons advocating for removal of sexual assault case decisions from the military.  That may be where that particular bug came from.  So ditto for how the movie mischaracterized Sec. Panetta’s response to TIW.

18.  No discussion of false reports.  But I wouldn’t have expected that.

19.  The discussants indicated multiple attempts to get the local military commands or someone within DoD to show up and participate today.  It appears the locals and DoD declined to be involved.  That’s at the point where the Navy JA and her assistant popped up to educate the audience about the quality and intensity of the Navy training program.  There was quite a bit of cynicism about the checking the block mentality of military training.  The movie made a joke of the education programs ongoing and the audience took that point up as did the discussants in a somewhat derisive manner.

20.  No discussion or questions about Lackland.

21.  Ms. Kearl indicated that just today the VA has granted the claims.

8 Responses to ““The Invisible War”: uninformed, dishonest, or both?-Part II?”

  1. Phil Cave says:

    An additional note.

    An audience question asked about the impact on the family’s of the rapists.
    The BLUF answer. Yes, they suffer and its likely a lot of them are themselves victims of domestic violence.
    Again the format prevented a discussion of the issue more than putting out an inflammatory conclusion. 

    I will refrain from further editorializing too much on that for obvious reasons.  But I can’t help thinking of the political “discourse” going on in the presidential race.  

  2. Jim Clark says:

    The 14% of civilian rapists comes from 2 rather good studies, though the results are not quite that high. 
    They are:  Mc Whorter, et. al, “Reports of Rape Reperpetration by Newly Enlisted Male Navy Personnel”, Naval Health Research Center Report No. 07-16 (2009); and
    Lisak, D & Miller, P, “Repeat Rape and Multiple Offending Among Undetected Rapists,” Violence & Victims, Vol. 12, no.1, (2002).
    The Navy study yielded 13% who “engaged in behavior that approximates legal definitions” of attempted or completed rape. 
    The Lisak study yielded approximately 9.8% in a college population. Each study involved more than 1300 subjects, so they are statistically supportable. 
    As for the film, I have reviewed it elsewhere: http://movies.nytimes.com/2012/06/22/movies/the-invisible-war-directed-by-kirby-dick.html : go to the “comments”, comment #1. 
    –jim clark

  3. Phil Cave says:

    Jim, thanks.

    Worth the read.

     BTW, Capt. Greg Rinckney is a former Army JA, but he’s not retired to my knowledge.

  4. Dwight Sullivan says:

    Thanks to Jim Clark for the references to the studies and Phil Cave for the links.  I’m going to write more about this, which appears to further undermine the credibility of The Invisible War. 

    Note that the study of Navy personnel considered anyone who answered “yes” to this question to be guilty of attempted rape:

    “Have you attempted to have sexual intercourse with a female (tried to insert your penis in her vagina) when she didn’t want to by giving her alcohol or drugs but you did NOT succeed?” 

    And it considered anyone who answered “yes” to this question to be guilty of rape:

    “Have you made a female have sexual intercourse (putting all or part of your penis in her vagina even if you didn’t ejaculate or come) by giving her alcohol or drugs or getting her high or drunk?”

    I suspect that many individuals reading those questions on a survey might answer them yes without ever having engaged in any activity that would come close to meeting the definition of rape or attempted rape.

  5. Dave says:

    I wasn’t aware that alcohol makes it any less of a rape… in fact both military and civilian law cover being too intoxicated and it still being rape.

    False reports are rare. Victims recant once they realize what the CoC is doing to them and how their lives are falling apart more.

     I guess you’ve never heard of “moral waivers”? They are granted fequently to convicted felons.

     I guess you also didnt know is all you have to answer to those queations is no. Who openly and proudly admits to being a rapist?

  6. Dwight Sullivan says:

    Dave, do you have any support for your assertion that “moral waivers” are “granted frequently to convicted felons”? 

    As we previously discussed here:


    in 2009, the Marine Corps announced that it would no longer allow anyone with a felony or misdemeanor sex offense conviction to enlist.  We also observed that in FY 2008, Marines allowed to enlist with a felony conviction comprised only 3/4 of 1 percent of all Marine Corps recruits — a figure that dropped to 1/3 of 1 percent in FY 2009.

  7. Phil Cave says:

    Dave, I am well aware of the alcohol issue.  A point not discussed in TIW is that most, a very high percentage of military sexual assault allegations arise in situations where alcohol was involved.  Many allegations involve a complaining witness who says she can’t remember because of alcohol.  But, once you have a rudimentary understanding of the effects of alcohol on memory and actions, the issue becomes more complex.  It is true that a woman is not held responsible for her actions if she is too drunk, just as it is true that a man who is equally or more drunk is held responsible.  That’s a social and legal policy, not based on science.

    My experience is not that complaining witnesses frequently recant, but that facts and evidence are produced which show a lie or a motive to lie.  In the one of two cases I have had complaining witnesses “recant” is not for your stated reasons but because we have found evidence, facts, and witnesses to refute the allegations.

    It is true that the military, especially the Army granted more moral waivers.  They needed people to go to Iraq to fight and die.  The temporary exceptions were a response to not getting enough people enlisted in an all volunteer military.

    In 2004, 4,6 percent required a moral waiver for criminal history or other past misconduct. During last fiscal year, the rate had jumped to 11 percent. So far, during Fiscal Year 2008, which began on Oct. 1, 13 percent of new recruits have required a moral waiver.  [Apparently] most waivers involve misdemeanors. 
    As of 2006, “All commanders are charged with the responsibility of recommending or approving waivers for applicants who, to the satisfaction of the commander concerned, have been rehabilitated; are good risks from a moral standpoint; and possess a documented, meritorious waiver request.”  http://www.usarec.army.mil/im/formpub/REC_PUBS/R601_56.pdf 

    Do you have any statistics to correlate the number of sexual assaults (as opposed to numbers that might show the percentage of waived enlistees who engage in some misconduct once enlisted) alleged to have committed by persons who were enlisted on a moral waiver?  There may be some, I just don’t recollect seeing any.  I agree that some of those given moral waivers had convictions for sex crimes – and that this wasn’t a good policy as to drug and sex crime waivers.

    I have represented a LOT of sexual assault accused’s.  None of them came in on a moral waiver, and almost all had a clean criminal history prior to enlistment and were considered good Soldiers (IAW the current GS defense).