One of the many recurring themes in today’s Senate Armed Services Committee hearing on sexual assault in the military was the topic of retaliation and the perception that victims who report sexual assaults are then subject to retaliation for having made the report. While I wasn’t able to watch all of the hearings, I wondered why we didn’t hear more about a significant prohibition against retaliation that’s already on the books and often invoked to protect those who allege misconduct in the military: The Military Whistleblower Protection Act (10 U.S.C. § 1034).

Often considered in the limited context of communications to an inspector general, the Whistleblower Protection Act provides a broad range of protection for those who make “protected communications.” Such communications include, among many others, a communication to “any person or organization in the chain of command” (subsection b(1)(B)(iv)) regarding “a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination” (subsection c(2)(A)).

When a person makes such a communication:

No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing [the communication].

Subsection b(1). In other words, under the letter of the law, a servicemember can report allegations of misconduct without fear (if this isn’t the reality, that’s a leadership and enforcement problem, not a retaliation problem).

Certainly, many military sexual assault cases involve collateral misconduct by both the perpetrator and the victim (such as underage drinking or inappropriate senior-subordinate relationships). I don’t think it’s fair or rational to say that a victim faces retaliation when he or she is punished for his or her own misconduct collateral to a sexual assault (though I recognize the importance of excusing some minor collateral misconduct in order to encourage reporting of the greater evil). Retaliation is more than this accounting for collateral misconduct; it occurs when the victim is made a target simply because he or she reported the sexual assault.

Such retaliation is already prohibited by the Whistleblower Protection Act. Maybe the act is underutilized, or maybe Congress should give it more teeth, but Congress shouldn’t make significant changes to the UCMJ in order to provide a protection that already exists.

10 Responses to “The existing prohibitions against retaliation for reporting sexual assault in the military are strong enough”

  1. Some Army Guy says:

    soul would yiu expect to hear about that?  These hearings have almost no basis in reality.  

  2. paleo says:

    10 USC 1034 is decent enough. The problem is the enforcement. Too many times IG offices simply say, “We investigated your claims of xyz and found no error” and they give no information other than that, and just leave people scratching their heads. People are retaliated against all the time, for reasons far beyond just SA. But IG offices seem to only like the high profile cases where they can report uncovering X millions of dollars of waste. It’s as if they work on commission or something. The stuff that actually destroys lives, they write it off and say there was command discretion involved etc. Discretionary power is not absolute and it does not arrive with a ‘get out of jail for free’ card. Congress would be wise to visit some of the testimony from things like the 1983 Military Justice Act and start figuring out it’s time to abandon the notion that it’s all about old white men, or a 200yr old system, using those as excuses. It’s always about commanders. Until they start firing them, nothing is going to change. From those hearings: The power of a commander over the life and liberty of his subordinates, particularly in wartime, is awesome. When exercised fairly and responsibly, it is a power that commands not only respect and obedience, but also inspires superior performance and sacrifice. If exercised in a capricious and whimsical manner, however, it breeds disrespect and disobedience–traits that are inimical to military effectiveness. [Moreover], the strength of our military is dependent upon the support we receive from civilian society. Our forces, whether based on conscripts or volunteers, are composed primarily of “citizen soldiers.” The majority of our service members remain on active duty for only one term before returning to civilian life, and we are heavily dependent upon the reserves for our national defense. Unless the public in general and the parents of service members in particular are convinced that their sons, daughters, and neighbors will be treated fairly while in military service, public support for the armed forces and our missions will quickly erode. That is a development no democratic society can afford.

  3. Anonymous says:

    Really good blurb about the Whistle Blower Act, and a very fair and balanced take on retaliation.  I think you hit on the problem, its leadership and enforcement.  99% of commanders/shirts do the right thing.  It’s the 1% that don’t (and the peers/supervisors who try to disuade reporting) that give us a bad name. 

  4. RY says:

    Good point.  I wish our services did a much better job early on in fighting the PR campaign.  We have not done well to build confidence in what we do.  We have misleading statistics and poor education about our processes.  To be fair, I’m sure there are some people who do not report out of fear but that is not a high percentage nor is it a well-reasoned perspective in most cases.  There are protections for reports and in practice, I bet there are far more case examples of complainant’s seeing no repercussions of any sort than the opposite.  I can’t count the number of cases where the complainant has engaged in misconduct, in many cases some of the same behavior being charged in a case, but sees no disciplinary measures and instead sees a choice reassignment and extensive support measures. 
    In short, this would have been a good message to include to Congress but alas, we’re behind the ball so much on this that we’re losing the war.

  5. Lieber says:

    No one knows about the MWPA…not commanders and not service members.  yeah, it’s on the books, no one knows about it…
    There’s a reason why Judge Advocates are often told they’re not in the real military….

  6. Dyskolos says:

    I have to view some of this with a jaundiced eye. Every investigation I reviewed concerning whistleblowers was the whistleblower attempting to throw sand in the gears of an ongoing adverse action. I have no doubt there are bona fide whistleblowers out there that deserve protection, I just haven’t seen one.
     

  7. Ed says:

    Lieber
    But remember in the Marine Corps you are a Marine first, an officer second and a lawyer third.

  8. rob klant says:

    My experience has been closer to Dyskolos’ than Lieber’s:  every E-1 and his lawyer is aware of the MWPA and other prohibitions against retaliation/reprisal and only too ready to use them in the hopes of forestalling adverse administrative/disciplinary action by command authorities. 

  9. paleo says:

    Regarding MWPA and stopping adverse action…Did it ever occur to anyone that the adverse action was initiated or worsened out of retaliation? Forestalling an adverse action…did you bother to ask why a service member may want to stall or halt that action? It’s not likely because they despise their job or hate getting that paycheck. Avoiding punishment we all understand. Consequences, not so much. It’s the consequences people are seeking to stall. I don’t want to write “I will not call my teacher a fatty pants” 100 times on the chalkboard. That’s avoiding punishment. The consequence is that I miss my little league game. That game is what’s important to me. That issue of importance is rarely addressed by commands. They need a wise person and a steady, calm disposition to help them out – that means attorneys (it used to mean senior noncoms, but they’ve suffered the same ills as officers in the past couple decades).
    I know a lot of people look around and say ‘for every ten people in these situations, 8 of them are dirt bags, so why should we care?’. Those 8 will likely get out soon, of their own volition and they won’t be your problem. They also won’t be any potential source of regret, as you wonder if you did enough, if your ‘give a damn’ tank didn’t run dry, etc. While the audience of this site is mostly JAs, you are still officers and you take the same oath as the others and the bars or leaves or whatever you wear means you’re a leader. if you’re not worried about the quality of leadership you provide, if you’ve done enough, if you did in fact earn your money as a leader today and every day, you are definitely in the wrong career field. You don’t need superior rank to be a leader. For those two left over, wandering souls with a transgression, that you work to understand – or reinforce to your boss or that junior commander visiting your office – what is the potential impact of your efforts? Likely a damn good service member with a heck of a lot more maturity and wisdom, and someone that grows up to be a leader of great significance. And, don’t forget the lessons you’ll learn from such inquiry either. 
    There are plenty of times when someone is punished for a minor action that they disagree with and the command acts like a little child and says ‘oh yeah well how about these apples’ and they ratchet up the pain for no reason. Instead of being leaders and helping a young service member see the light and understand, or “gasp” re-thinking things and making sure that young service member’s claims are not correct, the command just tries to shout someone down with ‘military math’ and more punishment. 
    I’ve seen more times than a few where junior members go to the command to issue a legit complaint about a superior. The command does nothing. Junior people get treated the same, they feel the command won’t do anything, so they speak up or usually they act up. Now that “toxic” leader tries to kill their promotion or career or assignment etc, and then some complaints flow. 
    The layers have to be peeled back. 
    Let’s face it, the military’s record of fair and impartial adverse actions is not one to be marveled at for superior fairness and procedural fidelity. If sand is thrown in the gears then commanders have only one place to look as their first point of inquiry: the mirror. For JAs, if you’re seeing such items, then the first thing you should be doing is looking over the shoulder of your boss looking into the mirror and start searching for why something is happening not just what has happened. Recruits and candidates are never, ever, ever instructed to be undisciplined. It is never a teaching point, it is never part of the POI. And no matter how lax we believe the USAF to be, they don’t tell their people to be undisciplined either. When it happens, there’s a reason. When you find it to be wholly volitional, swing the hammer of justice but you’d better be holding it in the hand of rehabilitation. Otherwise you’ve done no one a favor, to include the nation you serve.
    A sharp and capable NCO I knew one time introduced himself thusly: I’m “E6” so & so. I’ve been through every pay grade from E-1 to E-6…………………………twice. Some of ’em three times.
    In today’s military, particularly during the downsizing announced with NDAA 2013, there would never be twice for a guy like that. Thankfully his chains of command had some common sense, and likely a lot of patience.
    For anyone that thinks the zero defects mentality has served the military well, and that the notion of rehabilitation is far flung, “not in your lane”, or just too soft and outright garbage: start tracking down people that leave the military out of disgust with injustice, or that were run out of the military for one bad day or one bad decision or series of bad decisions linked to one causal factor. Many of these people are run through a crucible. They face trauma, disillusionment, and if not shaken to their core they get shaken badly nonetheless. Many of these people emerge from these experiences far wiser, stronger, and more capable. A while back I saw a guy discharged. He messed up, for sure. He was an officer, making about 50k per year. Within five years he was double that figure, at a major corporation, with stock and equity in addition to doubling his military salary. He more or less passed all those in his chain of command for salary, retirement potential, scope of duties in terms of facilities and people supervised, and was a legitimate shaper within this company, and still on a steep upward trajectory. The military said “you’re a bad person, you must leave”. Well, the military was wrong. The military did nothing to help this guy and now the military reaps zero lessons he learned or the leader that he is today. That, in my eyes, is a crime against leadership. 
    Given a mid-level officer’s salary and a standard work day: they make around $30 an hour, bump that up to around $50 or maybe $60 for the highest portion of the pay chart. Whether JAs like it not, their civilian counterparts are bringing in $100 or more per hour, in my experience. It’s not exactly apples to apples, but the point here is that you need to be giving $100’s worth of advice to your $30 commander. Your training with all them fancy books and long words places that burden upon you. You are the saving grace that intervenes to save the day (and much more) for that junior or senior service member, when a commander is off azimuth and too full of piss and vinegar. You are also the saving grace for a despondent victim that no longer believes justice exists. Our commanders have, in large measure, lost their grip on that role. It now falls to many of you. 
    There’s a German phrase that roughly translates to: no matter how big or small, every circus must have its clown. In the circus that is military justice, administrative actions are definitely the clown. If Congress thinks court-martials and SA cases are bad enough, if they ever uncover the absurdity of administrative actions, they’ll wet their pants. Admin actions are unfortunately prone to two awful items: retributive commanders and JAs that advise them the official stance is that admin actions “are basically legal no matter what you do so long as it’s administrative”. It creates a blank check for command action. The effect is not ‘making an example’ out of a case, it’s generally the destruction of one’s career as they are forced out or decide to get out; and, the erosion of morale as others see a 10lb hammer used to kill a house fly. Will it keep some people in line? Yep. Will it build your team? Nope. When leaders and the JAs that advise them allow such things to happen, that unit becomes the home of “good enough” and excellence leaves the building. One thing is for certain, the JA that whimsically advises a commander is within his or her legal boundaries to utilize admin actions, or any other action, rather than scrupulously outlining the myriad of relevant facts and factors to consider, is not giving that $100’s worth of advice. Military justice is an aid to discipline, which is the soul of an Army, as George Washington said. But, militaries don’t have souls – the people that make up the military have souls, and it is their discipline that is so vital to a fighting force. If you don’t make that connection, and prod your commanders to do the same, then you’re just talking about the law, and not being a leader.
    The military is about people and it always will be – unless and until drones take over. “your chosen diety” help us all if that ever happens. My Ritalin has worn off so I’m going to stop typing. 

  10. Just Sayin' says:

    the military WPA is a joke.  As is the IG.   Until the Feres doctrine is abolished in cases of willful misconduct, there will be no real justice for whistleblowers, or any real consequences for those who retaliate.