The existing prohibitions against retaliation for reporting sexual assault in the military are strong enough
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.