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D.C. Circuit Rejects BIvens Claims in Military Sexual Assault Cases

The decision in Klay et al. v. Panetta et al., No. 13-5081, slip op. (D.C. Cir. Jul 18, 2014), released today affirms the DC District Courts dismissal of Bivens claims against the military chain of command by a group of servicemembers that “allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight.” The COurt affirms on grounds we’ve previously discussed from Chappell v. Wallace, 462 U.S. 296 (1983), here and here.

McClatchy report here.  Our prior coverage here (DDC dismissal) and here (use of Klay case in the Invisible War). Judges Rogers, Griffith, and Srinivasan file dthe opinion, with Judge Griffith filing a concurring opinion.  His concurrence takes a shot at counsel for the petitioners for raising a claim that SecDef Rumsfeld failed to follow an Act of Congress without a factual basis for it.

 

Top Ten Military Justice Stories of 2013 – #1: Changes to the UCMJ

It began a year ago, in January 2013, when Representative Jackie Speier (D-CA) introduced the “Protect Our Military Trainees Act” that, according to her press release, was “in response to the widespread sexual abuse by Air Force training instructors at a San Antonio Base,” and would “protect trainees from assault and sexual advances by instructors.”

Never mind that sexual harassment in the military is prohibited by innumerable regulations, or that coerced sexual activity “through the use or abuse of military position, rank, or authority” has met the statutory definition of a sexual assault since October 2007, or even that this definition was expanded in 2012 to include “a[ny] communication or action that is of sufficient consequence to cause a reasonable fear . . . [of] being subjected to the wrongful action contemplated by the communication or action.” Congress was getting curious about sexual assault in the military, and it didn’t like what it saw.

Actually, it really began a year before the Congresswoman’s proposal, when we encountered the “uninformed, dishonest, or both” propaganda film “The Invisible War,” and the politicization of the military’s response to sexual assaults became . And these days, “you never want a serious crisis to go to waste.”

So there was Congress, geared up to address the military sexual assault crisis, when the Wilkerson case (our #5 story of this year) threw gasoline onto the bonfire. An explosion of legislative proposals soon followed, with Representative Speier and Senator McCaskill each introducing bills to limit a commander’s post-trial powers, and the Senate Armed Services Committee conducting hearings on March 13 and June 4.

The House Armed Services Committee was also concerned, with leaders writing a letter in March to the recently-appointed Secretary of Defense, Chuck Hagel, on the topic. A veteran of Vietnam and a two-term Republican U.S. Senator from Nebraska, Secretary Hagel replied in April with his own proposal to limit the Article 60 authority of commanders, including “eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial.”

Senator Hagel’s April proposal was prophetic, but before the prophecy would be fulfilled, the Naval Academy checked in. In June we first noted a sexual assault allegation involving three male members of the Academy’s football team, an intoxicated female midshipman, and an off-campus house party in 2012. The allegation led to an Article 32 investigation that more closely resembled a three-ring-circus than a quasi-judicial proceeding. Press reports say that the midshipman was grilled for over 30 hours by defense counsel, with absurd questions such as “how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse ‘for being a ho.'” Soon after, both the House and the Senate put Article 32 in their sights with proposals to limit the scope of the investigation and to change it from a full-blown investigation to a mere preliminary hearing.

So, about that prophecy. On December 26, 2013, it came true.

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Top Ten Military Justice Stories of 2013 – #5: The Wilkerson Court-Martial and Side Effects

2013 was a year that was dominated by the issue of sexual assault and the military justice system’s handling of it.  Last year’s top story is where much of this focus began.  The horrible Invisible War “documentary” and its producers portrayed the military justice system as unable to handle sexual assault cases and advocated taking the decision in sexual assault cases out of the chain of command.  And then came the Wilkerson decision.

On Nov. 5, 2012, LTC James Wilkerson was sentenced to a dismissal and one year confinement for the sexual assault of a house guest while stationed with his wife at Aviano AFB.  On February 27, 2013, the convening authority in the case, Lieutenant General Craig Franklin exercised his authority under Art. 60, UCMJ and set aside the members’ findings and sentence in the case.

On the heels of The Invisible War and its supporters decrying the chain of command as a good ol’ boy network, General Franklin’s action sent them into a frenzy.  Senators and congressmen immediately weighed in on the general’s action calling it “simply unacceptable and rais[ing] serious concerns about the military justice system as a whole.”  Senators Boxer and Shaheen called on SecDef Hagel to, amusingly, “take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions.” It was an amusing request because, of course, Congress gave CAs the power to set aside findings and sentences in Article 60(c), so it was really up to the Senators to change the law.

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In the rocky legal terrain

BLUF

Ms. Burke’s arguments in Cioca gained no traction, because in her own words her case was “based on rocky legal terrain,” which I thought the memorable phrase of the day.  Prediction is denial.  Nothing from the argument appeared to leave or create a suitable gem that could regain traction for a grant of a writ of certiorari.  So this litigation is about to be over.

The court: Judges Agee (M/Bush2), Niemeyer (M/Bush1), and Thacker (F/Obama).  They were a hot bench.  Although Judge Thacker did not ask any questions she was clearly attentive.

As best we could tell Ms. Burke was the only person involved in the litigation who was there.  We had thought there would be a number of supporters and media.

Just as Ms. Burke began the argument with her first emotional pitch of the day Judge Agee asked about the Coast Guard litigants.  Ms. Burke argued, “it was a complex question, that there had been a declaration of war, and that her clients had told her they were subject to the UCMJ,” or words to that effect.  However, she conceded they were likely not proper parties.  If the court does as predicted and denies the appeal, the answer to the question becomes irrelevant.  Ms. Burke still does not get it that a declaration of war and an authorization to use military force comes from Congress, but that an authorization to use military force is not a declaration of war.  Also, it is true that active duty members of the Coast Guard are subject to the UCMJ.  But that doesn’t mean they are in the Navy and thus the Department of Defense.

The judges were focused about separation of powers and the abstention doctrine.  That was the bulk of the questions.  Much reference was made to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), United States v. Stanley, 483 U.S. 669 (1987), and Chappell v. Wallace, 462 U.S. 296 (1983).  But at times Ms. Burke herself wandered into arguing matters that were APA or  injunctive relief related and other type claims not before the court.  The DOJ attorney took less than five minutes to make two points:  Ms. Burke had conceded everything, leaving some minor missed deadlines within DoD and some ignoring of Congressional directives as fault for the cause of action, and the APA related irrelevant arguments.  As counter-concessionary argument, Ms. Burke told the court DOJ had conceded everything she was raising, “at page 20 of their brief.”

Ms. Burke argued the case was unique (interspersed with emotional appeal) and in particular argued that the alleged offenses were not incident to service.  She also argued that money damages was a least intrusive remedy compared to injunctive relief.  To which Judge Niemeyer offered the idea that a Soldier hitting another in the jaw commits a crime, but the Secretary of Defense is not liable for that in his personal capacity for money damages.  Essentially Judge Niemeyer pointed out that there are processes in place to discipline and take care of these issues.  (There was no discussion or retort that current events show the in-house remedies ineffective and proof of the claim.)  Again the point was made that the litigants were asking for money not injunctive relief.  Judge Niemeyer acknowledged in some detail the sexual assault problem, which is where much of the discussion about the current fiascos came up.  (My Liege and I disagree a little on this.  His position, I think, is that the current matters are not relevant or evidence in the Cioca case.  My position is that while not formally announced, could not the court take appellate judicial notice of the ongoing crisis.)

The bulk of the questions highlighted concern that the courts were being asked to manage the day to day activity of the military.  As a basic principle courts don’t manage the day to day business of the military.  Questions emphasized that Congress is taking action, the military is taking action, and the President is taking action.  But, emphasized the questioners, Congress has not directed any judicial remedy in the federal courts relevant to the case before them.  The “go talk to Congress,” meme was clear if not directly said.  The judges’ views follow quite well this line from Stanley, “the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.”  Stanley, 483 U.S. at 683.  And reading a little further into Stanley, and presaging DOJ’s counsel.

Similarly irrelevant is the statement in Chappell, erroneously relied upon by Stanley and the lower courts, that we have “never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.”  As the citations immediately following that statement suggest, it referred to redress designed to halt or prevent the constitutional violation rather than the award of money damages.  Id., (citations omitted).

Ms. Burke raised the point that abstention is a prudential doctrine.  Again she was faced with questions that the Supreme Court has narrowed any exceptions to the doctrine, rehearsed the aversion to running the military on a day to day basis, and firmly restated the absence of a specific statutory remedy.  Toward the end of her argument Ms. Burke acknowledged that even if the case proceeded there may be “causation” problems in proving the case.

During Ms. Burke’s rebuttal there was an odd (I’ll call it odd) interchange where Judge Agee quoted from Dean Erwin Chemerinsky, (now at UC-Irvine, ML).  The judge asked her that a person such as Chemerinsky likely to be on her side.  And then he read a quote in which Chemerinsky is purported to have said that no Bivens action can ever lie for such military related cases.  The import being that even Dean Chemerinsky would deny the appeal.  To which Ms. Burke testified that she had talked to the Dean and he agreed with her position.

I commented on my own reactions to seeing Invisible War last year.  I noted a comment made by Ms. Kearl, a AAUW legal person involved and helping with the litigation of Cioca v. Rumsfeld.  The tenor of her remarks was that they did not expect to win.  And, she basically said, “She (meaning the attorney) doesn’t intend to win.  This is done for the media attention.”  The media attention is there, the litigation is not.  However, the litigation has certainly contributed to the effort to persuade Congress to act, even if current events had not been at the fore — “See Congresswoman, the courts won’t help us, please create a remedy, change the law, or something, the courts are closed to us, unbar the door,” or words to that effect.

Judge Niemeyer, observed that the D.C. court had just dismissed the Klay, et. al. v. Panetta, et. al.  Here is a link to the memorandum opinion of Judge Amy Jackson dated 7 February 2013, dismissing that case.

Accordingly, the Court will grant defendants’ motion to dismiss because Supreme Court precedent requires the Court to abstain from inferring a Bivens remedy for plaintiffs under these circumstances and plaintiffs have not overcome defendants’ entitlement to qualified immunity.8

(n.8.  While plaintiffs offered to amend their complaint during oral argument, Tr. at 31–32, they have never filed a motion to amend attaching any amended complaint, much less one that could – after the several chances they have had already – cure the problems at the heart of this action).

JOC, Judge Agee did ask Ms. Burke why neither Panetta nor Hagel were being sued, no good answer.

We will link to the audio when available – probably Tuesday.

Affirmative.  There is more to do on a road-trip than 25 minutes at the Fourth, besides it was an awesome top down day.  :-)

Here’s a link to some of the posts about TIW and Cioca.

http://www.caaflog.com/?s=cioca

http://www.caaflog.com/?s=cioca+invisible+war

Military Justice News for Mar. 22, 2013

Interesting NPR piece on the Invisible War’s Myla Haider here

The response to transparency and legality concerns with the US drone policy appears to be more symbolic than real, so says Eric Schmitt at the NYT here.

7 months confinement and a BCD in latest Lackland instructor case. This instructor had consensual sex with two recruits and lied to investigators according to the report out of San Antonio here.

[UPDATE]  I forgot to add yesterday’s news about the military judge, COL Tara Osborn, rejecting MAJ Nidal Hasan’s attempt to plead guilty . . . because one of the not so bright provisions of the [UCMJ] prohibits it. LA Times report here.  COL Osborn also appears to have ruled on several “standard” capital court-martial motions. [My apologies for earlier pinning all the blame for the SNAFU in capital pleas on the Executive Branch; Congress created the mess in UCMJ, Art. 45(b).]

And the Oscar doesn’t go to . . .

“The Invisible War.”

“Searching for Sugar Man” won the Academy Award for best documentary feature.  And now, thankfully, I can turn off the Oscar broadcast — the first hour and 15 minutes were dreadful.

9/11 Conspirators Hearings – Feb 14, 2013 Observations

Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Thursday, February 14, 2013 [corrected].

* * * * * *

The final day of this week’s session opened with a brief discussion of the allegations raised by the defense the previous afternoon. Defense counsel represented that several defendants’ legal mail bins had indeed been searched while defendants were in court this week,resulting in the confiscation of multiple pieces of legal mail that had already been reviewed for content,cleared,and stamped as attorney-client privileged material. Defendants were present in court,and each brought a shallow plastic bin presumably containing their legal mail. Bin’Attash refused to sit down for some time and eventually attempted to address the court,saying that he had something important to say to the judge. “You make us come to court…,” he began,a reference to the court’s standing order that defendants appear on the first day of a session,and perhaps an accusation that this requirement gave the guards the opportunity to search the bins without the detainees present. The judge cut him off and advised his counsel that if the accused wished to testify,he would have an opportunity to do so under oath.

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Cioca v. Rumsfeld to be argued 22 March at W&L

The United States Court of Appeals for the Fourth Circuit will hear oral argument in Cioca v. Rumsfeld, No. 12-106 (a.k.a., The Invisible War Bivens action), at Washington and Lee University School of Law at 0900 on Friday, 22 March.  Briefs are available here (PACER account required).  I’m seriously considering a road trip.

The Invisible War nominated for an Oscar

Phil “My Liege” Cave calls my attention to this article reporting that The Invisible War has been nominated for an Academy Award.

Top 10 military justice stories of 2012 – #1 The politicization of the military’s response to sexual assaults

The word “politicization” sounds pejorative.  Merriam-Webster gives us this definition of “politicize”: “to give a political tone or character to.”  But our Constitution gives the authority to regulate the land and naval forces to Congress — a body comprised of (gasp) highly successful politicians.  Politicians are supposed to control the military justice system, subject to the system of checks and balances that the Constitution’s framers adopted to promote sound decision making.  And while there is plenty of room for debate over the optimal response to sexual assaults in the military, no one can seriously doubt that it is a real problem.

But politics shouldn’t affect the outcome of particular cases.  In the Anglo-American legal tradition, that’s the antithesis of justice, which is to be rendered by neutral, dispassionate actors.  Themis’s blindfold is supposed to prevent her from seeing political pressures, among other potentially distorting considerations.

With those dueling considerations in mind, let’s turn to our number one military justice story of the year:  the politicization of the military’s response to sexual assaults.

In January 2012, the film The Invisible War debuted at the Sundance Film Festival.  We’ve discussed the film at length on this blog (see, e.g.here, here, and here).  I’ve been critical of the film, but I hope even its admirers would admit that it doesn’t take a journalistic approach to the issue of sexual assault in the military.  Rather, it presents information to advance the thesis that the military (including the military justice system) fundamentally mishandles sexual assaults in the military and that one solution is to take the power to deal with sexual assaults away from military commanders.  The film ignores any evidence inconsistent with its thesis.

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Cioca v. Rumsfeld tentatively set for March argument

The case of Cioca v. Rumsfeld, No. 12-1065, which was prominently featured (and inaccurately described) in The Invisible War (and which, as one of our commentators noted, inexplicably features a Coast Guard lead plaintiff suing two Secretaries of Defense), has been tentatively calendared for oral argument at the Fourth Circuit between 19 and 22 March 2013.

Hastings symposium on military sexual assaults

I thought the symposium was an excellent, if short, effort to begin a more academic and thoughtful discussion of a very serious subject.  You can’t get to a lot of detail and discussion of facts and nuance in 4.5 hours (three panels each of 1.5 hours, with 15-20 minutes per speaker).  This was a student run symposium. I thought they put forth a great organizational effort and get great kudos for their work.  If there is a criticism it was that they tried to put too much into one day.

I was invited there to represent the defense perspective.

Some initial points, more later.

1.  Representative Speier “quoted,” yes she said”I quote . . . ” from the court order in Ciaoca.  Apparently neither she nor her staff have read the order – it was the same language from the movie.  Although compared to when I and Dwight saw the movie, there were only one or two gasps at Hastings.  We have posts here, here, and here about The Invisible War (TIW).

2.  Representative Speier believes that Article 32, UCMJ, should be repealed and replaced with the secret grand jury process for sexual assault cases, and intends making that happen.  While not explicitly stated, it appears that discovery rules need to go too.

3.  Representative Speier of course raised the issue of command discretion and replacing commanders as the decision makers in sexual assault cases.  Based on the comments of her staff during the last panel it is unlikely that she will be swayed by any arguments from trying to get referral authority moved to a “independent” Director of Prosecutions.  The staff member stated a zero likelihood that something along these lines would pass and also that the STOP Act is unlikely to become law.

4.  Lackland came up.  Based on the “discussion” it appears Representative Speier and others want to establish the rule where a recruit or trainee can never consent to a sexual act with an instructor, and that a difference in rank is sufficient alone to be “force.”  Of course this ignores those, admittedly few, cases in which a recruit deliberately targets instructors to engage in a sexual relationship.  The proposed rule change seems to be in reaction to one of the Lackland cases where the military judge appears to have set-aside a charge because there was insufficient evidence of force, because, “rank disparity alone is not sufficient to constitute constructive force[,]  See Simpson.  (If someone who was at the Estacio trial could repeat the case cites used by the MJ?)

The judge’s ruling [in Estacio’s case] was partly based on two earlier cases decided by the U.S. Court of Appeals for the Armed Forces.

Take a look at these cases as (we think) setting out the issue Representative Speier, SWAN, and others want to address.  United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005), —United States v. Clark, 35 M.J. 432 (C.A.A.F 1992), —United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003), —United States v. Cauley, 45 M.J. 353 (C.A.A.F. 1996), —United States v. Bradley, 28 M.J. 197 (C.M.A. 1989).

5.  Rachel Natelson, Legal Director for SWAN gave the best presentation on my panel.  She made very clear what Jim Clark has already made clear with regard to civilian prosecutor discretion and decision making  – don’t expect your conviction rate to get better by handing off cases to the civilian community.  As Bridget Wilson pointed out, there are lots of pressures and reasons why civilian prosecutors don’t prosecute.  Those reasons seem similar to the reasons a CA decides not to prosecute.

6.  Professor Vic Hansen raised the idea of leader accountability in the form of a change to the UCMJ as a way to address the concerns that military leaders aren’t taking sexual assault cases seriously.  Professor Hansen suggests adding specific UCMJ language incorporating the law of war concept of command responsibility.  He mentioned Yamashita.   I think leaders can already discipline junior leaders who fail to investigate sexual assault cases or who retaliate or discriminate against sexual assault victims.  But Professor Hansen’s point is that the concept exists but is amorphous and without any real standard.  By putting specific standards into the UCMJ there will be pressure on commanders to do the right thing.  The nub of Representative Speier and her staffer’s argument is that the military leadership is allowing rapists to go free, persecuting victims, and is incapable of disciplining itself and therefore forfeits the right to decide on sexual assault cases.

7.  People, including Representative Speier were critical of restricted reporting.  It seems they want to get rid of restricted reports.  Maybe I’m wrong.  But was a restricted report offered as a solution to victims who were afraid to report, but who needed medical and mental health care they were not getting.  In other words it was intended to be a good thing.  It seems the critics don’t want victims to have the option of getting help and of not cooperating in prosecuting.

8. A large part of the symposium was about medical care, medical retirement, and resources for victims with MST.  So in that context Feres, Chappell, abstention, the VA, was discussed.  Take a look at H.R. 1517, sec. 4.  Congress has consistently declined to overrule Feres until now.

And you may note another instance of Congress not understanding the UCMJ, because in an earlier section of the proposed bill they have this language:

Revision of Manual for Courts-Martial- The Joint Service Committee on Military Justice shall amend the Manual for Courts-Martial to reflect this section, with especially section 306 of such manual concerning disposition.

—- ooops, I think they missed LTC Kennebeck’s lectures

Civil sexual assault litigation

I am in San Francisco enjoying the scenery and getting ready for a panel on sexual assaults in the military at Hastings College of Law on Friday.  And this came across my desk:

FOR IMMEDIATE RELEASE
Sept. 25, 2012

Advisory: More Than 20 Vets to Allege Military Sexual Assaults; Rep. Jackie Speier to Join Survivors, Advocates for News Conference – Friday

SAN FRANCISCO, Calif. – A new lawsuit will be filed Friday in San Francisco federal court on behalf of more than 20 U.S. Army and Air Force veterans who allege they were sexually assaulted during their military service.

The sexual assault survivors, who are from a dozen states, will bring suit against Secretary of Defense Leon Panetta and the secretaries of the U.S. Army and the U.S. Navy, among others, alleging failure to protect them from rape and sexual assault while on active duty.

This is the fifth federal lawsuit of its kind filed by attorney Susan Burke whose work was featured in the groundbreaking documentary The Invisible War<http://invisiblewarmovie.com>. Ms. Burke and the plaintiffs in the lawsuit will speak at a post-filing news conference. They will be joined by leading advocates from Protect Our Defenders and the American Association of University Women.

Congresswoman Jackie Speier (D-San Francisco/San Mateo) will also join the news conference to speak about her efforts in Congress to reform the military justice system and the way it handles cases of rape and sexual assault. In November 2011, she introduced H.R. 3435, the Sexual Assault Training and Oversight Prevention Act (STOP Act) that would create an impartial office made up of civilian and military experts within the military to review cases of rape and sexual assault. The bill has 133 bipartisan cosponsors.

What:
• A post-filing news conference with lawsuit plaintiffs, their legal counsel, and leading advocates of reform of the military justice system.
• Congresswoman Jackie Speier will discuss the STOP Act and its status in Congress.

Who:
• Veterans participating in the lawsuit
• Congresswoman Jackie Speier<http://speier.house.gov/>
• Susan Burke, Burke PLLC<http://burkepllc.com/>, Washington, D.C., lead counsel for the survivors
• Katie Weber, Advocacy Board Member, Protect Our Defenders<http://www.protectourdefenders.com/>
• Kathleen Cha, Director, American Association of University Women<http://aauw.org/>

When:
Friday, Sept. 28, 2012, 11:30 a.m. Pacific

Where:
TBA  Alumni Reception Center 
UC Hastings College of the Law
200 McAllister St., San Francisco, CA, 94102

In addition to the Ciaoca litigation and the litigation to be disclosed above you can see this FTCAclaim decision from federal district court in NC in Durden v. United States.  This relates to the Pernell court-martial that we followed for some time.  Here is an announcement of the Durden lawsuit.

Here is a selection of links to Pernell’s court-martial.

http://fayobserver.com/articles/2010/12/08/1053976?sac=Mil

http://www.wral.com/news/local/story/8751141/

More on “The Invisible War”

On the day that “The Invisible War” was released, @Invisible War tweeted, “15% of incoming recruits had committed rape before entering the military – 2x the rate of civilians.”  Garry Trudeau and retired Brigadier General Loree Sutton used a similar figure in their op-ed that ran in, among other publications, the Washington Post:  “Several Navy studies administered anonymously reveal that as many as 15 percent of men have attempted rape or have raped someone before they enlisted — twice the percentage of their age-matched peers.”  Brigadier General Sutton is featured in The Invisible War, which makes a similar claim about incoming sailors.

Yet, according to the study mentioned by Jim Clark in a comment to Phil “My Liege” Cave’s post on The Invisible War, 123 of 1,146 participants in a study of incoming Navy enlisted members reported engaging in premilitary activity that the study’s authors characterize as rape or attempted rape.  That’s 10.73%, not 15 percent.

The 15% figure probably came from an earlier study by four of the five authors of the study that Jim Clark cited.  That study found that in a sample of male Navy recruits questioned anonymously, 12% “reported perpetrating completed rape and 3% reported perpetrating attempted rape.”  Merrill, L. L., Stander, V. A., Thomsen, C. J., Crouch, J. L., & Milner, J. S. (2005). Premilitary adult sexual assault victimization and perpetration in a Navy recruit sample at 9 (NHRC Tech. Rep. No. 05-28), San Diego, CA:  Naval Health Research Center.

But the survey didn’t actually ask the recruits if they had perpetrated rape or attempted rape.  Instead, it asked questions from the 1985 version of the Koss & Gidycz Sexual Experiences Survey — questions that have been criticized (righly in my view) as poor proxies for rape and attempted rape.

Here are the two questions (identified by NHRC Rep. No. 07-16 but not by NHRC Rep. No. 05-28) that, if answered affirmatively, would label a recruit as an attempted rapist:

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?

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 threatening or using some degree of force but you did NOT succeed?

And here are the questions (as identified by NHRC Rep. No. 07-16) that would label a recruit as an actual rapist:

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?

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 using some degree of force or threatening to harm her?

Have you made a female do other sexual things like anal sex, oral sex, or putting fingers or objects inside of her or you by using some degree of force or threatening to harm her?

I think there’s a serious risk that a survey participant might answer the first question in the actual rape category affirmatively if he once gave a date a glass of wine in an attempt to “get her in the mood” before engaging in intercourse with her.  Since more of the affirmative answers were in the alcohol and drug category than in the force category, misinterpretations of the questions could have had a substantial skewing effect.

A great deal of skepticism appears to be warranted when considering the claims advanced by The Invisible War.  While the 15%-of-incoming-Navy-recruits-raped-or-attempted-to-rape-someone claim has some actual support (unlike some other claims advanced by the film), I find the research underlying the claim insufficient to substantiate it.

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

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.