CAAFlog » 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.

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.

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.