“You have two choices: Suicide or AWOL.” That is how former Army Criminal Investigative Division prosecutor Myla Haider described the current system for victims of military sexual assault. Sergeant Haider, along with every other female military investigator, was not allowed to investigate rape allegations because females were deemed “too sympathetic” to objectively pursue the case. The result has been catastrophic; military rape victims are treated as liars, interrogated for filing false reports of assault, slutshamed for their supposed behavior that invited the assault, and then face professional retaliation in the form of a reduction in rank and/or charges of adultery and fraternization if their attacker was married.
According to the United Nations Development Fund for Women, one in three women will be victims of rape, sexual assault, or gender-based violence in their lifetime. Within the United States military, this rate is much higher. In 2012, alone, an estimated 26,000 service members sustained unwanted sexual contact, a 34% increase from 2010. The same survey on military sexual assault in 2012 revealed less than three out of every one hundred cases were prosecuted. The numbers are more staggering when looking at cases of sexual assault and rape. Over 20% of female veterans have been sexually assaulted while serving in the United States military. In 2009, 3,230 male and female servicemembers reported being sexually assaulted, according to the Department of Defense. The DOD acknowledges this number is probably on the low end, since an estimated 80% of sexual assault survivors do not report.
To put these numbers in perspective, the military sexual assault rate is at least twice the civilian rate. Only 8% of reported sexual assaults reached the court-martial stage in 2007. To compare, 40% of offenders arrested for sex crimes in the civilian courts are prosecuted. 33% of servicewomen did not report their rape because the person to report to was a friend of their rapist; 25% of servicewomen did not report because the person to report to was their rapist. As a result, women who have been raped in the military have a higher rate of Post-Traumatic Stress Disorder (PTSD) than men who have seen combat. 40% of homeless female veterans were raped during their military service.
Rape, especially as a tool of war, is not a new phenomenon, nor is it a new development arising out of the prolonged wars in Iraq and Afghanistan. A 2003 study revealed 30% of female veterans who served during the period spanning the Vietnam War to the first Gulf War were raped. A 2004 study examining PTSD rates among veterans who served in the military during Vietnam to the present showed 71% of female veterans had been sexually assaulted or raped during their service. Lastly, a 1995 study revealed 90% of female veterans who served in the Gulf, and wars prior, had been the target of sexual harassment.
On Tuesday in her live town hall event with CNN, former Secretary of State Hillary Clinton voiced her support for Senator Kirsten Gillibrand’s proposed Military Justice Improvement Act to combat the United States MIlitary’s rape crisis. The presumptive 2016 presidential candidate supports her Senate successor’s efforts to remove the prosecution of rape and sexual assault from the chain of command. Senator Gillibrand’s proposal has failed to gain the necessary 60 votes in the Senate to overcome a filibuster. Instead, Congress has passed the less significant reforms proposed by Senator Claire McCaskill of Missouri.
Senator Kirsten Gillibrand of New York has led the charge in reforming the way the United States military prosecutes cases of rape and sexual assault. The senator’s proposed plan, the Military Justice Improvement Act (MJIA) is the more radical of the two policy proposals. If adopted, the MJIA would remove the prosecution of rape and sexual assault, along with all other crimes punishable by more than one year, from the chain of command and give the power to an unbiased Judge Advocate General (JAG). Specifically, JAG officers must hold the rank of O-6 or higher, be qualified as trial counsel under the UCMJ, have extensive experience in court-martial trials, and not be assigned to the chain of command of the victim or accused at the time of the accusation. This JAG officer would have the power to determine if charges are brought and if a court-martial is convened. The power to review these decisions would be extended to the offices of the military chiefs of each of the service branches.
Although the bill failed to overcome a filibuster, Senator Gillibrand has received widespread support for the proposed reforms. After extensive research on the military’s sexual assault epidemic, Lindsay Rosenthal and Lawrence Korb of the Center for American Progress concluded the problem will not be fixed until it is removed from the chain of command. Moving the prosecution of sexual crimes to independent military lawyers removes the influence and bias of the chain of command and the potential for retaliation on the victim. Rosenthal and Korb determined “since senior officials in the chain of command not only lack legal training but also have inherent conflicts of interests, the chain of command is the very source of the problem.”
Along with Center for American Progress, the legislation has public support from veterans’ groups, women’s rights organizations, UCMJ experts, and the Department of Defense’s Defense Advisory Committee on Women in the Services. Supporters include the Iraq and Afghanistan Veterans of America (IAVA), Service Women’s Action Network (SWAN), Joyful Heart Foundation, and the National Organization for Women. Rape survivors Lieutenant Ariana Klay and Seaman Kori Cioca have publicly spoken out in support of the Military Justice Improvement Act. In a letter to Congress, more than a dozen military justice law professors supported removing prosecution from the chain of command, appointing the jury for a court-martial by an unbiased officer, and removing the power to review charges and sentencing from commanders.
Senator Claire McCaskill of Missouri, a former prosecutor of sex crimes, proposed less sweeping reforms to the way the military prosecutes sexual assault. Ultimately, it was Senator McCaskill’s plan that passed in Congress. Attached as an amendment to the 2013 Defense Authorization bill, McCaskill’s plan prohibits commanding officers from vacating court-martial convictions. Other changes call for a review of cases where the commanding officer contests the recommendation for court-martial by a JAG officer by the civilian secretary of the service branch, make reprisals against victims who report crimes a punishable offense under the Uniform Code of Military Justice, and require commanders who oversee the judicial proceedings to justify sentence alterations and consult with the victim prior to issuing a sentence. Additionally, the accused will now be moved out of the unit of the accuser and those found guilty of sex crimes will face a minimum punishment of dishonorable discharge from the service. Lastly, the legislation lifts the previous five-year statute of limitations on sexual assault. Both the House and Senate Armed Services Committees endorsed these policy changes in the debate process. In early 2014, Senator McCaskill followed up the initial reforms by passing an additional measure to combat the rape crisis through the Senate. While still awaiting a vote in the House, the additional provisions ban the “good soldier” defense that would allow the accused to cite prior military service, commendations, and character testimony in refuting the charges. In cases where a military rape occurred on civilian property, the victim would get to determine if the perpetrator is prosecuted in civilian or military court. Finally, officer promotion decisions would now include that officer’s prior handling of sexual assault cases.
Senator Kirsten Gillibrand has vowed to continue fighting for the passage of the Military Justice Improvement Act. If past efforts on behalf of veterans and minority groups within the military are any indication, military sexual assault victims have a strong ally in Senator Gillibrand.