After an Army drill sergeant was accused of raping or assaulting a dozen female soldiers while deployed in Afghanistan and in a bathroom at Missouri’s Fort Leonard Wood, it seemed like the military justice system worked the way it was supposed to. The accused, Angel Sanchez, was tried at a court-martial. In September, he was convicted on multiple counts, sentenced to twenty years confinement and given a dishonorable discharge.
But testimony from two of Sanchez’s victims suggested that despite two decades of promises to enforce a “zero tolerance” policy toward sexual assault, the military is still hostile to service members who report sex crimes. One private testified that a high-ranking officer told her company that no one would graduate “if any more sexual assault cases” were reported. Another victim said a Lieutenant Colonel told her and other trainees “not to make any more allegations.” As a result, she said, “I have issues of trusting those who are in charge of me.”
The question of whether the military is doing enough to stamp out not only sex crimes but also retaliation against those who report them was raised again Thursday by the release of a 136-page report by the Department of Defense. The Pentagon estimates that 19,000 service members were assaulted this year, down from 26,000 in 2012. Only one in four of those crimes were reported, though more victims came forward to report assaults than in previous years. About two-thirds said that after reporting crimes against them, they were retaliated against by their superiors or peers.
The military and some members of Congress say the numbers indicate progress. “Increased reporting signals not only growing trust of command and confidence in the response system, but serves as the gateway to provide more victims with support and to hold a greater number of offenders appropriately accountable,” the report reads. Missouri Democrat Claire McCaskill said in a statement that “reporting of assaults being up and incidents of assault being down are exactly the combination we’re looking for.”
McCaskill championed a number of reforms that the Pentagon implemented over the last year, including removing commanders’ ability to overturn convictions, giving victims access to counselors to help them navigate the military justice system, and making it a crime to retaliate against victims. But she has also been one of the most vocal opponents of a proposal to give military prosecutors the authority to bring a case to trial. Under the current system, only commanding officers—who may have conflicts of interest or lack legal training—have what is called “convening authority,” or the power to decide whether charges warrant a trial.
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The military is also fiercely opposed to that change and is under significant pressure to demonstrate that the more modest reforms were enough to fix the problem. “If I do not see the kind of progress I expect,” President Obama said last year, “then we will consider additional reforms that may be required to eliminate this crime from our military ranks.” When Senator Kirsten Gillibrand’s attempt to change the convening authority via the Military Justice Improvement Act (MJIA) failed by five votes last year, several of the senators who voted against it said they would reconsider the measure if other reforms weren’t sufficient. At a press conference on Thursday, Secretary of Defense Chuck Hagel said that the Pentagon’s “aggressive action over the past year and a half to stop sexual assault” was “beginning to have an impact.” Although he acknowledged that “crimes however are still heavily underreported” and that “we still have a long way to go,” it was clear that the military hopes the report will help it dodge further congressional intervention.
But critics with military experience and in Congress say the military won’t get where it says it wants to go while commanders control prosecutions. The former chief prosecutor for the Air Force, Colonel Don Christensen, retired this year because he felt that the military was still failing to punish predators while telling victims and supporters of reform within the ranks to stay quiet. “What has not changed is the culture,” he said when I met with him ahead of the report’s release at the Washington office of Protect Our Defenders, the advocacy group he now leads. “If anything, they’ve become more entrenched,” he continued, because of heightened media scrutiny and the threat of deeper reform. Accounts like those from the women at Fort Leonard Wood who say they were discouraged from reporting assaults bear this out.
According to Christensen, the numbers are only part of the story. “Whether the numbers are 13,000 or 26,000, they’re too high,” he said. The new estimate of 20,000 cases indicates that there are are still fifty-five incidences of unwanted sexual contact a day, on par with 2010. The numbers also only reflect crimes within the ranks; the experience of civilians who work on military bases or live in the surrounding communities, as well as spouses and children of service members, are not reflected in the data. “We have probably tens of thousands more in the civilian world who get victimized by military members,” Christensen said.
The Pentagon’s statistics do show a distinct lack of improvement on one important measure: retaliation. Nearly two-thirds of survivors reported that they experienced social or professional retaliation, the same number as the previous year—despite the fact that the military has since made retaliation a crime. “We have no evidence that the services have prosecuted or convicted anyone who has retaliated against victims,” Anu Bhagwati, executive director of the Service Women’s Action Network, said in a statement.
Led by Gillibrand, a bipartisan group of senators is now trying to resurrect the MJIA. With more Pentagon-friendly Republicans about to enter the Senate, this will probably be the last chance to pass the reform in the near future. While Obama could make some significant changes to the court-martial system on his own, the convening authority must be changed through legislation. (Still, if he were to come out in support of the policy change, that would weaken the opposition.) Gillibrand is trying to attach the provision to the National Defense Authorization Act, but Armed Services chairman Carl Levin has said amendments won’t be allowed. Gillibrand told reporters on Thursday that that if that’s the case, she’ll push for an up-or-down vote.
“We should not be making our military families accept such poor access to justice,” Gillibrand said. “The report from the DOD does not instill any confidence that they made any progress on the two biggest things: are people willing to put their names on reports so that justice is possible, and are they being retaliated against.”
Christensen has been meeting with senators regarding the MJIA, and one of the things he hopes to convey is although the military’s opposition to the proposal seems absolute, lawmakers aren’t getting an accurate picture of how people within the ranks feel about reform. “At some point, they’re going to realize that the DOD is basically feeding them a lie, through this entire time,” he said. “One of the things DOD has continually said is that their commanders are going to solve this…. But as they’re saying that, they fully know that there are scores of commanders out there who try to tilt the scales in favor of the accused.”
Meanwhile, reports of sex crimes continue to roll in. On Wednesday afternoon, the Navy Times reported that the Navy is investigating a male officer for filming female officers onboard a ballistic missile submarine while they showered and undressed. He recorded them for more than a year and passed the footage along to others. A “privacy violation,” the incident report called it.
