Headlines announcing the latest sailor, soldier or airman facing sexual-assault charges have become staples at newsstands during the past several months. These stories put faces to the statistics on sexual assault in the military that the Department of Defense released in May: 26,000 service members, half men and half women, were sexually assaulted in 2012, but only 2,949 victims formally reported these crimes.
The low reporting rate can be attributed to the high rate of retaliation against victims who report assaults. Department of Defense data show that 62 percent of all military personnel who reported their assaults had experienced retaliation. These numbers reveal an epidemic of rape and sexual assault in the military that is undeniably disturbing.
The source of the problem can be traced to our nation's military and political leaders, who, at best, have been complacent in combating the epidemic in their ranks and, at worst, have been the perpetrators of these crimes. In May, the chief of the Air Force's Sexual Assault Prevention and Response Program was arrested for sexually assaulting a woman in a bar parking lot. In early June, when the Senate Armed Services Committee debated the issue of military sexual assault, one senator was brazen enough to suggest that the recent numbers reflect the inevitable consequence of a co-ed military and young people's hormones.
Two bills currently before Congress go a long way toward combating this head-in-the-sand mentality by limiting command control over sexual-assault cases. The first bill is the Military Justice Improvement Act. Under present law, an alleged assailant's commander, who likely has no law enforcement or legal training, can unilaterally decide whether to prosecute or dismiss a sexual-assault charge. In making this decision, the commander is permitted to consider the alleged assailant's character and military service record. If the commander elects to court-martial the alleged assailant, the same commander may accept, reject or modify a jury's finding of guilt. The current system permits one individual, who in all likelihood personally knows the victim and the accused, to play the role of both grand jury and judge.
The Military Justice Improvement Act would reform this system by placing the decision of whether to court-martial an alleged assailant in the hands of an experienced military prosecutor outside the alleged assailant and victim's chain of command. The act would further prevent an alleged assailant's character and military service record from factoring into whether a sexual-assault charge results in court-martial, nonjudicial punishment or other disposition. It would preclude commanders and anyone else from setting aside a guilty verdict or changing a verdict to a finding of guilt on a lesser included offense.
The second bill is the Military Whistle­blower Protection Enhancement Act. It would grant whistleblower protections to victims who report sexual assault and individuals who participate or assist in investigating or prosecuting such reports. Under this bill, sexual-assault whistleblowers could bring complaints of retaliation to their service's independent inspector general, who is empowered to investigate the complaint, make a determination of whether a prohibited personnel action occurred and recommend a disposition to the military department secretary. If a department secretary were to decide not to act on an IG's finding of reprisal, the secretary would either have to explain this decision in a report to Congress and the secretary of defense or refer the IG's report to the Board for Correction of Military Records, the body responsible for correcting service members' personnel records.
The act would provide the complainant with a hearing before the Board for Correction of Military Records and also permit the individual to receive representation from a judge advocate. In addition to making it easier for service members to erase retaliatory actions from their personnel records, the bill would permit the IG to recommend, and the department secretary to order, discipline for the retaliator. Most important, the act seeks to place military whistleblowers on more equal footing with federal civilian whistleblowers by establishing a "contributing factor" burden of proof. Together, these acts remove the responsibility of protecting the victims and punishing the perpetrators of military sexual assaults from commanders, who have shown themselves to be incapable of remedying the scourge of sexual assaults within their ranks.
REJECTION OF REFORMS
During the past month, Congress has considered both bills during debate over the National Defense Authorization Act of fiscal year 2014. But pressure from military leaders has caused legislators to reject the systemic reform that the current situation demands. Leaders in both the House and Senate opposed removing the prosecution of sexual assaults from the chain of command and blocked efforts to incorporate the Military Justice Improvement Act into the authorization act.
The House and Senate Armed Services committees have also rejected provisions in the Military Whistleblower Protection Enhancement Act aimed at increased accountability in cases of unlawful reprisal. Specifically, they failed to adopt the act's provision granting Congress oversight of a service secretary's decision not to act on an IG's finding of unlawful reprisal. Legislators have also failed to increase assistance for victims of reprisal in correcting their personnel records and rejected the "contributing factor" evidentiary standard aimed at lessening the hurdles victims of reprisal must overcome. Moreover, the House's version of the authorization act does not authorize service secretaries to discipline those who retaliate against whistleblowers.
The Military Justice Improvement Act and the Military Whistleblower Protection Enhancement Act provide our nation's armed forces with an opportunity to restore discipline and order to their ranks, while adding much needed objectivity and accountability to the handling of sexual-assault cases. Military and congressional leaders must recognize that adopting anything short of these bills is "kicking the can down the road" and will only allow an already unacceptable problem to fester. If we cannot solve the problem now, more drastic measures — including permitting military sexual assault and retaliation cases to be tried in civilian courts — will be required in the future.
When the National Defense Authoriza­tion Act comes up for vote in the full Senate later this summer, our nation's political leaders will have an opportunity to institute the changes necessary to solve the military's sexual-assault crisis by passing the Military Justice Improvement Act and the Military Whistleblower Protection Enhancement Act. If Congress commits the same measure of political will to passing these bills as it has to fighting foreign wars, we can win this very important battle against sexual assault in the military.
Lauren R.S. Mendonsa is an associate at Bernabei & Wachtel in Washington, which represents whistleblowers and victims of sexual harassment. She worked on issues affecting veterans and military families during law school. Lynne Bernabei is a partner at the firm with expertise in sexual harassment and First Amendment issues.