by Chris Bodenner
— Talking Points Memo (@TPM) March 17, 2014
A reader goes in-depth on the issue:
First off, I want to say that military sexual assault (MSA) is a scourge within our military and we must weigh every available option in seeking to eliminate it. That being said, I believe that Sen. Gillibrand’s legislation (and broader campaign) fails in three critical ways: substantively, technically, and stylistically.
1) Substantively – There is really nothing beyond anecdotal evidence backing up Sen. Gillibrand’s claim that the chain of command serves as the main deterrent to reporting. The 2012 SAPRO Report (DoD’s office responsible for collecting data on sexual assault within the military and for developing strategies to curb and combat MSA), 73% of women and 85% of men believe that their leadership does well to create an environment where they would feel comfortable reporting. Those numbers need to be closer to 100% and the gulf between male and female servicemembers is alarming, but that data does not suggest that lack of confidence in command is the central driver of underreporting.
SAPRO reported that the top three reasons why women failed to report sexual assault were:
-They did not want anyone to know (70%)
-They felt uncomfortable making a report (66%)
-Did not think the report would be kept confidential (51%)
Likewise, the top three reasons why men failed to report were:
-They believed they or others would be punished for other infractions or violations, such as -underage drinking (22%)
-They would not be believed (17%)
-Their performance evaluations or chances for promotion would suffer (16%)
The data seems to suggest that the chief barrier to reporting is not the chain of command, but the comfort of the individual victim. An appropriate response would demand much more emphasis on supporting the victims of MSA as opposed to tweaking the justice system. Sen. Gillibrand’s legislation does not provide any additional supports for victims at the individual level. Ultimately, it’s a big, unwieldy bureaucratic revamp.
Lastly, the military has wielded the chain of command to affect cultural transformation. Racial desegregation, repeal of Don’t Ask, Don’t Tell, and today’s integration of women into combat forces have all been implemented through – not in spite – of the chain of command. The chain is a means of holding commanders accountable for the actions of their subordinates; now, more than ever before, that includes sexual harassment and all forms of unwanted sexual contact.
2) Technically – Gillibrand’s legislation would create a special office of prosecutors within each Service Secretary’s office to dispose of reported alleged offenses. Prosecutors eligible for assignment to this office would have to be grade O-6 (Colonel-equivalent) or higher. In the Army, for example, there are somewhere around 140 O-6 Judge Advocates. These officers commonly serve as staff Judge Advocates for commanders of larger units (think Brigades, Divisions, sometimes Corps). According to the the SAPRO report, the Army fielded 1122 unrestricted reports of sexual assault/harassment last year. How many Judge Advocates would be tasked with referring these cases? While many public defenders may juggle somewhere around 400 cases a year, that’d be high inadvisable to base a staffing model around; these incidents vary wildly in severity (offensive comments to brutal rapes), geographical location, and cross-jurisdictional concerns. Additionally, the UCMJ requires trials to commence within 120 days of charges being filed. Taking this all together, let’s assume that these O-6s are given 100 cases a year, bringing the number of attorneys in this office to 11.
Sen. Gillibrand’s central claim is that MSA reporting is so low because victims are mistrustful of the chain of command. Consequently, we could expect reporting to increase if we removed disposition of these cases from the chain. Following that logic, a greater reporting level would demand a greater number of these limited O-6 prosecutors. Pulling these prosecutors from the units that they are assigned to into this newly created office would materially degrade the military’s ability to competently and expediently dispense with justice with regards to UCMJ offenses not covered by Sen. Gillibrand’s bill. This would create a situation where the services are forced to rapidly promote junior officers to fill positions typically held by more experienced individuals. Moreover, there are significant concerns about the quality of prosecution that victims would receive under this system. Most O-6s within the services’ respective Judge Advocate corps spend more time behind a desk than before a courtroom and many of these individuals have not argued a case for years.
3) Stylistically – The debate over Sen. Gillibrand’s legislation became all too acrimonious, and I largely blame her for that. While her passion undoubtedly brought much-needed attention to the matter, it also created an unfortunate narrative of “Gillibrand or Nothing” with regards to Congressional action. That could not be further from the truth. The FY14 NDAA contained dozens of provisions addressing MSA and represents the single largest step towards combating the issue. There is still far more work to be done, but it is disingenuous to say that Congress failed to act on the matter. Yeah, this is a historically shitty Congress, deserving of much of the contempt directed at it, but when it comes to MSA, the body shapes up rather well.
Tragically, a lot of these victims were used as pawns by either side of the debate. That’s unconscionable. But on the balance, the attention directed at this issue, one that had reared its gut-wrenching head over and over and over again across the past several decades, was positive and proof that our legislature and nation benefits from a greater number of women filling its halls. If there’s an enduring vision to be had from this whole episode, it’s of the women of the Senate Armed Services Committee grilling the shit out of the Joint Chiefs. That’s why this time is different – the advocates are not only more numerous, but much, much, much more powerful.
Finally, thank you providing a unique and compelling forum for discussing so many diverse, important, and sometimes not-so-important issues. The Dish is definitely one of the better corners of the Internet.
Previous Dish on efforts to combat military rape here.