Last week, the Senate unanimously voted on a bill proposed by Sen. Claire McCaskill (D-MO) designed to increase protection for sexual assault victims in the military by banning the “good soldier defense.” If McCaskill’s bill passes the House, this means that military defendants accused of sexual assault would no longer be able to argue that their strong professional track records should be considered as evidence to rebut charges of rape. It some cases, it would also give weight to the victim’s preference on whether the case would be tried in military or civilian court. There is no date scheduled yet for the House to take up the bill.
McCaskill’s bill does not go as far to help victims as Sen. Kristin Gillibrand’s (D-NY), which proposed to completely disempower military commanders from deciding whether to prosecute reports of sexual assault by their subordinates. The Senate defeated Gillibrand’s bill on March 6.
That these bills are even being proposed is a big deal, even though we all know that this conversation is long overdue. But here’s why neither bill goes nearly far enough. The Pentagon itself admits that despite new programs designed to ease the number of assaults in the military, many victims still refuse to report their assaults. Let’s take a minute to think about why this is so undeniable that even the Pentagon has to admit it to the entire world.
Victims refuse to report their assaults because it is terrifying. It’s terrifying because victims are vulnerable because they’ve just been sexually assaulted, usually by an acquaintance, a coworker whose sworn duty it is to help defend the victim’s life in battle. The psychological effect of being overpowered and violated by someone bound by duty and law to have your back is devastating. It is also confusing, and it makes victims doubt their certainty about lots of things, including whether they are even remembering their assault correctly. And if you’re a victim in the military, you probably live and work every day surrounded by reminders of your unfathomable assault.
While victims are still trying to wrap their minds around the fact that they were actually assaulted, if they report, they have to tell their story again and again to investigators, human resources, bosses, doctors, lawyers, judges, friends, and family. Retelling the story of a trauma can be just as stressful and horrifying as the trauma itself, especially when people questioning the victim are hostile. Under current military law, investigators, human resources, doctors, bosses, judges, lawyers, and usually friends all work for the military, too. And almost all of them have a sworn duty of loyalty to the military itself. Investigators and judges who are paid by the military have an obligation to be objective, sure, but when the evidence is usually a shaky victim’s word against her assaulter’s word, the investigator and judge have no reason at all to side with the victim. To side with the victim would be admitting that the military can’t even protect employees from each other, much less from foreign threats. It would raise serious questions about the military’s screening process, about what kinds of people it is giving access to weapons, millions of dollars of equipment, personnel, and highly classified information. It would be demoralizing for entire platoons to learn that one of their own was a source of danger. It would raise grave questions about America’s character, frankly, and what kind of people we trust to defend our national security. In sexual assault cases, it is in military judges’ best interest to side with the assaulter and write off the victim as hysterical and fragile. And a lot of times, victims are hysterical and fragile, first because they were assaulted, and second because they had to endure this bureaucratic backlash for being victims who dared to report their assaults in the first place.
Would any of this change if the decision to investigate and prosecute were taken out of the hands of military commanders? Not really. Because even though the investigation and prosecution might be slightly more fair, the victim would still face a massively daunting uphill battle while she struggled to recover, recount her experience, and survive daily life surrounded by colleagues and superiors who are not only inclined to assume she is lying, but to alienate her for daring to speak out in the first place. The victim’s experience would not be easier because those closest to her would not be different. Why report, even to an independent investigator, when you will still be subtly punished by the attitudes of those you work with every day?
Some will argue that new laws will serve as a disincentive to potential assaulters. To them, I simply point to the Pentagon’s own statistics, which estimate as many as 26,000 military members may have been sexually assaulted in 2012, a 37% increase from the prior year. During that year, Lt. Col. Joseph “Jay” Morse worked for the Army’s Trial Counsel Assistance Program (TCAP). Later, Morse became TCAP chief, in charge of a team of Army lawyers responsible for prosecuting sexual assault cases. Just this month, Morse was suspended pending an investigation into complaints that he groped and assaulted a female attorney who worked for him. This is just one of dozens of examples of the military’s culture, overtly hostile to victims of sexual assault. Until the culture changes and victims feel safe living and working in this community, no amount of technical reforms will improve the military’s shameful treatment of assault victims.