January 01, 2018 GPSolo

To Combat Sexual Assault in the Military, Womanpower Is Essential

Justice Eileen C. Moore

The Department of Defense 2014–2016 Sexual Assault Prevention Strategy lists “Manpower” as the first necessary resource to combat sexual assaults in the military (http://tinyurl.com/y9hzvgxc). Perhaps. But it is women who should have the power to fight back. Under Article 1, Section 8 of the U.S. Constitution, Congress can make whatever rules it deems appropriate for the military.

In the civilian world, a woman who is sexually assaulted has several ways to seek justice. She can call the police. She can watch her assailant’s prosecution. She has the opportunity to sue him. After the assault, she can try to mend and recuperate in supportive surroundings. Sadly, none of these options may be available to a woman sexually assaulted in the military.

The serious problem in the military was described by one of the three women author Helen Thorpe wrote about in Soldier Girls (Dreamscape, 2014). She said predatory men are considered a kind of friendly fire. Another woman in Thorpe’s book said that as soon as she signed her enlistment contract, the Army recruiter sexually assaulted her. In Ashley’s War (Harper, 2015) author Gayle Tzemach Lemmon writes about a woman raped at a Marine Corps ball. He had previously done the same thing to another woman Marine. Because of frequent assignment changes and the uniqueness of military culture, predators, who usually outrank their prey, are able to wander about bases freely and escape detection.

Reporting Assaults in the Military

One way to report a sexual attack is to go through the chain of command. This unrestricted reporting prompts an official investigation. Retaliation usually results. The victim is perceived as disloyal and betraying the unit (Dwight Stirling and Laura Riley, “Less Than Honorable,” Los Angeles Lawyer, September 2016 (39:6) at 32). She is taunted with such slurs as “lying crazy whore” (Emily Hansen, “Carry That Weight: Victim Privacy Within the Military Sexual Assault Reporting Methods,” John Marshall Journal of Information Technology and Privacy Law, 2011 (28:4), at 551; Cioca v. Rumsfeld, No. 2011cv00151 (E.D. Va., filed Feb. 15, 2011). In an incident described in Soldier Girls, a woman reported a man who raped her while she was drunk. The troops lined up behind him. He was convicted of committing adultery. She was shunned and given a dead-end job.

An alternative way to report a sexual assault, restrictive reporting, does not trigger an official investigation. There is no report to command or military law enforcement, only to medical and mental health providers. There is no police report or investigation (Stirling and Riley, supra). The victim may seek medical attention and counseling, skipping the harassment and retaliation. Although restrictive reporting ensures confidentiality on paper, the reality is commanders often demand the identities of the victim and the perpetrator. Word gets around, and victim persecution ensues (Hansen, supra, at 554).

Not surprisingly, victims of sexual assaults in the military are inhibited from reporting them (id. at 591). It is drilled into new recruits to put the good of the group above personal interests. The Department of Defense estimated that in 2014, 75 percent of those assaulted did not make a report to leadership or law enforcement (Stirling and Riley, supra).

Prosecuting Assaults in the Military

It is little wonder women do not report sexual assaults in the military. Even if they steel themselves for the de rigueur bullying, military prosecutions can be maddening, if they happen at all.

The Marine Corps refused to prosecute the repeat rapist who attacked the woman Marine described in Ashley’s War. She ended up going to the San Diego Sex Crimes Unit. In civilian court, the rapist was charged with six counts of sexual assault. Two days into the trial, he pled guilty and was sentenced to three years in prison (People v. Douglas A. Dowson (unpublished, 2006 WL 2673277)).

In the case of United States v. Benjamin Johnson (54 M.J. 67), the Army prosecuted before a jury and secured a conviction. The staff sergeant was convicted of having intercourse three times with a 14-year-old girl. He was also convicted of assault and battery of a military woman he outranked, supervised, and to whom he regularly gave back rubs while she worked at her desk. She pulled away from him as best she could, without saying anything. He did not appeal his rape convictions. The Court of Criminal Appeals affirmed his assault and battery conviction, but the Court of Appeals for the Armed Forces reversed because the woman didn’t verbally protest. The dissenting judge noted the staff sergeant was in a power relationship with the woman, not a dating relationship, and there was nothing in the record to indicate the woman either invited or consented to being repeatedly massaged.

Civil Suits

Unlike civilian counterparts, women who are sexually assaulted in the military cannot sue. Under the Federal Tort Claims Act (FTCA), traditional sovereign immunity is waived, and the government is usually liable for tortious conduct committed by its employees (28 U.S.C. § 1346(b)). In 1950, however, the U.S. Supreme Court carved out a judicial exception to the FTCA’s immunity waiver in Feres v. United States (1950) 340 U.S. 135. In Feres the Court determined the government is not liable for injuries to “servicemen” where the injuries are in the course of activity incident to service.

Servicewomen have not fared any better than servicemen under the Feres doctrine. In a 2013 case, a servicewoman was required to perform physical training while she was pregnant, against doctor’s orders. Army personnel were told she had a “high risk” pregnancy but still required her to perform strenuous physical activities. At one point, she underwent a procedure to prevent premature birth. Ultimately, her son was born prematurely and died 30 minutes after birth. The baby’s father filed an action in federal district court on behalf of himself and the baby’s estate, avoiding having the servicewoman sue the government herself. The Ninth Circuit Court of Appeals ruled against the father and son, stating that “unless and until Congress or the Supreme Court choose to ‘confine the unfairness and irrationality that [Feres] has bred,’ we are bound by controlling precedent” (United States v. Ritchie, 733 F.3d 871 (9th Cir., 2013)).

In the context of military sexual assaults, a woman in the National Guard was assaulted by a man who outranked her while on temporary duty. Ashamed, she did not report the incident. For the next eight years, the sergeant made constant sexual insinuations and invitations, which she didn’t report either, out of fear of both losing her job and damaging her reputation. When she did not answer his telephone calls, he had her transferred closer to him. One night, he raped her. She brought an action for violation of her civil rights. The federal district court found the woman’s claims arose from injuries incident to military service and were barred by the Feres doctrine (Perez v. Puerto Rico Nat. Guard, 951 F.Supp. 2d 279 (U.S. District Court, D. Puerto Rico, 2013)).

In 2011, 28 military sexual assault victims filed a class action against Donald Rumsfeld and Robert Gates. They alleged these former secretaries of defense fostered an environment that resulted in the plaintiffs becoming victims of sexual assault, violating their rights under the First, Fifth, and Fourteenth Amendments (Cioca v. Rumsfeld, No. 2011cv00151 (E.D. Va., filed Feb. 15, 2011)). Their claims were made pursuant to the 1971 case of Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics (403 U.S. 388), which permits plaintiffs to recover damages against federal officers who violate constitutional rights. Stating that the “unique disciplinary structure of the military establishment” prevented the case from proceeding, the federal trial court dismissed it (Cioca v. Rumsfeld (2011; WL 13137348) U.S. District Court, not reported). The Fourth Circuit Court of Appeals affirmed, noting that Congress has not created an express cause of action as a remedy for this type of claim, and that “it is Congress, not the courts, that the Constitution has charged with that responsibility” (Cioca v. Rumsfeld (2015) 720 F.3d 505).

Recovery . . . or Lack Thereof

The military and veterans’ system is geared against smooth recovery for women who are sexually assaulted in the military. Their disability benefits, housing, education, and employment opportunities and health care benefits are adversely affected.

When making a disability claim with the Department of Veterans Affairs (VA), there is significant disparity in the rates that post-traumatic stress disorder (PTSD) claims are granted, depending on whether a claim is based on military sexual trauma or some other stressor (Service Women’s Action Network v. Secretary of Veterans Affairs (2016) 815 F.3d 1369). A federal regulation sets a higher proof requirement for military sexual trauma survivors than for other veterans disabled by PTSD. Veterans whose PTSD is based on military sexual trauma must provide corroborating evidence of the sexual assault, but no such corroboration is required for those claiming PTSD from other stressors (38 C.F.R. § 3.304(f)(5)). The vicious effect of the military’s treatment of sexual abuse comes full circle with this corroboration requirement. Because victims are in such immense fear of retaliation, the great majority do not report the incident, and because they do not report it, they are unable to provide the required corroboration. Making matters worse, formal investigations of sexual assaults are destroyed by the military after two years, rendering it impossible to provide original evidence of a sexual assault to the VA (Hansen, supra, at 573).

Following an attack, military women often have no place to find solace and care, ending up homeless civilians. Many women veterans feel unsafe in environments with significant numbers of males outnumbering them, such as in veterans’ housing facilities (Cacilia Kim and Elizabeth Kristen, “A Safer House,” Los Angeles Lawyer, January 2017 (39:10) at 22). The small number of women veterans who do enter these facilities risk exacerbating preexisting injuries, such as PTSD resulting from military sexual trauma, by living while surrounded by male veterans. But some in the housing arena argue that segregated housing for women veterans amounts to discrimination under the Fair Housing Act (id.). Indeed, that was the landlord’s defense in a case where the victim of a military sexual assault was again assaulted while trying to recuperate in a veterans’ facility housing 122 male and six female veterans (Sharon T. v. New Directions Inc. (2016; WL 158223) U.S. District Court, not reported in F.Supp.3d.).

In addition to all the other problems the victim of a sexual assault faces, employment success is dimmed. After a sexual assault, a woman’s job performance can be affected by depression, misuse of drugs or alcohol, insubordination, or absenteeism (Stirling and Riley, supra). Her employment chances are further hampered because her educational opportunities are often diminished. Whether or not she reported the sexual assault, she routinely ends up separated from the military with a less-than-honorable discharge, which renders her ineligible for the extraordinary educational benefit that pays for four years of college tuition and up to $2,000 a month stipend (Stirling and Riley, supra).

Finally, women’s health care needs are distinct from men’s. Health care within the VA is designed to serve mostly men (Helen Thorpe, “The V.A.’s Woman Problem,” The New York Times, Opinions, August 15, 2015). The Women Veterans Committee asked the U.S. Senate Veterans Affairs Committee to make sexual trauma care readily available to all veterans who need it and to require the VA to train its employees to treat sexual trauma (http://tinyurl.com/y9dgwa5z). But if a woman has a less-than-honorable discharge, she may also be excluded from critical VA health care benefits (Dwight Stirling, “Serving the Veteran Community,” Orange County Lawyer, November 2014, vol. 56 at 14).

Conclusion

To a large extent, women are still outsiders in the misogynistic military culture (Hansen, supra, at 568) that includes a gendered vocabulary in which “girls” and “ladies” describe substandard performers. Toughness is associated with being a man (Stirling and Riley, supra). Drill instructors put down male recruits by calling them “pussies” or “sissies” (Megan N. Schmid, “Combating a Different Enemy: Proposals to Change the Culture of Sexual Assault in the Military,” Villanova Law Review, 2010 (55:2) at 475). Rules are sometimes different. A woman in Soldier Girls described how during deployment men were permitted to wear only T-shirts in the hot weather, but women had to wear their camouflage shirts over their T-shirts. Photos of barely clad women were all over, and pin-ups from Sports Illustrated decorated the motor pool. A former Marine described his platoon’s “slut wall” of raunchy photos in a newspaper article, “Every interaction I had with female Marines in basic training, and every reference to them, seemed intended to foster contempt” (Alexander McCoy, “More Than Just Marines Behaving Badly,” The New York Times, Opinions, March 8, 2017).

Our armed forces are long overdue for major changes. As things stand now, women in the military are more likely to be raped by fellow soldiers than killed by enemy fire (Hansen, supra, at 569). Military women need to be empowered. All the problems faced by victims of military sexual assaults could be remedied if only Congress had the willpower to create womanpower.

Boys Were Always Boys

I’ve never forgotten the reaction of the executive officer of the compound when I reported to him what happened. I had spent my first night in country curled in a corner sobbing after two officers, a major and a captain, tried to break into the transient nurses’ quarters, which had no telephone. At first, it was polite knocking with “do you girls want to have a drink with us?” It deteriorated to words that began with a “c” or an “f,” until we heard the sound of wood cracking as they were breaking into the room where three of us were trying to sleep. I ended up jumping out the window and dragging the perimeter guard by his Sam Brown belt to the outside of the quarters’ window. When he saw the officers climbing into our room, scared out of his mind himself, the private politely saluted and apologized for disturbing them. I whimpered something like, “don’t salute them; shoot them.” When it was over, I curled up and wept until I heard the roosters crowing and sought out the XO. The twinkle in his eyes, combined with the sound of his sucking his tongue through his teeth, screamed out to me what he was thinking: “Why did I have to miss all the fun?” Early on, I knew I was on my own.—Saigon, 1966

If Congress Wants to Empower Military Women, It Can

“The case arises in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference. . . . Article I, section 8 of the Constitution commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for Government and regulation of the land and naval forces, and pursuant to these powers it lies within the discretion of the Congress to determine the occasions for expansion of our Armed Forces, and the means best suited to such expansion should it prove necessary.”—Rostker v. Goldberg (1981) 453 U.S. 57

The issue before the Supreme Court in Rostker concerned women in the military. In 1975, registration for the military draft was discontinued. But after the Soviet Union invaded Afghanistan in 1980, President Jimmy Carter determined it was necessary to reinstitute the registration process. President Carter requested funds for registration of both men and women for military service, but Congress only allocated funds for the registration of men. A class action was filed by a group of young men from Pennsylvania. They claimed their rights to Equal Protection and Due Process were violated in that only males were subject to registration for the draft, and therefore there was an increased probability of the males actually being inducted because the pool of draft eligibles was decreased by the exclusion of females. Three days before registration was to commence, a federal court ordered the government to cease the registration process. The issue was taken to the Supreme Court. In 1981, Rostker v. Goldberg held that Congress had acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men but not women. The Court stated that Congress conducted hearings and held floor debate in response to the president’s request for authorization to register women, and its decision to exempt them was not the accidental byproduct of a traditional way of thinking about women.

Justice Eileen C. Moore sits on the California Court of Appeal. In a former life, Justice Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal, and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008 she has chaired the Judicial Council’s Veterans Working Group for California Courts. She has volunteered as a mentor for veterans in Veterans Treatment Courts. In 2015 she received a Benjamin Franklin award for her book, Gender Results.