The Military’s Campaign Against Sexual Assault

By Jay Thoman and Erika Andresen

We read Justice Eileen C. Moore’s article about sexual assault in the military when it was published in the January/February 2018 issue of GPSolo magazine (tinyurl.com/ybnd9gqy). As U.S. Army judge advocates who have witnessed a monumental change in the way sexual assault cases are handled, we felt compelled to respond to the many inaccuracies in her article. While the abuse and lack of appropriate response Justice Moore suffered in 1966 is reprehensible, thankfully significant changes in military society and discipline have occurred in the ensuing years—and especially the last ten years. Sexual assault has no place anywhere in society, particularly the military, where trust and team mentality are essential to mission accomplishment. No senior military leader disagrees. In fact, commanders are a key component in the fight against sexual assault as they not only want to protect their soldiers, but they also recognize that eliminating sexual assault within their ranks is a readiness issue critical to battlefield success.

Today, there is diversity across the armed forces that did not exist even a decade ago owing to the integration of women in nearly every organization. All the Services have aggressively attacked the issue of sexual assault with military precision, particularly during the last few years. In May 2013, U.S. Army Chief of Staff General Raymond T. Odierno told the Senate Armed Services Committee that “combating sexual assault and sexual harassment within our ranks is now the Army’s number-one priority” (tinyurl.com/ydcavydj). As a result, within 30 days of taking command, commanders are required to receive a one-on-one brief with the unit Sexual Assault Response Coordinator (SARC), covering unit trends and the confidentiality requirements when dealing with sexual assault cases (Department of Defense Instruction (DoDI) 6495.02, March 28, 2013, incorporating Change 2, effective July 7, 2015, page 45). Further, commanders must conduct a sex assault climate survey to assess the state of their unit within 120 days (DoDI 6495.02, supra, at 22). The U.S. Army has undergone a revolutionary transformation in how it responds to all aspects of sexual assault, from caring for the victim to prosecuting the perpetrator. Earlier this year, CNN’s website ran an article co-authored by Republican and Democratic members of Congress who had recently cosponsored legislation to apply in the civilian sector many of the measures the military has successfully initiated in its fight against sexual assault. They observed that “systematic changes in the military have had an impact and can also serve as a model for how broader society moves forward” (Mike Turner and Niki Tsongas, “Why the Military’s Long Reckoning with Sexual Assault Can Help Us Now,” CNN, Opinions, January 26, 2018).

Justice Moore’s article begins by asserting that while civilian victims can “call the police,” “watch her assailant’s prosecution,” “sue him,” or recover “in supportive surroundings,” “these options may not be available to a woman sexually assaulted in the military.” While technically there is some truth in the first claim, it is misleading. It is possible a soldier could be assaulted while on a field exercise and not have immediate access to a telephone or reception, just as a civilian in a remote area may not have cellular service and would also be unable to notify the police. There are a few select training environments where personal telephones are not permitted. By regulation, the barracks for new recruits in these locations have telephones that will ring direct to the DoD Safe Helpline where soldiers can request assistance if they so choose (DoDI 6495.02, supra, at 17). Soldiers will have access to their chain of command, and the chain of command is tasked by regulation to have sexual assault response capability 24 hours a day, seven days a week, even in deployed areas (DoDI 6495.02, supra, at 44). Regulations actually require leaders at every level to report immediately to their military criminal investigative office any allegations of sexual assault (DoDI 6495.02, supra, at 21). Leaders at every supervisory level are required to receive training on their obligation to report the incident or potentially face disciplinary action themselves (DoDI 6495.02, supra, at 40). Having said this, sex assault incidents that occurred in a field environment ranged from a low of 2.9 percent to a high of 4.2 percent over the last three years that data was available (Army Defense Sexual Assault Incident Database (DSAID) FY2014–2016). If reported through command channels, whether because that is the only immediate option available or because the soldier believes it is the best way to go forward, the command is required to report immediately the alleged sexual assault to military law enforcement (DoDI 6495.02, supra, at 21). Military law enforcement, in turn, is required to investigate all allegations of sexual assault (DoDI 5505.18, March 22, 2017, page 3). Many civilian jurisdictions allow criminal investigators to decide, based on their evaluation of victims and witnesses, whether or not to open an investigation. This cannot happen in the military—a full criminal investigation must take place. Supervisors, both officer and enlisted, are also required to take action to protect victims from maltreatment, ostracism, reprisal, and retaliation if it does happen (DoDI 6495.02, supra, at 23).

Soldiers typically have a choice of calling either the local civilian police or military law enforcement authorities, nearly all of whom have mutual support agreements and actively work together in fighting crime both on and off the installation. As a federal law enforcement agency, the U.S. Army Criminal Investigative Command (CID) has access to federal crime labs and other resources often not available to local authorities. Not only can a victim call military or civilian law enforcement, but the military also has more than 35,000 certified unit SARCs and victim advocates who are required to be “immediately called in every incident of sexual assault on a military installation” (DoDI 6495.02, supra, at 20). These military personnel, who are known to all members of the unit, are responsible to support servicemembers who are victims of sexual assault. They will also assist in filing a report for investigation with law enforcement authorities. After the investigation is complete and a determination is made to go forward, the Army asks victims whether they prefer civilians or the military to prosecute the case, when both entities have jurisdiction. Overwhelmingly, victims select to move forward with the military prosecution of the case. Furthermore, at the conclusion of the case, the military requires that the records of the sexual assault investigation be retained, to include the DoD Sexual Assault Forensic Examination Report and the investigative plan, not for two years as Justice Moore alleges but for 50 years (DoDI 5505.18, supra, at 9). Additionally, the paperwork filed by the SARC for both restricted and unrestricted reports must also be retained for 50 years (DoDI 6495.02, supra, at 7). Given that the minimum age to join the military is 17, the 50-year requirement will seldom be an impediment to a successful filing.

The notion that a military member could not “watch her assailant’s prosecution” is not accurate. Under Military Rule of Evidence (MRE) 615, victims are exempted from the general rule prohibiting witnesses from observing trial prior to the conclusion of their court-martial testimony (Manual for Courts-Martial United States, 2016 ed.). Military victims also have the option of having their own attorney represent their concerns, not the government’s interests, free of charge. These Special Victim Advocates have standing in military court to argue motions to protect their client, the victim, at the victim’s discretion, to include convincing the judge to allow victims to remain in the courtroom after they have testified on the merits and not to exclude them if they were otherwise inclined to do so because they are still potentially subject to recall. Military victims in a court-martial also benefit from a professional, fully trained victim’s advocate to sit with them throughout the trial and help secure any services or compensation they might be entitled to receive.

Furthermore, servicemembers are not barred from civil remedies as victims of sexual assault. Servicemembers can always sue an offender in his or her individual capacity for injuries suffered as a result of the sexual assault. Soldiers can also go to the military perpetrator’s supervisor (commander) and file what is known as an Article 139 complaint seeking monetary compensation to reimburse them for property damages they have suffered (Article 139 of the Uniform Code of Military Justice (UCMJ), Redress of Injuries to Property). The commander will appoint an investigating officer and, depending on the results, will direct the military finance office to withhold the approved amount from the other soldier’s pay for restitution to the victim.

The assertion at the outset of Justice Moore’s article that military victims may not be able to “mend and recuperate in supportive surroundings” unlike their civilian counterpart is also flawed. The military has numerous measures to assist those in need, all at no cost. Chaplains are assigned at the battalion level (units of approximately 500 personnel) and above. Many chaplains have advanced degrees in counseling. Medical and mental health care providers, therapists, and social workers provide inpatient or outpatient services as needed. By regulation, priority is given to sexual assault victims at the Military Treatment Facility (MTF), and the standard of care “is consistent with established community standards for the healthcare of sexual assault victims and the collection of forensic evidence from victims” (DoDI 6495.02, supra, at 18). Additionally, each MTF is required to have a full-time sexual assault medical forensic examiner assigned if it is large enough to have an emergency department (DoDI 6495.02, supra, at 21). If the military resources are not available or if a servicemember simply prefers to go off post, this is easily arranged with a referral to a civilian provider.

Victims of sexual assault may also request an expedited transfer to a new unit. Although sometimes these are requested for a new location to prevent victims from feeling uncomfortable in their current location, a reassignment is often done to send a victim closer to his or her biological family (DoDI 6495.02, supra, at 28). The regulatory presumption favors transfer of a victim (DoDI 6495.02, supra, at 51). In Fiscal Year (FY) 2016, as an example, 276 soldiers requested expedited transfers to new locations. A full 263, or 95 percent, were approved, with an additional number transferring to a different unit on the same installation. The other branches of the armed forces had similarly high rates, with a low of 92 percent in the Marine Corps and a high of 99 percent in the Air Force.

In her article Justice Moore also asserts that if servicemembers desire to file a restricted report and maintain their privacy, they cannot because “commanders often demand the identities of the victim and the perpetrator.” This is categorically false. By regulation, improper disclosure of confidential communications under restricted reporting could result in discipline under the UCMJ or state statute (DoDI 6495.02, supra, at 41). If an individual files a restricted report to a SARC, it is a protected communication that by regulation may not be shared, and the victim can refuse to answer questions and can prevent another person from disclosing confidential communications (DoDI 6495.02, supra, at 36). Additionally, both the commander and law enforcement authorities are prevented by regulation from using any information in a restricted report for “investigative purposes or in a manner that is likely to discover, disclose, or reveal the identities of the victims” (DoDI 6495.02, supra, at 40). Violation of these provisions subjects them to disciplinary action (DoDI 6495.02, supra, at 40). Justice Moore asserts that “word gets around,” revealing the identity of the individual who filed the restricted report. In actuality, the individual who receives the report has confidentiality requirements similar to those of an attorney-client relationship, requiring the information to be stored in locked files (DoDI 6495.02, supra, at 63). For the last five years, the number of soldiers using the restricted reporting opportunity has steadily increased from 174 in FY2012 to 318, 407, 470, and 501 in subsequent years (FY2016 Army Crime Report, page 46). Word has spread that it is a viable option to protect one’s anonymity and still receive treatment.

While it is true that some perpetrators outrank their victims, 73 percent of all Army perpetrators are junior enlisted soldiers (FY2016 Army Crime Report, page 39). The sex assault problem is not exclusively or even predominantly a rank-based predatory problem. Where the perpetrator is senior in rank to the victim, that rank disparity in no way prevents prosecution. No matter the rank of the individual, if he or she is convicted at a court-martial or receives non-judicial punishment (an abbreviated criminal proceeding with minimal due process and relatively minor sanctions) for “a sex-related offense,” a notation must be placed in the servicemember’s permanent file—and that will effectively end his or her career (DoDI 6495.02, supra, at 28).

Justice Moore’s article also notes that victims do not report assaults because “it is drilled into new recruits to put the good of the group above personal interests.” While the value of selfless service is instilled in new recruits with an emphasis on placing unit before self, implying that a focus on team discourages reporting is to misunderstand its meaning. Eliminating threats to the well-being of the team, such as sexual predators, is paramount. Within the first two weeks of basic training, recruits are taught not only how to avoid becoming victims, but if there is a problem, how to report it and receive any help they need (DoDI 6495.02, supra, at 86).

Justice Moore also asserts sex assault victims do not report out of fear. The decision to report and go forward, or not, is a very personal one—not necessarily dictated by fear. One of the authors of this article, Captain Andresen, was a victim of rape more than ten years prior to entering the military. She chose not to report her rape. She had a medical exam and started counseling a month after the rape, beginning her road to recovery. Empowered by a criminal law class, Captain Andresen came close to reporting her rape just before the ten-year statute of limitations expired. She ultimately did not because she already felt whole and did not want to risk undoing her progress through the rigors of a trial, something each victim considers, military or civilian.

Another change the Services have made over the last few years is an enhanced prosecution capability. To that end, in 2009 the Army instituted the Special Victim Prosecutor (SVP) program to combat sexual assault (Todd Lopez, “Army Special Victim Prosecutors Bring Enhanced Expertise to Courtroom,” The Army News, October 16, 2013). There are now 185 specially trained attorneys in the military.

This does not mean that non-SVP judge advocates are not helpful or are untrained in helping victims of sex assault. Captain Andresen is a prime example of a judge advocate who dealt with sexual assault as a prosecutor, an investigating officer, and adviser to commanders and those investigating sexual assaults. She was a staunch advocate for the victims of the sex assault crimes she prosecuted; she always did what she could to ensure the victims were left whole. The victims she assisted received a result that made them feel as if they were on the path to healing and, more importantly, had control of their experience going forward. Captain Andresen is not unique in her advocacy, as her colleagues, male and female, do the same.

Not only are victims provided numerous support services, their opinions are sought out and their desires overwhelmingly followed in a number of areas. If victim soldiers wish to receive help but maintain anonymity, they have the prerogative of filing a restricted report, qualifying them for all the assistance they would otherwise receive (DoDI 6495.02, supra, at 37). While the Army prefers victims file unrestricted reports that allow action against the perpetrator, it is entirely up to the individual victim.

Similarly, the Army will honor the decision of a soldier who has filed an unrestricted report but later opts not to participate in the prosecution of the perpetrator. Regulations state, “If at any time the victim who originally chose the unrestricted reporting option declines to participate in an investigation or prosecution, that decision should be honored in accordance with this subparagraph” (DoDI 6495.02, supra, at 36). The number of victims who select this choice and opt to curtail their involvement and sign letters of declination clearly demonstrate that it is, indeed, a viable choice.

The Army we know is not the “misogynistic military culture” described in the article, but in reality is a values-based organization that seeks to treat all personnel with dignity and respect. While we admit that the Army, like any large organization, is not perfect, the institution described by Justice Moore is largely something left in the past. Human nature dictates that sexual assault is unfortunately not completely eliminated from our ranks; however, it is treated with the seriousness it deserves and curtailed at every opportunity. Justice Moore, we would like to invite you to come back and visit today’s military. Allow us to introduce you to our female superiors, peers, and subordinates who thrive in today’s Army culture, where respect is earned based on a person’s work performance, regardless of gender. We are confident if you visit, you will realize that not everything written is accurate, and the examples you cite that bear some truth are dated and not representative of today’s military. Come see how today’s military is dynamically fighting sexual assault and winning; come meet the empowered women who fill its formations.

While in different assignments when this article was written, the authors previously shared two duty stations. The views expressed here are their personal views and do not necessarily reflect those of the U.S. Department of Defense, the U.S. Army, or any other department or agency of the U.S. government.

A Civilian Military Perspective

By Erika Andresen

This issue is particularly personal to me as I am a survivor of rape and experienced sexual harassment both as a civilian and a soldier. I was raped more than 20 years ago. As a result, I am especially sensitive to my environment and particularly how victims are treated and supported. The culture and climate of fighting sexual assault and sexual harassment in the military, in my experience, is a model to be followed elsewhere. Shortly after I entered the military in early 2012, sex assault was being tackled with a new fervor. The advent of the Special Victim Counsel program sent a signal not only that sex assaults were being taken seriously, but also that there would be an end to inadvertent additional trauma to the victims based on the prosecution process. This was something I had never seen in my almost seven years of experience as an attorney in New York City. While still a civilian working at a large corporate firm, I was sexually harassed, but when I reported it to a managing partner, I was removed from the case. The message was the client’s money was more important than making a safe work environment. I had a different experience in the Army. When I reported harassment in 2013 to the Army officer in charge of my section, action was taken immediately that made me feel secure. This time, I was not the one removed from responsibilities. The Army is on the right track and, as a learning organization, constantly strives to improve both as a battlefield fighting force and a force that fights sexual assault.