The Military May Change How It Deals With Sexual Assault – Pros, Cons, And What This Means For Service Members
*Disclaimer: This article is purely an evaluation of the facts and does not reflect the opinion of the DoD.*
If you or someone you know has been a victim of sexual assault in the military, consider calling the Safe helpline, which offers 24/7 confidential support to those affected by sexual assault.
It’s no secret that there is an epidemic of sexual assault and harassment in the military. For years, the prevalence of these cases has dissuaded women from enlisting, and has traumatized service members who have been unfortunate enough to have gone through it. Recent reports have revealed that a shocking number of men are victimized as well, but they don’t come forward out of a fear of being judged.
The military deals with these cases in-house, leaving service members wondering if it’s worth it to tell their stories. If and when you come forward, you’re at the mercy of your chain of command and their integrity. And many cases in the past have been overlooked in the interest of saving careers. True, you can report your case to your SAPR/VA, but you have to file an unrestricted report – which notifies your command – if you actually want to press charges. This system at the very least perpetuates gossip in the workplace, and can impede the careers of victims that come forward. (Scroll down for a table comparison of restricted and unrestricted reports.)
In response to this widespread issue, as well as the tragic murder of Vanessa Guillen, a number of Congressmen have proposed the, “I Am Vanessa Guillen” bill, which would remove sexual assault and related cases from the purview of the military. Instead, they would be overseen by independent judges. Additionally, it would make sexual harassment a crime punishable under the UCMJ. Obviously there are some positives and negatives to this, and the military justice system will see some massive overhauls if the bill is passed. I’ll analyze both sides so you can come to your own conclusion.
Pros Of An Outside Prosecutor
- Eradicate coverups by chain of command.
- Eliminate unintentional unit bias.
- Victims will probably be more willing to come forward.
- Presents a fresh approach to the issue rather than sticking to a failing system.
Despite the millions of dollars that the military pumps into prevention and response, sexual violence is a pervasive disease which can affect any service member, regardless of gender. If you look at the chart below, you’ll notice that the annual number of sexual assault reports has more than doubled in the past 10 years.
Contrary to what you might think initially, this could be a good thing. We don’t have a solid figure on the actual number of sexual assaults committed; there are a lot of reasons that victims might not file a report – we’ll get into those later. However, in 2019, the DoD estimated that about 20,500 service members were victims of sexual assault (source). If you compare the trends on this graph to the one above, you’ll notice that from 2012 to 2016, sexual assault cases themselves decreased, while the number of reports increased. More reports doesn’t necessarily indicate an increase in sexual assault cases.
But if a report isn’t filed, we don’t get the data. It’s possible that the cases themselves aren’t increasing, but that more and more people are willing to report them. That would show success for the strategies the military has implemented in the past few years.
However, the system still leaves a lot to be desired. In some circumstances, reports are covered up by the chain of command in the interest of saving someone’s career. Unfortunately there’s no hard data on this either, for obvious reasons. This congressional testimony should help shed some light on the issue, though.
For another example, consider the report by the Defense Task Force on Sexual Assault, in which focus group participants said it was, “difficult to report sexual assault if the perpetrator was of higher rank and/or in the victim’s chain of command…[P]articipants felt they would face reprisal for reporting or that senior leaders would protect the accused.” (See the SAPR report here.)
Even the possibility that this could happen suggests an imbalance of power, one that can be checked by having these cases overseen by an independent authority.
By removing the chain of command from the prosecutorial process, we can eliminate the potential for unintentional command bias. Everyone has their own opinions of people, but unfortunately for us, no one knows everything about a person. It’s much harder to believe an allegation against that Staff Sergeant you respect than one against the Corporal that you’re not the biggest fan of. And with 58 percent of women and 60 percent of men who reported sexual assault facing retaliation, it’s easy to see how this can be a barrier to reporting. (Source)
No one in a unit can remain completely neutral, which poses a problem when you’re relying on your command to be impartial and support your case. They’re not the ones doing the investigating, but support from the command goes a long way in helping a victim through the process. Not to mention, bias can lead to gossip and slander spread against the victim. Who would want to file a report knowing that these issues are likely to be in their future? We can’t completely eradicate gossip, but an independent judge is in a better position to make a neutral decision.
Solving the previously presented issues will pay dividends and inherently work towards solving another problem that we face: victims that don’t file a report. Before we dive into this subject, I’ll list a few obstacles that prevent people from coming forward.
- Fear of retaliation by chain of command.
- Wanting to keep their struggles private.
- Not feeling supported in the process.
- Little to no confidence in the military justice system.
- Potential for negative impact to career.
- Shame or embarrassment.
As you can see, there are quite a few reasons that a victim might choose to not report their assault. However, the very existence of these considerations suggests that the military has a long way to go before we are in a position to eradicate sexual assault. By shifting the responsibility for prosecution and punishment, and therefore preventing reports from impacting a service member’s career, victims can be more confident in reporting their cases. The more data we have for sexual assault, the better we are able to combat it.
Finally, consider the fact that the military has always handled sexual violence prosecution in-house. Evidently, there’s a need for significant improvement, but is it possible that the system just doesn’t work? The definition of insanity is doing the same thing over and over again, expecting a different result. Shifting the responsibility for these crimes to civilian judges could be the change that actually brings about positive results. We’ll never know unless we try.
Cons Of An Outside Prosecutor
- Potential to add red tape and delay the investigative process.
- Same issues as civilian courts with he-said-she-said.
- Prevents a supportive chain of command from making quick decisions.
- Initial period of confusion for those who need to make a report.
Fixing all the problems I described above sounds great, but the use of an independent authority also raises some major concerns. First, we need to consider the potential red tape that may come with a civilian-dependent trial. In the military, courts martial already take a ridiculously long time. Depending on the severity of the crime and availability of evidence, the entire process could take anywhere from 3 months to 2 years (Source). It will probably be longer when civilians are involved.
It’s possible that sending these cases out may streamline the process, but it seems to me that it’ll just take more paperwork. Anyone who’s ever done anything in the military knows how long and tedious waiting for paperwork is.
Another issue that comes to my mind is that the same problems with hard evidence will exist whether or not it’s a civilian or military court. Due to a lack of evidence, many sexual assault cases come down to the word of the victim vs. the word of the abuser, and it’s just not enough to get a conviction. According to the Rape, Abuse, & Incest National Network, only 41 of 1000 cases of civilian sexual assault result in a conviction. Is the upheaval of the system worth it if it can’t even dig out the root of the issue?
More often than not, your chain of command is going to look out for you. I’ve been lucky enough to have some great leaders during my time in the Marine Corps, and though I’ve never been a victim of sexual assault, there’s no doubt in my mind that my chain of command would back me up. Shifting the punitive responsibility away from a good, responsible chain of command may just delay justice.
In the military, all it takes is someone with a shiny collar to give an order, and a person gets in deep trouble. It doesn’t work the same way in the civilian world. In 2020, 51 percent of punishments for sexual assault were NJPs or administrative actions/separations. These processes are much quicker than a trial, and it’s unclear whether or not the “independent judge” would be allowed to make use of these punishments.
The final issue that I can see is just the initial period of confusion as the reporting system changes. As military members, we sit through countless hours of briefs on sexual harassment and assault, so everyone is pretty familiar with the process. With a new system, we’ll have to receive additional classes to get everybody up to speed on how to file a report, what our options are, and what the process is like. I don’t imagine this one being too much of a barrier, it’s just something to think about.
Currently, there are two types of reports that a sexual assault victim can file – restricted and unrestricted. You can file either of these reports with your SAPR victim advocate (Sexual Assault Prevention and Response.) Despite the annual training that every service member receives on the subject, too many people still don’t know the difference between these reports. For a broad summary, see the table below.
|Services||Restricted Report||Unrestricted Report|
|SAPR Support Services||Yes||Yes|
|Notify Chain Of Command||No||Yes|
|Catch A Serial Offender (CATCH) Program||Yes||N/A|
Overall, the military has greatly improved how it has dealt with cases of sexual violence, but there’s still a long way to go – regardless of whether or not this change is implemented. As service members, we can expect to see more DoD initiatives to both crack down on sexual assault and help victims come forward. But the change we want to see won’t come from the top, it’ll come from an eventual shift in our culture. That paradigm shift depends on us as individuals to be the change we want to see.
For More Information
- US Commission On Civil Rights 2013 Report
- Protect Our Defenders 2018 Report
- DoD 2020 Sexual Assault Report
- SAPR Website