Tag Archives: military rape

The Detective’s Advice

Rape CollageHere we go again.  Another season, another high profile case of sexual assault.

“The family of the woman who identified Florida State quarterback Jameis Winston as the man who sexually battered her criticized the Tallahassee Police Department Wednesday, saying a detective warned against proceeding with the case because Tallahassee is “a big football town” and she would be “raked over the coals.” [USAT]

The bad news is that the detective may very well have been correct.  We’ve seen this movie before.  The current story may bear comparison to the 2010-2011 case of sexual assault coming from the University of Missouri (ColTrib) in which a prosecutor opined: “It’s the big story. The local press starts calling me at home. And it’s very unpopular to accuse a football player.” {The System, Jeff Benedict, Armen Keteyian, Random House 2013}

The allegations also call to mind one of the incidents involving Steeler’s QB Ben Roethlisberger, the allegation of sexual assault in Milledgeville, GA in which the scene wasn’t secured, the QB wasn’t interviewed, and evidence disappeared:

“Roethlisberger’s accuser elected not to continue with the case, as her lawyer explained, “…a criminal trial would be a very intrusive personal experience for a complainant in this situation, given the extraordinary media attention that would be inevitable. The media coverage to date, and the efforts of the media to access our client, have been unnerving, to say the least.”  [SBNation]

While the high profile cases hog the headlines, there were 243,800 cases of rape/sexual assault in the U.S. in 2011. [BJS pdf] All too often the accusers in these cases face some of the same hurdles, albeit in a less dramatic environment.

The myth of the Wanton Woman:  The basis for this myth is the male fear that a woman impregnated by a family member, friend or acquaintance may “cry rape” in order to force a marriage or to justify an abortion.  Indiana state representative Eric Turner (R) made headlines with this memorable comment on the floor during a 2011 debate over an abortion related bill:

“I just want you to think about this, in my view, giant loophole that could be created where someone who could — now I want to be careful, I don’t want to disparage in any way someone who has gone through the experience of a rape or incest — but someone who is desirous of an abortion could simply say that they’ve been raped or there’s incest.” [OTB]

Then there’s the ubiquitous false accusation statistics, the “2-8% stat,” which keeps popping up during discussions of rape and sexual assault.  Ah, there are Jezebels out there who for reasons of revenge, retribution, or rationalization level assault charges against innocent men, and though there may be such persons (and they usually make the news because the instances are relatively rate) — there is at least one importance distinction to be made:  There is a crucial difference between an “unfounded” charge and a “false” charge.

A false charge may well be just that — a false allegation related to family dynamics and/or  personal animus which renders the accusation completely untrue.  However, when the statistics are compiled the number of reports of rape and sexual assault are listed, and then compared to the number of rape or sexual assault prosecutions the statistics can be misleading.

The problem is obvious and immediate — a rape or sexual assault may have indeed happened BUT (1) the rape was reported too late to satisfy prosecution guidelines or requirements, (2) there may be discrepancies in the victim’s story over time, (3) a lack of corroborating evidence, (4) a lack of cooperation by witnesses, (5) the victim may have been inebriated or under the influence of drugs, (6) the victim may have a history of prostitution, (7)  the victim may be uncertain about the chronology of events in the case, (8) the report may be made in the wrong jurisdiction, or (9) an inaccurate address may have been supplied by the victim. [Kanin, MNedu pdf 1993]  In short, because a rape or sexual assault accusation may be “unfounded” according to the prosecution it may still be a “true” statement concerning the actual incident in question.

For every 100 rapes and sexual assaults reported to authorities 10 lead to an arrest, 8 cases are prosecuted, 4 will lead to a conviction. [RAINN] What we don’t know from the statistics is how many of the cases which were not prosecuted because they fell into one or more  of the 8 categories listed above at the national level.   We can see from these numbers that it is little wonder women are reluctant to press for prosecution.

The Myth of the Misunderstood Male:  There’s a range of problems encapsulated in this mythology.  A common defense is a some variation on “she really wanted it.”  In other words, it was consensual.  She wanted it because “she was a sexual temptress, and rape doesn’t happen to nice girls.” [UIC edu] Consent also has some more nuanced legal implications than most pundits are willing — or able — to analyze.

There is a difference between “legal” and “factual” consent.  Consider the situation in a statutory rape.  An under-aged girl may indeed factually consent to intercourse, but she may not legally do so.   Or, there may be some nuanced difference between “attitudinal” consent and “expressive” consent.  These raise the questions related to what the woman says and what the woman does in the situation.  Then there’s “actual” vs. “imputed” consent in the mix.  Did the victim overtly express, or act in such a manner to preclude the “consent” defense, or by her lack of words or actions did she imply that she opened the door to a consent defense? [Westen,OSU pdf]

In short, there was no rape because… it never happened, or in case it did someone else did it, or it wasn’t a rape because she wanted it.  She was in the wrong place? She was in the emotional, mental, or physical condition? She was dressed inappropriately… for a medieval resident of a nunnery… The man was just “misunderstood.”

The Myth of the Absolute Believers: Another myth associated with accusations of rape and sexual assault concerns who must be believed.  The oft cited tenet “innocent until proven guilty” is appropriately applied to the defendant, and correctly asserts that the legal burden of proof is on the prosecution.  However, this doesn’t mean that the victim is necessarily being untruthful.   The burden of proof requires that the prosecution can establish beyond a reasonable doubt that a crime was committed, that the perpetrator did it, and that the defendant did it intentionally.

That the prosecution cannot set forth a case which meets all the legal requirement in the court room doesn’t mean that the victim of the crime was a lying sexual temptress, of questionable repute, when the report was made to the authorities.

The Myth of the Locker Room Culture:   In some circles, there is a mythology of the Locker Room Culture which supposedly excuses the excesses of athletes (or in some instances members of the military) by asserting a variation on the Boys Will Be Boys defense.   Fortunately, the statistics from the Department of Justice in a March 2013 indicate that the rate of sexual violence against female victims in the U.S. has declined from 5 per 1000 in 1995 to 1.8 per 1000 as of 2005. [BJS pdf]  This cuts both ways, on one hand the decline indicates that rape is not as prevalent in American society as we might come to believe by reading only the headlines.  On the other hand, it does not serve to diminish the significance of   rape cases reported or detract from the argument that there are instances in which the Misunderstood Male defense is inapplicable.

The decline does not, for example, provide any succor to those involved in the Steubenville incident about which a grand jury has reconvened, or to the Maryville, MO attack.  That there has been a decrease in the number of reported instances of rape and sexual assault doesn’t speak to the efforts of adults to excuse the behavior or to obstruct any investigation of the incidents.

Arguing that a “rape culture” exists doesn’t address the actions of the participant in the crime, but relates to the willingness of others to accept, excuse, obstruct the investigation, or manipulate the results of rape or sexual assault allegations.

That reports of rape and sexual assault in the U.S. military show an increase doesn’t necessarily demonstrate a system tolerance for those crimes.

“The 3,553 reports of sexual assault complaints filed in the first three quarters of 2013 are already more than the 3,374 for all of fiscal year 2012. The 2013 numbers also represent a 46 percent increase over the same time period in 2012.” [ABC]

The increase may indicate that service members are now more willing to come forward with official complaints.   The public outrage over the Steubenville, Maryville, and military headlines may be good news — demonstrations that our society at large is less willing to tolerate the old Boys Will Be Boys mentality than in previous eras.

Courage and Integrity

It takes courage to make a statement to authorities about a rape.  As with all prosecutions the victim must replay the traumatic event, except in the case of sexual assault it is highly, horribly, personal.  It takes courage from law enforcement personnel to take on the force of opinion from some sectors of the community when investigating an allegation of rape or sexual assault.  It takes courage on the part of prosecutors to bring charges when the outcomes may have impacts beyond the immediate well being of those directly involved.

It takes some integrity to believe both that the defendant is innocent until proven guilty and that the accuser may be equally honest about the nature of the incident reported.  It takes integrity to hold institutions (schools, military units) accountable for the safety of their constituents.   It takes integrity to avoid jumping to the conclusion that because an accuser or defendant is unwilling to testify in court we should necessarily assume he or she is being dishonest.

A bit of courage and integrity in these cases, in all cases, would be useful as we seek to diminish the scourge of rape and sexual assault from our society.   There was a kernel of truth to the detective’s warning that prosecutions are difficult — for all concerned — it will take some courage and integrity to make the system work for the victims as well as for those accused.

*Recommended references:  Kanin, “False Rape Allegations,” UMN edu 1994. (pdf) Lisak, et. al. “False Allegations of Sexual Assualt: An Analysis of Ten Years of Reported Cases,” Northeastern University, Sage Publications list. Vitchers, “Crying Rape” On Innocent Men Doesn’t Happen As Often As You Might Think,” PolicyMic, May 2013.  Gross, “False Rape Allegations: An Assault On Justice,” Forensic Examiner, Spring 2009 (15).  Planty, Langton, et. al “Female Victims of Sexual Violence, 1994-2010,” Bureau of Justice Statistics, March 2013.

Peter Westen, “Some Common Confusions About Consent in Rape Cases,” Ohio State U. Law, 2005. (pdf) Hansen, Alcohol Intoxication in Rape Allegations and Legal Defenses,” PotsdamEdu.   Vachss, The Charge of Rape, The Force of Myth, Common Dreams via Daily Camera, 2003.

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Getting the Signals in our Invisible War

Invisible WarIf you’ve watched “The Invisible War” and were unmoved — get therapy. If you’ve read the recent New York Times article about sexual assaults against men in the military and are still unconvinced the issue of sexual assault is a minor priority for our Armed Forces  — think again.

In its latest report on sexual assault, the Pentagon estimated that 26,000 service members experienced unwanted sexual contact in 2012, up from 19,000 in 2010. Of those cases, the Pentagon says, 53 percent involved attacks on men, mostly by other men. [NYT]

If you’ve thought we could reduce the issues to one or two buzzwords, for example “it’s cultural,” or “it’s power and dehumanization” that’s also missing some of the more nuanced topics intrinsic in the matrix.

Whether the incidents of criminal behavior are an example of outright rape, a hazing gone terribly wrong, or somewhere on the continuum of disgusting human decisions from A to B, they illustrate the complexity of the problem for both the military and civilian authorities.

Simplifying, and over-simplifying, the issue insures only that we’re avoiding real solutions while seeking quick fixes.   Some quarters are anxious to apply the Quick Fix which best fits with their religious or ideological agendas.

One such Quick Fix suggestion comes from the radical right which protests that the demise of DADT and the adoption of an alleged “homosexual agenda” is the cause of sexual assaults in the Armed Forces.   Even a nano-second of rational thought would dispel this bit of ideological mythology —  rapes are not related to homosexual or heterosexual activity.  Again, rape isn’t about intimacy; it’s simply assault and battery with another weapon.  [WVU.edu]  The average age of a rapist in the overall population is 31 years, 52% of rapists are white, and 84% of rape victims report no weapon — just physical force — was used to perpetrate the crime. [RAINN]

Another Quick Fix comes from the “Little Woman” School of Ideological Thought.  See, sayeth the apologists for male miscreants, if there were no women in the military there would be no problem. Once more, take a nano-second to digest this ridiculousness.  The military would still have a “53% problem” if there were no women in the picture.  If the Quick Fix Ideologues are dismissed from sentient considerations, there’s a better chance of having some rational discourse.

If we’re looking for solutions to the military facet of the sexual assault problem, then we might want to start at the beginning.  As of 2010 the U.S. Navy’s policy on moral waivers left the decision to initiate a “moral waiver request” to the CNRC (Commander, Navy Recruiting Command) for major misconduct, including sexual assaults if there were “2 juvenile major misconduct offenses or a combination of 1 adult and 1 juvenile major misconduct.”  Zero might be an option?

Budget cuts and the reduction in military personnel needs after the windup of operations in Afghanistan and Iraq may further reduce the “incoming” problems.  “In 2006, about 20 percent of new Army recruits came in under some type of waiver, and by the next year it had grown to nearly three in 10. After the Defense Department issued new guidelines, the percentage needing waivers started to come down in 2009.” [ArmyTimes] Most of the waivers for sexually categorized offenses were granted for incidents of consensual intercourse in which one of the participants was a juvenile.  Zero would still be nice.

There’s a problem with the second step.  Common sense might dictate that if a person has committed a rape or other form of sexual assault while in military service the chances the individual will be allowed to re-enlist are diminished and therefore the “problem” will be passed back into the civilian population.

The Army, in an internal slide presentation, is blunt: “Re-enlistment is a privilege, not a right; some ‘fully qualified’ soldiers will be denied re-enlistment due to force realignment requirements and reductions in end strength.”

In a memo earlier this year, Army Secretary John McHugh laid out more stringent criteria for denying re-enlistment, including rules that would turn away soldiers who have gotten a letter of reprimand for a recent incident involving the use of drugs or alcohol, or some soldiers who were unable to qualify for a promotion list. [Army Times 2012]

The good news might be that some who are not “qualified for promotion” because of sexual misconduct will be out of the service, the bad news is that they’re back on Main Street.  There’s worse news to come — most of the sexual misconduct cases in the military aren’t adjudicated:

Military Sexual Assault CasesThe numbers are unpleasant reading. The odds against prosecution are in the perpetrator’s favor.   The non-prosecution of sexual assaults is a lose-lose proposition, neither the military or civilian segments of our population are well served by the current system.

We’re in thornier territory when considering how to prevent the necessity of sexual assault prosecutions in the Armed Forces.  Severely limited waivers might be a start, but it’s not the answer. Neither can we trust re-enlistment curbs to provide a substantial solution.

We do know one thing about criminal behavior.    “Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits.” [TSP pdf]  It’s the CERTAINTY of punishment, not necessarily the severity of the punishment which reduces criminal actions.   Now, review those statistics in the graphic above one more time — what is happening to the Certainty Principle?

If those who engage in sexual assaults in a military context are convinced that the statistics are on “their side,” and they will in all likelihood NOT be prosecuted for their criminal behavior then we can logically expect — no matter how forceful the rhetoric or severe the penalties — there will be no significant reduction in the incidents.

Now we’ve come to a truly disconcerting state of affairs.  If the assaulter comes to believe that little can or will be done to prevent his or her egregious behavior, and the certainty of punishment is diminished, then we can only expect the assaults to continue, in military or civilian life.   The sensible way to break this cycle is to insure that punishment is certain, in both contexts.

No more “boys will be boys” from either unit commanders or from judges anxious that a perpetrator should not be burdened with a “record” at a relatively early age.  No more “she was asking for it by walking home from work unchaperoned.”   No more “You have to question whether the girl was ‘just saying it’ because he dumped her,” when only about 2% of all rape accusations are demonstrably false.  [Stanford edu]  No more “He (or she) just didn’t get the signals.”  Most people in intimate relationships are fully aware of their partners’ “signals.”   There might be some helpful signals.

Signal One:  Rape and sexual assaults are not sex crimes.  Those  actions are all about dominance and power.  Dominance and power used to gratify immediate wants — not needs.  The number of married individuals who commit rapes should be sufficient proof that passion has precious little to do with the assault; the persons quite often have consensual relations with willing partners, thus there is no need for rape.

Signal Two: Sexual assaults resulting from hazing or bullying are still sexual assaults.  Again, the narrative is all about power and dominance.  Granted women are the most obvious target for male predators because of their assumed less powerful status, but the assaults on young men in the military would seem to support the assertion that if male superiority is underpinned by acts of domination and displays of physical power then we’ve laid the foundation for assaults on vulnerable young men.   Apologists for male bullies appear to have adopted the premise that any restrictions levied on a young man’s physical behavior with regard to hazing and bullying  constitute a diminishing  of his “manhood.”  Nothing could be further from the truth.  [TRC]

Signal Three: Blaming the victim is unacceptable.  Whether the attempt at justification incorporates the “he (or she) was asking for it” line or “it was just kid stuff” or  the victim should “man up and be quiet about it,” the signal should be the same. A rape is a rape is a rape, and sexual assault is sexual assault — and those behaviors are criminal.

Once we decide that rape is really a crime, and not, for example, an evening gone awry, then the need for further research into the issue is obvious.  In part because rape prosecutions are relatively rare in both military and civilian courts the data is necessarily scanty and current research results should be handled with caution.  [Yale edu]

Signal Four: There is no ‘rape culture.’   In fact, rape and other forms of sexual assault are antithetical to American culture.  There is no acceptance of sexual assault in American society, if by this we are talking about shared customs, laws, and institutions.  Neither western culture nor American social norms tolerate the deviance on display in sexual assaults.  A person wouldn’t be too far out on the clichéd limb arguing that a powerful motivation for ‘supporting the accused’ comes from the knowledge that conviction in court, or in the court of public opinion, of sexually related offenses means the rapist is marked for certain shame.   Asserting that an individual’s abusive and criminal behavior is part of a wider set of shared values only serves to dilute the personal responsibility which should attach to the rapist or abuser.

Signal Five: Outliers are not evidence. There is a small but vocal minority opinion in this country that bullying ought not to be “demonized” lest it interfere with the development of masculine personalities.  Some of the same voices argue for the myths given above concerning the ‘homosexual agenda’ and the proponents of the Little Women School of Masculine Domination; however, these should register for what they are — radical elements unrepresentative of this nation’s mores and values.  While they make interesting headlines and generate cable news commentary they should not be taken as seriously as some of the punditry appear to assume them to be.   Most Americans understand that women’s vaginas do not magically  ‘shut down’ when confronted by a rapist’s sperm. Most Americans understand that rape is rape, and there is no such thing as a “legitimate rape.”  Most Americans understand that bullying is unacceptable and don’t want their children subjected to it, nor do they want their offspring doing it.

Perhaps when we make these five signals clear to those in authority — in both military and civilian realms — we truly can be, in the Army’s terms — All We Can Be.

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