Tag Archives: military sexual assault

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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The Military Obstacle Course: Sexual Assaults and Systemic Problems

no sexual assaultAt the beginning of last month (May 7, 2013) Nevada Senator Harry Reid expressed his disappointment with reported rise in the number of sexual assaults in the U.S. military [WaPo] By May 8th he was urging fellow Senators to use the military appropriations legislation as a vehicle for reforming the Armed Services’s systemic problems with sexual assaults. [Roll Call] By the first part of June, Senator Reid was more blunt:

“The present program within the military is not working,” Senate Majority Leader Harry M. Reid (D-Nev.) told reporters Tuesday. “Women are being exploited and I’m sorry to report that even men are being exploited sexually, and that’s wrong.” [WaPo]

The Majority Leader’s frankness on the subject, combined with House Speaker John Boehner (R-OH) commenting that the situation is a “national disgrace,” [WaPo] should yield some long sought Congressional action.  However, the “Brass” aren’t having it. Eleven of the twelve leaders of the U.S. military who testified at the latest Senate hearing were men; all wanted One More Chance to change the system within the “Chain of Command.”

The top of the U.S. Army chain of command, General Dempsey told the panel: “I’ll speak for myself: I took my eye off the ball a bit in the commands I had,” Dempsey said. “When you tie it all together, I wouldn’t say that we’ve been inactive, but we’ve been less active than we probably need to be.” [WaPo]

You think?  Obviously someone’s eyes were not on the target, and it would appear a large number of individuals within the military were “less active” than they “probably need to be.”  Probably?  Instead of “probably,” let’s insert “unambiguously should have been.”

The first hurdle for the commanders to face is the command structure itself.  The military is different from other institutions in this country — and the concept of the chain of command in crucial to its fundamental operations.  However, when the chain becomes tangled in motivations involving advancement combined with the adjudication of criminal behavior there may be no way to resolve the issues inside the chained structures.

There’s that  moldy old adage — a chain is no stronger than its weakest link.  What happens when it is a superior who is perpetrating the assault?

“One former soldier told Parrish’s group (Protect Our Defenders) in a statement that she was sexually harassed and ultimately raped by a superior while deployed in Iraq.  The woman said she reported the assault to several officers in her chain of command, but was told that she’d be charged with adultery if she pursued the complaint. One officer even told her that he had mentioned the incident to her attacker, who said she had come onto him — and that she should be charged with harassing him.” [PBS]

The motivation for this mistreatment may run the gamut from sheer mean-spiritedness to concerns about promotion — in the military “if you aren’t moving up you’re moving out” — what unit commander wants to be the one to call his or her superior with the bad news that a rape has been reported in his or her command?

There are weak links in the upper portions of the chain as well.  Some recent examples are (1) Lt. General Susan J. Helms USAF whose promotion has been blocked by Senator Claire McCaskill (D-MO) because General Helms granted clemency to a convicted sex offender without explanation.  [WaPo] (2)  Lt. Gen. Craig A. Franklin, commander of the Third Air Force in Europe, after he tossed out the sexual-assault conviction of a fighter pilot.  [WaPo]   General Franklin just couldn’t believe that a pilot who was a “doting father and husband,” would commit a rape.  [WaPo]  It’s important to note that neither of these commanders are judges, or lawyers, and neither attended the trials of the convicted felons in question.   Both were advised by legal experts not to grant clemency or to toss out the cases.   The current Krusinski  case isn’t helping:

“The latest embarrassment struck Sunday, when Arlington County police arrested the chief of the Air Force’s sexual-assault prevention branch and charged him with sexual battery. Police said Lt. Col. Jeffrey Krusinski was drunk when he approached a woman in a Crystal City parking lot and grabbed her breasts and buttocks. Maj. Mary Danner-Jones, an Air Force spokeswoman at the Pentagon, said Krusinski was “removed from his position immediately” when the Air Force learned of his arrest.”  [WaPo]

The testimony of the JCS concerning the handling of the sexual assault problems such as those mentioned above didn’t impress Iraq veteran and House member Tulsi Gabbard (D-HI):

“We must provide accountability, which includes ensuring an independent, transparent, fair process for all reports of sexual assault, outside of the chain of command,” Gabbard said.  Gabbard, who remains a member of the Hawaii National Guard, said it “sickens” her that violent crimes occur in the ranks. “This is absolutely unacceptable,” she said.  […] “It is our collective responsibility to bring an end to this epidemic, prosecute these offenders, and provide a safe environment for survivors of sexual assault, upholding the honor and integrity and that make our military strong,” she said. [Army Times]

Representative Gabbard may very well have highlighted the source of the military dilemma — the problematic confluence of individual command and accountability with the need to take collective action to insure the safety of our troops.   If this conflict of interest cannot be resolved within the military command structure, then the military might take a look at the system used by police departments — which also take command structures very seriously — for some guidance.

The second hurdle might be the ability to conceive of an independent review as essential to the operations of a structured unit.  We’ve been down this path before.   During the 1970s police departments in this country were actively engaged in a national debate about independent review boards and agencies.  Most of the opposition to the creation of independent review panels came from police mutual aid societies, police unions, police officials, and conservative interest groups.

Community and public advocacy groups were concerned that police departments were no longer perceived as neutral, dispassionate, or impartial when dealing with some segments of various communities.   [Duke Law, pdf]  The U.S. military may be seen in an analogous position if prominent commanders like Helms and Franklin aren’t considered impartial arbiters of justice.  The military’s position may be even more tenuous if the perception is that whatever “Sarge” wants “Sarge” will get.

For all the controversy over the creation of independent review departments and agencies, the system has worked reasonably well and is in place in most major police departments.  As the International Association of Chiefs of Police observes, the system isn’t perfect, but it is a tool useful in developing better community relations and effective policing:

“Accountability is built and maintained through diligent attention to many facets of the police enterprise, ranging from entry-level selection practices, to ethics and integrity, training, supervision, misconduct policies, and performance evaluation. It is important to place citizen review in its proper context. Citizen review is but one tool among many that can be used to promote and ensure accountability. It is neither a cure-all nor likely to promote desired results unless accompanied by a full package of accountability-building strategies. Over-reliance on these mechanisms can bring disappointment to a community.”  [IACP]

The third hurdle in this obstacle course relates to the point made by the police chiefs, i.e. there are no silver bullets.   The creation of independent review panels won’t be a magic solution so long as a culture of toleration toward assaults obscures the mission of the military.  A culture of toleration won’t be ameliorated by training sessions if the sessions aren’t supported by action.  Actions, such as prosecutions, won’t be the complete response if they aren’t accepted as just by the victims, seen as impartial by the communities, and aren’t substantiated by appeals and reviews.

The fourth hurdle is all too easily forgotten.  Military recruitment in the wake of the Iraq War.  The situation was so dire the Army lowered its standards not once but twice in order to meet recruiting demands.  Defense Department reports in 2008 indicated:

 “In order to meet recruitment targets, the Army has even had to scour the bottom of the barrel. There used to be a regulation that no more than 2 percent of all recruits could be “Category IV”—defined as applicants who score in the 10th to 30th percentile on the aptitude tests. In 2004, just 0.6 percent of new soldiers scored so low. In 2005, as the Army had a hard time recruiting, the cap was raised to 4 percent. And in 2007, according to the new data, the Army exceeded even that limit—4.1 percent of new recruits last year were Cat IVs.” [Slate]

This, in addition to reports from 2007 that the military was relaxing standards concerning criminal records:

“It has also increased the number of so-called “moral waivers” to recruits with criminal pasts, even as the total number of recruits dropped slightly. The sharpest increase was in waivers for serious misdemeanors, which make up the bulk of all the Army’s moral waivers. These include aggravated assault, burglary, robbery and vehicular homicide.  The number of waivers for felony convictions also increased, to 11 percent of the 8,129 moral waivers granted in 2006, from 8 percent.”  [NYT 2007]

There are documented cases of “waiver” members of the military who have conducted themselves dishonorably to the discredit of our Armed Forces — and country.  [Feres Doctrine, download]  As long as the U.S. Armed Forces are required to downgrade standards for intelligence and moral behavior we ought not to become too alarmed by the consequences when some who have been engaged in serious misdemeanors before recruitment indulge a predilection for anti-social  behavior thereafter.

The fifth hurdle presents itself as the form of the  training these recruits (and officers) receives.   Francine Banner’s work on the Feres Doctine adds some insight:

“Until very recently, the DoD response to rising rates of sexual assault has been to engage in “soft” approaches, such as advertising campaigns and lighthearted presentations, such as “Sex Signals” and “Can I Kiss You?” Campaigns such as “Ask Her When She’s Sober,” “What a Rapist Looks Like” and “Bystander Intervention”  perpetuate the perception that most sexual assaults occur in a “he said/she said” situation in which anyone could cross a line.  “(Primarily male) troops are not encouraged to cease sexually pursuing (primarily female) co-workers but to become better at recognizing the “signals” those co-workers are sending.”  [Feres Doctrine, download]

Unfortunately this type of “education” merely serves to perpetuate the “boys will be boys unless the girls really really really say No” mentality, and the boys aren’t necessarily warned off unwarranted and unwanted behavior — just informed how to interpret the “no” signals which should in all likelihood never have been necessary in the first place.  The Army appears to be making some progress toward a more enlightened approach in its current SHARP program, in which members of the service are encouraged to “Intervene, Act, and Motivate” others to denounce sexual misconduct.

Even with the well intentioned answers to common questions about sexual assault and harassment in the SHARP website, the problem of reporting still remains…  the site gives all the usual advice one might receive from a local police officer, but the reporting will still be predominantly within the chain of command.  A person in command who has no more sexual assault prevention training than the advertising and “soft” touch videos may not be the best person to determine whether a case should proceed.

Navigating the Course

The first thing the JCS may wish to consider is either dropping its opposition to independent prosecution of sexual assault and related crimes, or at the least creating an independent review panel charged with the oversight and accountability of the prosecutions.  The second is to divest itself of any notion that a single approach will cure the problems — just as the modern Armed Forces are tasked with fighting asymmetrical operations they need to understand sexual assault as a multifaceted issue.   Further, we need to give serious consideration to the quality of the individuals being recruited into the U.S. military — reducing the number of “moral waivers” would be advisable.   If there is one thing the Armed Forces generally do well it’s training.  Since the Army has already determined its previous attempts at training in this realm were unsatisfactory, its endeavors to improve should be congratulated but continually monitored for efficacy.

All in all, Senator Reid is correct, the current system is not working. However, it’s going to take more than legislation, more than structural  reforms, and more than better recruitment and training to solve the problem.   It will take a truly Zero Tolerance attitude unencumbered by outdated attitudes and inadequate incentives for change.  And, we need this done by “yesterday.”

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