*Trigger warning: This BLUF discusses sexual assault and may be traumatic to individuals who have experienced such an event in their lifetime.*
BLUF: Twenty thousand US military servicemembers experience sexual assault every year. But less than 8,000 report those sexual assaults and less than 5,000 choose a reporting type that includes a full-scale investigation. Due to the nature of the military’s culture and command structures, assaults are often perpetrated within an interpersonal relationship and the prosecution of that crime is usually handed down by a high-ranking official in a perpetrator’s chain of command. At present, there is roughly a 2.4% conviction rate. In an effort to better understand the dynamics of sexual assault in the military and improve the system’s prevention and response, an Independent Review Commission was established by President Joe Biden and Secretary of Defense Lloyd J. Austin III. As a result of that Commission, significant reforms are now underway in the US military.
All eyes have been on the Tokyo Olympics these days and more so on one, very talented, person. Simone Biles has been the face of USA gymnastics and, honorably but unfortunately, also the face of sexual assault survivors at the failure of USA gymnastics. When she withdrew from this year’s Tokyo games to focus on her mental health, she was mostly praised for setting a new standard in athletics and — some might say — for all of America. Many refer to Simone as an American hero, the GOAT. As a woman serving her country against all odds, despite the abuse of her past, and representing the best we have to offer.
But there are other American heroes, serving their country in the more traditional way, who have also been systematically exposed to sexual assault: The servicemembers of the US military. In March 2021, the new Secretary of Defense Lloyd J. Austin III established an independent review commission (IRC), at President Joe Biden’s behest, to examine sexual assault in the military and determine recommendations for changing and improving the system. The IRC’s 90-day endeavor included meeting “with over 600 individuals in the US military, including survivors, researchers, current and former service members, commanders, junior and senior enlisted members and advocates.”
Why was the IRC called? What did they find? What changes might we expect? Why does it matter?
THE CURRENT SYSTEM
Sexual assault in the military is not a new topic. There have been articles written, TV segments aired, and speeches given, about the stories of sexual assault survivors and failures of the US military in those cases. What many may not know, is how sexual assault cases are currently handled in the military. Spoiler alert: It isn’t in front of a regular court, judge, or jury.
The military has a sexual assault problem. No one in leadership can deny such any longer, but there is a unique opportunity now under this Secretary of Defense to think outside the box for creative solutions.
No. If you report a sexual assault in the military, either as a servicemember or by a servicemember, your case will be investigated and tried by the Uniform Code of Military Justice (UCMJ) (see section 120). There are two reporting routes with separate procedures: Restricted and unrestricted reporting. The biggest difference between the two is who gets notified. Under unrestricted reporting, both command and law enforcement are notified; with restricted or confidential reporting, the survivor has access to healthcare, advocacy services, and legal services without notification of command or law enforcement. While not exactly straightforward, this guide attempts to explain each process. Upon first review, despite all the acronyms (military loves those acros), it looks like a thorough process. But as one former military member I spoke with told me, “It is a healthy system, but it doesn’t work well in practice. It only works effectively on paper.” Which may be why, according to Protect of Defenders, “in Fiscal Year 2019, only 138 offenders were convicted of nonconsensual sex offense across all five branches of service” — roughly a 2.4% conviction rate, compared to roughly 12.4% in civilian cases.
Which brings us to the IRC.
THE IRC FINDINGS
After the 90-day review concluded and its 300-page report results were briefed, this is some of what we learned:
- “Twenty thousand service members experience sexual assault every year. Less than 8,000 report those sexual assaults, less than 5,000 of those are unrestricted reports — meaning the victim has said that he or she wants a full investigation — and only a tiny fraction of those end up with any kind of action at all in the military justice system. So that’s the chasm that we’re talking about.”
- Sexual assault in the military most often occurs with an interpersonal dynamic aka “the victim and the alleged offender may have a pre-existing relationship or acquaintance.”
- What starts as harassment may end in assault. “This is particularly true in the military, where survivors of sexual harassment are at significantly higher risk of later experiencing sexual assault.”
- Many survivors feel the assault burden falls on the victim, often causing survivors to leave the military entirely.
- While the military has in principal a great system with dedicated personnel to Sexual Assault Prevention and Response, that system has several deficiencies with resources, experience, and structure.
- Enter gender norms — women still account for less than 18% of the military.
The commission made 28 recommendations and 54 sub-recommendations (82 in total), following its review, in four areas: Accountability; prevention; climate and culture; and victim care and support. Following the report’s release, the Secretary of Defense reviewed recommendations and issued a press release outlining the first steps to be taken.
- Reform the UCMJ: This is the biggie. Secretary of Defense Austin has made it clear the UCMJ needs to be revamped. This will include adding sexual harassment as an offense, creating dedicated offices within each military department to handle the prosecution of these special crimes, with oversight from the Office of SecDef. And perhaps, most importantly, remove the prosecution of sexual assaults and similar crimes (domestic violence, child abuse, etc.) from the military chain of command.
- Add Accountability Reforms: This one will include things like standardizing non-judicial punishments, establish separation processes for survivors, and professionalize career tracks for the lawyers and investigators or sexual assault and harrassment in the military. It also includes mandatory restitution for survivors.
- Improve Prevention, Climate and Victim Services: This one is gonna be the toughest because it’s about culture and a new approach to prevention. It will likely take a significant amount of time to see these reforms have an impact.
While President Biden’s call prompted the review, he has also publicly backed the recommendations of the report. Bipartisan legislation is currently moving through Congress when it comes to the UCMJ reforms on removing the chain of command from prosecution entirely and is being championed by Senator Kirsten Gillibrand (D-NY) and Senator Joni Ernst, (R-IA) with 65 co-sponsors, including Senators Ted Cruz (R-TX), Elizabeth Warren (D-MA), Josh Hawley (R-MO), Cory Booker (D-NJ), and Bernie Sanders (D-VT). The legislation, which was passed out of the Senate Armed Services Subcommittee on Personnel, is however not supported by the Committee Chairman Jack Reed (D-RI) and ranking Republican Jim Inhofe (Oklahoma).
Interestingly enough, the draft 2022 National Defense Authorization Act sent to the floor last week, includes both Gillibrand’s proposal in addition to two parallel proposals for military justice reform — both of which reflect IRC recommendations. While the outcome of these proposals, and other reforms, remain unknown, one thing is explicitly clear: The military has a sexual assault problem. No one in leadership can deny such any longer, but there is a unique opportunity now under this Secretary of Defense to think outside the box for creative solutions.
ONE LAST WORD
I’d like to end this column with a segment from the IRC report’s foreword, because its words are applicable to any person, not just those serving in the military. Even in your darkest days, you are not alone. I know — I am a survivor.
“To everyone, we recognize that you came into the military for different reasons, from different backgrounds, with different goals. You wear different uniforms, have different jobs, and different career paths. But you swear the same oath and would lay down your lives for each other. You are the promise of continued freedom, and you deserve excellence. You deserve excellence in training, in leadership, mentorship, and resiliency. You also deserve dignity and respect, and the opportunity for advancement based solely on your grit, skill, and merit.”
No pressure. No bullshit. Just, THE BABES BLUF.
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