WASHINGTON — As the military struggles to eliminate its sexual assault epidemic, Congress has included a record number of provisions in this year’s National Defense Authorization Act that address sexual violence.
In 2011, 3,192 incidents of sexual assault were reported in the military. Yet, according to the Department of Defense, this figure may significantly underestimate the actual number of sexual assaults, which may be closer to 19,000 annually.
The NDAA, signed into law by President Barack Obama on Jan. 2, lays out Congress’ defense requirements for the year. Provisions this year included 19 that deal with military sexual assault.
Advocates say one of the biggest victories was the creation of an independent review panel that will closely examine the way the Defense Department investigates and prosecutes sexual assault cases.
The five-person review board, composed of civilians, will examine sexual assault cases and make reports and recommendations on how the military should prosecute these crimes. The precedent-setting move is significant because it allows judicial review of the Uniform Code of Military Justice by civilians.
Although the military has a similar oversight panel, the Joint Services Committee is made up of legal experts from within each branch of the armed forces. “Its job is not to reform the UCMJ but to make sure that it stays constitutional,” said Greg Jacob, policy director for Service Women’s Action Network, a New York City women veterans’ rights advocacy group.
The Secretary of Defense would appoint private citizens to the panel, who would have expertise in the prosecution of sexual assault in both military and civilian law. It would meet every six months and look at individual cases and provide feedback on how the cases are prosecuted.
“It’s a great idea,” Jacob said, “because of the insular nature of military law, it’s always a good idea to bring the light of day to it.” The panel will also examine how the military’s laws and justice system reflect current legal thought and theory.
The UCMJ’s last major overhaul was in the 1980s, when it was rewritten to incorporate federal rules of evidence, he said. “Some kind of reform — some kind of regular examination — is definitely warranted because it’s a closed system.”
But unless the panel’s recommendations are championed by Congress and the Pentagon from the top ranks down, the panel could exist as “a paper tiger,” Jacob said, unable to affect real change.
A systematic, militarywide approach to implementing the NDAA changes has several congressional champions, including Rep. Niki Tsongas, D-Mass., Rep. Mike Turner, R-Ohio, Sen. Kirsten Gillibrand, D-N.Y., and Sen. Susan Collins, R-Maine.
“There are too many victims that come forward and have felt revictimized,” said Turner, who has called for better protection for victims and prevention of military sexual assaults. “We need to treat sexual assault in the military like the crime it is.”
Among NDAA’s sexual assault provisions:
- Creating special victims units for all services to improve investigation, prosecution and victim support in sexual assault, child abuse and domestic violence cases. The Army and Air Force have made the most progress toward this end, but the other services lag behind.
- Prohibiting the recruiting of anyone convicted of felony sexual assault, through an amendment introduced by Sen. Barbara Boxer, D-Calif. Although a similar policy was put in place in 2009, prospective recruits could receive waivers to get around the ban.
- Separating convicted sex offenders from the military. Previously the rule in the Navy, it is being expanded across the services. About 36 percent of convicted sex offenders remained in the Armed Forces in fiscal 2011, according to the most recent Annual Report on Sexual Assault in the Military.
- Allowing victims to return to active duty after separation to help prosecute sex offenders.
- Keeping restricted report documentation for 50 years if desired by the victim. Restricted reporting is designed to allow victims to seek medical or psychological help while staying anonymous and not prosecuting the perpetrator.
- Improving data collection and reporting by the military on sexual assault and sexual harassment cases. DOD reports that 47 percent of servicemembers say they are afraid to report out of fear of retaliation, and more than 50 percent fear their confidentially will not be maintained.
- Demanding a review of unrestricted sexual assault reports and the nature of any separations of troops who made those reports. DOD reports that 47 percent of servicemembers say they are afraid to report out of fear of retaliation, and more than 50 percent fear their confidentially will not being maintained.
- Notifying servicemembers of the options available for the correction of military records due to retaliatory personnel action after reporting sexual assault or sexual harassment.
- Outrage over the recent barrage of sexual misconduct scandals has spurred awareness of the epidemic of sexual violence — legislation that once never made it out of committee is now being approved in Congress on a bipartisan basis — but more work needs to be done, Turner said.
Nancy Parrish, president of Protect Our Defenders, an advocacy group for survivors of sexual violence in the military, said part of the problem still remains even if these legislative reforms are written into NDAA each year, they are often “inconsistently applied, unnecessarily encumbered or they are just not implemented.”
For example, the right to unrestricted, expedited transfer of an assault victim so that he or she can quickly and safely leave the unit was approved in last year’s NDAA.
“But what we are finding is happening on the ground is [victims] are told no such thing exists,” she said. “They are told they are not qualified for it, or they are put in medical hold,” placed in hospitals for evaluation, so they must remain in their unit for months.
Problems will remain, Parrish said, as long as decisions on whether to punish such actions reside in the unit’s chain of command. Those decisions need to be made by an impartial, unbiased party outside the chain of command, advocates say, and by a civilian justice system.
“Half-measures will not remove the bias, the conflict of interest and the abuse of authority” within what Parris calls “the broken military justice system.”