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Policy change strips unit commanders of deciding how to handle reported rapes

HEIDELBERG, Germany — A policy change that strips unit commanders of the authority to decide how to handle reported rapes marks a significant departure from military tradition and, advocates say, could mean more justice for victims.

Beginning June 28, company and battalion commanders will no longer have disposition authority for reported rapes, sexual assaults and sodomy, according to the Department of Defense. Instead, senior commanders — at the level of brigade commander or Navy captain — will make the call on how to proceed. The senior officers will decide what initial action is appropriate, “to include whether further action is warranted and if the issue should be resolved by court-martial, non-judicial punishment or adverse administrative action,” according to the new policy.

The change to longstanding military policy and command authority represents “the biggest step that DOD has taken thus far to combat military sexual assault,” said Anu Bhagwati, executive director of the Service Women’s Action Network and a former Marine Corps captain.

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“It’s a very strong move,” Bhagwati said. “What’s different is, this time, it’s the DOD taking the initiative itself.”

Advocates for military sexual assault victims, other groups and some members of Congress have argued for years that unit commanders of accused perpetrators should not be the ones deciding what to do about sexual assault reports.

Unit commanders might have a conflict of interest, advocates have argued. They might be close to an accused perpetrator, perhaps an otherwise excellent soldier; be ill-equipped to deal with the complicated dynamics of sexual assault; or be ambivalent about pursuing investigations that could sully their units.

“I saw cases swept under the rug,” Bhagwati said.

At a news conference in April announcing the change, Defense Secretary Leon Panetta said he wanted to see offenders prosecuted.

“The key here is that at the local-unit level, sometimes these matters are put aside, they’re not followed up with,” Panetta said. “The most important thing we can do is prosecute the offenders.”

The most recent Defense Department statistics show that the number of sexual assault reports rose 1 percent in 2011 over the year before to 3,192 reports. But Defense Department officials believe a fraction of sexual assaults are reported. They estimate that some 19,000 sexual assaults occur annually, and are seeking to encourage more victims to come forward.

The statistics showed a 10 percent increase in cases deemed “actionable” going to court-martial over 2010. But more than 10 percent of suspects who had charges preferred at court-martial were allowed instead to resign or be discharged, according to the statistics.

“How can that happen?” Bhagwati asked.

Research by a leading expert on rape, University of Massachusetts psychologist David Lisak, who has advised the military, indicates that the majority of sexual assaults involve repeat offenders, deficient in empathy, who target vulnerable, often inebriated acquaintances.

Lisak said it was unclear what effect the change in case-disposition authority would bring. But he said he was hopeful that another initiative Panetta announced — special-victims units trained to more expertly investigate and prosecute sexual assault cases — would result in more successful prosecutions.

“If this effort is carried out and sustained, we may well live to see the military justice system begin to outpace its civilian counterpart in effectively prosecuting non-stranger sexual assault cases,” he said in an email.

Criminal defense lawyers, however, have taken a different view of DOD efforts against sexual assault, which they say have resulted in more troops being prosecuted on spurious charges.

Congress ordered the military to begin changing how sexual assault was handled in 2004 after scandals that included the reported rapes of hundreds of female soldiers in Iraq and Afghanistan by their comrades-at-arms and, the next year, rapes at the U.S. Air Force Academy. Those cases highlighted what appeared to be a disturbingly high rate of sexual assault, abetted by a culture that victim advocates said protected perpetrators and stigmatized and punished victims as liars, whiners and weaklings.

Military women said they doubted they’d be believed if they reported a rape, and thought the complaint would be ignored, especially if the attacker was of higher rank, had a good military record or was popular, according to a 2004 DOD task force report.

At the same time, the task force reported, the women said they’d be humiliated. “… They believed that everyone in their unit would know and talk about what occurred once the investigative process began.”

Since then, a DOD office to address sexual assault prevention and response — and to report statistics annually to Congress — has been established. Previously, the services had kept little data on sexual assault, yet routinely asserted it was not a problem.

In addition, DOD has since ordered military bases to provide victims with advocates in a process overseen by sexual assault coordinators. And, victims were allowed to make confidential reports, to receive counseling and other services without involving the chain of command or law enforcement. A number of military investigators and prosecutors were specially trained in sexual assault cases.

Troops were presented with “bystander training” urging them to intervene in potential assaults, and to respect and defend each other.

It’s all had minimal results in curbing sexual assaults, officials say.

A recent health and discipline report issued by the Army said the rate of violent sex crime – rape, sexual assault and forcible sodomy — increased almost 15 percent each year in the Army since 2006. That study was based on reported rapes and sexual assaults that the Army’s Criminal Investigation Command decided were “founded” in 2011: 515 rapes, 414 aggravated sexual assaults and 349 forcible sodomies.

“Additionally, there has been a shift in the last three years which indicates an escalation of sex crimes (month over month) which was previously absent,” the study said. “This chilling trend suggests that the increase in offenses going forward will likely continue unless directly mitigated by other factors.”

Bhagwati said the new policy to elevate decision-making to a higher level was a great “first step.” But while those changes are promising, she said success will depend on the senior officers making the right decisions. The Service Women’s Action Network is pushing for victims to be granted alternative means of seeking justice, such as allowing military sexual assault victims to sue in civil court. The network says that would provide a significant check on sexual assault.

Bhagwati said significant change in the military culture was also needed, and she noted that getting sexual assault convictions has remained a challenge throughout society.

“It’s extremely hard to successfully prosecute a rape,” she said. “There’s so much victim-blaming, even among women in the military.”

montgomeryn@estripes.osd.mil

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