Critics charge DOD’s efforts to fight sexual assault lack substance
By JENNIFER HLAD | STARS AND STRIPES Published: October 11, 2012
WASHINGTON — Advocates, victims and members of Congress have been calling for change in the way the military deals with sexual assault since at least 1991, when 83 women reported being sexually assaulted by Navy and Marine Corps aviators at the annual Tailhook convention.
And some things have changed. Each widely publicized scandal has brought new rules, reports or training designed to create a “zero tolerance” culture.
But critics say that even the recent changes enacted by Defense Secretary Leon Panetta are not nearly enough, and more drastic measures are necessary to discourage sexual assault and foster a culture where victims are not afraid to report crimes.
Panetta announced a new Defense Department program in January requiring military sexual assault response coordinators and victim advocates to receive training that meets national civilian agency standards. He set aside $9.3 million for training in the next five years to improve investigations and prosecutions.
Then, in April, Panetta announced more initiatives — including a requirement that the most serious sexual assault offenses be reported to and assessed by a colonel or general, or a vice admiral or admiral in the Navy.
That change is more superficial than substantial, said Ariana Klay, a former Marine officer who, along with seven other women, is involved in a lawsuit against Panetta, Secretary of the Navy Ray Mabus, Marine Commandant Gen. James Amos and their predecessors. They allege that the men charged with leading the Defense Department, Navy and Marine Corps have allowed a culture that tolerates sexual assault while punishing victims, and they are seeking damages “to compensate them for being raped, assaulted, harassed, and retaliated against for reporting such conduct.”
Fourteen women and five men filed a similar suit in September against Panetta, his predecessors, Army Secretary John McHugh and Air Force Secretary Michael Donley.
Klay graduated from the Naval Academy and deployed to Iraq before being stationed at Marine Barracks Washington, the oldest post in the Marine Corps and the home of the commandant. There, Klay said she was repeatedly sexually harassed by other Marines and later was raped by a fellow officer and his friend at her home two blocks from the post.
As an officer, Klay’s report went straight to a colonel. But she said she still faced retaliation and harassment in what she and her husband say was an attempt to discredit her and paint the incident as a consensual act. The officer Klay accused was court-martialed and convicted of adultery and indecent language, but not sexual assault or rape.
“The commander still owns the truth,” Klay said. “There’s often more of a conflict of interest [for colonels] because they’re career Marines. They have a shot at general at that point. No one wants to report an assault on their watch.”
Senior defense officials who spoke to reporters after Panetta announced the changes explained that previously, a servicemember’s immediate commander — for instance, a young officer serving as a company commander — would determine whether a sexual assault case had merit or warranted charges. Creating a higher “floor” for that first recommendation should mean a more “experienced, consistent approach,” a senior defense official said.
Yet the officials were quick to stress that all such determinations should stay within the chain of command in order to keep “good order and discipline.”
Maj. Gen. Gary Patton, director of the Defense Department’s Sexual Assault Prevention and Response Office, said the change “elevates this serious crime to the greater maturity and experience” of a colonel or Navy captain, who should have more experience with the Uniform Code of Military Justice than a younger officer.
Amos said via email that “good leaders in the Corps have, and always will do the right thing when responding to any alleged violation of the law.”
“Commanders are evaluated on their leadership — and this includes the actions that they take in setting a positive command climate, preventing sexual assault and holding Marines accountable for their actions,” Amos said. “While a guilty verdict at a court martial is indicative of a failure to prevent a crime, it is also indicative of the command’s actions to seek justice and hold individuals accountable for their actions. We must do both — prevent crimes and hold Marines accountable for their actions.”
Klay’s husband, former Marine officer Ben Klay, said the system needs an external check to discourage commanders from covering up incidents that may reflect poorly on their leadership ability.
“Anything that doesn’t remove the conflict of interest in how the problem was handled is going to have a serious potential for cover-up and retaliation,” he said. “You can’t tell a commander, ‘We have zero tolerance for this. Go find out what happened.’ It’s against human nature. It’s unfair to the commander. So what happens? You cover it up, and when there is a person who says otherwise, you destroy their credibility.”
By making “incremental improvements to a system that hasn’t worked for decades,” Ben Klay said, the Pentagon won’t solve the problem and may be making it worse.
Rep. Jackie Speier, D-Calif., and the advocacy group Protect Our Defenders want to change the dynamic by taking the authority for investigating sexual assaults and preferring charges out of the chain of command and put it in the hands of an autonomous group comprised of civilian and military experts. Speier introduced the STOP Act last year and her bill has been supported by several other members of Congress, as well as victims of military sexual assault.
In June, four women — one from each branch of the service — gathered in Speier’s office to talk to her and Rep. Bruce Braley, D-Iowa, about the bill and deliver thank-you letters signed by nearly 200 sexual assault victims.
Elle Helmer, Jessica Hinves, Jenny McClendon and Rebecca Johnson-Stone delivered the letters to the bill’s 133 co-sponsors and visited the offices of representatives who had not yet taken a position on the bill.
“We’re not going to let this issue die,” Speier said. “We can keep it in the military, but it cannot be in the chain of command.”
Maj. Gen. Mary Kay Hertog, then the director of the DOD’s Sexual Assault Prevention and Response office, told Army leaders at a sexual assault conference in May that commanders must hold their subordinate commanders accountable and anyone who does not take sexual assault seriously “should have their asses relieved of command.”
Victims who believe that their command is not taking their reports seriously can contact their service’s Inspector General, the DOD’s Inspector General or the DOD’s Sexual Assault Prevention and Response Office, or they can call the DOD’s anonymous Safe Helpline.
Yet a Government Accountability Office report published last year shows the DOD Inspector General “has not performed” its responsibilities to develop policy and oversee sexual assault investigations and related training for the DOD criminal investigative organizations, “primarily because it believes it has other, higher priorities.”
“For example, GAO found no evidence of Investigator General oversight at the service level for any of the 2,594 sexual assault investigations that DOD reported the services completed in fiscal year 2010,” the report said.
Piles of thank you letters sit on a table in Rep. Jackie Speier's office on Capitol Hill. The letters, signed by men and women who were sexually assaulted while serving in the military, were hand-delivered to lawmakers who support Speier's legislation to change the way such crimes are investigated.
JENNIFER HLAD/STARS AND STRIPES