Sexual assault callousness by military, interference of brass are detailed by ex-prosecutor

By JERRY ZREMSKI | The Buffalo News, N.Y. | Published: May 28, 2013

WASHINGTON – You might find it shocking to hear that the world’s greatest fighting force estimates that an average of 71 sexual assaults occurred within its ranks on any given day last year.

Or to hear that the sexual assault-prevention coordinator at Fort Hood, Texas, is under investigation for alleged “abusive sexual contact.”

Or to hear that the chief sexual assault-prevention officer in the Air Force stands accused of groping a woman in a Virginia parking lot.

But such facts are nothing new to Michael C. Lancer, a Buffalo attorney. As an Army prosecutor two decades ago, he heard his commanding officer downplay one case as “just a little rape” – and later saw a general unilaterally dismiss the conviction in that case.

Stung by that experience, and by his time as top prosecutor of a series of sex crimes at the Army’s Aberdeen Proving Ground in Maryland, Lancer has volunteered to do anything he can to help Sen. Kirsten E. Gillibrand, D-N.Y., in her effort to enact legislation to reform the military justice system and make it easier for victims of sexual assaults to press their cases.

“For years, I tried to put these experiences in a box and not think about them,” said Lancer, who moved to Buffalo to practice law in 1997 after nearly five years as a military prosecutor. But after hearing about a sex scandal at Joint Base San Antonio-Lackland in Texas, Lancer said to himself: “This is the same as Aberdeen. Have we learned nothing?”

He then reached out to Gillibrand, the Senate’s fiercest advocate for dramatic reforms in the military in wake of the repeated sex scandals, and agreed to give The Buffalo News a rare inside look at the prosecution of military sex crimes and the culture that leads to them.

Lancer’s first nasty experience came in the early 1990s, when he was an Army prosecutor in Texas. He successfully tried a case against a soldier who drunkenly raped a fellow service member at a social gathering.

The rapist was sentenced to a year in prison, and when Lancer complained about the short sentence to his commanding officer, the lieutenant colonel said: “One year is about right. It’s just a little rape.”

On top of that, the convict’s father then appealed to the base’s commanding general, who, under the Uniform Code of Military Justice, has the power to reverse convictions if doing so is important to maintaining “good order and discipline” within a particular unit.

That’s just what the general did, leaving Lancer livid.

“When I found out about this, it was like I was punched in the gut,” Lancer said. “I was just amazed by this.”

Gillibrand is amazed, too, not only by Lancer’s story, but also the problem it points to: the vast power that the Uniform Code of Military Justice gives to commanding officers who may have little or no legal training. Commanding officers decide whether cases should be prosecuted, they pick the juries and even have the power, as Lancer found, to serve as one-person courts of appeal.

Because victims “have to report these crimes to the commanding officer, and it’s the commanding officer and the commanding officer alone who makes the judgment of whether these cases can go forward to trial, and it’s the commanding officer who can make the judgment to overturn a jury verdict, the victims feel they cannot receive justice under the current system,” Gillibrand said. “They don’t have confidence that there will be accountability against their perpetrator.”

This month, Gillibrand unveiled legislation to change all that. Her bill puts the decision on whether to prosecute felonies in the hands of trained military prosecutors, and leaves it to the appeals process to determine whether a conviction should be reversed.

Britain, Canada, Australia, Germany and Israel all have switched to a similar system for the prosecution of military crimes.

Yet such a dramatic change in Code of Military Justice is meeting fierce resistance from some lawmakers and many elements within the military, who argue that taking the court-martial power away from commanders would undermine the chain of command.

“The military’s a unique place; it’s not a democracy,” Sen. Lindsey O. Graham, R-S.C., said at a recent Senate hearing. “When it comes to good order and discipline of a command, we have generally held the view that the one person that has the power to determine good order and discipline – and to make sure it’s present – is the military commander.”

Defense Secretary Chuck Hagel in April announced his support for legislation that would strip commanders of their ability to reverse convictions, but he has been more ambivalent about the other core element of Gillibrand’s legislation.

“It is my strong belief the ultimate authority has to remain within the command structure,” Hagel told reporters May 7.

But just a few days later, Hagel’s spokesman told reporters that he was “open to any and all options” for solving the problem of sexual assaults in the military.

Those comments came in the wake of an uproar over the findings of a Pentagon report revealing that sexual assaults were occurring on an average of 71 a day in 2012.

While the Pentagon believes that 26,000 sexual assaults occurred in the military last year, the report said that only 1,714 service members were charged with some offenses. Cases against 509 service members were dropped because victims refused to press charges, because evidence was lacking or because the five-year statute of limitations had run out.

Commanders dropped cases against 81 defendants and decided on lesser charges against 286 of them. So in the end, only 238 service members – 14 percent of those originally charged – were convicted, the report said.

To both Lancer and Gillibrand, those numbers speak to a troubled culture in the U.S. military.

Lancer got a close look at that culture while serving as chief of military justice at Aberdeen Proving Ground.

The Army brought charges against 12 commissioned and noncommissioned officers at Aberdeen in 1996 after discovering an elaborate and pervasive pattern of abuse. Leading the way was Staff Sgt. Delmar G. Simpson, who was sentenced to 25 years in prison after a jury convicted him of 18 counts of rape and misconduct.

“It was a systemic network among the drill instructors wherein they would target female trainees and sexually abuse them,” Lancer said. “They were identifying prospects in basic training. These women, they never stood a chance.”

The Aberdeen probe was the largest investigation of its type in the history of the Army at the time, and Lancer said the abuse there involved thousands of women over many years.

Since then, military abuse scandals have only multiplied. At the Air Force Academy, 12 percent of the female graduates in 2003 reported being victims of attempted rape. In the mid-2000s, 15 percent of female veterans of the wars in Iraq and Afghanistan reported sexual trauma.

And this year, that Pentagon report upended the notion that the problem was somehow tied to the growing role of women in the military. Of the 26,000 abuse cases cited in the report, 14,000 involved men – including one soldier who was sodomized with a broom handle, and another who was sodomized with a plastic bottle.

Obviously, Lancer said, something is very wrong.

“There’s sort of a hidden culture in the military” that’s male-dominated and domineering, and that tends to be producing sexual abuse cases in greater numbers, said Lancer, of Collins & Collins, a Buffalo law firm that specializes in personal-injury cases involving veterans.

The only way to begin breaking that culture, he said, is to put prosecutorial power in the military where it belongs: with the prosecutors.

Leaving it in the hands of commanding officers is too intimidating for the victims, Gillibrand said.

“What we heard directly from the victims is that they fear retaliation, they fear being marginalized or their career ending, or they fear that they’re being blamed because of the current culture,” she said.

Lancer contended that it’s a waste of taxpayer money to allow commanding officers to reverse convictions at will and without review.

“We don’t need a general, with a stroke of a pen, throwing out the just results of a jury trial,” said Lancer, co-chairman of the New York State Bar Association’s Veterans Committee.

Gillibrand’s bill is one of several that have been introduced in Congress on the sexual abuse issue this year. And while she has Democratic and Republican co-sponsors for the measure in both the Senate and the House, she acknowledged that she’s still working to win enough votes to pass the bill out of the panel where she is chairwoman, the Senate Armed Services Committee’s Subcommittee on Personnel.

But Gillibrand said the recent string of scandals is building momentum for major reform this year.

Reform is crucial, Gillibrand said, because of the toll of suffering that’s being reported throughout the military.

In addition to reporting a cavalcade of shocking statistics, the recent Pentagon report is rife with anecdotal evidence of female soldiers being groped in places ranging from the barracks to the shooting range, and of women being raped by higher-ranking members of the military.

“These are not dates that have gone badly,” Gillibrand said. “These are serious crimes that need to be dealt with seriously.”