The Pentagon’s report to the president on sexual assault shows progress – except on retaliation against victims. By Molly O’Toole
A Pentagon report ordered a year ago by President Barack Obama finds that more service members are reporting when they have been sexually assaulted, but the percentage that say they are retaliated against for doing so has stayed the same.
Of the women who reported to a military authority from Oct. 1, 2013 to Sept. 30, 2014 that they were sexually assaulted, 62 percent said they were retaliated against in some way – despite reforms mandated in last year’s defense authorization act that made that a crime under the Uniform Code of Military Justice. That’s the same rate of retaliation reported in fiscal year 2012, the last time the Pentagon surveyed service members on the issue, according to the report released Thursday.
“We must tackle this difficult problem head on because like sexual assault itself, reprisals directly contradict one of highest values of our military: that we protect our brothers and sisters in uniform … [victims] need to be embraced and helped, not ostracized or punished with retribution,” Defense Secretary Chuck Hagel said Thursday at a Pentagon briefing.
Of the respondents to the FY2014 Military Workplace study, conducted by the RAND Corporation, 53 percent of the women reported social retaliation for reporting a sexual assault; 32 percent reported professional retaliation for reporting a sexual assault; and 35 percent reported a punitive administrative action for reporting. More than 560,000 service members were offered the survey and more than 145,000 completed it, and the results were included as part of the broader report.
The total number of reports of sexual assault increased from 5,518 in FY2013 to 5,983 in FY2014, but the Pentagon says that is due to improvements in reporting, rather than an increase in incident. In FY2012, the military estimated that 1 in 10 victims of military sexual assault reported it. That rate is now roughly 1 in 4.
The estimated number of unwanted sexual contacts has dropped by roughly 7,000 since 2012, but some 19,000 still reported unwanted sexual contact – around the same levels as four years ago. The sexual assault prevalence rates decreased by more than 2 percent for women – a minority in the military, but a majority of the victims of military sexual assault -- and .03 percent for men.
“The department is extremely concerned about the persistent high rate of perceived retaliation endorsed by these survey respondents,” the report states. “These results indicate that even though the department has taken specific action to assess and address this problem, more must be done to prevent retaliation.”
Sen. Kirsten Gillibrand, D-N.Y., introduced the Military Justice Improvement Act last year, which would remove the decision-making authority on sexual assault cases from the chain of command. Advocates argue the change would also help to remove the threat of retaliation.
“For a year now we have heard how the reforms in the previous defense bill were going to protect victims and make retaliation a crime,” Gillibrand said in a statement Thursday. “It should be a screaming red flag to everyone when 62 percent of those who say they reported a crime were retaliated against – nearly two-thirds – the exact same number as last year.”
Now Gillibrand -- who has support across the political spectrum, from Sen. Rand Paul, R-Ky. and Ted Cruz, R-Texas, to Sen. Mazie Hirono, D-Hawaii – wants the bill to be included in the fiscal year 2015 NDAA. But after months of effort to get amendments filed and get the bill floor time so that there could be open debate, the “big four” of the House and Senate Armed Services committees were forced to come up with a compromise, pre-conferenced bill and a procedure for passage that would not allow amendments.
When asked about the statistics on prosecutions for retaliation, Army Maj. Gen. Jeffrey Snow, the director of the Sexual Assault Prevention and Response Office, said they hope to have specific numbers next spring in SAPRO's yearly report to Congress.
“We would hope that an individual who has come forward and reported and then has been retaliated against would tell someone, whether in the chain of command or outside," Snow said. "Unfortunately we don’t have a lot of statistics yet on what has been referred to investigation.”
Retaliation can be reported to a commander inside or outside the victim's chain of command or a sexual assault response coordinator at a different military installation, in person or by phone. A victim can also file an equal opportunity complaint or report to the DOD Inspector General as a whistleblower. If a victim is afraid for their safety, he or she can request an expedited or safety transfer or a protective order.
In FY2014, the services implemented the new regulations that now make it a crime under the UCMJ to retaliate against those who report military sexual assault. Violations of the regulations can result in criminal prosecution in the military justice system.
Last fall, Congress engaged in a heated debate over competing provisions to mandate reforms to the way the military handles sexual assault in the ranks.
Gillibrand’s bill was met with strong resistance not only from the military brass, but also among some of her colleagues, who were concerned that removing the adjudication of the crimes from commanders could undermine the structure of the military and the need for changes and policies to be made top-down.
“The commanders' ability to preserve good order and discipline remains essential to accomplishing any change within our profession,” Chairman of the Joint Chiefs of Staff Martin Dempsey said in congressional testimony in June of last year. “Reducing command responsibility could adversely affect the ability of the commander to enforce professional standards and ultimately, to accomplish the mission."
Laura Seal, a Pentagon spokeswoman, told Defense One on Thursday: "Our position has not changed."
Each legal action a commander takes is based on a recommendation by a military attorney, Seal said. Last year’s NDAA mandated that if a commander declines to take the attorney’s legal recommendation, the case is elevated to the secretary of that service. In FY 2014, according to Seal, commanders took some form of action against 73 percent of those accused of military sexual assault, when the military had jurisdiction and sufficient evidence of an assault. Most of those actions went to court-martial proceedings, she said.
She noted that in June, a congressionally mandated independent panel on sexual assault supported the Pentagon and Missouri Democrat Sen. Claire McCaskill’s bill, which enacts reforms but does not take the cases out of the chain of command. The panel found that doing so would not reduce assaults or increase reporting.
"The question of the commander's role in the military justice system was asked and answered by the independent, congressionally directed Response Systems Panel, which rejected taking commanders out of the legal process citing there was no evidence that such an action would improve victim confidence in the system or increase reporting of the crime," Seal said.
The debate pitted Gillibrand against McCaskill, her fellow Armed Services Committee member and a former sex crimes prosecutor. There were similarities between the bills, but McCaskill’s bill did not remove the military chain of command from the process.
In March, the Senate passed McCaskill’s Victims Protection Act 97-0. Gillibrand’s bill fell just five votes shy of the numbered needed to limit debate, at 55 to 45.
“A year ago, a sexual assault survivor in the U.S. military faced a daunting landscape, but things are different now … We’re already seeing positive signs as a result of the historic reforms we passed last year,” McCaskill said in a statement on Thursday.
Her spokeswoman, Sarah Feldman, said there’s still more work to be done to prevent retaliation. “This report shows an overwhelmingly positive shift on multiple metrics. One major area where we still have work to do is curbing retaliation against victims—a stubborn issue that requires more commander-involvement, not less. Making commanders less involved and less accountable by removing them from these cases is only a recipe for more retaliation,” Feldman said.
Hagel, who announced his resignation last week, has issued 28 directives on military sexual assault in the past year alone, and he specifically highlighted a new program to provide special victims legal counsel, which was codified into law by Congress. He also announced four new initiatives to improve the military’s response to sexual assault, including a study of installation-specific prevention efforts; augmenting all supervisor training; new procedures for installation commanders handling sexual assault cases; and an interactive presentation of the report’s findings to all service members.