A Department of Defense (DoD) Task Force on Sexual Assault in the Military told a Congressional committee on February 3, 2010, “DoD’s procedures for collecting and documenting data about military sexual assault incidents are lacking in accuracy, reliability, and validity.”
Task Force a Low Priority – Three Years to Name Members of the Task Force
In what many see as the reality of the military institution investigating itself on the criminal acts of sexual assault and rape committed by its own personnel, the naming of Task Force members and the work of the Task Force were delayed for three years. Following a Congressional request, in October 2005, Donald Rumsfeld, as secretary of defense, authorized the DoD Task Force on Sexual Assault in the Military, but the DoD took three years to name the Task Force and for the Task Force to have its initial meeting in August 2008.
In her opening statement at the hearing, Military Personnel Subcommittee Chair Susan Davis noted this three-year delay: “Not to make a major issue here, but I do feel that it is important to note for the record that, due to a variety of factors that could have been dealt with more quickly by the Department of Defense and were certainly beyond the control of the witnesses before us today, the Defense Task Force on Sexual Assault in the Military Services did not actually begin their work until August of 2008.”
Why not make this delay a major issue when the purposeful delay undercut the oversight that Congress itself was demanding and, most importantly, when during these three years, 6,000 service women and men were sexually assaulted and raped?
In fact, another Congressional subcommittee did make this delay an issue. In July 2008, the Rep. John Tierney, chair of the House Subcommittee on National Security and Foreign Affairs of the Committee on Oversight and Governmental Reform, dismissed from the hearing the DoD’s Principal Deputy Undersecretary of Defense Michael Dominguez from the hearing when Dominguez acknowledged that he had ordered Dr. Kaye Whitley, chief of the DoD Sexual Assault Prevention and Response Office (SAPRO) not to honor the subpoena the committee had issued to Dr. Whitely to testify in the hearing. The subcommittee had been poised to ask her why the DoD had taken three years to name the 15-person Task Force and why the SAPRO program was failing to require key information from the military services in order to evaluate the effectiveness of the sexual assault prevention and response programs.
Once the Task Force began meeting in 2008, over the next 15 months, members of the Task Force talked with over 3,500 service members in 60 US military locations throughout the world. Its 179-page report on sexual assault in the military was made public in December 2009.
It must be a challenge for a Task Force composed of a retired admiral, a former adviser to the under secretary of defense and four active duty military service members appointed by the secretary of defense to be critical of policies of the DoD. The four civilians on the Task Force would be the most likely to be more critical.
One can see the difficulty in bringing out critical information on sexual assault and rape in the military in how the information from the Task Force’s report has been made public.
Take, for example, the testimony itself of the Task Force’s co-chairs to the Subcommittee on Military Personnel of the House of Representatives Armed Services Committee. It is only in the last paragraphs of page eight before you can find what the key problems are concerning sexual assault and rape in the military.
DoD Data on Military Sexual Assault Incidents Are Lacking in Accuracy, Reliability and Validity
Why wait to the last page of testimony before the co-chairs of the Task Force state, “DoD’s procedures for collecting and documenting data about military sexual assault incidents are lacking in accuracy, reliability, and validity”?
It seems reasonable that Congress, the public and, in particular, the members of the military, should be informed first thing in the testimony that the information provided by the DoD has not been accurate, reliable or valid! But, unfortunately, the Task Force did not elaborate on how inaccurate, unreliable or invalid DoD’s information is or how they arrived at that conclusion.
We all know that, as the testimony said, “Accurate and comprehensive data is essential to achieving accountability for responders and those who are accused of criminal activities. Without meaningful data, trend analysis and efforts to effectively address issues become problematic.”
According to the Task Force’s December 2009 report (page 77), the DoD’s procedures for collecting and documenting data about military sexual assault incidents lack “accuracy, reliability, and validity.” The report stated that SAPRO expended much effort compiling DoD’s annual report to Congress, but this report “falls short in measuring the underlying incidence of sexual assault. Specifically, SAPRO has not established a database or the necessary tools to accurately track the incidence, investigation, and prosecution of sexual assaults in the Armed Forces. The absence of this database and associated tracking tools precludes the ability of DOD and the Military Services to gain an accurate understanding of the pervasiveness and nature of military sexual assaults and impact on military readiness.”
Is it inaccuracy in terminology alone, or in numbers of incidents reported, action taken and types of punishment? We don’t know, but these would be questions for Congress to ask. Where is the accountability? How and why would someone combine offender and victim data?
In their testimony, the Task Force co-chairs, remarkably, acknowledged that the most recent DoD report to Congress itself was wrong as it “combined offender and victim data.” That must be a story in itself, how two very different sets of data could/would be mixed together and no one spot the mistake before the report was submitted to Congress!
What are the implications of the mixing of the data, one would like to ask? Who would have made such a mistake? Was it a mistake?
Neither Victims Nor Other Military Personnel Informed of the Results of Possible Disciplinary Actions
The Task Force leaders told Congress that “neither victims nor other military personnel were routinely informed of the results of disciplinary actions relating to sexual assault.” The Task Force stated, “Commanders generally did not communicate case results to members of their command, and that this lack of information often led to misperceptions, rumors, and assumptions that allegations were unfounded.”
I have heard from several women survivors of sexual assault that they were the last to find out that the perpetrator of the assault had gotten off scot-free, with no punishment. And they, the victims, became the focus of unit members’ snide remarks and comments.
Additionally, the Task Force recommended that “both victims and other military personnel within the affected command be informed of the disciplinary action results related to sexual assault.”
Why does it take a recommendation of a task force to remind/force persons entrusted with command to simply notify victims of the sexual assault of the disciplinary action taken?
Perhaps, it is that, in all too many cases, no disciplinary action was taken at all. Perhaps, it is because no one in the higher chain of command was/is holding commanders responsible for punishing these types of criminal acts.
Leaders Need to Model Correct Behavior
A clue as to what the Task Force is driving at comes from a statement earlier in the testimony about the importance of unit leadership: “Leadership clearly has a profound influence on the prevention of sexual assault, from strategy development and execution, to continued focus and open discussion of the issue. Commanders and leaders must take an active role in addressing the issue and modeling correct behavior.”
The report itself noted: “Given commanders’ responsibility to actively ensure proper support and discipline of those under their charge, the restricted reporting option for military sexual assault victims presents a challenge to some commanders. This reporting option requires commanders to respect the protections offered to victims to ensure confidentiality and support. Confidentiality runs counter to commanders’ traditional expectations of accountability. Focus on accountability and discipline – important attributes of the chain of command – may prevent some military personnel from reporting sexual assault. This is particularly an issue when sexual assault victims may have engaged in misconduct for which they could be disciplined, such as underage drinking, fraternization, or adultery.” (p.37)
Military Lawyers Say Sexual Misconduct Regulations Are “Cumbersome and Confusing”
The Task Force leaders commented that military lawyers consistently advised the Task Force that the new Article 120 of the Uniformed Code of Military Justice, the article that addresses sexual misconduct, is “cumbersome and confusing.” Based upon the consistency of this feedback, the Task Force recommended a review of the effectiveness of Article 120.
If the military lawyers are having difficulty figuring out the regulations, no wonder so few persons are prosecuted for these crimes.
After 60 Years of Sexual Assault and Rape, Still No Measurable Indices
The Task Force testimony said there is no research on “meaningful incidence metrics” on which to identify effective prevention strategies and initiatives.
After 60 years of women being in the military, and with cases of sexual assault and rape increasing by the decade, one would have hoped that in all the studies (dozens of them) conducted, that the DoD, which can figure out metrics on every other subject to include all other types of criminal acts, would have made it a priority to develop the metrics on these criminal acts affecting members of its population.
The Task Force web site lists 20 reports on sexual assault since 1988 and there were many more reports prior to that date. But, if comments of the Task Force are accurate, I guess data collection on sexual assault and rape has been too difficult or, more likely, too unimportant for men who are at the top echelons of the military establishment.
Military System Stacked Against the Victim – Effectiveness Between Victim and Victim Advocates in the Military Limited as No Communications Privilege Under Military Law
The Task Force stated that communications between sexual assault victims and victim advocates were “problematic” because these communications are afforded no privilege under military law. Therefore, the effectiveness of victim advocates in the military is limited. The Task Force reminded us that in civilian communities, medical personnel can provide privileged advice and counsel to victims, but this is not the case for military medical providers. While a victim advocate may be available, the advocate must advise the victim that, should he or she decide to pursue an unrestricted report of the assault, all communications between the advocate and the victim are discoverable by the alleged assailant’s attorney. As it stands now, the only legal source of confidential advice for a victim from the military community is a lawyer or a chaplain, but many victims are reluctant to seek help from a chaplain about a sexual matter.
In contrast, in the civilian world, 35 states have granted effective privilege to communications between victims and victim advocates.
The Task Force recommended that Congress enact into the Uniformed Code of Military Justice a comprehensive military justice privilege for communications between military victims of sexual assault and victim advocates.
Victims Don’t Know Their Rights and Are Dissatisfied With Treatment in Investigative Process
The Task Force found that sexual assault victims are frequently dissatisfied with their treatment during the investigative process, often because they participate in this process without fully understanding their rights and the limitations of their rights.
The Task Force recommended that victims of sexual assault be immediately made aware of their rights, including the opportunity to consult with legal counsel during the investigative process.
Perhaps, a headline in military newspapers and in military recruiting stations and basic training facilities, such as, “If you are raped, ask for a lawyer” might be an effective way of communicating this information!
No Certification Required for DoD Victim Advocates
While many victim advocates volunteer for the duty, others are appointed as an extra duty by the unit commanders and have very little interest or compassion for the victims. The DoD has never required formal certification for its victim advocates.
The Task Force recommended that the DoD require response personnel and victim advocates receive more specialized training on sexual assault response, and, also, service members who report they were sexually assaulted be afforded the assistance of a nationally certified victim advocate.
Rape of Men in the Military
The social pressure within military units against reporting sexual assault and rape is extremely intense and particularly for male soldiers. The Task Force acknowledged that sexual assault of men in the military is under reported (p. 34). In Congressional testimony in the summer of 2008, Lieutenant General Rochelle, the Army chief of personnel, reported the little-known statistic that 12 percent (approximately 260) of the reported 2,200 rapes in the military in 2007 were reported by military men victims.
Interestingly, the lead story of rape chronicled in the Task Force report was not the rape of a woman soldier, but the rape of a male soldier. Pfc. Cody Openshaw was raped by a noncommissioned officer in charge of the medical holding unit where Openshaw was assigned to recover from injuries following a parachute accident. Openshaw was threatened by the NCO and never reported the rape. Five years later, he finally acknowledged the rape and sought assistance because of his nightmares, excessive drinking and his increasing isolation. He ended up committing suicide.
The Task Force recommended establishment of gender-specific medical care protocols for victims of sexual assault to provide immediate treatment to victims for their injuries, to provide screening and treatment for sexually transmitted diseases and to provide a forensic examination to assist law enforcement efforts.
“Sexual Assault Within the Ranks Is Antithetical to the Trust and Camaraderie That Defines Military Culture”
Davis ended her opening statement at the February 3, 2010, hearing with: “Sexual assault within the ranks is antithetical to the trust and camaraderie that defines military culture. Any sexual assault undermines the moral foundation of our Armed Forces and does irreparable harm to unit cohesion. Hopefully today’s hearing will help us chart a legislative course to make progress in our goal to eliminate sexual assaults in the military.”
It’s a Crisis When Legislation Is Needed to Make Progress to Eliminate Sexual Assaults in the Military
Congresswoman Davis’ comment that the elimination of sexual assaults and rape in the military needs a “legislative course” reflects the key, underlying problem women and men victims are facing – unresponsive leadership of both commissioned and noncommissioned officers, who provide the foundation of the military’s culture.
As citizens, we should recognize that there is a crisis in our military when Congress feels it must step in with legislative fixes to try to stop these criminal acts when military leadership refuses to take appropriate steps on its own.
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