This article is in response to a featured piece first published on April 29th.
The end of April marked the completion of Sexual Assault Awareness Month (SAAM), a national initiative implemented by President Obama and recognized by the United States Armed Forces. In honor of this initiative, the Department of Defense (DoD) and the Sexual Assault Prevention and Response Office (SAPRO), the entity responsible for establishing and executing the military’s sexual assault policies, are calling upon all military personnel to recognize and report sexual assault with this year’s campaign theme titled, “Live Our Values: Step Up to Stop Sexual Assault.”
The SAAM initiative is one of many highly publicized promotions SAPRO has employed over the past five years that has focused on educating service members about the military’s sexual assault policies. Two weeks ago, Secretary of Defense Chuck Hagel was quick to jump on camera and reveal the DoD’s 2014–2016 Sexual Assault Prevention Strategy, a plan dedicated to creating a safer environment in the military through “increased training and awareness for the entire force.”
Considering the comments made by Special Agent of the Army Criminal Investigation Division, Rob Fitzgerald, in a recent article, it is clear that SAPRO’s training programs have been ineffective. Sgt. Fitzgerald derisively discredits the assault epidemic by claiming that the military has redefined the legal definition of “sexual assault” to encompass sexual harassment and unwanted but benign behavior, such as unwelcomed handholding. Unfortunately, this assertion is directly contradictory to the definitions of sexual assault laid out in the most recent DoD Annual Report on Sexual Assault in the Military, the United States Military Justice Code, and SAPRO’s own online training materials. All three sources specify the striking differences in the military’s definitions of sexual harassment and sexual assault.
In reality, the military legally defines sexual assault as “intentional sexual contact characterized by use of force, threats, intimidation” without the victim’s expressed consent.
While Sgt. Fitzgerald’s claims that the majority of sexual assault cases are constituted by minor offenses like leering, gender-based harassment, or name calling, the evidence demonstrates otherwise. In actuality, 95% of the unrestricted reports of sexual assault crimes were categorized as rape, aggravated sexual assault, abusive sexual contact, aggravated sexual contact, or non-consensual sodomy. The physical, psychological, and legal distinctions between leering and aggravated sexual contact, for example, are clear.
The myth that the data on sexual assault in the military are overinflated by minor misconduct is easily debunked. The fact that Sgt. Fitzgerald, a trained sexual assault investigator, continues to make inaccurate justifications proves that the mismanagement of cases and contemptuous attitudes towards sexual assault is not a thing of the military’s past.
In addition to being ineffective, SAPRO’s latest awareness and education campaigns have not translated into substantive action. The latest DoD data shows that only 10% of the 5,061 total reports of sexual assault for last year resulted in trial. About another 20,000 cases of sexual assault went completely unreported. For all of SAPRO’s emphasis on bystander intervention as a solution to the sexual assault epidemic, the military has failed to fulfill its fundamental obligation: to bring perpetrators to justice and remove them from the organization.
Staggering statistics illustrate just how few of these sexual offenders have been appropriately disciplined. Last year, 16% of the service members proven to have committed sexual assault crimes against a fellow member were precipitously granted nonjudicial punishments (forfeiture of pay, extra duty, fines, etc.) by their respective commanders. The DoD Annual Report excuses this alarming statistic by claiming “nearly all of the administered nonjudicial punishments were for a non-penetrating sex offense” and ignores the fact that the most common sexual assault crime is abusive sexual conduct, which is legally defined as incessant groping with the intent to abuse, humiliate or degrade a person using threat or bodily harm. This report also shows that 40% of those convicted at courts-martial last year were only sentenced to hard labor (trash-collecting), confinement (house arrest), or fines.
Sgt. Fitzgerald, along with many others, excuse the military’s astounding inability to duly prosecute and remove sexual offenders from its ranks by claiming that “as long as there are sexual predators in society there will be sexual predators in the military.”
In reality, the military is fully capable of mitigating the sexual assault epidemic if it loosened its death grip on the conservation of military hierarchy. The DoD has recently pushed back on solutions like Sen. Kirsten Gillibrand’s failed legislation, which proposed that military prosecutors, instead of commanders, be allowed to bring charges against serious sexual assault offenders.
In the military justice system, commanders have been given full discretion to prosecute sexual assault cases. However, commanders are not unbiased third-party observers with legal expertise like military prosecutors. Promotions and other career incentives are dependent upon a commander’s “command climate,” which can undoubtedly be marred by multiple referrals of sexual assault cases to the courts-martial. Considering that about 63% of victims of unwanted sexual contact reported their abuser to be of higher rank, it’s time to move judicial decision-making beyond the chain of command.
But then again, it’s easier and flashier to hang posters and hold training seminars than to take real, and the necessary, corrective action.
Kelli Gulite is a recent graduate of GW and currently work as a paralegal in Washington, D.C. She has been a libertarian activist since she was 16, was highly involved in Students for Liberty and the DC Forum for Freedom, and was the president of GW’s college libertarian club, the Liberty Society.