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Tomgram: Andrea Mazzarino, A Pandemic of Sexual Assault in the Military?

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Let me also say that I do understand why the military needs its own system for dealing with infractions specific to its mission (when, for instance, troops desert, defy orders, or make gross errors in judgment). The Uniform Code of Military Justice (UCMJ) is federal law enacted by Congress. Analogous to our civilian legal system, it is of no small importance, given the potential cost to our nation's security should the deadly equipment the military owns not be operated with the utmost sobriety and discretion.

In such cases, the standards listed in the UCMJ are implemented according to procedures outlined in another document, the Manual for Courts-Martial (MCM). Essentially, the MCM provides a framework for trying alleged offenses of various kinds within the military, laying out the maximum penalties that may be imposed for each of them.

Included in this are procedures for nonjudicial punishments in which a commanding officer, rather than a court-martial judge and a panel of other personnel (functionally, a jury), determines what penalties are to be imposed on a service member accused of a crime. Crucially, the results of such nonjudicial punishment do not appear on an officer's criminal record.

Among other things what this means is that a commanding officer can decide that a soldier accused of sexual assault will be subjected to nonjudicial punishment rather than a military trial. In that case, the public will have no way of knowing that he committed such an act. No less crucially, the MCM leaves it entirely up to the commanding officer of a soldier's unit whether or not such allegations will be dealt with at all, no matter the format. That's why the Senate bill under consideration is of importance. At least it will remove the decision-making process on prosecuting reported assault cases from officers who may have a vested interest in covering up such assaults.

Because here's the grim reality, folks: sexual assault in the military is a pandemic all its own. According to a 2018 Defense Department survey across five branches of the armed services (the most recent such document we have), 20,500 assaults occurred that year against active duty women and men. Yet fewer than half of those alleged crimes were reported within the military's justice system and just 108 convictions resulted.

What this tells us is that commanding officers exercise a stunning decision-making power over whether allegations of rape get tried at all and generally use it to suppress such charges. Consider, for example, that, of the 2,339 formally reported sexual assaults that military investigators recommended for arbitration in 2019, commanders took action in only 1,629 of those cases. In other words, they left about a third of them unexamined.

Of the ones brought to the military justice system, fewer than half were actually tried in front of a judge through the court-martial system. At worst, the remainder of the accused received nonjudicial punishments from commanders extra duties, reductions in pay or rank or were simply discharged from the service. And all this happened entirely at the discretion of commanding officers.

Those same commanders, who have the power to try (or not try) allegations of violence, generally have a vested interest in covering up such accusations, lest they reflect badly on them. And while you might think that sexual-assault survivors would have a say in command culture, as it happens their "anonymous" contributions to such reports sometimes turn out not to be anonymous at all. In smaller units, commanders can sometimes figure out who has reported such incidents of violence and misconduct, since such reports regularly include the gender and rank of those who have come forward.

All of this explains why the Gillibrand-Ernst bill is a welcome departure from a classic case of the fox guarding the henhouse. At least those with less of a conflict of interest and (hopefully) more than just a token amount of training when it comes to sexual assault, harassment, and other forms of violence will be assigned the job of deciding whether or not to try alleged felonies.

Let's Take This Further

And yet, while that bill is far better than nothing, it's distinctly a case of too little, too late. The real problem is that Americans generally view the military just as the military views itself an island apart from the general populace, deserving of special allowances, even when it comes to sexual crimes.

I recently spoke with a young female Air Force recruit who saw the military as her sole means of paying for a four-year university without carrying crippling debt into middle age. What struck me, however, was how much more she feared attacks by male airmen than the possibility that she might ever be wounded or killed in a combat zone. And in that ordering of fears, she couldn't be more on target, as the stats on combat deaths and reported sexual assault bear out.

In addition, these days, new recruits like her enter the military in the shadow of the bone-chilling murder of Spc. Vanessa Guillen, a 20-year-old Army soldier. She went missing in April 2020 from Fort Hood, Texas, shortly after reporting that a superior officer had sexually solicited her, repeatedly made an example of her after she refused him, and finally approached her while she was taking care of her personal hygiene. Her dismembered body was later found in a box on the base. Her alleged killers included a soldier who had been accused of sexual harassment in a separate case and his civilian girlfriend. An Army report on Guillen's murder and the events that led to it concluded that none of her supervisors had taken appropriate action in response to her allegations of sexual harassment.

The murder sparked public outrage, including among women in the armed services who quickly coined the Twitter hashtag #IamVanessaGuillen, and went public with their own accounts of being assaulted while in the military. Her case would, in fact, be a major catalyst driving the Senate bill, which has attracted support from a striking range of sponsors, including Elizabeth Warren (D-MA) and Ted Cruz (R-TX).

Though I never thought I'd find myself quoting Ted Cruz, let me echo his reaction to the bill: "It's about damn time."

A Small Start

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Tom Engelhardt, who runs the Nation Institute's Tomdispatch.com ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and, most recently, the author of Mission Unaccomplished: Tomdispatch (more...)
 

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