There’s Still No Ceasefire in the Invisible War

During a recent lunch break at the offices of my law firm, McAllister Olivarius, our staff watched the powerful documentary Invisible War, an investigation into the pervasive problem of sexual assault in the U.S. military. Much of our legal work tries to achieve justice for women who have faced harassment or unequal treatment at work, so the subject matter was not foreign; but still, watching it was harrowing.

It addresses sexual violence with unusual frankness, letting survivors speak for themselves. One of the subjects was Kori Cioca, a former member of the U.S. Coast Guard who was raped by her commanding officer. Now she must take a plethora of pills to combat post-traumatic stress disorder, and carries a knife with her at all times to feel a sense of safety.

Equally disturbing were the statistics: the U.S. Army’s own figures suggest that 20% of women in the services have been sexually assaulted, and that as many as 80% of cases go unreported. The structure of military justice is one major problem: survivors are often forced to report the crime to the person who committed it, or his friend; shockingly, women who are raped by married men are often charged with adultery, even when their attackers go unprosecuted.

Last month the US Senate took up the issue. Senator Kirsten Gillibrand (D-NY) spearheaded a bill to take the prosecution of military sexual crimes out of the chain of command, which had enough votes to pass but not enough to defeat a filibuster. Instead, the Senate adopted a rival proposal backed by Senator Claire McCaskill, which leaves the decision to prosecute in the hands of the unit commander. But this bill will still add new safeguards, and removes the ‘good soldier’ defense which allowed soldiers to point to previous good behaviour to defuse criminal charges.  

I don’t think there’s real doubt that sexual assault prosecutions have to be handled outside the chain of command – which is already the norm in Britain, Canada and other allies -- before the U.S. military makes real progress on this issue. According to the Pentagon’s own research, 25 per cent of women and 27 per cent of men who experienced unwanted sexual contact said that their offender was a superior in their own chain of command. In an interview with MSNBC, Sen. Gillibrand put it best: “We need an objective, trained prosecutor making these decisions about whether a case should go forward, not politics, not the discretion of a senior officer or a commander who may like the perpetrator or might like the victim, who may value the perpetrator more than the victim.”

Of course, this isn’t a perfect solution: we know enough about civilian sexual violence to recognize that not every survivor’s case would be resolved fairly.  But it's still important to give greater confidence to those who have suffered sexual violence that their complaint will be taken seriously and robustly investigated. These reforms would improve access to justice, and the likelihood that justice will be carried out.

I can appreciate the arguments made by Amy Davidson in the New Yorker that commanding officers should be taking responsibility for what happens in their unit, not shirking it. Davidson asserts that, increasingly, the person behind that desk is going to be a woman, or a gay man, or one who has been mentored through his career by a woman, and that a slow liberalization of the military will produce the most constructive resolution of all: real cultural change. However, it can only be an injustice to the thousands of victims of sexual violence to force them to wait for that glacial progress.

The recent trial of Brig. Gen. Jeffrey A. Sinclair served to further undermine the credibility of the system. General Sinclair was accused by a junior officer of forcing her to perform fellatio, and threatening to kill her and her family if she revealed their relationship; he faced charges that might have brought him life in prison. In the midst of the trial, the military judge overseeing Sinclair’s court-martial ordered prosecutors to consider a plea bargain previously entered by Sinclair, after the judge decided that political considerations had unfairly influenced the prosecutors. Now, the judge has ruled that Sinclair will face no jail time, and will not be discharged.

The Sinclair trial fell apart because of pressure - not, this time, because prosecutors felt pressure to protect the accused, but to prosecute more aggressively. From whichever side you look at it, the lack of independent judgment in the prosecution of these cases degrades the quality of justice on offer, and our confidence in the outcomes reached.