Tag Archives: military sexual violence
By Kathleen Gilberd
Published in the Winter 2016 issue of On Watch.
The recently-enacted 2016 National Defense Authorization Act (NDAA; Public Law 114-92) includes a number of new policy provisions on military sexual assault, most of them designed to facilitate changes made in prior Authorization Acts.
Section 531 of the 2016 NDAA expands and details a victim’s right to submit a petition for a writ of mandamus to the military Court of Criminal Appeals (CCA). The section amends Article 6b, subsection E, of the UCMJ to allow such a petition when the victim believes rights afforded under the following are violated during a preliminary hearing (Art. 32) or court-martial:
- 6, UCMJ (which includes other victim’s rights provisions)
- 32, UCMJ
- Military Rule of Evidence (MRE) 412, which concerns admission of evidence of a victim’s sexual background
- MRE 513, regarding the psychotherapist-patient privilege
- MRE 514, regarding the victim advocate-victim privilege
- MRE 615, covering exclusion of witnesses
Further, if the victim of an offense under the UCMJ is subject to an order to submit to a deposition, notwithstanding his or her availability to testify at court-martial, the victim may petition the CCA for a writ of mandamus to quash the order.
These petitions for writ of mandamus are to be forwarded directly to CCA by procedures to be prescribed by the President, and “to the extent practicable, shall have priority over all other proceedings before the court.”
The Department of Defense has just released a new report on sexual assault in the military, and Pentagon officials are claiming that their efforts against sexual assault involve “notable progress.”
The report gives a top ten list of “indicators and agents of change,” including “extensive leadership engagement,” a “comprehensive prevention and response system” and an “enhanced prevention strategy,” among other things. According to the report, nearly 6,000 reports of sexual assault were made in 2014, up 8% from the previous year and significantly higher than the 3,375 reports in 2012. At the same time, DoD estimates, on the basis of “provisional” figures, that the number of actual assaults has gone down, from 26,000 in 2012 to 19,000 in 2014. (See a detailed rundown of the numbers from Military Times.)
The Army has just released a new version of AR 600-20, “Army Command Policy” (PDF).
This reg gives commanding officers direction on a wide range of issues, including Article 138 complaints, dissent policy, sexual assault and sexual harassment, etc. The new version updates Army equal opportunity policy, gives additional guidance on sexual assault/harassment policy, clarifies groups of personnel who must be informed of accommodation of religious practices policies and discusses those policies, incorporates policies from Army Directive 2013-18 on participation in extremist, terrorist and criminal gang organizations and activities, clarifies fraternization policy, adds “bullying” as prohibited conduct (along with hazing), defines a protected communication, etc.
The reg has garnered public attention because it lists the word “Negro” as an acceptable term; this section is now being reconsidered, according to the Army Times.
Update 11/7/2014: Use of word ‘Negro’ removed from new Army reg
By Jim Klimaski
Punishing the transgressor addresses half the problem. Where is meaningful assistance for the victim?
The Tailhook scandal occurred over 20 years ago. At least 83 women and seven men were identified as having been sexually assaulted at the Navy/Marine Corps Tailhook Association Convention held in Las Vegas in September 1991. There were over 4,000 active, reserve and retired service members in attendance, including several Flag officers. What occurred at this gathering soon became public knowledge and calls by members of Congress for an investigation started a long battle between those in the military who wanted to sweep the matter under the rug and senior officials at the Department of Defense who wanted a thorough and complete investigation leading to changes in the military’s attitude toward women in uniform. This struggle still continues with some success, but the victims of the harassment and assault continue to find themselves ostracized, their military career at an end. None of the sexual assault victims from the Tailhook scandal were able to continue their military careers.
With a strong push by Congress, the various military services have begun to take a hard line on prosecuting the alleged perpetrators of sexual assault and harassment. Each service claims it has established a special teams of experienced prosecutors aided by victim witness counselors who help the complaining victim through the court martial process. But outside these legal proceedings little is done to assist the sexual assault victim should they wish to continue their military career.
Curbing Convening Authority Power to Alter Court-Martial Convictions Is No Solution, Is Insufficient and Misses the Point
By David Gespass
There is no denying that “sexual assault” (a euphemism for rape and attempted rape) is a serious problem within the military. Indeed, it has always been a problem, though it may now be more serious from the point of view of military authorities because victims, increasingly, are other members of the armed forces rather than civilians.
To date, the solutions that have been proposed are, from the military, more training and, from various civilians (most notably, New York Senator Kirsten Gillibrand), stripping convening authorities of their power to alter court-martial convictions and sentences. The former has been spectacularly unsuccessful. The latter highlights the tension between two important ends, those of protecting people from sexual violence and protecting the due process rights of individuals accused of crime.
Thus far, there has been near universal acknowledgment that the problem exists but little has been done to address, much less solve, it. Indeed, even as sexual violence appears epidemic, elected officials tie themselves in knots praising our men and women in uniform while, at the same time, condemning perpetrators of such violence yet refusing even to consider that the culture of the armed forces promotes it. This is not to say that everyone who enlists is bound to become a predator. Rather, the soil of military culture is one in which potential predators can be nourished and thrive. And our elected officials are loath to suggest such a thing for fear of being criticized as disparaging “our” troops.