Rape in the Military: “Is this a joke?”

By Halina Schiffman-Shilo

For the past several years, the Forum on Law, Culture, and Society has hosted a film festival at Fordham Law School featuring movies that, in some way, focus on the intersection between law and society. After each screening, the Forum’s director, law professor and author Thane Rosenbaum, hosts a discussion featuring actors, producers, attorneys, or the people who inspired the film.

Even though I knew it would be a hard to watch, I opted for The Invisible War, a documentary about rape in the military. I traveled up to the cozy theater on a crisp Saturday evening and found a seat, recognizing several people I knew in the audience. After a few opening remarks about the festival, Mr. Rosenbaum introduced the film and the panel. Present that evening were attorney Susan L. Burke; Maria Cuomo Cole, one of the film’s executive producers; Rear Admiral Susan J. Blumenthal, a doctor and leading women’s health advocate; and former Airman First Class, survivor, and activist Jessica Nicole Hinves, who is featured in the film. Before the film began, the audience rose and applauded the panelists. And then the lights dimmed.

A synopsis: After a saccharine montage of military advertisements through the years encouraging women to join the armed forces, statistics on sexual assaults in the military flicker across the screen. In the next shot, we are face to face with survivors of those assaults telling their stories. The survivors are so riveting in sharing their personal histories, that for a while I forgot I was in a theater full of people, and felt that each of the speakers was talking directly to me.

The survivors’ accounts all share striking similarities. Reporting being raped did not lead to investigations, prosecutions, or even compassion. Instead, those reporting being raped suffered humiliation, professional retaliation, or further victimization, sometimes all three. All of the victims were deeply traumatized; they also were deeply betrayed.

As many of the women explain, there is a deep and strong bond between servicemen and women as they train, work, eat, celebrate, commemorate, and live side-by-side. They are, in the words of Ms. Hinves during the post-screening panel, “like a family.”

After being raped, members of the military are often further traumatized when their supervising officers, to whom they must report, accuse them of lying or of “asking for it.”  Some of the women in the documentary recount how they were raped by their supervising officer, leaving them with no one to report to, and vulnerable to further harassment or assault. As Ms. Hinves explained to us, supervising officers are the very people who are supposed to protect and help them when something goes wrong. Being rejected by a supervising officer is not only isolating, it causes the victims to question their own memory and judgment.

In May 2013, the Department of Defense released its annual report from the Pentagon detailing sexual assault in the military. The report estimated that reported assaults represent less than 15 percent of the assaults actually committed. In 2012, there were 3,374 complaints of sexual assault, which ranged from “abusive sexual conduct” to rape, involving service members as either victims or perpetrators. Of these complaints, fewer than ten percent went to trial.

As the documentary makes clear, rape in the military, and its accompanying enabling rape culture, is beyond pervasive, it’s an epidemic.

The dearth of prosecutions and the impossibility of seeking damages in civilian courts only feed the problem.

In the military, if a service member is sexually assaulted, she  —no gender bias here, women report more frequently than men, though the report estimated that in terms of hard numbers, more men than women in the military are sexually assaulted —must first report it to her supervising officer. The supervising officer will then decide if the allegation is credible, and if so, will make an assessment of whether he—most of the time, it is a he—thinks the allegation is credible. If he does, he then turns the case over to military police who must decide whether to pursue an investigation and eventually prosecute.

Based on the very personal stories from the survivors in the film, breakdowns occur at every point along the way. The survivor must first get past her supervising officer. She must then contend with the military police charged with investigating the claim, who are often as dismissive as many of the supervising officers. Even if she manages to get her alleged rapist court martialed, she has a tough road ahead of her.

She must now testify in an Article 32 proceeding, which is basically a pre-trial hearing to determine if there is enough evidence to go to trial at all. For many military survivors, as the film illustrates, the prospect of testifying stops victims from pursuing their case. During these proceedings, the defense attorney has enormous latitude to ask very personal, and very accusatory, questions of the victim. For example, in the recent Naval Academy case, in which three midshipmen were accused of sexual assault at a party, the victim, a fellow midshipman, was asked if she had worn underwear to the party, or if she had apologized to one of her alleged rapists “for being a ho”. Only those who can field such incriminating and degrading questions by defense attorneys can then get to a full trial.

But if an alleged rapist is acquitted at trial, his victim can be prosecuted for making false allegations, or if the sex was found to have been consensual, for committing adultery. If the court rules against her, she is almost certain to be dismissed from the military entirely.

A key narrative arc in the film involves a group of the survivors who meet in Washington D.C. to pursue a civil case against the Department of Defense and to lobby members of Congress on Capitol Hill.

Represented by attorney Susan L. Burke, in 2011, the survivors sued the Department of Defense in federal court for failing to investigate sexual assaults, failing to prosecute perpetrators, failing to “provide an adequate judicial system as required by the Uniform Military Justice Act,” and failing to “abide by Congressional deadlines to implement Congressionally-ordered institutional reforms to stop rapes and other sexual assaults.”

In their complaint, the survivors described both their assaults and their supervising officers’ willful inaction or retaliation for reporting the assaults. Many survivors also alleged that their cases were not investigated; others alleged that their rapists had been promoted.

The survivors sued under a “Bivens action,” named for a 1971 Supreme Court case in which the Court found that the federal government can be held liable when its employees violate an individual’s constitutional rights, even when relief is not directly supported by federal law.

Unfortunately for the survivors, the federal court dismissed their case and upheld a long line of precedent which mandates that “matters of military discipline should be left to the ‘political branches directly responsible—as the judicial branch is not—to the electoral process.’” In a nutshell, civilian courts are off limits to the victims of military sexual assault until Congress explicitly empowers them.

Though Ms. Burke and the others have appealed, it is not likely they will prevail in court.

As the film discusses, this judge-made rule that the federal court relied upon to dismiss the survivors’ case is predicated on a 1950 Supreme Court case, Feres v. United States. In Feres, the Court ruled that military personnel could not sue the U.S. government under the Federal Tort Claims Act, which allows civilians to sue the government for injuries sustained “incident to service,” due to acts by government employees.

When the film was over, and the lights went on, I felt shaken. And angry. I wondered how, in 2013, rape in the military could be so rampant, with so few consequences. After a brief discussion about the making of the film, the microphone was turned over to the audience and I got some answers.

An audience member asked Ms. Burke why the Feres Doctrine still exists today, and if lawmakers could do anything to change it.

Ms. Burke answered that lawmakers definitely can – and should. As she explained, the Feres Doctrine is just that, doctrine. However, it will continue to control future court cases until Congress writes a new law that explicitly authorizes civilian courts to hear military liability cases and award damages.

Ms. Hinves added that ever since she was dismissed from the Air Force, she, along with some of the other survivors of military rape featured in the film, has become an advocate to change the way sexual assault cases are handled in the military—namely, that they not be handled by the military at all.

California Democratic Representative Jackie Speier, along with Democratic New York Senator Kristen Gillibrand and others, have called on Congress to take the investigation and prosecution of sexual assault cases out of the military chain of command and put them into an independent, civilian review.

And they may be gaining traction. As the New York Times reported on November 7, just a few days ahead of a congressional hearing on the military’s progress on reducing sexual assault, the Pentagon released 2013 data which shows the military received 3,553 complaints of sexual assault during the first three quarters of the year, significantly more than over the same time period in 2012.

That is 3,553 too many sexual assaults in the military, and it doesn’t even account for underreporting.

During the panel discussion, another audience member asked the panel what we civilians could do to help. Call your senators and representatives, responded Ms. Hinves. She explained that the only way things would change is if more people pressured their congressional representatives to support laws that would change the military’s authority regarding sexual assault. Ultimately, Ms. Hinves continued, it is the American people’s tax dollars that support the military, so the military is accountable to all of us.

Ms. Hinves also discussed the military’s fear of feminization. She described the military as being a masculine entity that was afraid of women joining their club, taking their jobs, and doing a better job than them.

Ms. Hinves spoke confidently about her capabilities as a First Airmen, and told the audience that she was good at her job, better than most of the men. She explained that as a way to keep women in their place, some military men overtly or subtly belittle women and their capabilities. She said she and her colleagues would joke around and razz each other, and that most times it was good-natured fun. But that good-natured fun crosses a line when it becomes mean-spirited or harassing. At that point, it helps feed a culture that allows men to think of, and treat women, as less then. When other men don’t speak out, or the chain of command doesn’t investigate inappropriate, or flat out criminal behavior, the culture that devalues women to such a point where sexual assault is implicitly condoned, will continue.

Perhaps the most illuminating moment in the film comes when a soldier tells her supervising officer that she was raped by a fellow soldier. The officer’s response? He asked her “Is this a joke?”.

You see, the soldier was in the unfortunate position of being the third woman that week reporting her rape to the supervising officer. Instead of taking any of the allegations seriously, he accused her and the other victims of being “in cahoots,” and the investigation died right there.

The victim eventually left the military; her rapist is still there.


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