Sexual assault in the military threatens our national security. This has been a hard lesson for military leaders to learn, but thanks to significant pressure from Congress and victims' advocates, they're starting to get the picture.
Last month, Secretary of Defense Leon Panetta announced that sexual assault cases will now be handled by higher-ranking, more experienced officers and supervised by new Special Victims Units. These changes indicate that the Pentagon is finally interested in treating sexual assault as a serious crime rather than as lapse in professionalism or leadership. Yet access to justice for service members seriously lags behind access to justice for civilian victims. If we want to end this crisis in the ranks, much more needs to be done to ensure service members are guaranteed the same rights and judicial protections provided to civilians.
To get an idea of the scope of the problem, we can turn to the Pentagon's own data. More 19,000 sexual assaults occur annually in the ranks. That's 52 a day. Only 13.5 percent of military sexual assaults are reported. (At the military academies, only 10 percent of victims report, suggesting that the climate is even less conducive to supporting victims.) Few cases make it to trial. Sentences often amount to slaps on the wrist. Last year, 10.5 percent of accused offenders were allowed to "resign in lieu of court martial." And among those who were convicted in military court, one-third were allowed to keep their careers and stay in the military, despite ample evidence that most sex offenders are serial predators.
These data suggest that justice is hard to come by in the military judicial system. But military culture as much as military law is to blame. Being sexually assaulted in the military is a unique experience; a victim cannot quit his or her job. You are forced to obey orders, even from your perpetrator, if he outranks you. The vast majority of victims are junior enlisted. They have very little freedom of movement, barely any privacy, and little authority to fight a system based on respecting rank and following orders.
Women and men who have been assaulted frequently say that they do not feel safe reporting. Many have a well-founded fear of retaliation by their perpetrators, by their peers and often by their own commanders. Survivors are often punished after reporting, including being forced to work with their perpetrators; charged for "fraternization," "adultery" or "conduct unbecoming"; demoted or denied promotions and awards; or discharged from service with a false mental health diagnosis. Many survivors rightly perceive reporting as a career-ender, whereas sex offenders thrive in this low-reporting, victim-hostile climate; they can target their victims and commit their crimes knowing that the chances of being caught and convicted are slim.
Often it is asked whether the civilian criminal justice system handles sexual assault cases better than the military system. Unfortunately, rape cases in general are notoriously hard to prosecute, often because of insufficient evidence, the extent of the victim's trauma, a shortage of witnesses and extraneous factors that lead to victim-blaming.
However, civilian victims are able to turn to other constitutionally granted avenues to justice in the federal court system. Civil courts have historically provided a deterrent to institutional negligence, such as sexual harassment in the civilian workplace. Unfortunately, rape victims who wear the uniform are not afforded this remedy. As a result, not only do military victims have less of a chance of seeing their perpetrators pay for their crimes, but the military as an institution does not have a sufficient deterrent to reduce the number of sexual assaults that are committed each year.
Shortly after the Uniform Code of Military Justice was codified, the Supreme Court closed off service members' access to the civil courts in the landmark case Feres v. United States (1950). In Feres, the court ruled that the United States is not liable under the Federal Tort Claims Act for injuries to members of the military that are "incident to service."
The Feres decision was made in large part out of deference to the military's operational imperative; it would be hard to win a war if troops were bringing lawsuits against their commanders for every order that got them injured.
Unfortunately, over the years, the courts have broadly defined the phrase "incident to service" to mean anything and everything that happens to an individual while serving in the military, including rape. Under Feres, service members have no redress outside of the flawed military criminal justice system to seek redress for wrongs. They simply must accept whatever the military judicial system grants or denies them, and carry on.
Both the secretary of defense and the commander-in-chief have recently acknowledged that there is no room for sexual assault in the ranks. These crimes are not only morally repugnant; they undermine readiness, erode cohesion, threaten retention and create a force unable to accomplish the mission. Because Feres prevents victims of military sexual assault from obtaining justice and appropriate restitution, it has created an impediment to military readiness that the Supreme Court never could have foreseen. Carving out an exception to the Feres doctrine in cases of sexual assault must happen if service members are to get any fair shot at justice, and if military culture is to ever truly change. Rape should not be considered an inevitable consequence of serving one's country.
Lawrence Korb is a senior fellow at the Center for American Progress. He served as assistant secretary of defense in the Reagan administration. His email is firstname.lastname@example.org. Anu Bhagwati was a captain in the Marine Corps and serves as executive director of Service Women's Action Network. She may be reached at email@example.com.