by Thor Hawrey*

It is often said that the United States military is the strongest fighting force on Earth. With around 2 million members, 13,000 aircraft, and the lion’s share of 11 out of the world’s 43 aircraft carriers, it’s hard to deny that assertion. However, our nation’s military has not been able to avoid the historically common issues that have faced the great militaries of history. One such problem, which has recently seen an increase in coverage due to movements like #MeToo and some high-profile cases, is that of sexual assault against the women who volunteer to dutifully serve our nation.

One recent high-profile case that has helped serve as an impetus for this important issue to gain some more national coverage is that of Spc Vanessa Guillen, who was murdered in the spring of 2020. Though she was murdered in April, her body was not found until July. The Army’s search and investigation were sluggish and only began to take up any real urgency due to the diligence of Vanessa’s family and of protestors nationwide. In response to the strength of the #IamVanessaGuillen movement, the U.S. Army opened a special investigation into the handling of the case itself as well as into the command and cultural climate at Ft. Hood, the base at which Vanessa was stationed. The reasoning for the latter aspect of the special investigation was to address the claims by Vanessa’s family that she had been sexually harassed at the base prior to her murder. The investigation found that the command climate at Ft. Hood created a “permissive environment for sexual assault and sexual harassment” and resulted in 14 Army leaders being suspended or relieved of command. The report demonstrated that the system for prevention of sexual assault was not working and that there is a need for a system that effectively deals with the problem of ineffective implementation by commanders.

This report was only the beginning for what would come next as it became clearer that reform was, and still is, needed. Sadly, neither the culture at Ft. Hood nor Vanessa Guillen’s case are unique occurrences in the military. In fact, approximately one in every four active duty female military members reports having been raped or sexually assaulted. This comes out to around 12,000 female military members per year, though it’s predicted that approximately two thirds do not make reports. Though the one quarter of women in the military figure mentioned above is similar to the roughly one fifth of women in the general population who have experienced attempted or completed sexual assault in the U.S., the difference here has to do with the venue in which these crimes occur. Placing this in perspective is a statement by Meghann Myers, the Pentagon Bureau Chief for Military Times:

You know, if [one in] four female reporters were sexually assaulted by the reporters in the newsroom, right? Or if one in four female nurses were sexually assaulted by doctors in the hospital, that would be outrageous. You know, we would never accept that in those[…]small communities, that prevalence. These are, again, supposed to be the people that you would die for. And yet, you are, you know, victimizing them.

Shockingly, however, the issue of sexual assault in the military may seem hopeless to many as less than one percent of the annual cases see a conviction. Additionally, the damage of sexual assault extends to both the victim and the military. Currently, a female military member is more likely to get post-traumatic stress disorder from being sexually assaulted or harassed than from actual combat. Due to this trauma, as well as the many other complex reasons associated with sexual assault, many victims feel trapped, have suicidal thoughts, and opt to leave the military. Those who desire to serve and protect us must forfeit their careers due to an inability for us to protect them.

With so much on the line for these heroes, the question must be asked: what is the Biden Administration doing to address pervasive sexual assault against women in the military? On September 22 of 2021, the Pentagon released its new eight-year plan based on its Independent Review Commission findings. Broken up into four stages, the plan aims to build back the trust of military personnel while overhauling how the military handles sexual assault. One of the main changes that the plan seeks to make is to do away with the current integration of commanders with the prosecution of sexual assault and harassment.

The currently integrated system, as per the Uniform Code of Military Justice, allows for commanders of those accused of these crimes to decide whether or not they are investigated or prosecuted. As demonstrated in many cases, such as what happened to the man who raped Private First Class Florence Shmorgoner in 2015, commanders may choose not to criminally charge individuals who they deem to have “good character,” despite the individual confessing to the rape. The Pentagon has historically defended this system as a means of ensuring institutional leadership, even though it has been repeatedly named as one of the biggest issues towards not only effectively prosecuting these crimes, but also towards creating a leadership culture which does not tolerate them.

The Pentagon’s new plan indicates a drastic shift from this historical defense. One senior official from the Independent Review Commission stated:

[T]hat we reject the notion that shifting legal decisions about prosecution from command to prosecutors diminishes the role of those commanders…We believe instead that it enhances their role, and places them in the lead of taking care of their people, the no. 1 job of commanders, and creating climates of no tolerance for sexual assault, sexual harassment and related crimes.

Though the Department of Defense has stated that it will do away with the commander’s ability to influence these decisions completely, the micro-level structure for the new prosecution system is still in the works. As of right now, the Pentagon has stated that charging decisions and handling of sexual assault cases will be given to an independent special victims prosecution office by 2027. This office, listed as the first item under the first implementation tier of the plan, is to be called the Office of Special Victims Prosecutors and will reside within the Department of Defense broadly. In addition, each branch has been told to create their own independent special victim’s prosecution offices within their Judge Advocate General Corps. As per the recommendations of the Independent Review Commission, the Secretary of Defense will appoint a lead special victims’ prosecutor who will oversee the lead special victims’ prosecutors from each branch (each of which will control their branch’s respective offices).

Though this proposed system has been a goal of reformers for a long time, it seems like the time for real implementation has finally come under the Biden Administration. Not only does sexual assault severely impact the heroes volunteering their youths to defend our nation, it also disproportionately affects the essential group of women Airmen, Soldiers, Marines, Seamen, and Guardians that our nation relies on to stay safe. This new prosecution structure should hopefully drastically help to improve their lives and to adequately address one of the biggest problems facing our armed forces.

 

*Thor Hawrey, University of Minnesota Law School Class of 2022, JLI Vol. 40 Note & Comment Editor