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Suing the Department of Defense for Dereliction of Its Duty

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This past Friday, Protect Our Defenders partnered with Susan Burke to file a lawsuit against West Point and the Naval Academy. The suit accuses the academies of failing to prosecute cadets and midshipmen who have raped their fellow students.

Burke filed the lawsuit four days after Secretary of Defense Leon Panetta announced what were touted as major reforms in the way the military handles sexual assault and rape. In reality, these so-called "reforms" fall well short of the fundamental reform required. The new policy does very little to address the culture of tolerance for rape that pervades the U.S. military and has given rise to the existing epidemic.

Plaintiffs Kelly Marquet and Anne Kendzior courageously stepped forth alleging their military academies "have a high tolerance for sexual predators in the ranks and 'zero tolerance' for those who rape..."

Marquet, a top Pennsylvania student and athlete, chose West Point over other top schools because she wanted to serve her country. She alleges that an upperclassman raped her in the second semester of her freshman year. Marquet contacted the West Point Sexual Assault Response Coordinator (SARC) for help. But instead of receiving support, she was punished for coming forward. Superiors allegedly forced Marquet to take out the trash from her rapist's room daily and assigned her to do "walking hours" with him. Left with no other choice, she resigned.

Kendzior, a Texas high school soccer star, was recruited by top colleges and universities and chose to attend the Naval Academy. Kendzior alleges that different cadets raped her on two occasions. After struggling with the effects of the rapes on her own, Kendzior confided in her Academy counselor. The counselor discouraged her from reporting the rapes and Kendzior continued to suffer in isolation. Eventually the Naval Academy used her mental health records to disqualify her from commissioned officer status. Only her parents' and Congressperson's intervention prevented the Academy from committing her to a mental health facility. Kendzior was forced to leave the Academy without graduating.

Their stories illustrate a pattern of neglect when it comes to protecting academy students from sexual violence and providing services for assault victims. The 2011 DOD annual report on Sexual Harassment and Violence at the Military Service Academies found that West Point did not comply with the DoD's sexual assault prevention policy and that the academies, in general, have failed to implement or enforce DoD policy.

According to the DoD, there were 65 reports of sexual assault in the academies in 2010, up from 41 in 2009. However, according to DoD surveys, less than 10 percent of the actual cases are reported. Common reasons for not reporting include: prevalence of victim blaming, fear of retaliation and career destruction, and the belief that the perpetrator will never be prosecuted. Indeed, of all the defendants accused in those 65 cases, only one has been court-martialed.

Instead of undertaking fundamental reforms, the Department of Defense has essentially maintained the status quo, while claiming "reform." On April 16, Secretary of Defense Panetta introduced a series of incremental policies on sexual assault. The DoD's stated goal is to increase the percentage of cases prosecuted (the 2011 SAPRO report revealed only 8 percent of sexual assaults resulted in a court martial conviction).

Secretary Panetta deserves credit for doing more than his predecessors to call attention to this, in his own words, "silent epidemic." However, many of the recently announced "reforms" are already in place, with limited effect at best, in one or more of the services. Furthermore, the centralized database, which Panetta characterized as a reform, was ordered by Congress to be operational by January 2010. The DoD's own reports indicate that these policies have not been effective in addressing the problem.

And then there's the plan to move the authority for these cases up the chain of command. Touted as a significant change, Panetta's directive requires local commanders to hand over investigations to higher-ranking officers. This appears to be an attempt to redirect attention away from the embarrassing statistics in the FY2011 Report on Sexual Assault in the Military released two days prior to Panetta's announcement. Charges have decreased, court-martials fell and convictions plummeted -- with no indication that the number of sexual assaults have decreased.

Historically, there is no evidence that elevating the level of command is more likely to produce effective action. The Convening Authority can still unilaterally decide to not move forward with a court martial. The command structure is conflicted and in practice already has full authority and responsibility to deal with these cases.

We would like to believe that this most recent in a series of pledges of "zero tolerance" will make a difference. However, we would only know the Pentagon is serious and effective when the careers of those senior commanders who fail to provide positive leadership and take effective action are ended. Currently, it's a greater risk to a commanding officer's career to acknowledge that an attack occurred than it is for him to sweep it under the rug.

Paula Coughlin, a former Navy lieutenant and helicopter pilot, was sexually assaulted at the 1991 aviators' Tailhook Association meeting. After her investigation was swept under the rug, she chose to go public. And, in 1994, due to further abuse and retaliation, she resigned. The Navy and Pentagon's response to the resulting widespread negative publicity was to institute what were purported to be groundbreaking reforms. As is tragically clear from current reports, almost 20 years later, those policies have had little if any effect.

Commenting on the latest DoD reforms, Lt. Coughlin recently stated: "The whole thing is poised to be completely ineffective. In 1992, the convening authority in my case was deputy to the Commandant of the Marine Corps -- top grunt all the way... he dismissed the case after a cordial meeting with the criminal's minister."

Fourteen years after the Tailhook incident, as alleged in the lawsuit filed in March 2012, former USMC Lt. Elle Helmer and Lt. Arianna Klay were raped and sexually assaulted by fellow Marines. Each suffered retaliation as a result of reporting. Investigations botched and rape kits "lost." Lt. Klay and Helmer's careers ruined. Both cases were reported to the Colonel level and in Lt. Klay's case two, three star Generals signed off. One alleged rapist remains a Marine in good standing. The other convicted but only of adultery and indecent language.

It is clear that many of the most egregious examples of command failure are occurring at or above the levels to which Secretary Panetta is "elevating" the responsibility.

In a democracy, we must hold institutions accountable for their transgressions. Just as the courts address patterns of abuse within religious institutions or corporations, Protect Our Defenders demands justice for the plaintiffs in this lawsuit. We need to leverage the powerful voice of the judiciary to achieve real change in the military's practices.

The military has a long record of abuse within its ranks and impunity for perpetrators. It is apparent that the military bureaucracy is unwilling or unable to implement true reform autonomously. In additional to judicial redress, it appears only legislative action, which takes responsibility for victim care, investigation and adjudication out of the normal chain of command, will make a real difference.

Ending this "silent epidemic" will strengthen our military and our democracy. It will assure parents that sending their children to serve our country will no longer mean putting them at great risk of sexual assault from their fellow service members.

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