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.
In short, while we cannot know whether the two women were raped, and while they may very well have been victims of an unspeakable crime, the initial facts indicate that there very well may have been too little evidence to prosecute the accused. That is not to “blame the victim” or doubt the validity of their claims, but only to identify that the standard for legal prosecution is a high one. Further, the combination of burden of proof and the victim’s choice of “restricted reporting” making the statics Parrish cites all but meaningless. Then again, why trouble ourselves with facts and laws when we have a political agenda.
As a final request, Ms. Parrish, if the New York court finds that the military conducted a proper investigation and provided proper care for either of both of the women in question, will you follow up your report with those facts? Or will you just drop the story and move onto your next one?
Likewise, Parrish parrots groups like SWAN in stating that West Point was out of compliance with DOD prevention policies, and no doubt, DOD identify necessary adjustments in the West Point program. However, if Parish were go to the primary source and read the DOD report itself, she would see that the DOD report overall held that West Point was in compliance with the vast majority of the program and citied minor issues such as typos on web pages as the deficiencies. Through the art of twisting language, that can be portrayed as “non-compliance,” and twisting language seems far more important to Ms. Parrish than facts.
While I would apologize for the long post, it seemed necessary to lay out a few of the facts that Ms. Parrish seems to have no interest in researching or reporting. Given her total failure to provide basic facts in the West Point and Naval Academy cases, her near assumption of guilt on the part of the accused (she uses the word “alleged,” but also calls the lawsuit “heroic,” which would seem to assume guilt), and her seeming lack of understanding of the reporting system and the basic proof requirements of the criminal justice system, there seems to be little reason to put much faith in the accuracy off the rest of her article.
Restricted reports are common, and again are totally the choice of the survivor. Without knowing how many of those 65 reports were “restricted,” we cannot possible know if prosecution was even a possibility.
Second, we cannot know how soon after the events the unrestricted reports were filed (or restricted reports were changed to unrestricted at the request of the survivor). We cannot then know what opportunity was available to collect evidence.
Third, we do not know the severity of the crimes in these sexual assaults. Some may have been rapes. Others may have been unwanted hands on a buttock. Both are “sexual assaults’ according to the UCMJ. Both should certainly be punished severely, but it is not clear that a Court Martial and jail time is always the right answer for an unwanted hand on the backside.
Finally, we simply do now know without examining each of these cases whether a prosecutor could have made a case “beyond a reasonable doubt.” Were there witnesses? Was there physical evidence?
Parrish cites sixty-five cases of sexual assaults in the service academies. (It should be noted that sexual assault, according to UCMJ, could include any unwanted contact of a sexual nature. An unwanted tap on the buttock would qualify as a sexual assault. Of course, an unwanted tap on the buttock is unacceptable and should be punished if proven, but readers should understand that the term applies to far more than just “rape,” as some are likely to assume.) She does not break these reported assaults down as she would have if she was concerned with facts and truth.
Service members have the right to file either of two types of reports. If they file an “unrestricted report,” the chain of command is notified, as is the criminal investigative division. By law, a full investigation must be conducted, whatever the opinions of the chain of command, Sexual Assault Response Coordinator (SARC), or initial opinions of military law enforcement.
Service members can also file “restricted reports,” under which the SARC notifies mental and physical health professionals, but is legally prohibited from notifying investigators or chain of command. The difference is whom the SURVIVOR/VICTIM allows to be notified. When a survivor choses a restricted report, he/she precludes investigation. The military encourages unrestricted reporting, allowing restricted reports so those who otherwise would not report can get medical/mental help. (To understand the Marquet case, we would need to know if her initial report was restricted or unrestricted.)
This points to a larger problem in sexual assault cases. Marquet, Parrish, and Kendzior have all claimed that the military is at fault for not prosecuting and punishing the alleged assailants. Successful prosecution requires a heavy burden of evidence.
Ms. Marquet did not immediately report the alleged attacks. Ms. Kendzior did not report her assaults until two years after the fact according to her interview. Given the psychological trauma, delayed reporting is both common and understandable. However, delayed reporting makes collection of evidence for prosecution nearly impossible. Neither woman was likely to have been able to produce the forensic evidence that an immediate rape kit might have provided, making proof beyond a reasonable doubt of sexual contact next to impossible. (Even if a rape kit proves penetration, consent or lack thereof is tremendously difficult to prove in a court of law without witnesses, but without even material evidence, the case is much, much tougher.)
Given likely lack of evidence, no reasonable person can assume that the military could have or should have pushed for prosecution. The Uniform Code of Military Justice (UCMJ), just like civilian criminal law, calls for proof beyond a reasonable doubt for conviction. There is good reason from just the TV interviews in both of these cases to suspect that no prosecutor could meet such a burden of proof. Of course, we cannot know for sure without all the facts, but the facts we do have weigh against a prosecution, military or otherwise.
Ms. Parrish has written a piece of polemic and passion. Unfortunately, she seemed to need to devote all her time to rhetorical flourish and misrepresentation and could spare little time to fact check her claims or examine the laws in question.
Consider the claims regarding Ms. Marquet. First, Parrish claims that Ms. Marquet was “punished” when Academy officials “forced” her to take out her alleged assailant’s trash. What Parish does not explain but which Ms. Marquet explained in her CNN interview is that all freshmen at West Point are responsible for collecting the daily trash from the wastepaper baskets in their barracks (dorms) and dumping them in trash dumpsters on a daily basis. Thus, collecting trash was a duty that Ms. Marquet would have performed with 1,000 other classmates on a daily basis throughout the year and long before the alleged assault. Marquet was clear in the interview that he trash collection duties were in no way a punishment, but this does not stop Ms. Parish from making up facts.
In an ideal world, Ms. Marquet’s chain of command would have moved her to a different unit so that she would not have had to collect that trash from her assailant’s room. The problem is that according to Ms. Marquet’s own explanation in her television interview, she did not immediately report the assault, so her chain of command may well not have known about the assault and may not have had the information to move her.
It doesn't help that Congressman like Mark Critz, who sits on the Armed Forces Committee and subcommittee for oversight and investigation, is actually helping the military get away with it. Critz ignored a rape by a Marine from Camp Pendleton. People need to look at the site
citizens against mark critz
what this congressman has done he should be asked to step down. But the truth is no one really cares that women are being raped by the military.
If you know of other evidence or have a solid justification for claiming that there was not a thorough investigation, you should produce that evidence or justification. Otherwise, it is far more plausible to believe that evidence was not available for a report made two years after the event. Nor is Critz relevant to either service academy case.
The question is not whether or not you as an individual believe the two women, but whether there is sufficient evidence for a conviction. Based on the friendly CNN interviews of these two women, despite their outrage and protests, it is likely was not sufficient evidence, in which case the chain of command did the right thing in not pressing charges.