In the wake of the recent release of the Air Force investigation into sexual misconduct by Basic Military Training instructors at Lackland Air Force Base, Congress is likely to address the issue of military sexual violence through provisions in the pending National Defense Authorization Act.
With proposals ranging from creating military Special Victims Units, to reserving case-disposition authority for high-ranking officers, to strengthening penalties for offenders, legislators have vowed to get tough on crime against women in uniform.
But are they having the right conversation?
While enhanced prosecution is a laudable and necessary goal, the narrative of a broken criminal justice system only presents half the story behind the epidemic of military sexual violence. With its focus on the acts of individual offenders, the criminal justice system is simply not structured to serve as a vehicle for institutional reform or a means of empowering victims, whose role is usually limited to providing testimonial evidence.
The system, moreover, affords enormous discretion to police and prosecutors, up to and including the authority to opt against taking any action at all. In cases of sex offenses, prosecution is particularly sparse; around a quarter of police reports result in criminal indictment, and only half of those indictments yield convictions.
In the civilian world, recognition of these shortcomings has prompted the development of civil remedies for crime victims. Successful civil suits exercise an important deterrent effect, holding perpetrators accountable and encouraging negligent third parties to adopt enhanced safety practices. Victim lawsuits against third parties can be credited for the implementation of such standard security measures as the installation of door peepholes in hotel doors, the provision of adequate lighting in apartment common areas, and the employment of security guards on college campuses.
By exposing employers to significant financial consequences for failing to prevent and respond to sexual violence against employees, civil suits act as a powerful deterrent against workplace crime. Not only may victims sue their perpetrators, they can also bring negligence claims against employers who knew or should have known of the potential for the crime to occur. In addition, Title VII of the Civil Rights Act obligates employers to act when employees report threats, harassment or other potentially violent conduct in the workplace. Unless an employer can prove that it exercised reasonable care to prevent and correct harassment or assault, the employer can be held liable for the misconduct of its employees as well as for any retaliation suffered by victims for reporting such incidents.
Uniformed personnel, however, are barred from these avenues for relief.
Not only may they not bring personal injury claims under the Federal Tort Claims Act, they are also prohibited from suing the military for discrimination and harassment under Title VII. In fact, while military contractors and civilian Department of Defense employees may seek such remedies, uniformed personnel performing identical work in the same setting may not.
The absence of these remedies undoubtedly shaped the experience of the Lackland recruits, who reportedly felt compelled to agree to their instructors’ demands for fear of the consequences to their career if they disobeyed orders. In any other employment setting, they could have held their organization liable in the event of such retaliation.
Beyond imposing a toll on employers who fail to abide by the law, civil litigation also empowers victims by offering them an opportunity to vindicate their individual rights. Unlike in criminal court, where the prosecutor directs the course of the case, plaintiffs in civil proceedings can control such decisions as what type of evidence to bring and how much to seek in damages.
Few would argue that military personnel lack the right to be protected against crime; why deny them the means to enforce that right?
Rachel Natelson is the Legal Director for Service Women’s Action Network, a nonpartisan civil rights organization that works to transform military culture by securing equal opportunity and freedom to serve without discrimination, harassment or assault; and to reform veterans’ services to ensure high quality health care and benefits for women veterans and their families.