An estimated 26,000 people in the U.S. military were victims of sexual assaults in 2012, a substantial increase from an estimated 19,000 in 2010, according to an analysis of a Department of Defense (DoD) survey (sexual assaults are defined broadly from rape to “unwanted sexual touching”). In absolute numbers, men suffer from more sexual assaults, the DoD estimates, but that’s because the uniformed military has far more men; relative to their numbers, women disproportionately are targets of sexual violence.
But of those estimated 26,000, there were only 3,374 sexual assault reports last year.
A reason for the difference is a lack of reporting by a majority of victims—indeed the DoD survey found that two-thirds of female victims do not report the assaults against them (there was no corresponding data for male victims). The New York Times wrote that it’s possible that “many victims continue not to report the crimes for fear of retribution or a lack of justice under the department’s system for prosecution.”
The survey backs up the retribution thesis for at least some of the non-reporting.
The survey found that among the one-third of women who reported sexual-assault allegations to a military authority, 62% suffered retaliation for speaking up.
Here is how the reprisals they faced broke down:
– 3% experienced professional retaliation only.
– 31% experienced social retaliation only.
– 2% experienced administrative action only.
– 26% experienced a combination of professional retaliation, social retaliation, administrative action, and/or punishments.
– 38% did not experience any retaliation.
Victims are often being further victimized when they say something about the crime that was committed. Reprisal against the victim is the opposite of justice — the opposite of what should happen when a crime is reported.
The case of Marine Private Stephanie B. Schroeder is an example of the combined retaliation the 26% of respondents said they faced. Her rank was reduced, pay decreased, and she faced an administrative discharge — all on top of being forced to work alongside her attacker for a year after she alleged he raped her to a female superior, whose immediate reaction was to laugh at her.
“The women in our military are more likely to raped or assaulted by colleagues than they are to be killed by the enemy,” Rep. Jackie Speier, D-Ca., a leading critic of military efforts to stop sexual assaults, said in a House floor speech last year that described how Schroeder was treated.
The Military Whistleblower Protection Act of 1988 is supposed to protect members of the military from retaliation for reporting wrongdoing of a variety of stripes, including sexual assault and/or harassment. According to a University of Virginia briefing paper presented to the United Nations Special Rappoteur on Violence Against Women, this law “is one protection to encourage reporting of violations both within and outside the chain of command.”
But is the law working? The evidence suggests not.
Two reports—one by the Government Accountability Office, Congress’ investigative arm, and an internal assessment by the Defense Department’s Office of Inspector General —found numerous flaws in the system of military whistleblower protections.
The 2012 GAO report focused on the excessively slow movement of investigations and achieving redress. It also found that murky investigative guidance “has resulted in investigators closing cases prematurely.”
A 2011 internal assessment by a DoD OIG review team, which I obtained through the Freedom of Information Act last year, found that DoD whistleblower investigators made serious investigative missteps in more than half of the 156 cases they examined.
An earlier 2002 outside review, which I also obtained through FOIA, found that the DoD OIG’s attitude and actions meant “potential whistleblowers are deterred with reprisal and the message is ignored.”
In response to the GAO report and congressional outrage at the findings of the internal assessment, the DoD OIG—which also oversees a system of military service-specific inspector generals—pledged to reform itself and improve its military whistleblower investigations.
The DoD OIG’s last available report to Congress, covering fiscal year 2012, states that it closed 513 complaints of reprisal (it is likely many of these complaints were received before FY 2012; also, during that year the DoD OIG received 1,069 complaints, but most of these were not closed in FY 2012).
More than half—279—of these 513 were military-reprisal cases (the rest related to civilians, contractors, and improper mental-health evaluations, which can be a form of reprisal as well). The Private Schroeder case, mentioned above, is an example that involved an improper mental-health evaluation. However, for simplicity’s sake, we’ll focus on the more traditional military reprisal cases.
Only 7.2% of these 279 cases were found to have merit by DoD OIG and military service OIG investigators.
This military whistleblower “success” rate is par for the course. Some view the rate as too low. Some believe you can’t state what a “correct” rate is, because each case has to be judged on its merits. More cases with merit should lead to a higher rate and vice versa, they say.
But a big part of the problem may not lay directly with the DoD OIG’s investigations. It may lay with the law and the interpretation of it—if the law were more favorable to those making complaints, and less deferential to the military chain of command, the rate likely would climb.
There are four elements that must be proven to find merit in a military whistleblower case: first, is that a disclosure was made of perceived wrongdoing; second, is that an adverse personnel action was taken or proposed (or a favorable one not taken); and, third, that the person or persons taking the action against the whistleblower knew or suspected that they had made a disclosure.
If a complainant gets this far, a fourth question is what kills a majority of complainants’ cases. The question is: would an adverse personnel action be taken against the complainant in absence of whistleblowing? A “yes” answer to this question was estimated by GAO to be the cause, at least in part, for “65% of the cases closed between January 1, 2009 and March 31, 2011.”
What does it take to get to that “yes” answer? Not as much as it would in a civilian whistleblower investigation.
About a decade ago, GAO pointed this out in a report focused on National Guard whistleblowers. “In military whistleblower investigations the evidentiary standard is preponderance of evidence,” the report states, “which means that the evidence that the investigator must determine is of greater weight or more convincing than the evidence presented in opposition to it.”
But “in civilian cases, management must prove by clear and convincing evidence that it would have taken a personnel action regardless of a protected disclosure,” the GAO noted. “Clear and convincing evidence requires a degree of proof more demanding than preponderance.” Thus, this difference in the burden of proof makes it easier for military services to prove they were not retaliating against whistleblowers than it is for civilian government agencies to prove the same thing.
This difference makes it more difficult for inspectors general to substantiate military whistleblower complaints of reprisal. “For most of the reprisal allegations we reviewed,” that 2003 GAO report stated, “guard management demonstrated to the satisfaction of an Inspector General that it would have taken the same course of action in the absence of a protected disclosure.”
First of all, members of military should not be victimized. But when it happens, there should be an environment that endorses speaking out about sexual assault. That environment does not exist now. Some believe it is a cultural problem and legislation cannot change a thing. But policies can affect culture.
If people start paying the price for retaliating against complainants more often, things will start to change. Yet when people get cleared of wrongdoing, over and over—even though they did something wrong—that sends the wrong message. Things get worse.
Fixing the military-whistleblower system is only part of the solution, but it’s a key step in stopping violence against women in the U.S. military.