Avon Global Center for Women and Justice at Cornell Law School

Sexual Assault in the United States Military: How Far Have We Come?

On Thursday, February 19, 2015, a group of distinguished speakers all gathered at the New York City Bar Association to discuss sexual assault in the military. The speakers ranged from retired military members, a law school provost, a non-profit director, a human rights lawyer, and the Commissioner of the Inter-American Commission on Human Rights.

The focus of the event centered around how far the military has come to eliminate sexual assault in the military and how it can continue to improve.

Katherine Bodde, the Chair of the Sex and Law Committee of the New York City Bar Association opened the event. She welcomed all of the guests and introduced the first speaker, Colonel Don Christensen. Colonel Christensen, a retired chief prosecutor of the U.S. Air Force, began with a history of the military justice system, explaining that the U.S. system was originally based off of the military justice system of King George III where a vote of guilty or not guilty was made by a simple majority and an accused person had no right to counsel. It was not until World War II that Congress sought to improve the military justice system by granting the right to counsel and outlawing illegal searches and forced incrimination. In 1969, Congress moved to strengthen the system further, by requiring that military judges, not lay jury, decide the admissibility of evidence in court. Colonel Christensen noted that despite these major changes, there is still one fundamental problem with the military justice system that sets it apart from its civilian counterpart. In the military justice system the traditional prosecutorial discretion rests with the commander. A commander along the chain of command of the accused makes the final decision as to whether to prosecute, which charges to levy, which court is most appropriate, which witnesses will be used, whether to enter into a plea bargain, retry a case, or appeal a decision. Colonel Christensen closed by saying that we have a long way to go to improve the military justice system and ensure justice for victims of sexual assault, but at the same time acknowledged that progress has been made.

Following Colonel Christensen's opening remarks, Elizabeth Brundige, the director of the Avon Global Center for Women and Justice, introduced the keynote speaker, Commissioner Tracy Robinson, the head of the Inter-American Commission on Human Rights.

Commissioner Robinson focused her key note address on the importance of international human rights law. She commented that the United States has had an ambivalent relationship with international human rights law, often using an exceptionalism mentality by arguing that international law risks over shooting the mark by basing law off of the worst cases of human rights abuses. However, in reality international human rights law can help change the U.S. legal justice system for the better. Commissioner Robinson explained that sexual violence in the military is an issue that combines many major human rights themes, including issues of war, values of women in militarization, the importance of impartiality and equal protection in the military justice system. The Commissioner noted that up till now international human rights attention has focused on civilian women living in conflicts of war and not as much on women working with the military, but the laws that came out of these conflicts inform us that sexual violence is a human rights violation and that states have an obligation to investigate, prosecute and punish offenders of sexual violence with judicial effectiveness and impartiality. She eloquently ended her speech by restating the need for international human rights law, "ultimately, I think that international human rights law must become an important tool and mechanism for ending the impunity not just in the United States but everywhere else."

Following the key note address, four distinguished panelists took to the stage and were each given a few minutes to discuss their work combating sexual assault in the military and how far they think we have come. Sandra Park, a senior attorney with the ACLU Women's Rights Project, opened the panel discussion. She explained how the current military legal system denies justice to survivors solely on the basis of their status as members of the military. Mechanisms of litigation that are available to civilian survivors of sexual assault are not available to military survivors. For example, if a survivor is retaliated against or faces discrimination after the perpetrator is convicted there are few legal remedies, whereas in civilian court a survivor might be able to bring a lawsuit under Title VII or tort law. Ms. Park explained that the Supreme Court has set up an expansive doctrine to shut down claims in civilian courts by service members, and most recently the U.S. civilian courts have used that legal framework to prevent victims of sexual violence in the military from bringing claims in civilian courts. She said that the ACLU Women's Rights Project has looked to the international human rights framework as one way of advocating for change. In Jessica Lenahan (Gonzales) v. United States, Ms. Park brought a case before the Inter-American Commission for Human Rights alleging that the United States had violated the human rights of petitioner Jessica Lenahan by failing to prevent her and her daughters from domestic violence even after she had obtained a restraining order from her husband. The Commission sided with Jessica Lenahan and found against the United States. Ms. Park was able to use the decision as a tool to engage with the federal government around the issue of domestic violence. She closed by explaining that international tools can be used to create domestic change.

The next panelist, Elizabeth Hillman, Provost, Academic Dean, and Professor of Law at University of California Hastings College of Law, opened her conversation by discussing her experience as a member of the Response Systems to Adult Sexual Assault Crimes Panel. As a member she was given a congressional mandate to review the state of the military's response to sexual assault. She noted that the hot button issue that the Panel debated was whether to remove prosecutorial discretion from the chain of command. There was an entire sub-committee devoted toward that topic. Ultimately the sub-committee voted in favor of keeping the chain of command's prosecutorial discretion. She was deeply disappointed and wrote a separate dissent from the Panel, which she read out loud during her discussion, arguing "The Panel's recommendation that the authority to prosecute remain within the command structure of the military is based on the testimony of high-ranking commanders and attorneys within the U.S. military. It neglects the words of survivors of sexual assault, rank-and-file service members, outside experts, and officers in our allies' militaries. They tell us that the commander as prosecutor creates doubt about the fairness of military justice, has little connection to exercising legitimate authority over subordinates, and undermines the confidence of victims. Preserving command authority over case disposition, pre-trial processes, and post-trial matters prevents commanding officers from acting assertively to deter and punish military sexual assault."

The policy director of the Service Women's Action Network (SWAN), Greg Jacob spoke next. He noted that he has been involved in the issue of sexual violence in the military as an advocate and lobbyist, not an attorney. He stated that all panelists could agree that the issue of sexual violence in the military is pervasive and must be eliminated, and also noted that SWAN is not an anti-military organization, but that it just desires to see the military be the best that it can be. He became deeply concerned about the issue of sexual violence in the military while serving in the Marine Corps. During his final tour, he was a company commander over both servicemen and women. He explained that witnessing how the service women were treated during his time as a Marine led him to the work he does now. In terms of battling sexual violence, he said that though the military places value on tradition it has changed vastly through racial integration and the introduction of female soldiers. He compared the task at hand to the military's previous issue with soldiers driving under the influence and the largely successful campaign the military undertook to eradicate drunk driving. Mr. Jacob noted that SWAN is currently working to codify the issue of sexual violence in the military in a data driven way, as the military did with drunk driving.

Lastly, Major General John Altenburg Jr. spoke mainly in defense of the military's strides to end sexual violence. He admitted that the clear response to the question posed in the title of the event was that we have not come far enough. But, he noted that the military has been working diligently to attempt to catch up. He explained that beginning in 2009 the military introduced a new position, special victim prosecutors, who would be given special training. He also noted that the military created special victims units and multi-disciplinary teams to work on the issue of sexual violence. In 2013 the military began offering special victim advocates to represent the interests of victims of sexual assault before and after trial. He believed that the notion that commanders can just sweep cases under the rug is no longer true since every allegation of a sexual assault must be mandatorily investigated by the Criminal Investigation Department.

After all panelists finished speaking, the floor was opened for questions. The moderator, Rachel Natelson, asked the panelists which advocacy tools they believed were most effective to create the current consensus that the time is ripe for reform. Elizabeth Hillman responded that popular culture's representation of the issue of sexual assault has played tremendous role. Partly through documentaries like the Invisible War, and even in mainstream television shows, like House of Cards, the issue of sexual assault has been raised which has helped to keep it in the public's mind and prevent issue fatigue. The moderator followed that question by asking where the panelists saw domestic courts moving on the issue of service member rights. Most of the panelists agreed that the domestic courts' power over the military judicial system was lacking, and that the real power to create change lies in the hands of the legislative branch.

The final question posed, asked whether we have reached an inflection point where we will start to see changes. Elizabeth Hillman responded that it is difficult to track progress because sexual assault is underreported, and noted that we will be unable to truly measure just how far the military has come until we are closer to having all incidents reported.

Colonel Christensen

Colonel Christensen