Ari Ezra Waldman | Law - Gay, LGBT | Military | News

The Military's Sexual Assault Problem Affects Men and Women, Gay and Straight


Military-Sexual-Assault-3The United States military has a rape problem, and it's nothing new.

Earlier this week, two women -- Rebekah Havrilla and BriGette McCoy -- appeared before a Senate subcommittee chaired by New York Senator Kirsten Gillibrand to recount their experiences of being raped and sexually harassed during their time in the military. They were joined by one man, Brian Lewis, who testified that he was raped by a senior officer in the Air Force while serving on the island of Guam. It was the first time a male victim appeared before Congress to discuss his sexual assault.

Their heartbreaking stories of abuse and command inaction are bad enough on their own; in the context of a military in which rape, sexual assault, and harassment are more common than morning coffee, they are downright enraging. According to the military's own report, the number of service members anonymously reporting a sexual assault jumped more than 30% in the past two years. In 2012, more than 26,000 troops reported experiencing "unwanted sexual contact," a significant jump from the 19,300 who reported such victimization in 2010. What's more, 10,700 of the 19,300 victims in 2010 were men. And that covers only those incidents reported to authorities; men are far less likely to report being victims of sexual assault, especially in a macho, testosterone-filled environment like the military. The real numbers are probably shockingly high.

P erhaps as high -- if not higher -- as they were in 1991, when 83 women and 7 men were assaulted during the Tailhook convention in Las Vegas in September 1991. Even that scandal, which was supposed to change the military forever, did not result in a single prosecution. The bankruptcy of the military justice system came back into the news recently when an Air Force general tossed out the conviction of an officer after the officer had been convicted of aggravated sexual assault of a woman. 

This unique and dangerous facet of the military criminal justice system -- the near boundless discretion given to the so-called "convening authority" to sign off on, reject, or modify the sentence of a general court-martial -- is complicit in the growing epidemic of sexual crimes in the military today. But it is not alone. 

Let's discuss the elements of military law that are contributing to this problem,

Male-on-male rape has as little to do with homosexuality as male-on-female rape has to do with heterosexuality. Rape is about power, domination, and the utter disrespect of the victim, whatever gender he or she might be. The epidemic of rape and sexual assault in the military is a product of several factors: an old boys network, unchecked masculine bravado, and a willfully blind leadership, just to name a few.

The supporting role played by current military criminal law is a more pressing, more easily rectified problem. And yet it is continually overlooked.

AfewgoodmenMilitary criminal justice looks a lot like civilian criminal justice. There are judges and juries (the latter are called "panels"); there are prosecutors and defense attorneys, the latter of whom are free and guaranteed to all criminal defendants. There are rules of evidence and a strong exclusionary rule, which prevents the admission of evidence gleaned from unlawful searches. (For a surprisingly accurate depiction of a military trial, re-watch or re-read Aaron Sorkin's A Few Good Men).

There are several differences between civilian and military justice that provide dangerous support to the epidemic of sexual assaults in the armed forces. In today's column, let's discuss the role of the "convening authority."

Courts-martial -- the official name for military criminal trials -- have to be convened by a commander in a process utterly and completely foreign to civilian lawyers, let alone everyone else. If military investigators at 'Jane Doe Air Base' have evidence that a service member has committed a crime, whether they obtain that evidence through their own sting operation or when the victim reports it, they have to gather their findings and bring it to the prosecutor. But before the prosecutor can bring any charges, he needs clearance to "convene" a court-martial from the Air Base commander, a general or lieutenant-general, usually.

That same "convening authority" has the right to look at the result of the prosecution -- a 20 year sentence and dishonorable discharge for aggravated sexual assault, for example -- and cross off or modify whatever he doesn't like. If he thinks 20 years is a little too much, he can slash it to 10, 5, or nothing at all. If he thinks a dishonorable discharge is not warranted, he can honorably discharge the duly convicted felon or keep him in the ranks. The convening authority can even wipe the record clean.

This seems outrageous and, indeed it is.

UcmjThat we have a convening authority with this kind of power is a product of a history in which most military law was not conducted by military lawyers at all. For much of American history and especially before 1950, military criminal law was ad hoc. In the Revolutionary and Civil Wars, the "process" of justice for deserters and criminals was swift and localized to the unit. Before World War I, American conflicts were small enough to allow us to limp along that way, but a truly world war -- with a new fighting force numbering well into the millions and the international scrutiny along with America's European involvements -- made the anti-system of justice untenable. By 1950, the formalizing process finally culminated in the Uniform Code of Military Justice (UCMJ), a kind of bible for military lawyers that contained every crime, every defense, and even examples for lay persons to understand.

The UCMJ needed explanatory examples because, until recently, military criminal justice was a layman's game. Prosecutors came first, but judges, defense "attorneys", investigators, and panel members were all military officers with a week's long legal training, if that. The convening authority was an attempt to provide experienced oversight to an otherwise unprofessional system that could result in injustice.

But, military lawyers have changed while military law hasn't. Our lawyers are highly trained; our military judges are all J.D.s and former attorneys themselves. The judges who sit on the military's appellate courts are, for the most part, as well trained and intelligent as judges populating our state and federal appellate courts. (Full disclosure: I had the honor of working alongside one of those smart and qualified judges on the military's highest court, the Court of Appeals of the Armed Forces.).

With the increased professionalization of the Judge Advocate General (JAG) corps, the convening authority has not only outlived its usefulness, it also helps perpetuate the dangerous ad hoc old boys' network and undermines service member rights.

Consider for a moment the generational problem posed by convening authorities, most of whom are likely to be generals or other high-ranking officers that are more likely than their younger officers to have issues with women and out gays serving. One of the commanding officers during the Tailhook scandal told one of the victims that she should have expected to get assaulted because "that's what [a woman] get[s] for walking down the hall with a bunch of drunk naval aviators." That offensive sentiment, if in the hands of a convening authority, could result in either the refusal to authorize a court-martial in the first place or erasing any sentence after the fact. Remarkably, although that would violate our sense of justice, it would not break any military law.

The mere notion of a convening authority is offensive to due process. He is not only an untrained eye standing in judgment of a judicial process, he is the defendant's commanding officer! He has a relationship with the defendant and whether that relationship is friendly or hostile, he remains an interested party. He may object to his billiard buddy getting punished for getting too aggressive with a women. Or, he may want to manipulate the justice system to sideline a rival for a promotion. Whatever his motives, even if they are well-meaning, he is a biased participant in a justice system that requires detached objectivity.

We must eliminate the role of the "convening authority." I encourage you to call or write to Senator Gillibrand, one of our community's greatest allies, and urge her to move on this reform.

In my next column, I will discuss how the UCMJ itself contributes to the problem of male-on-male and male-on-female sexual assaults in the military. Stay tuned.


Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. Duh, this is NEVER going to go away. Though it is always complex and highly individual, people have got to protect themselves, or never join, or get out. Many men are far too extreme - and driven - when it comes to sex. This is a dominating fact of human existence and all the prosecution in the world will never end it. Generally, any woman who thinks she's as strong as a man is completely delusional. Most women on a ship or a military base is like a man in a grotto of bears. It's only a matter of time.

    Posted by: UFFDA | May 15, 2013 6:23:06 PM

  2. UFFDA -- Your response is not only wrong but insulting. Most men are not rapists and your assertion that this is a dominating factor in human existence is absurd. Rape is not about sex -- it is about power. You are engaged in a game of "blame the victim" as though the natural result of placing women side-by-side with men is rape. It is not, and suggesting it is so is a big part of the rape problem in the military. Never mind that it completely ignores male-on-male rape. You need to spend some time re-thinking this. Uffda, indeed!

    Posted by: Alex Parrish | May 15, 2013 6:37:23 PM

  3. UFFDA, aren't you a little ray of sunshine. This situation needs to be fixed, not excused, which is basically what you are doing.

    Posted by: jsb | May 15, 2013 6:42:36 PM

  4. The part I haven't seen yet is the breakdown - the right is going nuts that now that gay men can serve openly, they're all going nuts and raping straight men, just as they predicted.

    What I predicted was that a lot of gay men who didn't dare report assault for fear of repercussions would be free, or at least free-er to come forward once they fear of involuntary separation and loss of benefits was removed.

    So, how many of these "new" rapists are self-identified out gay men, and how many of the victims are?

    I still can't help but think that this is NOT a "out gay man on straight men" violence issue, and that if it isn't, that needs to be made clear as part of all this.

    Posted by: Lymis | May 15, 2013 6:53:51 PM

  5. If soldiers sexually assault their comrades-in-arms, just think of what they do to the enemy.

    Posted by: JONNY NYNY2FLFL | May 15, 2013 8:24:15 PM

  6. Duh. The armed forces are full of young horny males, in their prime, often quite stressed and even simply bored with downtime.

    That said, a substantial number of reported assaults, even rapes, are either exaggerated [consensual sex where one of the parties had second thoughts, vindictive he said/she said disputes] or outright lies. There's all kinds of reasons why people lie about being assaulted or even raped, from serious mental health issues to a desire to get out of a situation or even the military itself. But I've no doubt the rate of sexual assaults is higher than the civilian average. Why would anyone be surprised by this? Putting young men and women in situations like those that exist in the armed forces, and putting young women under the control of male authority figures under the such conditions as exist in the armed forces, is of course playing with fire. But political correctness has never let thousands of years of human nature get in it's way.

    Posted by: ratbastard | May 15, 2013 9:52:46 PM

  7. If male anal intercourse as rape, is defined as a sign of power and not sexual. What do you call a gay honeymoon night?

    Posted by: GB | May 15, 2013 10:22:43 PM

  8. "in the context of a military in which rape, sexual assault, and harassment are more common than morning coffee"

    Seriously? You trivialize something so horrific with ridiculous hyperbole? How is anyone supposed to take any of your opinions to heart when you not only compare sexual assault with people drinking coffee, but you state that sexual abuse is more common than daily cups of coffee?


    Posted by: Tommy Marx | May 15, 2013 10:34:48 PM

  9. They keep mixing up the terms. Moreover, if you will read more in depth articles you'll find that the numbers are conjured and from the "all men are rapists" school of thought.

    Posted by: David Hearne | May 15, 2013 10:45:19 PM

  10. The answer is to remove from the UCMJ all acts that would be criminal and place the responsibility for prosecution in Federal District Court or the state courts. If we can try captured Somali pirates in New York, we can certainly do the same to accused rapists in uniform.

    UCMJ is probably adequate to deal with those acts that are not criminal in a civilian context, like insubordination.

    Posted by: Rich | May 16, 2013 12:47:02 AM

  11. Alex you need to grow up and think clearly in terms of what works and what does not work.

    Posted by: UFFDA | May 16, 2013 2:45:38 AM

  12. We don't really need a foreigner telling us that our military justice system needs to be changed. Perhaps the revered professor Waldman can go back to whatever country his communist grandparents were thrown out of and share his brilliance with them.

    Posted by: David Hearne | May 16, 2013 9:25:07 AM

  13. Ari, I usually enjoy your work, but this particular piece is a hack job. It is lacking in empirical analysis, conflates due process with victims' rights, and advocates for a position without bothering to address the potential consequences of adopting that position or the strength of the evidence cited in support.

    Sexual assault is a problem in the military. It is also a problem in civilian society. Under-reporting is an issue across the board, and I'd like to see how the numbers compare to the civilian sides in various demographics. But accepting for the moment that the nature of military life creates an increased risk of sexual assault generally, I don't see what you're trying to get from the numbers; what if the increase in reporting is coming from folks being more willing to report than from an overall increase in the number of sexual assaults? This would flip your reasoning in support of an argument that military leadership might actually be making it easier for folks to report sexual assault without fear. You seem to be using the numbers in an attempt to paint a picture of an "old boys network" that just doesn't care...good rhetoric but shoddy analysis (and mildly offensive to those of us who are actually leaders *in* the military).

    With regard to your structural argument, it is true that the convening authority has a great deal of power throughout the court-martial process. But the due process rights afforded *defendants* (we call them "accuseds") are more robust than those accorded to federal civilian defendants, in part to account for this imbalance. Once charges are referred to a court-martial, the judge controls the case through the findings and sentence. The convening authority can approve a lesser sentence, but not a greater one. When you talk about due process in your argument, you're talking about victims' rights. And you offer scant evidence to support the position that the convening authority's ability to grant clemency is being abused on a systemic basis.

    This distinction is important because you seem to suggest that convening authorities regularly refuse to refer sexual assault charges to court-martial or regularly dismiss/reduce adjudged sentences. As a trial counsel (prosecutor) in the Marine Corps, my experience was the opposite. Convening authorities took sexual assault allegations quite seriously and rarely altered adjudged sentences. In fact, convening authorities were more prone to referring charges to trial than the lawyers were, particularly in "he-said/she-said" cases without physical evidence where panel members almost never find proof beyond a reasonable doubt. There may be problems with the military justice system, but convening authorities failing to take seriously actual allegations of sexual assault, well that just ain't one of them. Shifting the process to lawyers is not going to change things; if anything, we'll be less inclined to send charges to court-martial if a cold look at the evidence does not support probable cause.

    Among the reasons to retain commanders' control over the procedural aspects of courts-martial...well, we go to war. Giving lawyers authority to control the military justice timeline (which involves timing as to initiation of charges, forum, etc.) can muck with operations. If Sen. Gillibrand's proposal goes through, expect to see all sorts of exceptions pop up for situations involving military contingencies. As to old generals being misogynistic or homophobic, not sure why this militates in favor of structural change; why don't we just get better generals? It seems like there are plenty of checks on abuse of the clemency power just by the nature of the officer promotion process; whether or not this Air Force 3-star was justified in disapproving the sexual assault conviction in Aviano, his career is now likely over. It is not an inconsequential thing to disturb a factfinder's findings and sentence, and it does not happen often.

    So before you go driving the gay community to rally against this evil beast called the "convening authority", please do us the favor of putting forth an empirical argument sufficient to justify a structural overhaul of the military justice system. I suspect there are more constructive ways of digging at the problem of sexual assault in the military.

    Posted by: Anthony | May 16, 2013 9:48:36 AM

  14. "The epidemic of rape and sexual assault in the military is a product of several factors: an old boys network, unchecked masculine bravado, and a willfully blind leadership, just to name a few"

    I stopped reading right there. The usual "straight men are pigs and masculinity is evil" BS that many gay men advocate (even as they fantasize deeply about being raped by a macho straight guy in a military uniform).

    "Male-on-male rape has as little to do with homosexuality as male-on-female rape has to do with heterosexuality. Rape is about power, domination, and the utter disrespect of the victim, whatever gender he or she might be"

    More BS. There is no way a guy can get an erection, carry out intercourse, and ejaculate without being very aroused sexually by what he is doing.

    Rape is about power and domination? Really? And what is gay male sex about most of the time? What is the constant theme of pornography directed at gay men? That's right--dominance and submission. Nothing titillates most gay men more....which is why the more macho a guy is, the more attractive he is to most gay men.

    So much dishonesty all around when it comes to this subject.....

    Posted by: Rick | May 16, 2013 12:45:41 PM

  15. actually, RICK, we openly-gay men don't have those projected-fetishizations of your own that you're throwing around. Openly-Gay men tend to favor the interaction and company of other openly-gay men. We get it, you're a closet case who worships straight men. You'd be the type to delusionally make a blatant pass at a straight man because you'd think "maybe he's hiding the same secret I'm hiding."

    and yes, rape is about power and domination. the arousal comes from hurting someone - that's what makes them "erect" - causing harm, shame, fear, and humiliation.

    textbook psych.

    we all know that you want to be raped by straight men. we openly-gay men, however, tend to enjoy having sex with other openly-gay men that enjoy having sex.


    Posted by: Little Kiwi | May 16, 2013 12:53:54 PM

  16. Straight men are sexy because they don't go by names like "Little Kiwi" :)

    Posted by: GB | May 16, 2013 1:21:11 PM

  17. Great Article....One thing I noticed years ago through a few friends who were removed from service under DADT was that they were the victim of an unwanted sexual encounter. I now know of five me who lost their careers because the were raped, not that it matters, but two were straight. DADT is gone and now a man can come forward and I think we are going to see a number that could be overwhelming. We must take the commanding officers out of the system, I military personnel deserve to feel safer back home on base than they do in the field.

    Posted by: rees cramer | May 17, 2013 6:04:45 AM

  18. And BTW....Anthony (few paragraphs up) what military contingency is compromised when an officer rapes a lower raked officer or enlisted grant stateside and goes to jail for it. That is criminal behavior, whether it is on base, on ship, in Afghanistan or South Korea. He needs to go to Leavenworth and get a new special friend for a cell mate.

    Posted by: rees cramer | May 17, 2013 6:15:32 AM

  19. Rick: Men (and I'd guess women) can get aroused by all sorts of things that aren't sexual. Don't you remember IceMan's line in Top Gun, where he said something to the effect that flying fast gave him a hardon? I remember as a teenager getting a hardon the first time I drove my car over 100 mph.

    And yes, rape is about power, domination and all that. It's not BS. Some people are turned on by those aspects.

    Rape pillage and plunder are very much a part of war and its commission is winked at by the brass. It's a way of subduing the defeated population and showing them who's in charge. It doesn't take much of a leap to see that it can be very easily misdirected.

    Posted by: Burt | May 17, 2013 8:57:58 AM

  20. I thought, given the author’s experience, maybe we’d get a more enlightened review of the issues facing sexual assault and military justice than the media so far has put forth. Unfortunately, we got banal empty rhetoric that adds nothing new to the discussion. In many places, it’s just plain inaccurate. So much so that I probably spent way too much time typing this response.

    At the risk of invoking "A Few Good Men" again, the author “strenuously objects” to the convening authority system. His reasoning, however, demonstrates how he fundamentally misunderstands the military, the UCMJ, and the system of discipline it seeks to implement. The overall premise is somewhat uncontroversial. Like most blog posts, however, it does much to whip (already sympathetic) readers into fluffy frenzy without providing any solutions. The cornerstone of the piece is that, when it comes to sexual assault in the military, “the supporting role played by current military criminal law is a more pressing, more easily rectified problem. “ Great! We all like easy solutions. Where are they? All I could find is “we must eliminate the role of the ‘convening authority.’” Then, radio silence when it comes to next steps. That’s not a solution. It’s an emphatic restatement of the problem. Maybe we will see solutions in the next column, put it appears that we’ll be subjected to additional chicken-little issue spotting.

    So I’m left wondering, what does a new/improved military justice system without a convening authority look like? (all of this, mind you, to get rid the military of evil “clemency,” something that rarely happens, for a summarized yet somewhat dated discussion look here: I admittedly don’t offer a solution to this problem because rampant clemency isn’t really a problem—the military has bigger issues to tackle than this.

    Saying the Military criminal justice looks a lot like civilian criminal justice is quite a stretch. It’s convenient to point out the similarities in railing against the convening authority while yet failing to discuss the differences. Yes, the accused has a certified defense attorney provided at government expense. But, the trial counsel does not have to be an attorney (though s/he often is). Even today, however, non-attorney trial counsels take cases. Also, the accused only gets a minimum of 3-5 military members, and only two-thirds have to vote to convict. These differences are material—even based on the author’s own reasoning.

    “Consider for a moment the generational problem posed by convening authorities.” OK, I did. Do you know what I thought? If we remove the convening authority’s power, do we successfully excise nasty generational differences and military cultural bias? Where do members (jurors) come from? They come from the military. So we don’t trust that men/women who have made it to the rank of general or flag officer can curb their cultural biases, but somehow we trust military “jurors” who are just a little less further along than their military careers (and often still seeking promotion)? If you’re worried about a “macho, testosterone-filled environment like the military” and “an old boys network, unchecked masculine bravado, and a willfully blind leadership,” what makes one so comfortable that these biases have not infected the jury pool as well?

    One might say “well we have ‘voir dire’ and ‘judicial oversight’ of the member (juror) selection process.” Yes, but those “judges” are also military officers—subject to the same cultural biases this article finds impossible for successful career military officers to overcome as convening authorities. To solve this, you could pull jurors from outside of the military, but the nature of military life is generally outside the ken of the average civilian. Things that seem totally normal on a ship, in the field, or in other military environments probably fall outside the experiences of the average civilian.

    Also, like voir dire for court personnel, the military justice system has gone to great lengths to protect the system against wayward convening authorities (and the Othello-like parade of horrors the author posits above). Things like the "accuser concept" and the strict prohibition against unlawful command influence go a long way toward making the notion of convening authorities a little less “offensive to due process.” Maybe it even takes the exclamation point after the observation that the convening authority, somewhere up the chain, is the accused’s commanding officer.

    Allowing a commander the discretion to discipline his/her unit is only a “process utterly and completely foreign to civilian lawyers, let alone everyone else” if you fail to understand the reason the UCMJ exists. Convening authorities don’t have their power “to provide experienced oversight to an otherwise unprofessional system that could result in injustice.” Rather, convening authorities have their power because they’re the ones overall responsible for mission accomplishment—meaning they need a functioning unit, and they can only do that through ensuring good order and discipline. Calling convening authorities an “untrained eye standing in judgment of a judicial process” grossly mischaracterizes who fills these roles. These aren’t simpletons new to military life. They have commanded several smaller units, conducted investigations, evaluated evidence, overseen non-judicial punishments, and most likely experienced what happens when command climates go to hell. They know what transgressions affect their mission—and so far every one of them has made abundantly clear that sexual assault undermines mission readiness and effectiveness.

    If convening authorities are no longer trusted to discipline their personnel—who will we trust? Oh, by the way, all general court-martial convening authorities have the benefit of a trained (usually senior) lawyer giving them specific advice and review during the clemency process (and the rules for court-martial require a formal review/recommendation before the convening authority takes action).

    If a system that balances a commander’s duty to ensure discipline and accomplish missions makes one uncomfortable, it’s true we already have a system that seeks to punish without these military issues a play. If we find the convening authority so “offensive,” especially in sexual assault cases, why don’t we structure federal jurisdictional provisions so Article III Federal Courts can take these cases no matter where they happen throughout the world? In that case, wait for it, the US Attorneys could still exercise prosecutorial discretion. We’d be substituting one potential “outrageous” area of discretion for another. I’d hazard a guess that most cases that see a court room on a military base would never make it to a complaint in district court.

    I would never discourage someone from calling their congressman, but just think critically before you do. Reading this article still provides no easy solutions.

    And, seriously, a Few Good Men provides a “surprisingly accurate depiction” of a court-martial as much as "Latter Days” accurately depicts the Mormon mission experience.

    Posted by: WayneJ | May 17, 2013 11:30:56 AM

  21. Gee golly. who could have seen this coming? No, No, I'm sure dropping the ban on homosexuals had absolutely nothing to do with it. However, I would not discourage straight men from joining up, don't feel down. Young man, there's no need to feel down. I said, young man, pick yourself off the ground. I said, young man, 'cause you're in a new town There's no need to be unhappy. Young man, there's a place you can go. I said, young man, when you're short on your dough. You can stay there, and I'm sure you will find Many ways to have a good time.

    It's fun to stay at the U-S-M-C.
    It's fun to stay at the U-S-M-C.

    They have everything for you men to enjoy,
    You can hang out with all the boys ...

    It's fun to stay at the U-S-M-C.
    It's fun to stay at the U-S-M-C

    Posted by: Afterburner | May 22, 2013 11:07:24 PM

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