On March 13, the Senate held hearings to listen to some of the more than 3,000 annual reports of sexual assault in the United States Army, Navy, Marine Corps, and Air Force. But this number may be a severe under-representation of the actual crime taking place in American military services. One of those cases involves convicted (and dishonorably discharged) Lt. Col. James Wilkerson. A court-martial convicted Wilkerson of groping a woman; and later, Lt. General Craig Franklin "tossed out" his conviction and put him back on active-duty status. Franklin didn't think Wilkerson was guilty beyond a reasonable doubt.
Decisions like Franklin's sheds light on the cultural views around rape in our society. It not only leaves victims of rape and sexual assault dealing with the loopholes of the justice system, but can prevent them from reporting the crime at all. Through discouragement to report sex crimes, lack of legal outcomes and, in Wilkerson's case, dismissal of charges, both military and civilian victims alike have myriad reasons to sit down and keep quiet.
Senator Kirsten Gillibrand (D-N.Y.) says, "We have to create a climate where these cases, No. 1, are reported, No. 2, are prosecuted, and No. 3, are convicted."
This same approach should apply to American society as a whole.
One of the most destructive and subtle methods to preventing victims from reporting their assaults is to undermine its very existence. In our culture we accomplish this through redefining, narrowing, and limiting what constitutes rape and consent. The violence and violation of rape are never at the forefront of the "discussion." Instead, politicians, and even ordinary conversations, seem to find the small details of rape cases and push the line back to exclude more and more cases.
By constantly challenging what may or may not constitute rape, we are left dealing with two important effects: the line can be blurred and exploited to the benefit of the criminal, and women are left questioning what has happened to them even when their experience "fits" the latest definition.
But when senior commanders are in charge of where the case goes, military men and women have another reason not to report.
From October 1, 2010 to September 30, 2011 the Defense Department reported that there were 3,192 reports of sexual assault. But according to Leon Panetta, Defense Secretary, the actual number of assaults edged closer to 19,000 just in the last year.
In the Senate hearings in mid-March, former service women and men told their stories to lawmakers to try to push for third-party prosecutors in military cases. They described the trauma and humiliation of being abused, but also the effects of "losing faith in the military chain of command." One officer even stated that his senior officer told him "not to report the rape."
All structural hurdles and legal proceedings aside, being explicitly told not to report a crime by the persons military personnel are supposed to report to is confusing and undermining. This sort of dead-end sends a strong message to victims or future victims: Justice stops here.
According to the article, "Under military law, a commander who convenes a court-martial is known as the convening authority and has the sole discretion to reduce or set aside guilty verdicts and sentences or to reverse a jury's verdict." The article also aptly points out that if "commanders take action and prove that rape occurred, they also prove a failure of their own leadership."
In civilian life, if a judge or a juror has a conflict of interest in a particular case, they either asked to step down, or recuse themselves from the case. Why don’t military victims get the same impartiality in their cases? If a commanding officer can review the evidence and decided the burden of proof hadn't been met, what weight does the jury hold?
Of the 3,192 cases which were actually reported in 2011, an estimated 16% of the actual number of assaults, only 489 "subjects" had court-martial charges against them. Less than one-fifth of reported cases end with charges, but of the near-19,000 estimated cases that aren't reported, an even smaller percentage of victims are seeing results (2.5%).
Knowing these statistics may give victims a sense that "the odds are against me," and not reporting may outweigh the obstacles of not being believed, which is common in society as a whole. Even worse is beingbeing blamed, again a common critique against rape victims.
The numbers dwindle as we edge closer to conviction rates of military rapes. The same Defense Department study reports that of the reported cases in 2011, 989 had some sort of action taken against them (489 of those cases being the above-mentioned incidents that ended in court-martial cases). But the other 2,203 cases were not further investigated due to "the victim [declining] to participate ... insufficient evidence to prosecute, the statute of limitations expired, or the cases were determined by the commander to be unfounded" (emphasis added).
And as the Wilkerson case showed us, a reported rape, with a conviction at that, can easily be overthrown by the decision of the commanding officer. Justice is not only lacking, but victims are getting a taste of it then having it stripped away from them again.
Senior officers seem to have a lot of power at both ends of the criminal investigation, either by preventing investigations at all, or undermining the criminal justice system altogether by single-handedly overthrowing jury-decided convictions.
At almost any level of justice female and male military officers have multiple hurdles to jump and have to weigh the benefits and pitfalls of reporting their crime to a senior officer. Even after overcoming these obstacles, victims may be subjected to the opinion of a single commander who wasn't quite convinced. While the military rape culture is a reflection of society's in a specific setting, military victims have to face the unique possibility of having someone in their own chain of command preventing them from seeing their assailant tried or convicted. Recognizing the roadblocks preventing effective sex crime prosecutions in the military can help alleviate this huge gap between rapes and reported rapes.