Sen. Claire McCaskill (D-Mo.) rightly did not let Mr. Panetta off the hook during this week’s closed-door hearing by the Senate Armed Services Committee, asking, “What needs to be done and should be done as it relates to the problem of sexual assault within the military – women in the military that have had a great deal of difficulty accessing some sense of justice?”
Panetta responded, “I totally share your concerns. We have to have zero tolerance for any kind of sexual assaults in the military…we have to allow the victims of those sexual assaults the ability to be able to complain, to have those complaints listened to, to have the evidence that’s necessary to be able to establish those cases. There’re a lot of steps that need to be taken, and I look forward to working with you and with others in the department to make sure we protect women who have served so well in the military these days.”
If the Senate does indeed approve Mr. Panetta’s nomination, he would do well to learn from the shortcomings of both of his predecessors, former Defense Secretary Donald Rumsfeld and current Defense Secretary Robert Gates, both of whom are defendants in a federal lawsuit that alleges they violated the constitutional rights of16 servicemembers by failing to prevent and prosecute their rapes.
According to the Defense Department, 3,158 cases of sexual assault were reported throughout the military last year. However, only 529 of these were preferred for courts martial, and only 53% of those actually resulted in convictions, meaning that only 280 of the original 3,158 alleged perpetrators ever saw the inside of a military brig. These numbers do not exactly inspire confidence in the military judicial system, and are part of the reason so few women and men report their assaults, or press forward with investigations.
In fact, according to the Defense Department, only 13.5% of rape and assault survivors report their attacks, and an estimated 19,000 sexual assaults actually occurred last year. It is a mistake to think all of these victims are women. In fact, this issue, often misrepresented as “a women’s issue” by both policymakers and the media, is a plague upon both women and men. According to the Department of Veterans Affairs, 39% of patients being treated for sexual trauma are men.
This crisis, nothing short of an epidemic, can be eliminated. But it will require real leadership, and some bold first steps. It is up to Mr. Panetta if he wants to follow in his predecessors’ footsteps, or make the radical changes necessary to transform the military.
In his new role, Mr. Panetta must begin by demanding commander accountability, reforming the prosecution and court martial conviction process, and providing protection for victims.
First, commanders are rarely held accountable for failing to enforce sexual assault policy. Commanders who choose not to prosecute and punish perpetrators, or who punish victims who speak out must be forcefully disciplined. The ultimate deterrence to commander negligence will come with sweeping congressional reform to revoke the infamous Feres doctrine and to allow servicemembers to bring federal lawsuits for damages in cases of government negligence. But in the meantime, Mr. Panetta can start by policing his own, not with calls for zero tolerance of sexual assault, but by punishing those who let sexual offenders go or who retaliate against victims for stepping forward.
Second, Mr. Panetta must reform the prosecution and courts-martial conviction process. Mr. Panetta can work with Congress to reform the UCMJ to ensure that it is General officers rather than junior officers (who lack the legal resources, experience, or impartiality to properly deal with complicated cases like sexual assault) determining the disposition of sexual assault cases—in other words, whether or not the military will take action on an accusation of rape or sexual assault. He can also work with lawmakers to ensure that Article 120 of the Uniform Code of Military Justice—the “rape article”—is revised in alignment with modern criminal law theory to support a “consent-based” rather than “force-based” statute.
Additionally, Mr. Panetta can ensure that the punishments fit the crime. “Non-judicial punishment” and “administrative action” are shockingly inappropriate responses to a sexual crime. Sexual assault cases should go before a judge and jury, not before a commanding officer. Appropriate punishments include incarceration, dishonorable discharge, and required registration in a military sexual offender database.
Third, Mr. Panetta needs to implement all the recommendations of the recent report by the Defense Task Force on Sexual Assault in the Military Services, focusing in particular on guaranteeing victims’ rights, including privileged communication with victims’ advocates, legal counsel during what is an extremely intimidating and confusing investigation and trial process, and expedited transfers for victims so they can continue to serve their nation without the threat of harm or death from perpetrators or commanders.
Defense Department leaders have not yet dared to remove the institutional barriers to protecting our nation’s finest, to the detriment of many in our armed forces. Mr. Panetta simply requires the courage to act.
Anu Bhagwati is the executive director of Service Women's Action Network.