Administrative Compensation for Military Harassment and Sexual Assault: a Win-win for Victims and the Military

• Jurisdiction: United States,Federal
• Citation: Vol. 100
• Publication year: 2021

100 Nebraska L. Rev. 329. Administrative Compensation for Military Harassment and Sexual Assault: A Win-Win for Victims and the Military

Administrative Compensation for Military Harassment and Sexual Assault: A Win-Win for Victims and the Military

Gwendolyn Savitz ^[*]

ABSTRACT

Last year, none of the more than 20,000 victims ^[1] of sexual assault in the military were entitled to any compensation. Nor were the hundreds of thousands of service members subjected to racial and sexual harassment compensated in any way. Advocates have fought for decades to overturn the Feres doctrine to allow victims to sue the government in court. The military has countered that it must retain control over all issues involving discipline. However, the military lacks the information necessary to be able to take effective action against those who harm others because many victims are afraid to come forward for fear of retaliation. This Article offers a way to solve both problems. It proposes creating an administrative process to compensate victims for the harm they endured while simultaneously providing an incentive for them to report the initial crime, as well as any retaliation they experience, thereby finally providing the military with the critical information it needs to act, which it is unable to obtain any other way.

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TABLE OF CONTENTS

I. Introduction .......................................... 331

II. The Problem .......................................... 332
A. Harassment and Sexual Assault Are Alarmingly Common in the Military and Woefully Underreported .................................... 333
1. Sexual Assault ................................ 333
2. Sexual Harassment ............................ 335
3. Racial Harassment ............................ 337
B. Retaliation Can Be Even Worse ................... 339
1. Professional Retaliation ........................ 341
2. Social Retaliation .............................. 343
1. An Overview of the Military Justice System . . . . 345
a. Sexual Assault ............................. 346
b. Sexual and Racial Harassment ............. 349
2. The Current Process Harms Individual Victims and Means There Will Be More in the Future . . 350
3. The Current Military Justice System Harms Military Readiness and National Security ...... 352
D. The Structural Problems with the Current Military System That Have Led to This Result ............. 353
1. The Current System Only Aims To Punish the Wrongdoer .................................... 353
2. No Direct Compensation Is Available for Victims ........................................ 355
a. Service Members Have No Recourse to the Courts for Compensation .................. 355
b. Any Compensation from the Veteran's Administration Is Inadequate and Far Too Late ....................................... 357
3. The Current System Does Not Incentivize the Military To Change ............................ 358
4. The Problem Requires Accurate Information To Solve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360

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III. The Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
A. Congress Should Expand the Recently Created Medical Compensations System To Include Harassment, Assault, and Retaliation . . . . . . . . . . . . . . 361
1. The Current Method of Medical Malpractice Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
2. How To Expand the Current System To Include Harassment and Sexual Assault Victims . . . . . . . 362
a. Claimants Would Be Entitled to Automatic Compensation, Provided They Filed Within a Short Statute of Limitations .............. 363
b. Protecting Claimants Filing in Good Faith from Filing Repercussions .................. 364
c. Independent Judges Should Make Decisions Based on a Preponderance of the Evidence . 366
d. The Office Must Be Adequately Staffed To Process All Applications Quickly and Accurately ................................. 366
B. How This Would Address the Problems ............ 367
1. Benefits to Individual Victims .................. 368
2. Benefits to the Military as a Whole ............ 368
C. Alleviating Potential Concerns Raised by the Proposal .......................................... 369
1. This Compensation Would Not Interfere with Military Matters ............................... 370
a. Discipline and Chain of Command .......... 370
b. Training and Tradition ..................... 371
2. This Plan Would Help Despite the Military's Poor Use of Existing Information ............... 372
3. Compensation Would Not Give Rise to Overwhelming Numbers of False Reports ...... 373

IV. Conclusion ............................................ 374

I. INTRODUCTION

Hundreds of thousands of military service members are harmed each year through racial harassment, sexual harassment, and sexual assault. This harm is further compounded by rampant retaliation against both those who report these crimes and any service members who appear to come to their aid. While the military claims to want to solve these issues, the retaliation members continuously face for reporting violations indicate the military will never learn where some of the biggest problems are. This, in turn, leads to toxic environments like the one documented at Fort Hood Military Base. The nation's atattention turned to Fort Hood after Specialist Vanessa Guillén was murdered by a fellow soldier. Before the murder, Specialist Guillén told her family she had experienced sexual harassment, but she had been too scared to report due to fear of retaliation. ^[2]

This is an extreme example of the harm far too many service members must face. Just as the military was not officially informed of Spe-

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cialist Guillén's harassment or the identity of her harasser, the military will never learn the names of those hurting their fellow service members in countless other cases. Without this information, the military cannot possibly take action against perpetrators or prevent future harm.

This Article proposes the first realistic framework to finally give the military access to this critical information, while providing victims modest compensation for the harm they have already endured. Under this proposal, victims who reported events of sexual harassment, racial harassment, and sexual assault deemed likely to be true would be compensated. To qualify for this payment, victims would need to report the crime within a relatively brief window of time, allowing the military to quickly take action against those causing the harm.

Importantly, this proposal would not only compensate the victims of the initial crime but would provide payment for each documented instance of retaliation. Merely encouraging better harassment and assault reporting of the initial crime alone will not solve this problem.

This approach provides multiple benefits. First, it would compensate the victims for two distinct violations, the initial crime as well as the retaliation that followed. Second, it would provide an incentive for victims to report and continue reporting retaliation, enabling the military to take action against sexual harassment, racial harassment, and sexual assault. This is critical, as many individuals like Specialist Guillén are too afraid to report for fear of retaliation, and since very often the person retaliating against the victim is not the same individual who committed the initial crime.

II. THE PROBLEM

The military faces an acknowledged problem involving sexual assault, sexual harassment, and racial harassment. ^[3] The military has taken steps to address these issues, including extensive training programs and even the creation of additional departments. ^[4] The problem persists, however, because the military has yet to fully acknowledge that the current system places tremendous burdens on victims of as-

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sault and harassment by asking them to risk the additional harm of retaliation for the military to potentially hold the culprits accountable.

This section begins with a more thorough description of the prevalence of sexual assault, sexual harassment, and racial harassment in the military. It then describes the problem with retaliation for those who report or consider reporting the harassment or assault. Next, the section describes the disciplinary structure set up in the military to address these issues and how it fails to help either the victim or the military itself. It then examines how these problems are the result of the inherent nature of the disciplinary system. Finally, the next section explains how these problems cannot be solved until the military is able to obtain better information on those committing the infractions.

A. Harassment and Sexual Assault Are Alarmingly Common in the Military and Woefully Underreported

It is estimated that more than 20,000 service members were sexually assaulted in 2018. ^[5] For racial or sexual harassment, the numbers go up in order of magnitude. ^[6] However, very few of these incidents are reported largely due to fear of retaliation, addressed in Part II.B. These issues affect hundreds of thousands of victims every year. Victims are disproportionately minorities and women-the very individuals needed to diversify the military. The military cannot diversify if minorities and women are no longer part of it, and too often these victims are forced out by the treatment they are made to endure...