Quis Custodiet Ipsos Custodies? the Current State of Sexual Assault Reform Within the U.s. Military and the Need for the Use of a Formal Decisionmaking Process in Further Reform
| Publication year | 2015 |
I. INTRODUCTION
Who will guard the guards themselves? Who watches the watchmen? Though actually written by the Roman poet Juvenal, the Latin phrase,
In the United States, these responsibilities are levied upon the U.S. Congress, which has Constitutional authority to "make rules for the Government and Regulation of the land and naval Forces."(fn3) As such, the U.S. military currently has a robust and well-developed judicial system governed by the Uniform Code of Military Justice (UCMJ). Yet critics have attacked this system during the past two decades by alleging that it fails to adequately prevent and prosecute sexual assault within the ranks. Following scandals at the 1991 Tailhook Convention, Aberdeen Proving Grounds, and the United States Air Force Academy, critics of the military justice system wrote several articles calling for reform.(fn4) While the government subsequently enacted several initiatives in response to this criticism,(fn5) recent events clearly demonstrate that there is still significant work to be done regarding sexual assault in the armed forces. This Note has two primary purposes. The first is to chronicle recent events in the U.S. military's ongoing battle against sexual assault within the ranks, including several recent reforms to the military justice system. The second is to advocate for the use of a technical decisionmaking process, instead of recent Congressional reliance on individual narratives, to consider whether major reform that removes a military commander's charging decision authority is appropriate.
Part II of this Note provides a brief overview of the initial incidents listed above and continues the story by discussing the recent sexual assault scandal at Lackland Air Force Base (AFB).(fn6) Examination of these incidents in brief evidences the fact that there are still ongoing systemic flaws in the armed forces when it comes to the prevention and prosecution of sexual assault. Part III discusses recent efforts to hold senior Department of Defense (DoD) officials responsible for the prevalence of sexual violence in the armed forces through the civil justice system and the reluctance of the Judicial Branch to involve itself in military affairs. Of the three branches of government, the Judicial Branch has typically been viewed as a safeguard for individual liberty. Yet, Part III demonstrates the propensity for the courts to prioritize national security concerns in civil litigation over individual interests. Part IV details recent small-scale changes in the workings of the military justice system and examines two of the more controversial articles in the Uniform Code of Military Justice, Article 60 and Article 120.(fn7) The reforms discussed in Part IV demonstrate the difficulties in finding the appropriate balance between individual interests and national security concerns when it comes to military justice. Part V examines the current legislative debate that proposes large-scale changes to the military justice system, namely eliminating the authority of military commanders to make the charging decision with regard to sexual offenses. Taking into account the ideas discussed in Parts II-IV-that there are current and historical flaws in the way the military justice system prosecutes sexual offenses, that individual interests are historically placed after national security concerns, and that finding the appropriate balance when it comes to military justice reform is inherently difficult-Part V advocates for changing the current debate to include a technical analysis as to military capabilities and the role of the commander. Part V also details an example of a decisionmaking process that can be used to seemingly de-escalate the current highly charged emotional debate into a balanced discussion that will produce a just result for individual service members while at the same time preserving military readiness. Part VI concludes.
II. SEXUAL ASSAULT IN THE UNITED STATES MILITARY
Today, the 214,098 women(fn8) currently serving in the Department of Defense and the U.S. Coast Guard make up approximately 14.6% of America's active duty military force.(fn9) At present, more than 90% of all career fields in the U.S. military are open to women,(fn10) and this percentage is expected to increase with the passage of recent legislation.(fn11) Even before the formal opening of military service to women, historical records demonstrate the participation of women in every major American military conflict since the Revolutionary War.(fn12)
Yet despite this distinguished record of service, the sad truth remains that "women serving in the U.S. military today are more likely to be raped by a fellow soldier than killed by enemy fire in Iraq."(fn13) In 2012, the Department of Defense(fn14) received 3,374 formal reports of sexual assault within the DoD in that year alone.(fn15) Even more shocking, the DoD admitted that due to the highly unreported nature of the crime, studies placed the actual number of sexual assaults that year somewhere around 26,000.(fn16) Perhaps the best way to understand the U.S. military's battle against sexual assault is through an overview of the highly publicized scandals in recent history. While individual sexual offenses are no less important, taken together, these separate incidents demonstrate common threads in the propensity for sexual offenses to occur and the difficulties involved in prosecution of those offenses due to the unique power relationships that are found within the military rank structure. The following analysis is merely a brief overview of the major sexual assault scandals that have affected the U.S. military during the past two decades. In addition to the statistics cited above, even a cursory examination of these incidents evidences the fact that there is still much work to be done regarding the prevention and prosecution of sexual assault in the armed forces.
Until the 1992 "Tailhook" scandal, the difficulties faced by female service members were largely unknown. The scandal was named for the September 1991 Tailhook Association convention that occurred at the Las Vegas Hilton and was attended by some 4,000 participants- including thirty-two active duty Navy admirals and Marine Corps gener-als.(fn17) Tailhook was perhaps the public's first glimpse into what has been described as "an out of control fraternity party" that involved the nation's top military aviation professionals.(fn18)
Later, investigators determined that eighty-three women and seven men had been sexually assaulted.(fn20) While the investigation was plagued with problems,(fn21) the initial lack of prosecutions (or perceived lack of prosecutions) led many to call into question-for the first time-the U.S. Navy's ability and willingness to bring perpetrators of such crimes to justice.(fn22)
The U.S. military faced its next sexual assault scandal in 1996, a scandal that demonstrated that the military's struggles with sexual assault were not limited to the Navy and Marine Corps. Investigators discovered that the drill sergeants at Aberdeen Proving Grounds (then home of the U.S. Army Ordinance Training Center and School) were participating in what was called "the GAM," a contest to see which drill sergeant could sleep with the most trainees.(fn23) In his book chronicling the investigation, Major General (ret.) Robert Shadley noted that the sergeants felt they were "pretty good at picking out the young women who would sleep with them" as he later found that "51 percent of the women who came into the Army exhibited several criteria for being victims of sex abuse."(fn24) Unlike the prior Tailhook scandal, which concerned the debauchery of similar ranked military aviators, the abuse at Aberdeen showcased another disturbing aspect of military sexual assaults: the propensity for a drill sergeant's authority over a young 19-year-old recruit to be abused.(fn25) Unique to the military, rank structure and imbalances in power created an entirely new dimension...
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