Unlike in civilian society, members of the military frequently live in close quarters with one another for long periods, away from their families, and under extreme conditions. This situation makes it all the more important that any criminal activity—especially that which potentially erodes unit cohesion, trust, and morale—be curtailed, deterred, and swiftly handled. Unfortunately, unlike other criminal offenses, the offenses of sexual assault and harassment come steeped with difficult history and can be affected by politics, making them extremely challenging for most commanders to handle.
Fraught with Complexity
Such cases, especially those in which the alleged assailant and victim are acquainted, are fraught with complexity. Sometimes, the parties involved are friends or report to one another. Sometimes those acquainted with either the alleged assailant or victim unofficially choose sides. And just about all of these cases, because of their nature, come laden with evidentiary problems because the crux of criminality turns on evidence of force and consent, elements that do not always lend themselves to definitive proof at trial. While these issues are not limited to acquaintance rape or sexual harassment in the military, the nature of the military environment makes these issues potentially more complex and difficult.
For instance, in the military, the victim is without the usual support systems available to civilian victims, like immediate access to friends and family and a choice about whether, where, and when he or she reports and to whom. Additionally, rank and position often play into the relationship between the assailant and victim. Reporting of the offense necessarily involves going through the chain of command, which may be intimidating or in some instances may be involved in the crime itself. The military structure has a far less than average percentage of women than the population at large, and even fewer women in command. It would be naïve not to recognize that this can affect perceptions in the Fleet about the criteria used in decision-making for disposition. Victims are rarely perfect, and their pasts are frequently scrutinized.
One only needs to look at Web sites like http://www.falserape.net  and http://www.suzanneswift.org  to see that emotions and the stakes run high in these types of cases. All the issues that have been covered in the stories about high-profile cases are the ones that make any acquaintance rape case difficult to prove. Victims are not always women, but the majority of sexual assault cases involve female victims. And lest we think that this issue is only confined to women in the military, or even women in the United States, one can easily discover that it is a much more widely discussed issue by doing a simple Google search. Without vouching for the accuracy of the conclusions drawn by these articles, a Google search using the terms "false rape" returns more than two million hits.
But it is important to recognize that the military is different. Those serving are subject to rank structure and expected to follow orders. Cadets, midshipmen, and commissioned officers are expected to abide by an honor code and set an example; the military justice system must address that reality. In a way that the civilian system is not responsible, the military one needs to balance the rights of the accused and the alleged victim with the need for good order and discipline in the armed forces. Sexual assault and harassment not only affect good order and discipline, but impact readiness, too. Health concerns posed by post-traumatic stress disorder, unwanted pregnancy, and sexually transmitted diseases cannot be ignored.
A Higher Standard
In recognition of these concerns, the case of Midshipman Lamar Owens was more complicated than it would have been if tried in a civilian environment. Although he was not convicted of the rape charge, he was ultimately found guilty of violating Article 133 of the Uniform Code of Military Justice for conduct unbecoming an officer based on his admission to consensual sexual relations in Bancroft Hall. The message sent to the Fleet, for the most part, was that the best and brightest will be held to a higher standard. But there are those who argue that the female midshipman dodged a bullet for her violation of the rules by engaging in underage drinking. What is the message sent to our future leaders? That message is unfortunately muddled.
While underage or excessive drinking on college campuses is generally tolerated (although no longer glorified), those attending the academies are expected to be held to a higher standard. Women, as well as men, need to be accountable and held to the same high standard. Underage drinking, much less consensual sexual relations in the rooms at the academies, is cause for disciplinary action in and of itself. An underage midshipman who drinks alcohol is breaking the rules—and the law. Drinking alcohol does not serve as a license for anyone to be raped, but if service members are incapacitated by excessive alcohol abuse, what duty do others around him or her have to protect that individual? Is taking advantage of an incapacitated shipmate more serious than the actions that rendered that shipmate unconscious? Is there a duty for other shipmates to protect an inebriated service member? Should fellow midshipmen be required to assist in seeking treatment for those they suspect of being chronic alcohol abusers? Is underage drinking comparable as an infraction to having consensual sexual relations on academy grounds? Is there or should there be a standard that requires one party in a sexual act to fully ascertain consent, and if so, how? And presuming that we want all of our leaders to be held to the same high standards, how are those standards measured when comparing different acts? These questions are frequently easier to pose than answer, but leadership in conveying expected standards and command discretion in enforcing them is key.
All Cases Not the Same
Unfortunately, past concerns have affected current case dispositions. Now, cases of sexual assault and harassment in the military are frequently handled with a one-size fits all approach. But all cases are not the same. Allegations involving a senior and subordinate might warrant attention different from those of the same rank. Potential sexual offenses involving service members who are incapacitated by heavy alcohol consumption off-base and off-duty might be handled very differently than unimpaired sexual relations occurring on a naval vessel. Each case deserves individual attention, review, and disposition. This is important to the integrity of the system, as well as to all who serve. The potential victims are our fellow service members. They are our wives, husbands, daughters, sons, sisters, and brothers. While the majority of sexual assault victims are women, not all are. And those falsely accused are equally victimized. The military as an institution should be equally concerned about sex offenses because these crimes, just like non-sex offenses, involve a breach of trust and have the same potential to impact good order and discipline, morale, health, and unit cohesiveness.
One of the measures of a justice system is not only punishment, but also deterrence. If the punishment does not fit the crime, either by being too harsh or too lenient, the goals of the system are compromised. The difficulties of prosecuting these cases can cause those who are responsible for pursuing them to cut corners or employ questionable tactics.
One only need look at the recent case involving the Duke University lacrosse players accused of sexual assault and the actions of Durham County District Attorney Mike Nifong in withholding exculpatory evidence to see that overzealous prosecutors, influenced by political considerations or frustrated by the frequently low conviction rates in many of these cases, have the ability to be swayed improperly and cross ethical boundaries to get a win at any cost. If cases are pursued to fulfill political objectives rather than justice, we all suffer. Pursuing those accused without evidence leads to no better result than ignoring reports of sexual assault. Both results are equally pernicious.
The Tailhook Legacy
The legacy of Tailhook appears to have produced a process by which every case is processed the same, regardless of the facts. That would be contrary to the observation made by the then-Court of Military Appeals in one of the Tailhook cases.
The assembly-line technique in this case that merged and blurred investigative and justice procedures is troublesome. At best, it reflects a most curiously careless and amateurish approach to a very high-profile case by experienced military lawyers and investigators. At worst, it raises the possibility of a shadiness in respecting the rights of military members caught up in a criminal investigation that cannot be condoned. Samples v. Vest, 38 M.J. 482, 487 (C.M.A. 1994).
Every case should be given proper resources for investigation and due care for proper disposition. And without question, sexual assault and harassment should not be tolerated. But the prosecution of all cases, without regard to the strength of the evidence or the willingness of the victims to testify does not send the right message or provide required leadership. One case that will bear watching is a unique Air Force case pending trial at Pope Air Force Base in North Carolina. The Associated Press reported on the case as this article was going to print. The article states that a female Airman reported her rape by three men and sought immediate medical treatment after her alleged attack in May 2006, but is now being prosecuted for indecent acts and consuming alcohol as a minor after refusing to testify against her alleged attackers. Quoting letters she wrote to her congressional delegations and the governors of North Carolina and Texas, her native state, AP reports she decided not to testify against the three men because "the pressure of the judicial process was too much for me, and I felt like no one was looking out for my interests." Another story in the Fayetteville Observer quotes Dr. John Foubert, a Virginia-based rape prevention expert, and says he reviewed the case file and concluded, "The command at Pope Air Force Base is acting without any common sense whatsoever." The Airman's court-martial is currently scheduled for 24 September.
While there is no correct formula for handling any of these cases, only the facts should guide the disposition process. Although there was no finding that any unlawful command influence was brought to bear in the recent stream of high-profile sexual assault cases at the academies, convening authorities must take extra care to set outside influences aside and only be guided by the interests of justice in each case. It has been oft-quoted that "unlawful command influence is the mortal enemy of military justice." United States v. Thomas , 22 M.J. 388, 393 (C.M.A. 1986). Thankfully, substantiated examples of department-level senior official interference with the military justice system are rare. See, e.g., United States Navy-Marine Corps Court of Military Review v. Carlucci , 26 M.J. 328 (C.M.A. 1988). But high-level official interference, or even the appearance of undue influence, must be avoided at all costs.
What to Do
So what should commanders do in order to move to outcomes that are more predictable and good for the services? The initial Sexual Assault Victim Intervention (SAVI) programs, like that established by the Navy on 23 March 1998 by OPNAVINST 1752.1A, were a good first step toward establishing a protocol. But these programs have demonstrated limits. Frequently, reports are not made according to procedure or through any official channels at all, causing privacy to be compromised. Within the continental United States, victims in the military may use civilian support systems to seek assistance and can frequently remain anonymous by so doing. But those serving overseas or deployed to combat zones do not always have these same options. Perhaps it is time to re-evaluate existing programs for their effectiveness and ensure they can equally meet the needs of commanders and victims, both stateside and deployed abroad.
More military investigators and trial counsels should be specially trained in handling sexual assault. Those certified as especially qualified to handle these kinds of cases could be assigned as teams to work on cases requiring expertise. Unfortunately, the backbone of military victim—assistance programs frequently consists of collateral—duty volunteer counselors, who are subject to transfer or deployment on short notice or have other, competing concerns. And the collateral nature of the position can strain command resources. Recently, the United Nations began a comprehensive review of their sexual assault problem in an effort to better investigate and handle allegations of sexual misconduct leveled against its multinational peacekeeping forces deployed throughout the world. Lessons learned from their studies can perhaps offer additional ideas for improvement.
The Department of Defense has begun an ambitious program that seeks to address these issues. It recently implemented the Sexual Assault Prevention and Response (SAPR) Program on 5 October 2005 through DoD Directive 6495.01. The SAPR website found at www.sapr.mil  provides detailed information about the program. Additionally, the implementing instruction, DoD Instruction 6495.02, signed on 23 June 2006, sets out a detailed process for commanders and investigators to follow.
The new policies appear to strike a balance between the competing concerns of victim treatment and potential punishment. The new policy provides victims the ability to seek treatment and support anonymously through an "opt out" provision permitting a restricted report. The choices are clearly detailed in the instruction and in DD Form 2910, the Victim Reporting Preference Statement, which the victim reviews and signs. And while the SAPR process looks promising, it is very new. It will be important for those overseeing this program to regularly review its application and evaluate its effectiveness. However, if commanders study the instruction, seek JAG advice and assistance about case disposition, and are guided in their decisions by the circumstances of each case, the hazards posed by sexual assault and harassment in the military should be navigable.
So, is the military better at dealing with sexual assault and harassment than it was 31 years ago when women were first admitted to the academies, or even 16 years ago, when the Tailhook incident occurred? Overall, progress is evident. The problem and the issues are now squarely on the table for discussion. There is nothing preventing commanders, lawyers, and victim-advocates from moving forward toward a better and more holistic way of dealing with sexual assault and harassment in the military.
If nothing else, the recent focus on these cases has provided an occasion for introspection and opportunity for re-examination. Perhaps there are no apparent winners from the Lamar Owens court-martial in particular, but the resultant debate and discussion about command response to sexual assault and harassment is cause for measured optimism. This is not a male or a female issue, it is a service issue. It is one that commanders can better address by conveying clear standards of behavior to all and holding all of our leaders and future leaders equally accountable for their actions.
Commander Duignan currently serves as the Executive Director of the National Institute of Military Justice, a non-profit organization affiliated with American University's Washington College of Law in Washington, DC. She served on active-duty as a JAG officer where she was first assigned as a trial counsel in the Naval Legal Service Office in Norfolk, Virginia, and then as a defense counsel in the Coast Guard during the early to mid 1990s. She spent significant time both prosecuting and defending sex crimes during the immediate post-Tailhook period.