Analysis of the Supreme Court's last decisions of the term and the impact of a vacant seat on the bench.
For years the Pentagon has been criticized for not doing a better job of reducing sexual assaults in its corps. There were about 26,000 cases of unwanted sexual contact or sexual assault in the military last year. That’s up 37 percent from the previous year – according to the Pentagon’s own report. Yesterday U.S. Senator Kirsten Gillibrand won the backing of two conservative Republicans for her proposal, which would remove sexual assault cases from the chain of command. A rival plan would allow commanders to keep their power to decide which cases to prosecute. A discussion on how to address sexual assault charges in the military.
- Kirsten Gillibrand U.S. Senator, New York (D).
- Philip Ewing defense editor at Politico.
- Maj. Gen. Charles Dunlap Jr. (ret.) executive director of the Center on Law, Ethics and National Security at Duke University School of Law; he served for 34 years as an Air Force lawyer.
- Susan Burke D.C. lawyer representing military rape victims.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. U.S. Sen. Kirsten Gillibrand is on a mission. The New York Democrat wants more support for her bipartisan plan to change the way the military deals with sexual assault. Yesterday, she scored a victory by winning over two conservative Republicans, U.S. senators Rand Paul and Ted Cruz.
MS. DIANE REHMJoining me in the studio to talk about sexual assault in the military: retired Maj. Gen. Charles Dunlap -- he served as an Air Force lawyer for 34 years -- Philip Ewing, defense editor at Politico, and Susan Burke, an attorney who represents military rape victims. I do ask you for your thoughts, your questions, comments. Join us on 800-433-8850, send us your email to email@example.com, follow us on Facebook, or send us a tweet. Good morning to all of you. Welcome.
SEN. KIRSTEN GILLIBRANDGood morning.
MAJ. GEN. CHARLES DUNLAP JR.Good morning, Diane.
MR. PHILIP EWINGGood morning, Diane.
MS. SUSAN BURKEGood morning.
REHMAnd, Philip Ewing, if I could start with you, talk about that report from the Pentagon and what it said.
EWINGWell, the Pentagon releases a regular update about sexual assault in the military services. And the one that came out earlier this year found that reporting had increased for the previous period to about 26,000 unwanted incidents of sexual contact. It also came out at a very politically inconvenient time for the Defense Department because it was the same week early this year that the former Air Force officer charged with preventing sexual assault was arrested in Arlington, Va. after he was allegedly involved with groping a woman, police said.
EWINGAnd so it compounded this political challenge for the Pentagon because only a few days later this report came out and then a few days and weeks after that there were other incidents across the military. And several of the different armed services and around the world that really highlighted this problem with sexual assault. That's why it's getting so much attention from members of Congress.
REHMAnd, Susan, describe for us what is meant by unwanted sexual contact.
BURKECertainly, as you can imagine in a workplace setting, you assume that your body is going to be free from unwanted contact. What the military has discovered by surveying their own service members is that there were 26,000 unwanted contacts. So they are -- that includes both rapes, which would be penetration as well as inappropriate touchings, gropings, so all sorts of different type of sexual contacts that were not desired by the victim.
REHMAnd, Gen. Dunlap, what was your reaction to that report?
JR.Well, I think, like everyone, you're horrified when you hear about this because in the military sexual assault is even more dangerous to the mission because it disrupts that camaraderie that you do need. I would like to correct one thing. The 26,000 figure that we hear so much, that wasn't 26,000 reported cases. What they did is they took a sample of one -- about 1.5 percent of the military, and they got a percentage. And then they extrapolated that out.
JR.The CDC did a similar survey in 2012, reports a similar survey, and their percentages if they were applied to the military from the civilian community would show 77 or 78,000 cases. So the military is significantly lower in its incident of unwanted sexual contact. And I think one of the problems here is the individual reporting it unwanted sexual contact for some people a hug is just a nice thing, for other people that's unwanted sexual contact.
JR.So a young Marine captain, a Harvard Law grad, she's a Marine lawyer wrote an article in The Wall Street Journal where she questioned, she called it the Pentagon's bad math, the legitimacy of the survey. But none of that takes away from the idea that sexual assault is a serious problem in the military and in our civilian community. And what we need to do more about it.
REHMSusan, what about that extrapolation that the general just referred to?
BURKEWell, the military itself has claimed that number and has said that in their view that's an appropriate way to measure the amount of sexual assaults. So we don't quibble with them on that. The number may be -- the real number may be higher, may be lower. It's unknown. What is known is that you have a real number of reported assaults, reported rapes and sexual assaults where victims come forward.
BURKEThere's over 3,000 of those, and yet when you work the numbers through, you get down to a very dismal prosecution rate and an even worse conviction rate. So regardless of what the real number is, we know we have a dysfunctional system that has to be fixed.
REHMSusan Burke, she's an attorney representing military rape victims. Philip Ewing, back to you. Tell us about the military sexual assault proposal that's now gaining ground in the Senate.
EWINGWell, the one you mentioned from yesterday sponsored by Sen. Gillibrand would effectively take authority to prosecute many of these cases and other crimes away from a specific unit's chain of command. So instead of having what we call the convening authority decide to have an Article 32 hearing and then have a court martial, well, basically a grand jury process and then a trial independent prosecutors would make a lot of those decisions and pursue them outside of the organizational chart of a particular unit.
EWINGThat's a proposal that the Pentagon opposes. Military commanders and the secretary of defense say they want to keep the unity of command. They want to maintain what they call good order and discipline, and they support an alternative proposal by the chairman of the Armed Services Committee, Sen. Levin of Michigan, that would add additional penalties and punishments in sexual assault cases and require reviews when commanders decided not to pursue them but would not adopt that specific proposal that Gillibrand recommends. And that's kind of the state of play right now this week.
REHMNow, doesn't Sen. Gillibrand's proposal also include major crimes other than sexual assault?
EWINGThat's my understanding. That's another reason why the Pentagon is so skeptical about it because it wants to maintain, as I said, that unity of authority for a commander in a given situation.
REHMSusan, how do you react?
BURKEWell, there's an analytical strength to the way that Sen. Gillibrand has drafted her proposal. What she is getting to is the fundamental right of due process for all of the service members. As a practical matter, you don't see the same dynamic play out in murder cases because the commanders do tend to refer those on relatively regularly. So you don't have the same problems of non-prosecution with the other serious felonies.
BURKEBut from a due process point of view what we're saying, what Sen. Gillibrand's proposal is saying is that we need impartiality. We -- when we operate a judicial system in this country, we don't expect the decision makers to be in relationships, professional relationships, personal relationships with the victim and with the alleged predator. So that type of impartiality is really needed across crimes. I would note that Sen. Gillibrand has carved out from her bill the few things that are uniquely military.
BURKESuch as going AWOL or failing to follow an order, those type of military unique offenses.
REHMSo with those exclusions, Gen. Dunlap, how do you feel...
REHM...about the proposal?
JR.Well, number one, it doesn't exclude failure to -- it includes her proposal. It includes taking away from commanders the authority to make disciplinary judgments in obedient supporters. My basic thought here is, is that, in the armed forces, if you want to get something done, if you want to get a problem solved, the commander has to be involved. This proposal wants to slough off to a bunch of lawyers this kind of decision.
JR.This is what Eisenhower objected to back in the 1950s when they thought about doing a similar thing. And I recognize Susan's commitment to the DOD survey. Well, if that is the case, then I think we ought to take into account that people in the armed forces in that survey both men and women by overwhelming majorities expressed their view that the commanders were doing well in addressing the problem of sexual assault.
JR.Similarly, there was a Pew Research Center poll just last month which overwhelmingly military households wanted commanders to handle this as opposed to Congress making changes. In terms of trust, we can argue about whether people trust commanders, except for the fact that the survey shows that people in the military do. And then there was another Pew Research survey that historically shows that military leaders are the most trusted people in American society, more than even the Supreme Court.
REHMWhat about military in other countries? What have they done to deal with this issue of sexual assault? Has it been taken -- has the authority been taken away from the military or not, Phil?
EWINGWell, one of the things that Sec. Hagel and Gen. Dempsey, who's the chairman of the Joints of Chiefs Staff, have said is they want to look more closely at what these other militaries have done. International militaries have spent a little more time than the U.S. military integrating women into their ranks overall and into combat units specifically. And so they've said as a part of its process, rather than having Congress legislate an answer upfront, they want time to go and see what the British or Israeli, South African or other militaries have tried.
BURKEThe reality is that most of our Western allies have taken the logical step forward of modernizing. The judicial system that prevails in this country was modeled after the U.K. It's an anachronism. It goes back to the days when the commanders will be sent far from any type of communication and had to have that ability to instantly punish. So all of the major allies have recognized that, and they moved forward with modernity.
BURKEWhat's interesting when you look at history is that this is something that actually the American Congress was the first to debate years ago we didn't pass it back then. The U.K. picked it up and did pass it. So this recommendation that Sen. Gillibrand's proposal has put forward is not new. It's not novel. It's not radical. The Cox commission recommendation it. It's the logical step for the system.
REHMSusan Burke, she is a Washington, D.C., lawyer representing military rape victims. We'll take a short break here. When we come back, we'll talk further and take your calls.
REHMAnd welcome back. We're talking about a proposal put forth by U.S. Sen. Kirsten Gillibrand to change the way the military deals with sexual assault. The Pentagon is not too happy about this. Just before the break, we were talking about how other countries around the world who had incorporated women into the military more broadly than the U.S. has has dealt with this issue. And I know, Gen. Dunlap, you wanted to make a comment.
JR.Yes, Diane. Thank you very much. I don't think this is much an issue about integrating women because that 26,000 figure, that estimate, the majority of those who -- in that projection were men, not women. Fourteen thousand were men, 12,000 were women. But, yes, there have been a handful of countries that have taken the commander out of the disciplinary role. And there's actually zero evidence, zilch, that has done anything to fix sexual assault in those armed forces.
REHMYou're talking about the U.K., Australia, Canada.
JR.U.K., Australia. They have never done a survey like we have. But you can just do a little Googling and you'll find out that there's all kinds of problems with sexual harassment and so forth in all of those militaries. And taking the commander out of the loop has done nothing to ameliorate it.
REHMAnd is that because what they've done is to say that, even in deployed areas, the military cannot step in?
JR.Well, you're making a very good point. Those countries that have civilianized their system, their military justice system is virtually unworkable in deployed areas. The only -- only one of those countries that has even done a court martial in Afghanistan or Iraq was Canada, and they did one. Their system is so encumbered, it can't function in that the court-martial piece of it can't function. And we -- the U.S. military is different. We're all over the world.
JR.We have to be able to have a system where the commander who is responsible for war fighting success has that authority. Now, Susan brings up history. There is not a military commander in the history of warfare that was successful that did not have disciplinary authority. And that's the process that Sen. Gillibrand wants to change. She wants to change something from the most successful military in the world.
BURKEThe reality is that Sen. Gillibrand's proposal is not suggesting that all of this be put into civilian hands. Rather, there's a recognition that the existing military has a very robust military judicial system that operates in all deployed locations. And so there is no logistical impediment to simply saying let's remove the adjudicatory power from war fighters, from people who are trained to fight wars but who are not trained to weigh evidence, to calculate burdens of proof and the like.
REHMGive me an example of a situational problem that would turn up in a deployed area.
BURKEWell, for example, if there was someone that was -- say, you're deployed to Iraq and you are raped. You could go -- if Sen. Gillibrand's proposal becomes law, you can go and report that in to all of the places that you can now report it in. But that allegation of rape would immediately go over to the deployed JAG there at the location and so that the lawyers would take over and prosecutorial discretion would be exercised rather than war fighting discretion.
REHMAnd what's the problem now?
BURKEThe problem now is that it go -- the commander. So your actual -- say, your battalion commander, the guy that's supposed to decide how many tanks roll out, he, as part of his many duties, is also supposed to decide when this allegation comes to him, whether or not it should be investigated, whether or not it should proceed to court martial.
BURKEThe problem is that many of these rapes are being committed by a small number of sexual predators who, as a practical matter, are often highly skilled professionals, charismatic individuals. And on just a very -- when you go with the commander's subjective, instinctual reaction, they often discount the victim's allegation because they believe that the predator, oh, you know, we -- that person could not possibly be a predator. You cannot recognize sexual predators. That's why we need to put this in the hands of lawyers and trained investigators who are the ones that have the right skills sets.
REHMPhil, I'm sure you've talked to both those in charge and those who claim to be victims. What do you hear?
EWINGWell, there's a lot of concern at the operational level about a proposal like this because the way of explaining to my colleagues is, let's say we had some kind of problem inside our newsroom at Politico, this would be like The Washington Post coming in and doing an investigation in trying to pursue, you know, some remedy. In fact -- instead of us, you know, internally doing it ourselves where we know each other, we know what jobs we have, what our relationships are supposed to be like.
EWINGAnd that's incredibly disruptive and corrosive, they argue. Of course, the counter argument is there's every reason to think that somebody coming in with an independent perspective, with the kind of qualifications that Susan talks about is the best person to handle that type of situation. And these are the most difficult disciplinary cases to deal with inside a military unit, you know, for obvious reasons, and that's what makes this issue so difficult. That's why there's so many split opinions on it.
BURKEI would just point out that there seems to be a fundamental misunderstanding that Sen. Gillibrand's proposal somehow takes disciplinary authority out of the chain of command. It doesn't. What we're talking about in the proposal is, how do you go after a criminal matter? So the commander still retains the full panoply of managerial tools to ensure good order and discipline in their unit. They are -- they still own the problem just as much as they do now if this proposal went through.
JR.Well, this is a good example, the difference between a civilian perspective and a military perspective. My friend Susan thinks you can separate war fighting from morale and discipline. Anyone who is familiar with the way warfare works is they're integrated. The proposal has sloughing off to a staff officer, a JAG. And I have great respect for JAGs. I was a military lawyer. I was one for 34 years. But the fact of the matter is sexual assault is too important. It has to be commander's business.
JR.And the idea that some lawyer at some other base makes a decision that is so integral to morale and discipline and operational success is ludicrous from a military perspective. That's -- and it's not just the leaders in the Pentagon that are objecting to this. You can see it in the survey. It's the people at the ground. And the problem -- if you look -- if you believe the survey, the problem isn't with sexual predators who are senior people and well-thought of. Yes, there is a problem with that, but most of the cases arise with people who are very young, and there's alcohol involved...
JR....and junior-ranking people.
BURKEThe reality is that we know from decades of reality, Tailhook 1991 forward, we know that the commanders are actually not able to solve this because they have been uniformly testifying before Congress for 20 years now. We're putting this as a high priority. We have zero tolerance. We're going to solve this. Taking them in good faith of their word, they've tried and failed repeatedly. You...
REHMSo what happened after Tailhook?
BURKEThe same type of pushback came from the military. We need to own this problem. We can't have it taken out of the chain of command. There was investigation, no prosecutions, no real consequences. You fast forward to today, scandal after scandal. You have to say we -- it's the definition of insanity to keep doing the same thing again and again and expect different results.
EWINGWell, that why Congress has lost its patience with the Pentagon on this problem. And the big change that took place before we even got to the point of discussing the specific policy proposals was lawmakers said, we are going to step in and do this. And they are not going to listen to these explanations and testimony anymore from Pentagon leaders. They want to do it themselves.
REHMSo how critical to Sen. Gillibrand's plan is it that both Senators Rand Paul and Cruz have joined her?
EWINGWell, it shows that she is broadening the number of senators from outside the initial group that were passionate about this who are coming on board, and it's kind of a strange bedfellow situation because both of them are conservative Republicans. But they've evidently weighed the merits of her proposal and decided that they'll get onboard. She, even now, is trying to get as many of her colleagues as possible to try to support this when the full Senate debates the Defense Authorization bill.
EWINGWhen it worked on -- in committee, the chairman, Sen. Levin, allowed Gillibrand, who's chairman of one of the sub-committees to bring this proposal but then ultimately struck it out from the language that they sent to the full Senate. That's why Levin and Gillibrand have these rival proposals now. Levin says because -- the Pentagon objects because there are all these concerns about what Gillibrand proposes. He feels that his compromise, which he, by the way, says is just as aggressive at punishing this problem, would be just as effective in resolving it, is the way to go.
REHMTalk about the differences between Senators Gillibrand's and Levin's plans.
BURKEWell, Chairman Levin's plan is incrementalism. It does not go to the core problem, which is that you have the adjudicatory power in the wrong hands. So it is kind of more of the same in terms of additional training, additional attention to the issue, but it does not go to why we are where we are today. And it's interesting because when you analyze the voting on the committee, it broke down not on party lines, but it broke down on tenure, Chairman Levin's tenure.
BURKEI mean, in a sense, he's been oversight of this problem since Tailhook. And so it's interesting to me, when you look at the voting, how it played out. And I think what we're seeing is a very genuine concern across party lines to make sure that service members don't get relegated to a second-class system of justice.
REHMHere's a tweet for you, Gen. Dunlap: "Other than tradition, what reasons do the brass have not to orchestrate changes in this process?"
JR.Well, it's not just the brass. If you look at the survey, it's the people at the ground level who answered the survey, and it has to do with successful war fighting. You can't separate disciplinary authority from war fighting. It's integral. We know that. And if you disturb this relationship between commanders and their troops, people under extreme stress need to know that their commander is the one in charge.
JR.To try to separate this out to some staff officer is going to undermine war fighting ability. This is bad for the military. This is bad for war fighting. And if I could just add one thing, Sen. Gillibrand wants to deconstruct the system that between 2006 and 2010 resulted in a 44 percent drop in the estimated number of sexual assaults. Did it go up from 2010 to 2012? Yes, it did, but it's still lower than what it was in 2006.
REHMHow about that, Susan?
BURKEWell, the general is revealing what I think is one of the fundamental flaws of the way the military leadership thinks of this. The crime of rape is not a disciplinary issue. We're not talking about taking disciplinary steps. We need to be talking about convicting criminals, incarcerating them. And what you will hear in the language of the Pentagon, nothing about prosecution, nothing about incarceration, nothing about increasing the conviction rates. They think of this as a disciplinary problem, but it's not. It's a problem of a small group of embedded serial predators who are committing serious crimes.
REHMSusan Burke, and you're listening to "The Diane Rehm Show." Phil Ewing, what about that?
EWINGWell, Sen. Levin wants to tackle this problem a different way. His proposal would require that a senior commander step in or supervise when a lower-ranking one decides not to make one of these prosecutions and also would punish retaliation inside of units for people who come forward with these kinds of allegations.
JR.Well, what we're seeing now is militaries taking cases to trial that aren't being prosecuted by its civilian prosecutors. The Air Force announced in January that they took 15 cases that have been declined for prosecution by civilian prosecutors and obtained convictions in eight. We need to understand, why did those civilian prosecutors decline those cases? Why are we having so much more success in the military? And why is the military rate of unwanted sexual contact so much lower than the civilian system? And if it is, why do we want to change what we have in the military?
REHMAll right. I'm going to open the phones, take a call here, first from East Lansing, Mich. Hello, Conrad. You're on the air.
CONRADGood morning, Diane.
CONRADI was hoping to get some clarification from your panel on...
CONRAD...what the nature of the sexual assault issues are in the military. In a former lifetime, I was an active-duty Army officer. After that, I was a criminal prosecutor in the civilian world. As a prosecutor, I always thought that sexual assault, rather than being the purpose necessarily of the sexual gratification of the perpetrator, it was really a crime of violence, power and control.
CONRADIs that true, from your panel's standpoint, for military perpetrators, or is this the natural outgrowth of young people, physically and socially isolated, seeking gratification that, you know, libidos weren't checked at recruiting stations?
BURKENo, it's just as it is in the civilian world. The crime of rape in the military is a crime of power, a crime of control. We often see predators using alcohol in terms of their targeting of vulnerable people. But this is not at all an issue of alcohol and young people.
REHMWhat do you say to that, Gen. Dunlap?
JR.Well, the survey says otherwise. I mean, it's young people. It's alcohol involved. But I agree with Susan. There is the same kinds of imperatives that drive rape in the military community as in the civilian community. But the caller makes a good point. The way Congress redefined rape in the -- under military law, you don't necessarily have to have sexual gratification.
JR.For example -- and this is an extreme example that I think is insulting, frankly, to real rape victims -- the way Congress changed the law is if you threw a pie in somebody's face and any part of that pie entered their mouth, that is rape under military law because you're using force to put an object in somebody's mouth. And that's the -- and they also...
REHMBut it seems like rather an extreme...
REHM...use of the definition...
REHM...sort of stretching the truth.
JR.Yeah. I would be horrified if anybody was ever charged that way, but it just goes to show you -- you know, Congress passed one law in 2007. It was found to be unconstitutional. This other law is generally the same thing because one of the things that they took out is consent is no longer a defense because if there's force, then supposedly you get that. It's extremely hard...
REHMConstitutional questions here, Phil.
EWINGThis actually is a great question because it leads us to something that we haven't talked about yet, which is what the services are doing, apart from Congress, to try to get control of this problem. And one of the things, per the caller's question, is to train soldiers, sailors, airmen and Marines to identify in their midst these potential predators, as we've discussed, and also their colleagues in situations that are of the highest risk for these types of sexual assault.
EWINGSo, for example, if a group of sailors go into a bar in San Diego and they see their shipmate with too much alcohol with one of their young female colleagues, et cetera, et cetera, the Navy really wants them to step in and separate the situation, resolve it before it gets worse.
REHMPhilip Ewing, he's defense editor at Politico. Short break, and when we come back, more of your calls. Stay with us.
REHMAnd now joining us by phone from her office here in Washington, U.S. Sen. Kirsten Gillibrand. She's a New York Democrat and the lead sponsor of a measure that would remove the chain the command from major criminal cases in the military. It's good to have you with us, senator.
GILLIBRANDOh, I'm delighted to be on. Thank you so much.
REHMThank you. You've been working on getting backers for the proposals for quite a while. How important is it to you to have Senators Rand Paul and Ted Cruz on board?
GILLIBRANDI think it's very important because this is a common sense, bipartisan proposal based on what the victims have asked. Our biggest challenge is you have 26,000 unwanted sexual contacts, assaults and rapes a year. But just over 3,000 are willing to report the crimes because of the fear of retaliation or the view that nothing will be done, or they've actually witnessed someone else being retaliated against to report.
GILLIBRANDOf the 3,300 who actually reported, only one in 10 go to trial. But 62 percent of those men and women are retaliated against. And so what you have is a command climate that's just not working. The chain of command is not objective. They may know the perpetrator. They may know the victim. They're not cracking down on retaliation.
GILLIBRANDThey're not making -- creating a climate where someone who is a victim feels comfortable that they'll receive justice in the system. And so our focus is on having these decisions about whether to go to trial, be done by an objective, trained military prosecutor who understands the crime and can weigh the evidence in a much more objective way.
REHMAnd what's your strategy? Sen. Carl Levin has his proposal. How is yours different? Do you think there's going to be a compromise between you and Levin or not?
GILLIBRANDWell, Sen. Levin agrees this is a big issue. There's no one in the Senate who thinks the military is handling this properly. There's no one in elective office who thinks they're getting it right. And so what Sen. Levin's proposing is an appeals process that if a lawyer and the commander disagree about whether a case should go forward, that case can be appealed to a higher commander of the chain of command. Now, the reason why that's a good thing is it creates transparency and more accountability.
GILLIBRANDBut the reason why it doesn't get to the heart of the problem is that those lawyers and commanders only disagree in 1 percent of the cases that are going to trial. So 1 percent of 330 is three cases. It's not enough. Whether these cases go to trial, these extra three cases, you know, I hope they do go forward if it's meritorious. But the reality is we're trying to increase reporting of the 23,000 cases that aren't being reported because the command climate does not support that.
REHMSo what's your strategy? How do you think you can win over more of your colleagues in the Senate?
GILLIBRANDWell, my goal is just to talk to them one-on-one. My colleagues share my goal of ending sexual assault and rape in the military, creating transparency and accountability, and no one believes the status quo is adequate. So I'm just going to talk to them about things they care about. I'm going to talk to them about stories we've heard from victims in their states and talk about why this solution, I think, will increase reporting, create more accountability and more transparency and more justice.
GILLIBRANDAnother thing that I typically talk to them about is that our allies have taken a step already. In fact, they took -- U.K. took this step in an effort to protect defendant's rights. They didn't think commanders were free of command influence and didn't think commanders were objective to make sure that their military justice system was working properly.
GILLIBRANDSo I think it's important both for victims and those accused that an objective, trained military prosecutor are the ones that makes these decisions, somebody who is free of bias, free of an agenda and isn't going to be judged on whether or not they're creating a command climate that protects victims.
REHMSo let's talk about the politics. How many more votes do you need in the Senate?
GILLIBRANDWell, you know, we have over 30 co-sponsors. We have many other senators that have already voiced their support. We're getting closer to the 51 votes needed to be able to be victorious on this amendment. And so I'm going to spend the next several weeks talking to as many of my colleagues -- Democrats and Republicans -- about this bill and why I feel so passionately about it and why I think it's a better reform than what's being offered by the Department of Defense.
REHMAnd what do you think the House of Representatives will do?
GILLIBRANDWell, the House declined to vote on this amendment. We had many co-sponsors on the House side of two different versions of this independent review by a trained military prosecutor. And so what I hope to do is if we succeed in the Senate, we will go back to the House and perhaps urge the advocates on the House side to do a letter and to find how many supporters they actually have because if we can show majority of the House agree with this, it will be very difficult to not include this reform in the conference armed services bill.
REHMU.S. Sen. Kirsten Gillibrand, a New York Democrat, the lead sponsor of a measure to remove the chain of command from major criminal cases in the military. Thanks for speaking with us.
GILLIBRANDThank you so much. Take care.
REHMAll right. And here's an email from Kerry, who says, "I was shocked that so many of the sexual assault victims were male. Were the alleged perpetrators male or female? And why as this presented -- why was this presented as primarily a women's issue before Congress and the media?" Susan.
BURKEThe reality is that there are estimated to be more male victims of rape, and it is men raping men. In terms of why it ends up being discussed as a women's issue, I think there's a greater comfort level of people talking about rape involving women and as a society. Other than in the prison context, there is not a lot of discussion about male-on-male rape.
REHMSo how many men have actually come forward and said that they were raped in the military?
BURKEWell, we have a number of men in our lawsuits that have come forward and said they were raped. But the under reporting, it's low. The under reporting is dramatically higher for the men. The stigma is still greater. The retaliation is greater. So we are seeing a far greater amount of under reporting from the men.
REHMPhil Ewing, have you talked with any of those victims?
EWINGI haven't talked with the victims, but I've talked with military commanders about this problem as a part of this issue over the past few years. And these results of this kind of survey on investigation come as, I think, the biggest surprise to them because many of them say, well, we weren't sure if this was, you know, as they call it frat-boy behavior -- I heard that term used once -- or something that was a myth or, you know, how big a problem this actually was inside the force.
EWINGAnd so, again, as we've said so many times this morning, one of the reasons this issue is so difficult is that it requires everyone involved to come to grips with these statistics and realities and also to realize the fact that there's an argument to be made that we don't have the data even with the Pentagon's surveys about exactly what the breakdown is, how many victims there are, how many perpetrators there are, who they are, where they are in the force.
EWINGAnd that's something that another member of Congress who's been involved with this, Sen. Claire McCaskill of Missouri, has talked about very directly in her hearings with military commanders. She said, you know, I quite frankly don't trust these numbers that you're giving us. And so the prevalence of men who are victims and perpetrators is something that they've been very frustrated by the Congress.
REHMAll right. Let's take a caller from Chambersburg, Pa. Hi there, Jonathan.
JONATHANGood morning, Diane. Thank you.
JONATHANYeah, I, you know, I have been agreeing with everything you all have been saying all morning. I myself was a victim of sexual assault in 2003 on board a naval vessel. And, you know, it's -- the whole process, from the investigating to the counseling afterwards, was handled by less-than-qualified people, I guess you could say. They were junior sailors that I have worked with every day up until that point. And now I had to tell them every intimate details of what had happened, and they just looked at me with a look of shock. but they didn't believe me.
REHMWas the situation ever taken to higher authorities, and was there any prosecution involved, Jonathan?
JONATHANWell, it was originally run through the chain of command. And the first stop was our division officer, who asked me if we could just put it aside until we returned to port so we can deal with it then, in the meantime leaving me working right alongside of the people who had done this. And I told them, no, it had to be dealt with now. And it took me having to go to our command master chief to seek protection and help to move this along.
JONATHANAnd, I mean, it did go. I was assigned my own JAG officer. And they gave me the choice to appear in court to give my side of the story, or I could give my JAG officer every detail who would present it in court for me. And I chose that option. I couldn't face these people face to face again. I never wanted to again. And they were released from the military early with honorable discharges.
REHMJonathan, I'm so sorry for your experience. Susan, respond, please.
BURKEWell, Jonathan, thank you for your service, and I'm so sorry that you had to endure what you've endured. Sadly, your heartbreaking story is so similar to the many that we've heard. And the military has often used this. They try to get rid of the problems. They try to get rid of the predators by, rather than bringing them through a judicial system and convicting them, they just toss them out of the military.
BURKEOf course, in your case it was -- even with honorable discharges. And what we're seeing around the nation is that these predators then show up having preyed on civilians. The civilian authorities then learn, well, that, in fact, you know, the military had been put on alert of multiple instances, and yet nothing had been done.
REHMGen. Dunlap, what do you make of this, an honorable discharge after going through this whole chain of command?
JR.Well, obviously, you know, we don't have the record in front of us. But it is a problem, and I can understand why victims don't want to testify. But if they don't want to testify, then you're not going to be able to bring him into a criminal -- you're not -- no matter what Sen. Gillibrand thinks she can do, you're not going to get convictions because in this country, people are still innocent until proven guilty.
JR.And, in fact, I was really shocked to hear Sen. Gillibrand say that she wants to construct a criminal justice system based on what victims have asked for. In a criminal justice system, we do need to be concerned in this country about the rights of those accused. I -- maybe I need to -- maybe we need to hand out copies of "To Kill a Mockingbird" because in the military in particular there -- in the history, those accused have been subject to unlawful command influence.
JR.And these political pressures, politicization was deemed by the influential CAAFlog as the number one issue, the politicization of military sexual assault cases.
REHMAnd you're listening to "The Diane Rehm Show." Susan.
BURKEWell, I think that Gen. Dunlap's point actually proves why we need Gillibrand's proposal. What we have right now is a dysfunctional judicial system that's not fair and impartial, that responds to outside external pressures such as political pressure. That's not how we operate a good judicial system in this nation. We want due process for everyone, both the defendants and the victims. And in order to have due process, the touchstone is impartiality. You cannot put the adjudicatory power in the hands of people whose own careers are intertwined with what they do.
JR.But that's not the typical case. And if that happens, the commander should disqualify him or herself. The fact to the matter is, is that...
REHMHow often, I wonder, does that happen?
JR.Commanders typically don't know who these individuals are because they are the lower level. They might see them and so forth. But they're responsible for bringing those young people back alive. This is why you can't separate the military judicial system, which, by the way, the public has a lot more confidence in than they have in Congress.
REHMBut you can't separate out a crime like rape from the rest of what's happening in the military.
EWINGYou're absolutely right, you're absolutely right. It's all integral. This is why the Supreme Court has repeatedly said that the military is a separate society, and this is why it has to have a separate military justice system.
BURKEGen. Dunlap airs by saying that it only matters if the commanders know the person. I'll give you a real world example. We had a young woman, a midshipman come to us. She had been raped. Well, she was intoxicated by three football players. That allegation went to the superintendent. Now, he didn't necessarily know the midshipman, but he certainly knew how he would be perceived and how his running of the Naval Academy would be perceived if that went forward.
BURKESo he swept it under the rug. It did not go forward. Only later, months later, she came to me. We basically brought it out to the public. Only then did he change his mind and permit it go forward. Now, he didn't know her personally, but he certainly knew the impact on his career. That's why there's this inherent conflict of interest in putting that power, that adjudicatory power, in the hands of people whose own professional standing is wrapped up in how well they run their units.
EWINGWell, Diane, I think you asked a great question about the broader point a little bit earlier when you said, how often does this happen? And the answer is, in the experience of most service members, many service members, it never happens. And you can have a perfectly normal career into the armed services without ever having to deal with one of these cases.
EWINGAnd that is one of the challenges for Congress and for the military itself in dealing with this because in the tragic case of your caller -- from the Navy, his crew members, his commander, the people aboard his ship had never dealt with this situation before. I'm willing to bet. And so because they were seeing it for the first time, they had to kind of make up what they were going to do as they went along.
EWINGHe felt they had to appeal to command master chief outside of his own division on the ship, and that just shows you how difficult this is. And so it's a point we keep making, but I think it's important to remember that one reason it's so difficult to deal with this is that most people never face it. And so when it happens, they're not ready.
REHMWe're almost out of time. Where do you think Sen. Gillibrand's bill is going to go?
EWINGI think she's going to have a very difficult time with the House of Representatives, which is controlled by Republicans. Many of the defense advocates in that chamber are sympathetic to the Pentagon's position, and so irrespective of her success in the Senate with getting sponsors, it may be very tough to get the House to concur.
REHMPhilip Ewing, defense editor at Politico, retired Maj. Gen. Charles Dunlap and Susan Burke, a D.C. lawyer representing military rape victims. More on this story as it unfolds. Thanks for listening all. I'm Diane Rehm.
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