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The war in Congress over rape in the military, explained

Pentagon Commences Sexual Assault Awareness And Prevention Month Photo by Chip Somodevilla/Getty Images

Sexual assault is a huge problem in the US military. And for many victims, the process of reporting their crime and seeking justice can be as traumatic as their assault.

Most members of Congress and military officials agree that these basic facts are true, and that more reforms to the military justice system could help. But there's a profound disagreement on how, and how much, the system needs to change.

The US Senate is expected to vote this week on the Military Justice Improvement Act (MJIA). Advocates, who have been pushing for the MJIA since 2013, say the reform would make the process of prosecuting sex crimes a lot easier and smoother for victims and help victims feel more empowered to come forward and report the crimes against them.

An unusual bipartisan cadre of senators support the MJIA, from Elizabeth Warren to Ted Cruz. But the Pentagon adamantly opposes it, and many senators listen to the Pentagon when it says the MJIA would undermine "good order and discipline." So there's still no filibuster-proof, 60-vote majority for the measure, and it's been defeated every year it's come up.

Recently, however, it has come to light that the Pentagon misled Congress about military sexual assault while the MJIA was first being debated in 2013. Spin is one thing, but the Department of Defense appears to have misrepresented some key facts about whether military commanders are better than prosecutors at working in victims' best interests. And this misinformation could have influenced some votes.

Sen. Kirsten Gillibrand (D-NY), who has led the Senate fight to pass the MJIA for the last three years, is urging President Obama to open an investigation into what the Pentagon did. She's also hoping that some of her colleagues will change their minds this week and vote for the MJIA, now that they know they were given bad information from the Department of Defense.

But some of Gillibrand's colleagues — especially Sen. Claire McCaskill (D-MO), who is usually Gillibrand's ally on sexual assault issues — don't seem interested in changing their minds.

And some advocates are getting increasingly frustrated with what they say is a refusal by some members of Congress to accept that the Pentagon deceived them, and a refusal to understand why the arguments against the MJIA are badly flawed.

What will the MJIA do, and why was it proposed in the first place?

Pentagon Commences Sexual Assault Awareness And Prevention Month Photo by Chip Somodevilla/Getty Images

Right now only certain high-level military commanders can decide whether serious criminal cases like sexual assault should go to trial. Advocates say this system has worked out terribly and needs to change. They say that commanders don't have the proper training to make complex legal decisions, and that commanders often hold biases against victims or in favor of attackers.

Victims like Samantha Jackson tell horrifying stories of what this bias looks like in practice. Jackson was a civilian who says the military never punished her former husband, an Army soldier, even though he videotaped himself raping her and even though the military told civilian authorities it would handle her case.

The chain of command's involvement in prosecutions, advocates say, is one reason victims have so little confidence in the system. That's why the MJIA would remove prosecution authority from the chain of command and give it to independent military prosecutors instead.

The most recent DOD data estimates that about 20,000 service members total were sexually assaulted in 2014, and fewer than a quarter of them agreed to attach their name to a case report so that the incident could be prosecuted. Conviction rates are abysmally low — less than 1 percent, according to DOD figures, compared with about 5 percent in the general population.

There is also a widespread culture of retaliation against sexual assault victims, by both their peers and their commanders. A 2015 report by Human Rights Watch shows just how nasty that retaliation can get: threats of "friendly fire" from peers, demotion and humiliation from commanders. More comprehensive data on this isn't available for men, but 62 percent of women who have been victimized report some form of retaliation — and that rate hasn't changed at all since 2012, when the issue of military sexual assault first got national attention.

The DOD's actual progress on sexual assault and reporting rates has been pretty mixed since the issue first got major attention in 2012. Sen. McCaskill and other MJIA opponents focus on the increased reporting — particularly the number of "unrestricted" reports that can lead to a conviction, and that arguably show confidence in the system since they aren't anonymous. Gillibrand focuses on the still-high numbers of assaults and the reduced percentage of unrestricted reports compared with anonymous ones.

A new report from Gillibrand's office also found that about one in five, if not more, victims who filed unrestricted reports later gave up on the process. That may be because even for those who want to report their assaults, the system to deal with them is complicated and frustrating — needlessly so, advocates say, which is why a major systemic overhaul like the MJIA is necessary.

The road between first reporting a crime and actually going to court-martial (essentially a military trial) is long and riddled with stumbling blocks. When someone (either a military member or a civilian) is raped by a member of the military, before getting a trial the victim has to go through all of this:

why Protect Our Defenders

Whereas if that person is raped by a civilian, the pretrial process looks more like this:

Protect Our Defenders

A more detailed explanation of that first military chart can be found here. But very basically, the MJIA would make the military's procedure look more like the civilian one in serious criminal cases like sexual assault. It would take the "convening authority" — the ability to decide whether a case goes to court-martial — away from commanders and give it directly to prosecutors instead.

Some critics of the MJIA, like Sen. Lindsey Graham (R-SC), make outrageous claims that the bill would "fire every commander and replace the commander with a bunch of military lawyers." That's not even close to the truth. No commanders would be fired; a few of them, about 3 percent, would just have one less duty to deal with as part of their jobs.

Nor would the MJIA harm commanders' ability to lead, advocates say. It wouldn't change the responsibility that lower-level commanders have to protect their troops and deal with unit cohesion issues. It would just take higher-level commanders, who often don't know the law, out of a highly technical legal process.

The case for the MJIA: Commanders can be redundant at best, and a major obstacle at worst, in military criminal prosecutions

Don Christensen.
Associated Press

Advocates and a current military legal counsel told Vox that prosecutors have to fight military bureaucracy at every turn to make even the most basic decisions — including whether a case has enough evidence to move forward to trial in the first place.

The charts above were made by Protect Our Defenders, one of the leading advocacy groups pushing for the MJIA and other military justice reforms. Their president is Col. Don Christensen, who used to be the Air Force's most experienced prosecutor of sexual assault cases before he retired out of frustration with the system. (After he did this in September 2014, Christensen was the subject of a long New York Times piece that took an in-depth look at some of the worst cases he dealt with. It's well worth a read.)

Christensen's frustration was multilayered, he told Vox in interviews.

First, there was the absurdly obstructive bureaucracy. Christensen said he felt like a district attorney who had to ask the mayor for permission before charging every case. He couldn't do anything — call an expert witness, add or drop charges, strike a pretrial agreement — without the approval of the convening authority. And the convening authority was usually a very busy two-star general or higher.

Say you strike a plea bargain on Thursday before a trial on Tuesday, Christensen said, but the commander isn't available until Tuesday. You'd have to spend all the time and money flying in witnesses and preparing for a trial that will probably never happen, just in case the commander rejects the deal.

Christensen said all of this was to get the approval of somebody who usually didn't know the first thing about military law. That's because he really didn't have to. A convening authority relies on a staff judge advocate (or "SJA") for legal advice on this sort of thing.

But the SJAs themselves often have very limited legal experience, Christensen said. They could be 20 years removed from a courtroom and have no experience whatsoever with sexual assault cases. And even if they do know what they're doing, they have to figure out how to translate a case for a commander who, like many Americans, often doesn't understand the complexities of sexual assault.

"You have to discuss the case in a way that a non-legal person can understand," said one experienced litigator who now works as one of these counsels to military commanders, and who spoke with Vox on condition of anonymity. "Particularly in sexual assault cases, the stereotypes out there — why didn't she scream, or fight back, or report immediately — the answers to that aren't common sense that folks in a commander position think about right away."

It can take a lot of concerted effort and advocacy, the command counsel said, to get a commander to "at least grudgingly understand" that there may be two sides to an accused service member, someone he may have always considered to be a good guy. "Good military character" isn't an official defense anymore thanks to recent reforms, the counsel said, but conversations about it still happen informally all the time.

This is where commanders have a serious conflict of interest, Christensen said, and why it makes no sense to put them in charge of this process. As one survivor put it, it's like "getting raped by your brother and having your dad decide the case."

It's true that most convening authorities are high-ranking enough that they may have never met the service member in question. But the service member's immediate commander definitely has, and commanders talk to each other and tend to trust one another's judgment.

This gets even more problematic when you consider how often an alleged attacker outranks the victim. That was the case in the majority of the (heavily redacted and often incomplete) case files Gillibrand's office managed to obtain for a new report on the issue.

But explicit biases in favor of the accused aren't always the biggest problem, the command counsel said. Sometimes the hardest part is getting past the implicit biases, the unchallenged assumptions that many people have about sexual assault victims.

"A commander's incentive is to get rid of a case at the lowest level possible," he said. "It's quicker, it gets the [accused] out of their hair, they don't have to deal with the effect on the unit, they don't have to deal with taking folks off post to work a court-martial, jury, witnesses, that sort of thing."

That's another thing — it's totally possible, and happens often, to send a case to a nonjudicial proceeding rather than a court-martial, where an accused offender can get a quick administrative discharge and the unit can move on, rather than spend six months to a year dealing with a trial.

This may be appealing for some commanders, but it can also release a potential sex offender into the broader community. It also leads to shockingly lenient and variable sentences for terrible crimes, even child molestation. And a discharged service member can still apply to be reinstated.

All of this is why Christensen said that in his experience as a prosecutor, he often had to fight really hard just to get cases in court that deserved to be in court. Even after reforms to the pretrial process passed in December 2013, he had to fight to get commanders to follow the new rules.

One victim became so disillusioned with the process after pushing for her case for two and a half years, Christensen said, that she refused to appear at trial, and her alleged attacker was acquitted.

And this is just the process of getting to trial, which can also be demanding for rape victims. Getting a conviction for a sex crime case is exceptionally difficult, whether it's in a military court or a civilian one.

While Christensen doesn't think the MJIA is a magic bullet by any means, he thinks meaningful reform is impossible without it. "It's like you have a guy who has a gaping chest wound and you give him morphine instead of filling the chest wound," he said.

The case against the MJIA is supported by misinformation from the Pentagon, as well as other problematic arguments

Senators Discuss Legislation To Counter Sexual Assaults On Campus
Sens. Kirsten Gillibrand (center) and Claire McCaskill (right), who often team up to work on sexual assault reforms. Not this one, though.
Photo by Chip Somodevilla/Getty Images

If the MJIA passes, the convening authority to send cases to trial will go to a military prosecutor, or JAG (judge advocate general), who has a lot of experience with trying sexual assault cases like Christensen did. This JAG would also be high-ranking enough not to have to worry about whether a poor win-loss record would reflect badly on his or her career.

The Pentagon argues that when it comes to trying sexual assault cases, commanders are tougher than these theoretical JAGs would be. But when the Pentagon makes these arguments, it tends to compare apples and oranges. It uses case studies about civilian prosecutors when arguing about military prosecutors, for instance. And even those apples-to-oranges case studies are based on such thin evidence that it's more like the Pentagon is comparing an apple to a child's drawing of an orange.

Adm. James Winnefeld, vice chairman of the Joint Chiefs of Staff, told Congress in 2013 about 93 sexual assault cases that supposedly proved commanders sometimes do a better job of representing military victims' interests than ordinary prosecutors do. These 93 cases were supposed to be examples of how prosecutors refused to go to trial — but because a commander reportedly insisted on it, the victims got their day in court.

It's worth noting that 93 cases is a drop in the bucket compared with the 4,584 unrestricted sexual assault reports that were filed just in 2014. Those 93 cases also involved civilian prosecutors, whereas the MJIA would turn convening authority over to a military prosecutor.

But it turns out that most, and perhaps even all, of those 93 cases didn't play out the way the DOD said they did. The Associated Press corroborated a report by Protect Our Defenders and found that in many instances, civilian prosecutors didn't refuse to take a case at all — they just agreed to let the military take it on instead, because the jurisdiction could have gone either way.

There's still a lot of missing and incomplete information on these cases and similar ones, but the information we do have looks terrible for the Pentagon. And the DOD is now trying to refute the investigations by using information it won't make public — information that, arguably, the DOD should have already turned over in response to a Freedom of Information Act request from Protect Our Defenders. The AP reports that the Pentagon's response "fails to conclusively counter" its investigation.

"The Secretary’s letter is an eight-page list of excuses when all he should be doing now is giving a simple apology and making a plan to hold whomever prepared the misleading testimony accountable," Gillibrand said in a statement on the Pentagon's response. "I am left to conclude that because DoD doesn’t have a good reason to let commanders make legal decisions, they had to invent one, or at a minimum, embellish one."

In the past, some senators have used Winnefeld's 2013 testimony to explain why they were voting against the MJIA. That's why Gillibrand has said she hopes that some of them will switch their votes in light of these investigations.

But some members of Congress, like McCaskill, still see Winnefeld's testimony as one legitimate reason to oppose the bill.

McCaskill is a senior member of the Senate Armed Services Committee, as well as a former prosecutor who has tried hundreds of sex crimes cases in the civilian court system. Like Gillibrand, she is a leader on issues of sexual violence in the Senate. She has worked, often with Gillibrand, on many other reforms related to both military and campus sexual assault.

They agree on a lot of things, but not on the MJIA. Advocates sometimes accuse McCaskill of thoughtlessly siding with the Pentagon and against victims on this issue — a characterization McCaskill takes strong offense to, as she told me in a phone conversation. She said she's been a lifelong advocate for victims, and that she has pushed for a long list of military justice reforms that have made a big difference.

She said she's still pushing for more reforms — but she doesn't think the MJIA should be one of them. She said she just hasn't seen any evidence that, as Christensen claims, there's a systemic problem with commanders who sweep cases under the rug.

I went back and forth a few times with McCaskill's staff on some of Christensen's claims, as well as their reaction to the two investigations finding that the Department of Defense misled Congress.

Staff members, and McCaskill herself, expressed concern that the DOD might have done something wrong and said that the issue is being thoroughly investigated. Yet McCaskill and her staff still repeat the same basic DOD talking points about those 93 cases.

"While they are just a snapshot, they are 93 examples of cases that went to court-martial, because a commander said yes," said Sarah Feldman, McCaskill's press secretary. "They were presented by Adm. Winnefeld in the context of whether commanders swept cases under the rug — and prove the opposite, that commanders are taking cases to court-martial."

Yes, of course commanders sometimes take cases to court-martial. It's part of their job description, after all. But Winnefeld wasn't just arguing that commanders took those 93 cases to court-martial. He said that if those commanders had not "insisted" on taking action, some or all of these cases would never have gone to trial. That's a very different claim, one that was thoroughly skewered by the AP and Protect Our Defenders investigations.

"The reality is there is no real evidence of commanders being tougher than JAGs in any meaningful way," Christensen said.

And frankly, he said, it would be tough to find evidence like this. That's because there's really no good way to compare military commanders with military prosecutors under the current system — at least in the pretrial phase, which is what the MJIA is all about.

Right now there is no "prosecutor" who deals with a military criminal case until it's already been sent to court-martial. The decision to send it there rests with the convening authority, and with the SJA (staff judge advocate) who advises him — in a quasi-judicial role, not a prosecutorial one.

McCaskill's staff argues that sometimes a commander can prove his toughness and determination to prosecute by going over the head of his SJA and taking a case to court-martial even if the SJA recommends against it. But again, SJAs don't play the same role as the MJIA's independent prosecutor would, nor do they typically have nearly as much experience as that prosecutor would.

Plus, the very idea of a commander "going over the head" of his SJA is incoherent under the current Uniform Code of Military Justice, as Christensen explained and as a Defense Department spokesperson helped me confirm.

"I don't know if McCaskill doesn't understand the system or if she has just been misled," Christensen said.

Basically, a commander's veto can stop a case from going forward. But aside from some rare and complicated exceptions, a commander cannot unilaterally send a case to trial if a legal adviser doesn't agree that it should go there1.

An SJA has to give very specific legal advice, which has two parts. There's a binding part, in which the SJA certifies that a case is "warranted by the evidence." Then there's a nonbinding part, where the SJA recommends whether the case should go to court-martial. Now, it's theoretically possible to write a binding assertion that the case has enough evidence to go to court-martial but also write a nonbinding recommendation against court-martial. Lt. Col. Valerie Henderson, a Defense Department spokesperson, told me this has happened "in some rare instances." But it's rare because in most cases, it wouldn't make much sense. Why would you say you think there's enough evidence to warrant a trial and then recommend against actually going to trial? Usually, the binding and the nonbinding opinions will match.

McCaskill's staff also pointed me to the DOD's latest response letter, which argues that since reforms to the oversight process went into effect in 2014, "there has not been a single instance" in which a commander has dismissed a sexual assault case over the objections of his SJA.

Christensen has filed a Freedom of Information Act (FOIA) request to double-check this claim. But even if it's true, he said, it doesn't mean much.

For one thing, Christensen said, most cases are dismissed long before an SJA ever gives official advice, and this lower-level dismissal (before a case is charged, or "preferred") still isn't subject to review.

When a case does reach the level of being charged, the anonymous command counsel told me, an SJA is usually reluctant to tie her boss's hands. So when she writes her recommendation, she will probably use language that gives her commander some flexibility in making his decision. That means that if a commander turns down a legitimate case, it might not always be obvious.

Finally, if SJAs feel their commander had made a bad call by dismissing a case, they can appeal up the chain. But it's hardly realistic to expect them to do this, Christensen said, since it means asking an SJA to risk "career suicide" by "tattling on his boss."

McCaskill told me she is worried about what might happen to victims if the MJIA passes. She said she thinks retaliation against victims, which is already out of control, would actually get worse if, as she put it, "a lawyer half a continent away" is handling cases instead of a "trusted commander." (It's not necessarily true that the lawyers in question would be based in DC, though.)

McCaskill simply doesn't believe there is any good evidence that commanders are systematically sweeping sexual assault cases under the rug. She points to a panel that investigated the issue and recommended to Congress that prosecutions should stay in the chain of command. If there were evidence that it was a huge problem for commanders to have convening authority, McCaskill said, she would have heard about it by now.

There's definitely some evidence in Gillibrand's latest report, and in one like it from last year. But McCaskill's office says those reports aren't relevant, because they discuss incidents that happened before major military justice reforms went into effect, starting in December 2013 and continuing throughout 2014.

McCaskill's staff dismisses what Christensen says for the same basic reason. They say that while he means well, he retired before the real reforms went into effect and doesn't know what the modern military justice system looks like.

Christensen vehemently disagrees. He says he saw the limitations of many of those reforms in action before he retired, and that he continues to hear about similar problems from people on active duty as part of his advocacy work. And none of the other reforms, he says, address the fundamental problem that military commanders frequently get in the way of justice for victims.

Christensen says that McCaskill's insistence on more proof "is akin to demanding Johnson prove the Civil Rights Act of 1964 would empirically end racism before it was passed." And proof is really hard to come by when you're trying to get the Pentagon to release records that it might prefer not to.

It was a FOIA request from Protect Our Defenders that ultimately led the Associated Press to agree with Protect Our Defenders' conclusion: that the Pentagon had misled Congress on military sexual assault. But it took two years to get those records, Christensen said. And that's pretty typical.

"We just got an email about a three-year-old FOIA request asking us if we still wanted the single document we requested," he said. "When we said we did, they said they didn’t know how much longer it would take. The DOD slow rolls everything, and when they do release the information, it is always heavily redacted."

It's easy for McCaskill to claim there's "no evidence," Christensen said, when the DOD "will do all they can to hide it."

"It took us two years to get our last FOIA answered," he said. "We are a small nonprofit. She is a senator. She could ask for the information, but the DOD has already lied to her, so I'm not sure why she would trust them."

Besides, it seems the biggest problem isn't about formal proceedings but rather about what happens informally behind closed doors. Not all commanders dismiss sexual assault cases out of blatant misogyny or loyalty to the accused. Sometimes they do it because of implicit bias, laziness, ignorance of the law, ignorance of how sexual assault works — or even just prudent expediency in a system that makes sure these cases place an extra burden on already overburdened commanders.