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Table of contents
If a person is found to have made a false report, they can be punished under the UCMJ for making a false official statement. Since the services themselves indicate victims are rarely punished for collateral misconduct, it is hard to argue that removing this ability will negatively impact good order.
Ultimately, the benefits of bringing more perpetrators to justice for sex offenses by allowing victims to come forward without fear of punishment outweigh concerns about condoning or inconsistently punishing minor misconduct. Victims told Human Rights Watch that they heard their commanders talk openly about their cases to others or saw their case referenced in an email copied to people who did not need to know about it. Practical considerations may also force people to reveal their sexual assaults.
Transfers are only available to service members who make unrestricted reports. It may also become difficult to explain medical or legal appointments or trauma-related behavior to supervisors if they are not aware of the assault. Victims may be forced to disclose if they miss formation because they are at the hospital seeking medical care. Talking outside permissible channels is a punishable offense as a violation of privacy.
One VLC was able to intervene and get two victim advocates fired after they were caught chatting about cases. With recent reforms, the military has taken important steps to assist survivors in moving on from the assault while preserving their careers. In particular, the military has instituted the expedited transfer program, allowing survivors to submit a request for transfer to another base that should be processed by their commanders within 72 hours.
Human Rights Watch heard from survivors who very much wanted to stay at their current locations for various reasons. For some, moving to another base would have sidetracked their careers or caused them to leave their friends and support systems. Because word had spread of the assault it was difficult to have a fresh start elsewhere.
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Indeed, this scenario came up in multiple interviews, often with officers and non-commissioned officers playing a role in transmitting negative information about the survivor to their destination base. For example, Airman First Class Cook told Human Rights Watch that after she reported a coworker for fondling her, she was allowed to transfer to a unit in a different state to avoid deploying with the perpetrator.
Commanders may also resist transfers. What else are we going to give them? They get everything they want. Given that a transfer to another base may not always be possible or present the best option for a survivor, or may not resolve every issue, it is important that the military ensure commanders work with survivors to accommodate their recovery process within the bounds of the military mission. Stories told by survivors to Human Rights Watch suggest that too often even the most minor requests for accommodation are viewed with skepticism and often delayed or denied.
POLICY AND ISSUES
A number of interviewees told Human Rights Watch that their command resisted requests for a change of housing. The client, Senior Airman Robinson, was assaulted in her dorm in late She and her assailant lived in neighboring dorms. She was afraid to open her curtains or her window when she was in her room, and at night she was having nightmares and had been unable to sleep. Her SVC asked her command to allow her to move to another building or at least to the other side of the building so she would not have to hear his voice every day.
Her first sergeant told her the only option would be to go to a unit on a different base, 15 minutes away from her friends and in a location with no Internet. Some survivors reported encountering difficulty when they approached their supervisors or their command for workplace accommodations that would allow them to avoid contact with their perpetrator.
Senior Airman Bell told Human Rights Watch that she was forced to work alongside an airman who had assaulted her. After making multiple complaints about her safety to supervisors, and then suffering a panic attack from being in the same room with the assailant, she said she finally got an audience with the chief:. In other cases, victims told Human Rights Watch that they, or their doctor, requested workplace accommodations or leave to allow them to recover so they could continue to perform their jobs, but they were denied: [].
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In certain cases, this issue might be remedied by allowing survivors to retrain for a new job classification. After multiple assaults within her military occupational specialty, Airman First Class Cook wanted to stay in the military but switch jobs. She put together a package to apply for a position as a paralegal. Despite recommendations from two and three-star generals, she was denied. A Navy VLC reported that she had a client who loved the Navy but did not want to go back to sea because that is where she was assaulted.
Military service members told Human Rights Watch that just as they faced retaliation for reporting sexual assault and harassment, they also faced negative repercussions for seeking mental health care for the trauma they experienced.
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For others, the stigma surrounding care led their peers to shun them further. And in some cases, fear of these repercussions led survivors to forgo desperately needed care altogether. In the military context, the consequences of the government failing in that obligation are particularly stark. Statistics indicate that overall, recent veterans have a significantly higher rate of suicide than civilians. One of the greatest barriers to survivors accessing care is the potential for those records to be disclosed during the criminal proceedings against their perpetrator. Until recently, the broad disclosure of mental health records meant victims faced a choice between seeking justice for their assault or getting mental health help.
One VLC told us that two of her clients stopped going to counseling on the eve of trial because of this issue. Military Rule of Evidence provides a privilege for the psychotherapist-patient relationship that should prevent the disclosure of communications within that relationship. However, the privilege is subject to seven exceptions, making it much weaker than, for example, the attorney-client, clergy-penitent, or spousal privileges in civilian courts.
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If so, that could be an end-run around strengthened privilege protections. Use of mental health records in court proceedings will need to be monitored in order to determine whether the current reform is sufficient to address the problem. The impact of insufficient protections in this area is tremendous. Airman First Class Cook, who told Human Rights Watch that during the lead up to the court martial of her rapist in , the defense counsel successfully obtained mental health records dating back to when she was 6-years-old.
Attorneys for victims repeatedly raised this issue as the main area in which reform is necessary. Given the unique mission of the military, and duties that may require use or control of weapons and access to sensitive information, there are legitimate reasons for the military to be interested in ensuring the health and stability of their troops. However, these interests need to be balanced with privacy concerns of victims. Human Rights Watch spoke with survivors who had confided in mental health professionals, only to see the contents of those private conversations later used in efforts to remove them from the military.
Service members are also often reluctant to seek help because they fear being diagnosed with a disorder that will be used to justify an involuntary administrative discharge, ending their career and potentially depriving them of benefits to which they would otherwise be entitled. It makes people paranoid, and then the paranoia is seen as an indication of personality disorder. A former Special Victim Counsel told Human Rights Watch that she counseled clients to exercise caution in making statements to military mental health professionals due to the possibility that they could be diagnosed with Adjustment Disorder.
The potential career impact of seeking mental health treatment has a definite chilling effect on survivors accessing needed care. Some survivors attempt to preserve the privacy of their treatment by seeking care through civilian providers. However, it is far from a complete solution. By policy, service members should provide all treatment records to the military, although practically-speaking, records maintained by civilians are more difficult for the military to access.
Getting the military to authorize coverage for off-base mental health care at times can be cumbersome, and in some locations abroad appropriate civilian care may not be available at all. A number of survivors told Human Rights Watch that their command checked up on medical appointments they had off base. You are like a black sheep.
On top of fears about stigma and confidentiality, survivors reported logistical hurdles to accessing care. Although service members should be able to attend medical appointments with military medical professionals during their work hours, survivors reported that their supervisors and peers resented their absences, and at times pressured survivors to forgo appointments or give details about the appointments that compromised patient privacy. An Army SVC also told us she had to intervene on occasion when low-level commanders refused to allow clients to leave for appointments.
Pressure can also come from peers who become upset that the survivor is not able to share the workload equally due to medical appointments.
There is no provision for you when you are damaged. Survivors who opt to file restricted reports of their assaults may find it even more difficult to schedule and keep mental health appointments, as the command will not have been informed of the assault that triggered the need for care.
Emma Miller, a Marine who initially filed a restricted report while her assailant remained stationed at the same base, said that her medical appointments drew the attention of her gunnery and staff sergeants. While the US military is aware that retaliation is a widespread problem, efforts to address it have so far been unsuccessful.
In addition, disciplinary action is needed against those who retaliate against someone who reports sexual assault in order to deter retaliation and send a strong message to other service members and supervisors that they will be held accountable for retaliation. Legal protections for service members who experience retaliation are limited and ineffectual. Federal appeals courts have also barred uniformed personnel from bringing discrimination suits under Title VII of the Civil Rights Act, the primary mechanism for holding employers accountable for sexual harassment and assault.
What this means is that service members facing professional retaliation after reporting sexual assault have only one place that may provide redress: the Department of Defense Inspector General, which exclusively handles sexual assault survivor complaints under the Military Whistleblower Protection Act. Social retaliation, on the other hand, is primarily handled by the chain of command, which has multiple channels for handling retaliation.
In addition to going directly to their chain of command, service members may file a Military Equal Opportunity complaint, or make a complaint against their commander under Article of the Uniform Code of Military Justice. However, each of these in some way involve the chain of command, which can be problematic for those whose chain of command has condoned or participated in the retaliation. In , the act was amended to explicitly include a report of rape, sexual assault, or other sexual misconduct as a protected communication, though because those acts are illegal they always fell within the scope of the act.
If a service member believes they have suffered retaliation after reporting a sexual assault or sexual harassment, they can make a complaint directly to the Department of Defense Inspector General DODIG or to their service Inspector General IG. Members of Congress may also refer cases to the IG for investigation if a service member has requested their assistance. All whistleblower cases must be referred to DODIG, which can itself conduct an investigation into the complaint or refer it back to a military branch for investigation.
DODIG is responsible for ensuring all whistleblower reprisal complaints are thoroughly and objectively investigated. It must also approve all determinations not to investigate cases. If, however, a complaint is substantiated after a full investigation, the DODIG can recommend corrective action. The Boards of Correction of Military Records are the ultimate administrative authority responsible for correcting errors and removing injustices in military records.
In practice, this almost never happens for sexual assault victims or for whistleblowers generally. Although thousands of sexual assault victims experience retaliation, few whistleblower cases are brought to the Inspector General. Of those, only five were fully investigated and none was substantiated. Over the same time period Defense Department reports receiving a total of 17, unrestricted non-confidential complaints of sexual assault from service member victims.
The RAND Military Workplace Study found that 32 percent of service members who reported a sexual assault also said they subsequently faced professional retaliation. This suggests that well over 5, 5, service members who filed complaints of sexual assault in the period may also have experienced professional retaliation and could have sought protection under the Military Whistleblower Protection Act, yet only 5 cases 0.
Existing whistleblower protections not only have not served sexual assault victims, they have rarely protected any type of military whistleblower. Though some complaints may be resolved informally, between October 1, , and March 31, , the total number of whistleblowers in all four military branches excluding the Coast Guard granted relief by their corresponding Boards of Correction of Military Records was Each board reported reviewing fewer than 10 whistleblower cases a year.
The one military whistleblower case involving sexual assault that DODIG investigated took days to complete. Perhaps in part because of the delays in investigation or because some issues are resolved informally, most whistleblowers do not take the next step of applying for relief from the boards.