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Does the Pentagon’s Plan Do Enough to Curb Sexual Assault in the Ranks?

August 15, 2013 at 12:00 AM EDT
The Defense Department is offering new initiatives to help combat sexual assault in the military, keeping adjudication within the chain of command. Will the plan help protect victims and prosecute offenders? Jeffrey Brown gets debate from attorney Susan Burke and retired Maj. Gen. John Altenburg, a former Army lawyer.

JEFFREY BROWN: And we return again to the issue of sexual assault in the military.

Today, the Defense Department brass unveiled new initiatives to combat the problem. That comes as legislation with stricter guidelines for how the armed forces should deal with assaults continues to gain momentum.

JESSICA WRIGHT, Acting Undersecretary of Defense for Personnel and Readiness: The bottom line is, sexual assault is not tolerated, not condoned. It’s not ignored.

JEFFREY BROWN: Pentagon officials today rolled out new initiatives on preventing and responding to sexual assault in the military.

Jessica Wright is acting undersecretary for personnel and readiness.

JESSICA WRIGHT: Everyone in the department, from the newest enlistee to the secretary of defense and everyone in between, are responsible to uphold our values and continue an environment of dignity and respect for all.

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JEFFREY BROWN: Among other things, the new measures include creating a legal advocacy program in each military service and ensuring that military prosecutors handle all pretrial investigative hearings.

The problem has come into stark relief in recent months. A Pentagon study in May found that an estimated 26,000 troops were sexually assaulted last year, but only 3,400 attacks were reported. At a June hearing, Democratic Senator Kirsten Gillibrand of New York argued that victims have little reason to expect fair treatment.

SEN. KIRSTEN GILLIBRAND, D-N.Y.: Not all commanders are objective. Not every single commander necessarily wants women in the force; not every single commander believes what a sexual assault is; not every single commander can distinguish between a slap on the ass and a rape, because they have merged all of these crimes together.

JEFFREY BROWN: Gillibrand and her 46 legislative co-sponsors in the Senate want sexual assault cases handled entirely outside the chain of command. The Senate Armed Services Committee has rejected that approach, in favor of one offered by its chairman, Carl Levin of Michigan.

It keeps prosecutions within the chain of command. Today, Lieutenant General Curtis Scaparrotti said there’s ample opportunity for victims to be heard.

LT. GEN. CURTIS SCAPARROTTI, Department of Defense: Our soldiers, sailors, airmen and Marines know that today, there’s about 10 avenues for them to report. And they also know that when they do report, it immediately goes to a military investigation office in law enforcement.

JEFFREY BROWN: For her part, Senator Gillibrand voiced disappointment with the Pentagon’s response. In a statement, she said: “It is not the leap forward required to solve the problem. There is a lack of trust in the system that has a chilling effect on reporting.”

Meanwhile, Defense Secretary Chuck Hagel today ordered military leaders to base decisions in sexual assault cases only on the facts and their independent judgment.

That’s after President Obama said this in May.

PRESIDENT BARACK OBAMA: If we find out somebody’s engaging in this stuff, they have got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged, period.

JEFFREY BROWN: Defense attorneys have since argued that President Obama’s statement constituted undue command influence in judicial proceedings, and they have gotten charges dismissed or verdicts changed, in at least two sexual assault cases.

And we assess the new measures now with Susan Burke, a lawyer who specializes in defending women in military sexual assault cases, and retired Army Major General John Altenburg. He had a 28-year military career, retiring in 2001. He served as the second highest ranking lawyer of his service and is now in private practice.

And welcome to both of you.

SUSAN BURKE, attorney: Thank you.

JEFFREY BROWN: Let’s just get a reaction, starting with you, Susan Burke, to the Pentagon’s new initiatives.

SUSAN BURKE: Well, I’m very disappointed.

The reality is that the military has been on notice at least since 1991, the Tailhook scandal. They have been on notice that they need to take dramatic measures to change the way that the prosecution of rapes and sexual assaults are handled. Right now, there’s less than 1 percent of the predators being convicted. It’s dismal.

They have got a serious embedded sexual predation problem. Yet what we see today are just minor tweaks, most of which have already been in place in at least one of the services in the past. What we really need to do is grapple with this at a system level. There needs to be fundamental reform.

JEFFREY BROWN: All right. We will come back to specifics.

But, first, John Altenburg, your reaction?

MAJ. GEN. JOHN ALTENBURG, retired U.S. Army: Well, I would split what DOD has done into two categories.

One is directed to help the victims. And there’s three of those, to change the executive orders so that they will have a right to be at a sentencing hearing. Another is that they — that the accused will be moved away, there will be provisions to move the accused out of the unit, rather than moving the victim. And the third is the sexual victim advocacy spreading across the DOD.

JEFFREY BROWN: And you see these as new initiatives, new…

MAJ. GEN. JOHN ALTENBURG: Well, the sexual victim going across the services is new. It’s been tried in one service so far.

And then there are some systemic things also, the idea of making judge advocates do the 32s, instead of line officers, and then the I.G. reviewing the investigations of the various services. Those are different and those are more systemic and not directed toward the victim…

JEFFREY BROWN: Well, so why are those not enough? Or you think they’re just not getting at the problem? What is the problem?

SUSAN BURKE: They’re not getting at the problem.

First off, there’s a focus on kind of care and support for the victims. What there needs to be a focus on is to lock up sexual predators. And nothing addresses that. They haven’t grappled with those issues at all.

And so what you have to do is say, why do we have a problem in the military? Why is the military failing to put people in jail at the same rates as the civilian authorities are putting people in jail? And it gets back to an inherent bias.

Right now, the decision-maker, the person who has control over the adjudicatory process, is not a trained prosecutor who thinks about public safety issues, thinks about winning prosecutions. Instead, it’s someone who is the boss of the predator or the boss of the victim, or both.

And so you have that inherent — that inherent tension that this person who is being — the chain of command that’s being tasked with making the decision, his own career interests begin to play in. He is not the type of impartial person that we expect to have this kind of power.

JEFFREY BROWN: Well, this goes to the chain of command issue that Senator Gillibrand has talked a lot about.


JEFFREY BROWN: Why is that — why is that still in place? Why is that important, the military — even today, the Pentagon is not changing that.

MAJ. GEN. JOHN ALTENBURG: Well, because the commander is the only one that can really effect change in the institution.

And the commander is the one that can change the culture that she’s talking about. And that’s why we have made sure the commanders are the convening authorities. They in fact have the advice and council of prosecutors at every level from 03, to 05, to 06, and the general officers also and the admirals. And the prosecutors are very involved, as engaged as the prosecutors are in the civilian sector.

JEFFREY BROWN: But even in these new guidelines, if it’s — if the case — if the — one of the ideas is to get the investigators involved more up front. Why not bypass the commander and just take it right to the lawyers the investigators?

MAJ. GEN. JOHN ALTENBURG: Well, that’s — first of all, that’s been happening for years, that the investigators are involved up front.

The investigation have been done completely independent of the chain of command for years. Command doesn’t direct investigations. That’s a myth that’s been exploited by some.

I couldn’t disagree with Susan more about comparing the prosecution rates. I believe prosecutions are more aggressively done in the military, that there are more of them, and the conviction rates are as high or higher than they are in the civilian sector.

SUSAN BURKE: The data just doesn’t bear that out.

First off, the reality is that the on-the-ground reality that we know from directly interviewing the victims, as well as directly interviewing commanders, is that in fact many — many allegations are simply shut down.

For example, we had one victim who went in to report the rape to her commander, and he said, listen, it was five minute of her life. Suck it up and get back to work. Shut down, never went to investigation.

There are very — there are a myriad different ways to sweep this under the rug. And commanders do it because it can serve their own interests. Now, I would note that Congress has been — has asked for data in order to exercise their oversight functions. The military had a deadline of 2010 to put this data forward. They still haven’t put it forward.

So it’s not a myth. The reality is that there is day-in and day-out miscarriages of justice. We need to focus on — not on culture, not on changing the misogynistic culture. That needs to be done, but that’s not what has to be done in order to solve this problem. This problem requires focusing on incarcerating predators.

JEFFREY BROWN: Well, at that hearing, press conference today, they did go out of their way to say that this is a — they are taking this very, very seriously.

Now, that’s what — that’s the picture you’re seeing, that they are addressing this and have changed not only the culture, but the law?

MAJ. GEN. JOHN ALTENBURG: They have been changing it for several years.

It clearly took a while for them to understand that — the scope of the problem that they had in the military. But, in the last five years, they have hired civilian prosecutors, special victim prosecutors. They have completely revamped the way they prosecute these cases. They have addressed all the issues that Susan raises.

JEFFREY BROWN: Do you think that this new initiative by the Pentagon in some ways takes the wind out of the sails of Senator Gillibrand or whatever is happening in…

MAJ. GEN. JOHN ALTENBURG: I don’t think it should take the wind out of her sails. I think she should be proud that her activism has caused the military to do more. And I think that these are very positive steps that the military has taken.

But I will tell you, I could not disagree more with this aspect that they’re talking about, the prosecution success in the military being somehow less than it is in the civilian sector. These are hard cases to try in both sectors. They’re ugly cases.

There are problems of proof, just the nature of the — you know, sometimes no witnesses, other than the two people.

JEFFREY BROWN: Where do you think things go now?

SUSAN BURKE: Well, the reality is that the data shows that the prosecution and conviction rates are far lower.

You are looking at less than 1 percent of the predators that have been caught being put in jail. I think that what you have to ask yourself is that the military’s had two decades, 22 years, to solve this, and what they have been trying again and again is the same type of thing they’re trying today.

We, as a nation, really owe it to the service members to step in. Congress needs to step in when the military has proven itself unable to solve the problem. And so the members of Congress need to step up and say service members shouldn’t get second-class justice. They’re entitled to the same type of fair and impartial adjudication that you or I or the general is entitled to as civilians.

JEFFREY BROWN: All right, we’re going to follow this as it goes through Congress.

But, for now, Susan Burke, Major General John Altenburg, thank you both very much.


SUSAN BURKE: Thank you.