Just two days after suffering a setback for her Military Justice Improvement Act (S. 1752), Sen. Kirsten Gillibrand (D-NY) announced on Wednesday that a unanimous consent agreement had been reached that would allow the measure to be debated on the Senate floor.
Gillibrand’s measure would remove from the chain of command the adjudication of sexual assault and other serious crimes perpetrated by members of the armed forces, a reform that many advocates for those who have survived sexual assault while serving in the military say is necessary in order to avoid conflicts of interest and retaliation against survivors.
The senator’s announcement came on the heels of a hearing she conducted that same day as chair of the Senate Armed Services Subcommittee on Personnel to examine the impact of sexual assault on suicides and post-traumatic stress disorder (PTSD) among soldiers, sailors, airmen and Marines. After the hearing, Gillibrand told RH Reality Check that she expected a vote to take place within the next two weeks or so.
An attempt to bring the measure up for debate on Monday, together with other reform measures sponsored by Sen. Claire McCaskill (D-MO), failed when Sen. Jerry Moran (R-KS) blocked debate from moving forward unless Senate Majority Leader Harry Reid (D-NV) included a measure that threatened Iran with additional sanctions, which Reid declined to do.
Known for being indefatigable, Gillibrand had, by the day after Monday’s thwarted debate, not only won assurances from Moran that he would not block her measure again; she added him to the list of publicly declared supporters of the Military Justice Improvement Act in the Senate, bring the number to 55, just five shy of the number needed to block any future filibuster.
McCaskill, who is also a member of the Armed Services Committee, opposes the removal of the prosecution of sexual assault from the chain of command, and has instead sponsored reforms already attached to the National Defense Authorization Act that attempt to fix the current system, such as a measure that will make it no longer possible for commanders to overturn a conviction rendered by a court martial. The additional measures sponsored by McCaskill on which debate was scuttled on Monday (originally introduced as S. 1917) would bar retaliation against those who report having been a target of sexual assault by a fellow service member and ban the “good soldier defense,” in which the accused’s service record is taken into account when rendering a verdict and/or sentence.
Both Gillibrand and McCaskill acknowledged tacitly in their opening statements that there are “differences” among members of the committee, and in the Senate, on how best to tackle the sexual assault crisis in the military, which is estimated by the Pentagon to have encompassed some 26,000 incidents of “unwanted sexual contact” in 2012 alone, with fewer than 3,400 of those episodes having been reported by survivors.
Sen. Lindsey Graham (R-SC), the ranking member on the personnel subcommittee and a former instructor in the Judge Advocate General corps of the U.S. Air Force, took the occasion to repeat his opposition to removing the prosecution of sexual assault crimes from the chain of command, saying, “This is a problem that will never be solved by telling a commander, ‘This is no longer your problem.’”
Veterans and Suicide
Gillibrand opened Wednesday’s hearing by telling the story of a constituent who had served in the U.S. Navy, who was sexually assaulted by a group of sailors the very first day he reported for duty and, she said, continued aboard ship, with commanders turning a blind eye. The constituent, she said, went AWOL, and then accepted a less-than-honorable discharge, which made him ineligible for veterans’ health benefits, despite the PTSD he suffered as a result of the assaults.
“I am alarmed by the following statistic, as should [be] every person
in this room: An estimated 22 veterans commit suicide every day,” Gillibrand said. “It is critical that we look at the links between sexual assault and harassment and related PTSD and its role in this intolerable number of suicides.”
Jeremiah J. Arbogast, a lance corporal retired from the U.S. Marine Corps, sat at the witness table in a wheelchair. The paralysis that landed him there was caused by a failed suicide attempt with a 9mm handgun, which Arbogast said was prompted by the severe depression he suffered after being drugged, sexually assaulted, and raped by his former staff sergeant, Arbogast said, and then seeing his attacker go free with no jail time.
After Arbogast reported the attack, he was told by Marine Corps prosecutors that he would have to prove his charge by obtaining a confession from the perpetrator, he said. He explained that, fitted with a body wire, he went through the harrowing experience of going to his attacker’s home, confronting him, and actually obtaining a full confession that was recorded via the wire.
“My perpetrator was arrested and charged with several counts, including sexual assault,” Arbogast said. “The trial lasted a week. Even with [the confession], the court found him guilty of lesser charges. He received a bad-conduct discharge, no jail time.”
When the convicted Marine was taken for fingerprinting, Arbogast said, it was found that he had gnawed the skin off his fingertips, rendering a fingerprint impossible. When ordered to register with a sex offender database, the man, Arbogast said, simply refused. “Nothing was done,” Arbogast continued, “and to this day, I don’t know where my perpetrator is.”
Arbogast was separated from the Marines on a medical discharge because of the PTSD he suffered as a result of the assault and the trial, he said.
“I was thrown away like a piece of garbage,” he told the subcommittee.
PTSD and Military Sexual Assault
Jessica Kenyon, a former private first class in the U.S. Army, endured several sexual assaults while in the Army, only to be ostracized and retaliated against when she first reported being raped by a member of the National Guard while she was at home on leave.
Even though she filed what is known as a restricted report—which is supposed to be kept confidential—the manner in which the investigation was conducted informed every member of her workplace, a hangar that employed some 260, that she had lodged a complaint. She was punished, she said, for attending counseling appointments, so she stopped going.
After Kenyon reported a second assault, she left the military when her assailant was convicted only of “lying on a sworn statement,” confessing the assault only after having failed a lie detector test during which he denied it. According to a media advisory issued by the Armed Services subcommittee, Kenyon’s assailant received no jail time and was allowed to keep his job with a reduction in rank. Kenyon, meanwhile, sank into severe depression and PTSD, she told the subcommittee.
She often found it difficult to order her thoughts, and to perform routine tasks such as reading and writing, she said. Her symptoms, Kenyon told the subcommittee, include “bouts of insomnia, debilitating memories, thoughts, triggers of all sorts, anger, chattering in my head and constant anxiety to the point that I am forced to use all of my focus to appear normal.”
Kenyon asserted that, as devastating as sexual assault is in any circumstance, sexual assault in the military is more akin to an incestuous attack, since the language of the military and its command structure use familiar metaphors: Soldiers are referred to as “brothers” and “sisters,” while the commander is in a paternal role. Picking up on Kenyon’s testimony, Gillibrand asserted that made a sexual assault by one member of the military against another like being raped by one’s brother in a case that will be decided by one’s father.
What little effort the army put into staving off sexual assaults, Kenyon said, amounted to little more than “candy-coated victim-blaming,” such as posted signs that read, “Wait until she’s sober.”
Asked by Sen. Kelly Ayotte (R-NH), a co-sponsor with McCaskill of the measure banning retaliation, of what kind of difference that might have made for Kenyon, the former Army private seemed dubious, pointing out that a report of retaliation faced the same sort of “conflict of interest” that a sexual assault report did, as long as the reporting structure remained within the chain of command.
In a brief interview with RH Reality Check following the hearing, Kenyon explained that those of higher rank can easily punish survivors who report sexual assaults by fellow service members by alleging infractions on the job, or poor performance of duties. “They can twist anything and make it look like a victim’s fault, or make it harder for a victim to do their job day to day,” Kenyon said. After a survivor reports an assault, Kenyon asked, “how can you prove that [the commander’s] attitude changed? How do you prove that?”
Of those who support the ban on retaliation as an important fix to the sexual assault crisis, Kenyon said, “They’re just setting themselves up to look good on paper.”
Removing the adjudication of sex crimes from the chain of command, Kenyon told RH Reality Check, is a critical step toward what she said was a necessary cultural change in the military regarding sexual assault, and the poisonous environment that is often described as a “party atmosphere” in military units.
“There needs to be safe reporting structure, there needs to be accountability in handling cases and, most importantly, there needs to impartial command,” Kenyon said.