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July 26, 2021

News West

West Coast News Network

A push to change military sexual assault prosecution gains traction

Amy Marsh had never seen so much alcohol consumed at a work affair when she and her husband hosted a 2018 holiday party at Travis Air Force Base in Northern California, she said. By the time she left for an off-base after-party, she said, she was drunk.

Marsh said she wasn’t worried, though. The 25-year-old, who is married to an Air Force junior officer, went with a noncommissioned officer who had been a mentor to her husband since he’d moved to the base a year earlier, according to Marsh.

What happened that night and in the months afterward nearly destroyed her marriage, ruined her husband’s Air Force career and left her to suffer in silence — her husband’s military colleague sexually assaulted her, she said.

“I didn’t consent to anything, and I was too intoxicated to do anything about it,” Marsh said in an interview.

Marsh says her treatment by the Air Force after reporting the incident two months later exemplifies what advocates and members of Congress say are long-standing deficiencies in the military system for handling sexual assault allegations.

Among other shortcomings in the system, critics say, victims are too often doubted or pressured not to bring formal charges, even more than in the civilian world. Senior officers who have responsibility for prosecuting offenders too often side with the accused, rather than the victim. Some victims find their lives destroyed while some perpetrators face little or no punishment. And many assaults go unreported, according to reports even from within the military.

Now, a push in Congress to overhaul military prosecution procedures — started by Sen. Kirsten Gillibrand (D-N.Y.) nearly a decade ago — is finally gaining traction after years of opposition from the Pentagon and its supporters in Congress.

Gillbrand’s legislation would take decisions about whether to prosecute rape, murder, child pornography and other felony offenses out of the hands of commanders, instead turning them over to independent prosecutors outside the chain of command. Other uniquely military crimes such as desertion would remain under commanders’ purview.

On Tuesday, the secretary of Defense for the first time endorsed removing decisions about prosecuting sexual assault and related crimes away from military commanders, though he stopped short of endorsing Gillibrand’s more far-reaching proposal.

Defense Secretary Lloyd J. Austin III vowed to work with Congress to enact the change, saying the reform offered “real opportunities to finally end the scourge of sexual assault and sexual harassment in the military.”

In Marsh’s case, the commander of her husband’s unit “decided not to prosecute the alleged assailant” because “he determined that the investigation yielded insufficient evidence to prove Ms. Marsh was too intoxicated to consent to sexual activity,” William E. Orr Jr, associate director of the Air Force Judiciary, said in a 2020 letter to a senator from Arizona, where Marsh’s husband is now based.

The letter said “marital difficulties” between Marsh and her husband were “likely to undermine” her claims that the “alleged acts were nonconsensual.” Marsh called the response “victim blaming.”

The noncommissioned officer who Marsh says assaulted her refused to talk to investigators, citing his constitutional right to remain silent, according to the letter. He received “administrative action” for “misconduct” unrelated to sexual assault, it said. The man did not respond to an email and phone calls seeking comment. The Air Force said it would not comment on the case, and Marsh’s military lawyer said she is not authorized to speak publicly.

The Pentagon has acknowledged for years that the number of rapes and sexual assaults in the ranks is too high. An annual Defense Department report released in May found that 6,290 service members had reported sexual assaults, rapes and other incidents of unwanted sexual contact during military service in 2020, a 1% increase from a year earlier.

The Pentagon also acknowledges that the actual number of incidents is estimated to be more than three times higher — as many as 20,500 a year in 2018, the most recent estimate.

For women in the military, the estimated rate of sexual assaults and rapes is at its highest level since 2006, despite repeated pledges by the heads of each military service to combat the problem, according to Col. Don Christensen, a retired Air Force prosecutor and president of Protect Our Defenders, a policy and legal assistance organization that advocates on behalf of military sexual assault victims. The estimates are based on an annual Defense Department poll on the question.

In 2019, only 363 military members were charged with sexual assault or other related offenses and only 138 were convicted, a 50% reduction in prosecution and conviction rates, he said.

“Survivors have been reporting at record rates,” Christensen said. “But rather than see their offenders held accountable, they are the ones who suffer the price for reporting.”

Gillibrand says the armed services have failed to eradicate a “significant scourge” of sexual violence.

“Despite every promise by the Defense Department to have zero tolerance, we’ve seen a continuing decline in the number of cases going to trial and in guilty verdicts, while the number of cases continues to grow,” she said in an interview.

The bill, which she introduced with Republican Sen. Joni Ernst of Iowa, a former Army officer who said she was sexually assaulted in college, would mandate training on preventing sexual assault for all members of the military. It would also give commanders the option of reviewing a prosecutor’s decision not to seek felony charges.

The measure has attracted 65 co-sponsors in the Senate, including 21 Republicans, giving it a strong chance of passing for the first time since Gillibrand introduced it in 2013. Support for a similar bill in the House introduced by Bay Area Democratic Rep. Jackie Speier has also increased.

The surge is due at least in part to the killing of Army Spc. Vanessa Guillén, a 20-year-old soldier at Ft. Hood in Texas who disappeared in April 2020; her mutilated and burned remains were found two months later.

Authorities believe another soldier, Spc. Aaron Robinson, bludgeoned Guillén to death on base. Robinson killed himself when confronted by police days before a murder charge was announced. Guillén’s family said she had been sexually harassed before her death. A subsequent investigation confirmed she had been harassed, but not by Robinson, though he had been accused in a separate harassment case.

The Army investigation into Ft. Hood, released in December, found major flaws at the sprawling base in central Texas. Commanders there allowed a “permissive environment for sexual assault and sexual harassment,” the report concluded.

Among the more than 500 female soldiers interviewed, investigators found 93 credible accounts of sexual assault from 2018 to 2020 — but only 59 had been reported to commanders, the report said. Of 135 credible instances of sexual harassment, 72 were reported, according to the findings.

In part because of the report’s findings, Austin, in his first directive after becoming Defense secretary in January, gave senior leaders two weeks to send him reports on sexual assault prevention programs, and the next month created an independent review commission.

Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, said last month that he was reconsidering his opposition to removing decisions on sexual assault prosecution out of the chain of command. Top commanders have long defended the system, saying it is important for maintaining discipline and readiness for a commander to have final decision-making authority over prosecution decisions.

President Biden has so far been silent on the Gillibrand bill, but as a candidate he appeared to endorse the idea. Asked at a campaign event in April 2020 whether he supported “empowering experienced military prosecutors to make prosecution decisions for non-military crimes — serious felonies like rape, murder, and child abuse,” Biden said, “Yes, yes, yes.”

He added: “When I was vice president, that was my position as well. As a matter of fact, I had a real run-in with one of the members of the Joint Chiefs in the Cabinet Room on that issue,” he said. “We have to change the culture of abuse in this country, especially in the armed services.”

But for all the high level support, the bill’s future remains uncertain.

Senate Armed Services Committee Chairman Jack Reed (D-R.I.) said last month that he supports shifting the decision-making power only for sexual assault cases, not all felony-level charges. The Army veteran has proposed including the provision in the annual defense authorization, instead of in a stand-alone bill. The defense authorization is due to be taken up in committee in July.

Gillibrand sought to have her broader bill brought up on the Senate floor for a vote, bypassing the committee, but Reed has objected to her request. Oklahoma Sen. James M. Inhofe, another Army veteran and the top Republican on the panel, calls the measure an “imperfect, overly broad bill.”

“I do not support removing the chain of command from the decision-making process on these crimes,” he said, “but I do support having a debate about how to address and fix these issues at our [defense authorization] markup.”

Inhofe on Tuesday made public letters he solicited from the Joint Chiefs, who outlined their reservations about Gillibrand’s bill while acknowledging the need for a better military response.

“I do not know if removing the commanders’ authority to act on certain offenses will affect the occurrence of sexual assault,” said Gen. Charles Q. Brown, the Air Force chief of staff. If Congress does remove commanders’ role in prosecutions, “the scope of the offenses covered should be specific to sexual assault and harassment,” he added.

The other members of the Joint Chiefs had similar views. Gillibrand in a statement called the letters “disappointing but not surprising.”

The system now in place, she says, allows some commanders to show favoritism to popular or senior members of their units accused of sexual assault, or to cover up cases so their own prospects for promotion are not affected by evidence that discipline is lacking.

“It’s related to command control. If the accused is more valuable to the unit than the accuser, then they may not prosecute the case,” she said. “That is bias, and I believe it has no place in the decision.”

Limiting the bill to sexual abuse, assault and rape would create a two-tier system of prosecution in the military, Gillibrand said. Plus, removing most felonies from commander control would make it more likely that cases like Guillén’s death would be fully investigated and not just in response to public outcry, she added. Guillén’s sexual harassment only came to light after her death.

Even if the broader Gillibrand proposal passes in the Senate committee and is included in the authorization bill, it could be revised when a final version of the legislation is worked out in closed-door negotiations between the House and Senate, she warns.

“I believe that if it goes through the committee, it will either be watered down or eliminated entirely,” said Gillibrand. “This has been done to us before.”

The Senate panel that Gillibrand chairs, the Armed Services subcommittee on personnel, asked Marsh to testify in March about her what happened to her at Travis, a base southwest of Sacramento.

“The Air Force promises survivors ‘maximum support’ after reporting sexual assault,” Marsh told the senators, “but that is not what I felt following my decision to come forward.”

At first, she decided against reporting the incident, fearing retaliation in the insular and rumor-ridden world she found at the base, Marsh said in an interview. Months later, after speaking with a clergy member, she reported what happened — but her efforts to gain justice were repeatedly frustrated, she said.

The Air Force took administrative steps to discipline the man but not for sexual assault, according to a letter it sent in 2020 to then-Sen. Martha McSally (R-Ariz.) about the case. A copy of the letter was provided to The Times by Marsh.

“The alleged assailant received administrative action for his misconduct on the night of the alleged sexual assault,” the letter said. The action taken “did not involve allegations of sexual assault or nonconsensual activity,” it added.

Administrative action is a procedure for handling disciplinary issues not serious enough to merit a court-martial.

The Air Force declined to comment on the action it took against the noncommissioned officer, citing privacy rules.

“Sexual assault and harassment of any kind are inconsistent with the Department of the Air Force’s core values,” said Ann Stefanek, an Air Force spokesperson. “Allegations of sexual assault are taken seriously and investigated thoroughly.”

The Air Force’s letter to McSally described its decision not to charge the noncommissioned officer who accompanied Marsh to the after-party.

It said the man touched her and “made sexualized comments” at her house before they and other members of the unit left to go to the off-base party. In addition to asserting there was insufficient evidence that Marsh was too intoxicated to give her consent, the letter said she and the noncommissioned officer engaged in “consensual sexual intercourse upon waking up the next morning.”

Marsh disputed that account. “I was way too intoxicated to make any kind of decision,” she said of the first encounter. Investigators later asked her how many drinks she had, but had no other way of knowing how intoxicated she was, Marsh said.

As for the incident the next morning, “I wouldn’t say it was consensual. I knew it was happening. It was traumatic,” she said.

Marsh said she feared repercussions for herself and her husband if she filed a complaint against the popular senior noncommissioned officer. “I knew people wouldn’t believe me because everybody loved him,” she said. The Times is not naming the man because he was not charged with a crime.

After speaking with an Air Force chaplain, Marsh told her husband what had happened and they decided to file a formal complaint, she said.

Marsh said she didn’t initially consider filing a report with the local police, thinking the military would be “equitable.” After she learned the military was unlikely to prosecute, she asked her lawyer about filing charges with civilian authorities and was told “at that point it was not possible,” she said.

After her husband’s commander decided against bringing sexual assault charges against the member of his unit, the base commander at Travis denied her request to open an inquiry that could lead to a court-martial, according to Marsh.

She filed multiple appeals, all of which were turned down over the next two years, she said. In one case, Marsh was told that a court-martial was impossible because she and her husband had been in marriage counseling and that would “likely undermine my case,” she said. The couple requested and received a transfer to a different Air Force base; they’re now in Arizona.

Meanwhile, the letter says, her husband’s commander opened disciplinary proceedings against him for improper “fraternization” with enlisted personnel the night of the holiday party. A letter of reprimand was put in his personnel file and he has yet to be promoted. He now plans to leave the Air Force, Marsh said.

“After it was all over, we felt the repercussions for reporting had been worse for us,” Marsh testified to senators.

“If the status quo remains unchanged, bad actors will be able to continue their military careers while victims suffer in silence.”