Diane speaks with Dr. Roger Kligler who is living with advanced stage cancer on why he's suing the state of Massachusetts for the 'Right to Die' and with Dr. Jessica Zitter, and intensive care and palliative care specialist on why better communication is so needed between doctors and patients facing end-of-life issues.
A new Defense Department report indicates that efforts to combat sexual violence in the military are not working. The report shows that the number of recorded cases of sexual assault actually rose last year. The Pentagon also says an estimated 26,000 women and men experienced “unwanted sexual contact” in 2012. That’s up from about 19,000 two years earlier. Several lawmakers are introducing bills calling for tougher penalties for offenders and better legal support for assault victims. A discussion on how to stop what some say is a culture of sexual violence in the military.
- Tom Bowman NPR Pentagon correspondent.
- Rebekah Havrilla former Army sergeant (Jan. 2004 - Sept. 2009) and plaintiff in a lawsuit against the Pentagon.
- Susan Burke D.C. lawyer representing military rape victims.
- Maj. Gen. Bill Nash U.S. Army-Retired.
Department Of Defense Sexual Assault Prevention and Response Strategy
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Nearly 22 years after the Navy's Tailhook sex scandal, a new report from the Pentagon indicates the military has a major problem. Sexual assault and misconduct are on the rise. Lawmakers are angry and calling for reform. But victim advocates fear a culture of sexual violence permeates the military and will require even more radical measures to address it.
MS. DIANE REHMJoining me here in the studio to talk about sexual assault in the military: Susan Burke, an attorney who represents military rape victims, Tom Bowman, who covers the Pentagon for NPR, and military analyst Maj. Gen. Bill Nash, who served for three decades in the U.S. Army. Feel free to call us with your questions and comments, 800-433-8850. Send us an email to firstname.lastname@example.org. Follow us on Facebook or send us a tweet. Good morning to all of you. Thank you for being here.
MR. TOM BOWMANGood morning, Diane.
MS. SUSAN BURKEGood morning.
REHMI do want our listeners to know that we did invite someone from the Pentagon Sexual Assault Prevention and Response office to be on the program, but the Pentagon declined. A Pentagon spokeswoman said she would give us a statement this morning, but she did not. Tom Bowman, tell us more about the Defense Department study on sexual assault.
BOWMANWell, there are actually a couple of studies. One report came out that said sexual assault reporting has up -- was up 6 percent over last year to about 3,400 reports. But what was more troubling was this anonymous survey done that showed that 26,000 service members reported unwanted sexual contact, and that's up 30 percent over 2010. So that was really troubling.
BOWMANAnd as far prosecution, as far as those that go to court, one in 10 cases end in conviction. Now, the Pentagon, of course, is coming up with more training programs. They're trying to beef up prosecution and investigation of victims' rights advocates and so forth. But President Obama came out, was very upset about it, called Defense Secretary Chuck Hagel and said, deal with this issue.
REHMNow, the report -- and you just cited unwanted sexual conduct -- what does that mean?
BOWMANWell, it's a wide array...
BOWMAN...could be, you know, getting grabbed by someone to rape. So I think it pretty much covers the gamut of sexual assault.
REHMSusan Burke, what was your reaction to the report?
BURKEWell, sadly, I thought it reflected an inevitable rise. When you have decades of a system that's not working, yet you resist all efforts to change it and you continue to convict a small, small fraction of sexual predators, you are necessarily creating a large embedded population of sexual predators in your ranks. So unless we tackle the systemic problem, the underlying lack of a functional judicial system, and we begin to prosecute and incarcerate more of the sexual predators, you're going to continue to see these numbers rise.
REHMI gather the report was actually mandated by Congress.
BURKEThat's correct. All of this data collection, which is very helpful in showing the extent of the problem, is not something the military has done voluntarily. It's all been as a result of legislation passed by Congress. This is an issue that's been studied year in and year out. In fact, as far back as the year 2004, members of Congress wrote a letter to then-Defense Secretary Rumsfeld, complaining that after 18 reports in 16 years, there was still no substantive change.
BURKEHere we are, almost a decade later, looking at the same thing. There has got to be a concerted effort on the part of the nation to step up and to protect the brave men and women that serve all of us.
REHMGen. Nash, did the report surprise you?
MAJ. GEN. BILL NASHWell, it disappointed me. Unfortunately, I've been involved with some of these issues from afar in a consulting role, on the civilian side, and I knew the problem was there. It was growing. And I was disturbed for a number of years that it has not been handled with the command urgency that such a serious issue requires.
REHMWhy do you think it's growing?
NASHWell, I don't know. I'm too far removed from active service to have a true feel. But by sensing this over the last dozen years or so, the turbulence in the force has -- and difficult operations that the military has faced has caused a degree of turbulence, a great number of issues, whether it be Abu Ghraib, whether it be Guantanamo issues or whether it be taking care of the soldiers, sailors, airmen and Marines that serve our nation. There had just been a lot of things that mystify me and mystify a lot of other people.
BOWMANAnd also, you know, the 26,000 reported, the increase in 30 percent over the previous year, is that people feel more comfortable at least coming forward and saying something happened but, in the other hand, don't want to file, you know, a formal report. So we don't know exactly what is happening here. But Bill raises a good point. Twelve years of war, is there something there that has an impact on these assaults?
BURKEWell, what we see time and time again is that the retaliation is rampant. So when you're trying to struggle for answers as to why there is such substantial underreporting, you're looking at 92 percent of the people that are raped not reporting. That's a rational response when reporting is -- by the military's own statistics, reporting has a 62 percent chance of subjecting you to serious retaliation and career-ending problems whereas...
BURKERetaliation is often -- it culminates in the victim being pushed out of the military. The retaliation is very -- it's very rampant, and it's very powerful. So whoever comes forward and reports the rape, they're ostracized. They're called -- they're not a team player. Their performance evaluations are impacted.
BURKESo to report takes a lot of courage. But yet if you do so, you look at the reality that they are incarcerating less than 1 percent of the rapists. So you have a very, very slim chance of your rapist being incarcerated, yet you have a very substantial chance of being retaliated against. It's wholly rational in that circumstance that people are not reporting.
REHMTom Bowman, Gen. Nash was talking about the turbulence of the last 12 years. Do we have any comparable statistics for the Korean War, the war in Vietnam, even the Second World War? Were any such figures kept?
BOWMANNot that I remember. And, of course, we're much more aware now of keeping statistics and studies and so forth that we may not have done in World War II or Korea or Vietnam. Of course, these wars have lasted longer. People run...
BOWMAN...longer deployments, repeated deployments, and who knows if there's something there. But it's something for the military maybe to look into. It is...
NASHWell, first off, we have to understand that, with respect to female assaults, the number and the percentage of females in most of the wars you cited were miniscule compared to the numbers of women in the military today. So in World War II, the number of deployed women vis-à-vis the number of -- the size of the armed forces as a total, much, much smaller. And I would probably say there are some horror stories behind those numbers as well. But no, it was not kept track of in the same way it is today.
REHMAnd, Susan or Tom, do we have any clear sense of how many of these victims are men and how many are women?
BURKEMy understanding is that percentage-wise, it's less men. It's 1 percent of the men are assaulted, and it's 20 percent of the women that are assaulted. But when you do the math, that means, in absolute numbers, there are more men than women being assaulted, being raped.
BURKEYes. And the underreporting is even greater because the stigma and being ostracized is even greater. And just anecdotally -- I represent hundreds of victims -- I would say approximately one in 10 of the people that come to me are men. And we have some in our pending lawsuits.
REHMThe report comes out just after an Air Force colonel who led a sexual assault prevention program was arrested on charges of sexual assault.
BOWMANThat's right. He was arrested for allegedly attacking a woman on a couple of -- two or three times in a parking lot just outside of Washington.
REHMSo what does that tell us, Tom?
BOWMANWell, maybe it tells you this person wasn't screened properly. You know, it's still being adjudicated, so we don't have a lot of information up to now.
REHMHow long had be been in that position?
BOWMANHe was in that job a couple of months. And his job -- he was in charge -- there's a one-star general that's in charge of the whole program, an Air Force one-star general. His job was basically to be in charge of a group of four or five people that put out educational material, training material on, you know, sexual assault prevention.
BURKEWell, one thing that is very concerning to me in this instance, I mean, it's -- the fact that it happened, obviously, is very concerning. But the military has stepped forward and has asked Arlington County to relinquish jurisdiction and to let them prosecute the matter. Now, here you have a civilian victim who's assaulted in a parking lot.
BURKEThe military has a dismal record on prosecution. Arlington County has a much better track record on being able to effectively prosecute assaults. And yet, even now as we sit here, the military is asking Arlington County to step aside and let them handle it. We obviously hope Arlington County says no.
BOWMANI believe they did say no, and they want to prosecute it.
REHMTom Bowman, he's Pentagon correspondent for NPR. Susan Burke is a Washington, D.C. lawyer representing military rape victims. Maj. Gen. Bill Nash is U.S. Army-retired, now a military analyst. Short break. We'll be right back.
REHMAnd in just the last five minutes, we have received a 24-page report from the Pentagon responding to our request, which has been made over the last few days. Joining us by phone from New York, Rebekah Havrilla, she is a former Army sergeant and a plaintiff in a lawsuit against the Pentagon. Good morning, Rebekah.
MS. REBEKAH HAVRILLAGood morning.
REHMYou tell us why you are part of a lawsuit against the Pentagon.
HAVRILLAYeah. I decided two years ago that it was very important to bring more attention to this issue. At the time, there was a lot less in the way of media coverage, and it seemed that, you know, a major lawsuit would be a great way to get some attention around this issue and that is was something that I wanted to participate in, both, you know, for myself and getting some closure for my own personal situation and in order to kind of speak out for those that I know are still unable or unwilling to speak for themselves.
REHMCan you tell us what happened to you?
HAVRILLAI was deployed in Afghanistan from 2006 to 2007, and I was raped by a co-worker/colleague before I came back to the United States. And I also had to deal with a co-worker, a sergeant first class who was my team leader, who was also extremely sexually harassive and abusive on a daily basis for approximately six months. And this was coupled with, you know, a very hostile environment in my unit. They were not friendly to me or women. And that was known from the beginning of when I went to that unit. So...
HAVRILLA...it was just a -- it was a constant battle.
REHMTo what extent did you go to superiors to report what was happening to you?
HAVRILLAI didn't. There is no way I was going to tell my first sergeant or my commander what was going on. They didn't, you know, my first sergeant had a history of sexual harassment already before I even got to my unit. And my commander made it very clear that he didn't like women and that there was, you know, nothing to be reported.
HAVRILLAAnd, you know, when we're speaking about retaliation previously, there is just -- it's easier to try and keep your mouth shut and your head down. And I chose to, at that point, get out of the military. The military was no longer something that I wanted to continue on with. And I did a restricted report right before I got out of the military. But I never did an unrestricted report until a couple of years later.
REHMI see. Do you think that there is something about the military culture that somehow encourages sexual assault?
HAVRILLAYes. In a lot of ways, I think there are. You know, it's a very hyper-masculine environment. You know, the group dynamics are favored over individual needs and desires, which, you know, suits the military very well. But when you're all of a sudden no longer a team player or, you know, you isolate yourself and try to target -- or the military says you're trying to target a, you know, a good man with a good career, and you're trying to, you know, ruin his reputation with some type of sexual assault or rape charge has been many times that that environment turns on you.
HAVRILLAAnd you become, you know, the target for retribution and for harassment even more so. And there's also the components of just -- when you look at, you know, we talk about women in combat. When you are excluding a gender just because of their gender, you know, that makes for a discriminatory atmosphere from the get-go. So all of these different types of things play into the military culture of, you know, what is acceptable, what is not acceptable, and what the military just kind of overlooks in the name of the mission and unit cohesion.
REHMNow, do you have any concern that becoming part of this lawsuit could affect your career going forward no matter what that career choice is?
HAVRILLAYeah. I, you know, going into it two years ago, I gave it some thought, but I didn't really understand exactly how it could affect me. I think it's very important that, you know, people do understand what type of media exposure can do to you. It's important to tell your story, but it's also important to understand how it can affect you in the future.
HAVRILLAI don't regret anything that I've done. In fact, I'd do it again. But there definitely have been some consequences. And they haven't been necessarily bad consequences, but they've definitely given me some pause and some, you know, some reconsiderations for the future.
REHMI want you to know that a spokeswoman for the Pentagon wrote this in an email she sent to us at 10:05, "The secretary is disturbed by a military culture that continues to have this problem, and he's directed strong actions to ensure accountability and improved leadership in the chain of command to prevent this crime and to prosecute sexual assault offenses when they occur. Victims must have confidence in the system, and offenders must be held to account for engaging in this vile crime." Asking just one question from that quote, Rebekah, do you have confidence in the system?
HAVRILLAAbsolutely not. There have been some minor changes and some minor steps forward, but the system still has a long way to go before I would ever consider putting my confidence in it again at any point.
REHMSusan Burke, do you have any thoughts?
BURKEI would applaud Rebekah and all the others who were brave enough to step forward. It's their courage in coming forward with their names and their stories that have led us to a point where hopefully change will be possible. I do think that although one doesn't want to become cynical, the reality of what we've heard from the Pentagon, what we've heard from the secretary of defense, there has never been a time where anyone stepped forward and says, oh, this is all fine.
BURKEThere's always been the rhetoric of zero tolerance. We're going to do better. At what point? You know, I think two decades is a long enough time period to have given them a chance to solve it on their own.
BOWMANI guess what's remarkable in listening to Rebekah's story is the talk of the commander allowing sex jokes, rape jokes, and he didn't want women in his command. Well, women are about 15 percent of the military now. That number is going to continue to grow. They will likely be in combat positions, artillery positions, infantry positions in the coming years.
BOWMANAnd I guess what I find remarkable is I've been covering the military for about 20 years, and I covered the Aberdeen sex scandal back in the late '90s in Maryland where you had a number of drill sergeants preying on young recruits. And now, here we have the Lackland Air Force Base case, where, again, you have drill sergeants preying on young women, raping them and assaulting them. For this to continue to happen, it's astounding.
BOWMANAnd what you need -- and I'm looking at the Pentagon report that came out yesterday with all these recommendations for training and accountability and so forth. You know, it's -- a commander has to understand what's going on in his or her command. And to allow something like that to happen, you have to be asleep at the switch. To have dozens of people preying on young women under your nose is unbelievable.
REHMGen. Nash, are you somewhat concerned that the Pentagon would not have someone here today on this program representing that point of view?
NASHWell, of course. I wish there was somebody here. But I would tell you that they're probably scrambling so hard right now to...
NASHYeah, trying to figure out and knock out 24 pages of information to send you as the show has already begun. I had a chance to scan the report and -- particularly the letter by secretary of defense. And first of all, there's no question in my mind the commander in chief, President Obama has lack of tolerance for such behavior. And he's made that very clear, and that's good.
REHMHow much of an impact will that have? Susan.
BURKEWell, from my perspective, it's not going to have much impact at all unless you have reform of the Uniform Code of Military Justice. You know, the commander, commander in chief, the president, has stepped forward and says, well, he has everyone's back.
BURKEWell, on -- next Friday, his lawyers are coming into court to argue that Rebekah and the others, that the case should be dismissed, that the judicial system should not hear their claims and that there should be absolutely no judicial oversight over the military. Now, we are a nation that has civilian control over the military. We need to step up. Congress needs to reform the UCMJ so that this dysfunctional system is changed.
NASHThe president has made a correct statement. It has to manifest itself out in behavioral changes. The problem I have is that, for last number of years, the military has relied on the special office that we've all talked about that you just got the letter from. And even in his letter of yesterday to the Department of Defense, the secretary of defense charges this office to do better, OK, to make it shorter.
NASHMy problem with all of that is, the same time they argue for the responsibility of the chain of command to maintain good order and discipline, they give it to a non-chain of command staff office to implement changes. And the argument I would make -- and I would urge secretary of defense to consider -- is the people he needs to squeeze are not staff officers. They're leaders. They are the secretaries of the services.
NASHThey are the commanders of the divisions, the ships, the fleets and the wings of our armed forces. Further, I think the UCMJ needs to be looked at, but it needs to -- and it needs to reinforce the criminal nature of sexual violence. But at the same time, they've got to come up with a way that a commander who decides to overturn a lawful, bi-jury conviction has a rationale. The two cases of the lieutenant generals that have overturned jury convictions is astounding.
REHMTom Bowman, do you want to talk about those?
BOWMANIt was very surprising. There was a three-star general in Europe that overturned the sexual assault conviction by the jury of a younger officer. And that's one of the issues that brought everything to the fore here, is that people were stunned by that, and that's where people want to remove the chain of command from these kind of sexual assault cases and have it in a separate prosecutorial area.
REHMSo, Rebekah, if indeed you do go into court and the government is arguing against you and your attorney that the case should be dismissed, what would you say to that judge?
HAVRILLAWell, you know, this has been a very long process. And, you know, from the beginning, it's kind of been one of the things where you hope that some changes are going to be made, but in the back of your mind, you're kind of like, oh, this is probably not going to happen for numerous reasons, both, you know, judicial and social. So, you know, I think in sitting in previous arguments, there's an acknowledgement that there needs to be changes made, but it just seems that knowing -- no one is really willing to step up to plate and make those changes.
HAVRILLASo, you know, I'm just -- if I could say anything to a judge, I would be, you know, be the one to, you know, buck the standard and make the changes that you know are the ones that need to be changed so that all of these survivors and victims can have the potential going for the justice that they rightly deserve.
REHMRebekah Havrilla, former Army sergeant from January 2004 to September 2009. She is a plaintiff in a lawsuit against the Pentagon. She served in Afghanistan. Thank you, Rebekah. And you're listening to "The Diane Rehm Show." Let's open the phones now. Let's go first to St. Petersburg, Fla. Oh, she's not there anymore. How about to Oklahoma City? Good morning, Jason. You're on the air.
JASONGood morning, Diane.
JASONHi. Just thinking about this. Some other countries such as Israel had, you know, women in combat army role where they're really exposed to, you know, male soldiers and, you know, combat environments for some years, and I wondered if there was someone who could speak on if they are successful, and if so, would it be possible for us to model their program?
BURKEI'm not familiar with the adjudicatory system in Israel, but I can tell you that the United Kingdom has moved and taken the chain of command out of the adjudicatory process, and they have had no bad results. They have seen an increased level of prosecutions. And what happens, because most sexual predators tend to be repeat predators, the more you incarcerate, you begin to make a serious dent in your predation problem.
REHMTom, I want to go back for a moment to this overturning of the judicial ruling against these three men. What happens after that? Do these men simply go back to active duty? Do they go back into the ranks? Is their service record wiped clean? What happens?
BOWMANWell, I'm not a lawyer. I'm not sure exactly what happens in a service record, but they do go back on active duty. I think that's what happened in these cases.
BURKEAnd, in fact, Lt. Col. Wilkerson, who is the man that was convicted of rape and sentenced to a year in the brig before Gen. Franklin just overturned his -- the jury verdict, Lt. Col. Wilkerson is not only back in active duty in the Air Force, but they sent him to serve in the hometown of his victim's family.
REHMWhat I'm trying to understand is, on what grounds did the judge overturn a jury conviction?
BURKEIt's not a judge. This is the problem. The person that's doing the overturning is just a operational person. It's a general. And so it's a general that had a relationship with the accused, with the defendant who had been convicted. And there was no analytical basis for the overturning. Rather, the general, who had not heard the testimony, who had not sat in the trial, considered a series of letters and pleas from friends and relatives of the -- of Lt. Col. Wilkerson.
BURKEHe considered a lot of evidence that the judge had excluded from trial as not being credible or permissible in a court setting. And the general, acting on his own without any legal training, considered all of that and overturned it.
REHMSusan Burke, she is a Washington, D.C., lawyer representing military rape victims. Short break. We'll be right back.
REHMAnd just before the break, we were talking about the overturning of three rape cases that the victims have brought forward before a jury and were overturned by members of the military. Gen. Nash, you want to make a further comment?
NASHWell, I think this particular case involved a sexual assault, and it was one case that Gen. Franklin, I believe his name is, that overturned the jury conviction. And within the Uniform Code of Military Justice, the convening authority and the chain of command has a responsibility to review the case and make appropriate approval or disapproval or, in fact, mitigation of certain unleashing of certain punishments. The issue is, though, that for a general officer to overturn a court's decision is an extraordinary matter and requires a justification, in my mind, a public justification as to the rationale.
REHMWas there one?
BOWMANHe gave no explanation.
NASHThe other thing to understand is, is that as a commander deals with mitigating circumstances, evidence that was not introduced into the trial or is prohibited for an introduction by the judge, you are on very thin ice making decision based on that kind of information. And the issue I brought up earlier about the staff agency versus the command agency, what I would like to see is much more emphasis on command responsibility and command accountability.
NASHAnd this is what Secretary Hagel was talking about, the chain of command must stay in charge. And I agree or I understand, certainly, why people lack the confidence in the chain of command because their performance in recent times have -- has been abysmal in too many cases. So I think that one of the ways we've got to attack this is we've really got to hold commanders accountable and adjust -- and maybe some adjustments to the Uniform Code of Military Justice that specifically requires accountability and transparent justification for actions.
REHMTo whom was Gen. Franklin accountable?
BURKENo one. He -- after the public furor over his ruling, he did release a letter basically saying that he just found it unbelievable that Lt. Col. Wilkerson had assaulted this woman because he had a nice wife and family. We need to get the command -- we need to get the chain of command out of the legal system. They're not trained for it. They don't have an understanding of the complexities of these issues.
BURKEAs Gen. Franklin's decision shows, they're going on gut level, instinctive emotional reactions and they tend -- those have been shown time and time again to tend to favor their friends, their buddies, the men. And so it's not -- it just makes no sense, and it's not fair or impartial that the people that serve our nation shouldn't be second-class citizens with access to a lesser system of justice.
REHMI'm going to read an email that contains some images that may be uncomfortable and may not be appropriate for children to hear. So please turn your radio down if that is the case. This one says, "My daughter's a victim's advocate with the military. She has told me most of her victims will not go forward because they fear retaliation. She even found one of the men she works with on a daily basis date raped one of her victims.
REHM"She can't say and do nothing about this as the victim will not come forward. A man reported that his pants were pulled off. He was taped to a chair with duct tape. His hand was taped to his genitals and he was left in a public area. It was considered a funny prank to the attackers. He won't prosecute either. He just wanted to talk to someone. Something has to be done." Let's go to St. Petersburg, Fla. Good morning, Donna.
DONNAGood morning, Diane. Thank you for taking my call.
DONNAI just wanted to touch on a couple of things. I've been listening, and my mind has been racing. I'm a former active duty in the military, and I used to live in the barracks of the junior enlisted soldier. The environment in the barracks is hyper-masculine, sexually driven and alcohol-filled environment, and I don't believe that the ordinary commander truly understands what is happening. And I don't always feel that it's their fault because, oftentimes, victims do not come forward and report every instance of harassment.
DONNAWith the harassment and with the changes that are happening now, I don't see how the Pentagon insists on -- that this training that they put us through, to all the military, just one hour a year or this online training that we go through, I don't see how it's effective because the ordinary male that is not an offender -- because not all males are offenders -- they don't understand how an offender works. They can't fathom it.
DONNAI've had discussions with my superior all the time, and we discuss this because I'm a unit victim's advocate, and he doesn't get it. And I try to explain it to him, and I try not to be offensive because he is my superior. But he doesn't see it. And I think God doesn't even see it because that means he does not have that mentality.
BURKEThe reality is that sexual predation is a crime that's often committed by people that to all outward appearances are good people. They tend often to be charismatic. Their performance in their job tends to be high, and so if you -- and this is one of the dynamics that causes a lot of problems.
BURKEIf you just let the chain of command use their own gut reactions, you may have a strong soldier, a strong performer who has victimized a vulnerable and weaker performer. That's often the dynamic you see, whereas the rape victim is perhaps not doing as well career-wise. And so it's those reasons we cannot -- we cannot leave it into the workplace. We have to take it out because predators do not -- it's not easy to figure out that they're predators.
BOWMANAnd also getting into the point of command climate, I mean, you -- in this day and age, it's 2013, to allow someone -- a commander to allow rape jokes or sex jokes or to say I don't want to work with women, it's astounding in this day and age. And that's why you have sergeants and NCOs and junior officers to keep an eye in how things are going in your command and basically taking people aside and saying that's inappropriate. I don't want to hear that anymore. You're going to be held responsible and right up the chain.
REHMTo Herbie in Cleveland, Ohio. Good morning.
HERBIEGood morning. Good conversation, and it's really disgusting and sickening. The issue about sexual assault and rape at any terms along the military -- I'm a civilian in Cleveland. We just had a big issue where somebody held somebody against their will for 10 years. So now, in the military, we've got an issue. We have it on the street as a normal, everyday people. Such assault -- and a rape to me is so -- it hurts so bad whether it's a man, a woman or a child.
HERBIEIt just seemed like the law should be, like, a little bit -- take it a little bit more serious. I guess I'm wondering how shall we -- as a society or as people, what can we do to help the whole concept that this country -- we can't deal with it around the world. But just here in this country, how can we take the rate of such assault to a whole new level?
BURKEI think that if everyone could raise their voices to their members of Congress and let them know that our service members deserve fair and impartial justice and that reform of the UCMJ is needed although clearly it's a social problem. And there are some really troubling aspects about being raped in the military that differ a bit from civilian life.
BURKEYou're forced to remain in close contact with your rapist. You're forced to salute your rapist. We had one victim who had to show up every day for a body composition check by her rapist. And so the, you know, the fact that these rapists are not being incarcerated in the military leads to a lot of problems. So I would encourage all the listeners to speak out.
REHMSusan, tell us about these bigger sexual assault lawsuits that are up against the military.
BURKEWe have filed a series of lawsuits, alleging that the Department of Defense, the secretaries of defense, the fact that they let this dysfunction go on for so long and they have ignored and flouted direct mandates of Congress to take certain remedial steps, that by so -- by doing so, they have violated the constitutional rights of the victims. So we're asking for what's called the Bivens remedy. We're asking that the civil system -- the civil judicial system declare that past conduct unconstitutional.
REHMSo you've got -- in one case, there are 28 plaintiffs, mostly women but some men.
BURKEThat's correct. And then we have -- in that case, there are two men -- three men. And then we have another case pending with 12 total, two of them are men. And this is where we have been up against the Department of Defense. They have filed papers, legal briefs, and have been successful so far in arguing in essence that rape and sexual assault is an occupational hazard, that it's incident to service, and therefore the civilian court should not be allowed to hear these claims.
REHMTom, what do members of Congress want to see happen?
BOWMANWell, they would like to remove the chain of command from some of these cases and have military professional lower prosecutors deal with it. Secretary Hagel said that would weaken the system. He wants to keep it within the chain of command. That's what's going on now. But there are a number of bills up on the Hill that would change the UCMJ.
REHMAnd what do you think, Gen. Nash?
NASHI think that when the armed forces of the United States do not care for, protect, and -- for their soldiers, sailors, airmen, Marines that Susan -- the Susan Burkes of the world should, in fact, bring lawsuits against the military. I think the military needs to be held accountable. And I think the fact is, though, that I remain convinced that the chain of command can deal with this, it may require some shock therapy.
NASHIt may require some ending of some careers. And it may require some turbulence over the next couple of years. But I think the military can address this thing and should address it far more vigorously than they have today.
BOWMANYeah. We were talking about the report that came out this week from the Pentagon, and they have a number of issues, training issues, beefing up victims' rights and so forth. Let me just read the first one out of here. It says enhancing commander accountability. It wants the joint chiefs and the service secretaries to "develop methods to asses the performance of military commanders and establishing command climates of dignity and respect."
BOWMANNow, in this day and age, you would have to tell a commander, you should have a command climate of dignity and respect. You have to tell someone that. That's the first recommendation.
BURKEYou know, the reality of studying this issue and reading the 20 years of reports and reading the 20 years of recommendations, they do not have the answers on how to fix this. We need civilians to control this. We need to Congress to speak.
REHMAnd you've got Sen. Gillibrand, a New York Democrat, who really does want to take away sexual assault cases from the victims' chain of command. How likely do you think that could happen?
BURKEWe're very hopeful whether Sen. Gillibrand is going to be introducing legislation on the House side. Congresswoman Speier has already introduced legislation. We believe that a serious look at the UCMJ and fixing it to take the chain of command out of the position is something that is likely to occur as people become more knowledgeable.
REHMAnd you're listening to "The Diane Rehm Show." Let's go to Little Rock, Ark. Good morning, William. William -- no, he's gone. Let's go to Pensacola, Fla. Hi, Scott.
SCOTTHi, Diane. Thanks for taking my call this morning.
SCOTTIn light of the recent disturbing report that's come out, one thing that I've been curious about -- I've been in the Navy for seven years -- is how big of a problem is this compared to civilian society or the civilian world in pure numbers, really, in conviction rates and in frequency and occurrence rates. And maybe a direct comparison would be college campuses.
BURKEIn terms of the comparison, what we know from the data is that the conviction rate in the military of the reported cases is, at best, about seven to 8 percent. That compares to a civilian rate of roughly 40 percent.
REHMNow, what about the occurrence in the civilian, military, college populations?
BOWMANWell, apparently in the general population, about 0.2 percent of American women over the age of 12 were victims of sexual assault in 2010, so 0.2 percent in the civilian population, in the military, 6 percent.
NASHBut the fact of the matter is the military needs to be better than the civilian standard.
REHMBut it isn't.
NASHThat's exactly right. And that's the crime here.
REHMAnd the crime may also be how the military sees itself in terms of being its own arbiter. But you believe it can be reformed?
REHMAnd you don't?
BOWMANI'll continue reporting it.
REHMAnd, Susan, how optimistic are you about your cases?
BURKEWell, the legal terrain is difficult for us. There are a series of Supreme Court decisions that have given great deference to the military. However, in each of those cases, the underlying conduct had some sort of military purpose or military mission. So the -- so what we are arguing is that we don't fall into that category. The military itself has admitted that rape and sexual assault undermine military readiness. They have no military purpose. So we hope to be able to persuade the justices that they should not defer to the military.
REHMSo I don't understand here. Will you take your cases into a civilian court or a military court?
BURKEThey are already pending in civilian courts. We have had two district court, the lowest level in the federal system -- two district court judges have dismissed them, saying that the judicial system has to refrain from hearing the cases at the request of the military. We have appealed those dismissals. And we'll be arguing next Friday, May 17, before the Court of Appeals for the Fourth Circuit, asking that they hear the case.
REHMWell, we shall see. Susan Burke, she is a Washington, D.C., lawyer representing military rape victims, Tom Bowman, NPR Pentagon correspondent, Maj. Gen. Bill Nash, U.S. Army-retired military analyst. And to Rebekah Havrilla, a former Army sergeant, thank you for coming forward. Thank you all for being here.
REHMAnd thanks for listening. I'm Diane Rehm.
ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Casey Nabors, Rebecca Kaufman, Lisa Dunn and Danielle Knight. The engineer is Erin Stamper. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is email@example.com.
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