Sexual Assault Cases Flood Military Courts

Military leaders’ awareness programs designed to curb the rise in sexual assault rates and scandals such as the one in Texas that has rocked the Air Force could actually make it easier for sex predators to receive acquittals in court, said military lawyers and sexual assault advocates.

Air Force Chief of Staff Gen. Mark A. Welsh III faced stern questions over the service’s sexual assault scandal at Lackland Air Force Base, Texas, where at least 38 female recruits have reported that basic training instructors have sexually assaulted them. One instructor convicted of raping a female recruit has received a 20-year jail sentence.

Senators asked Welsh how the Air Force could allow this to happen at a facility that trains roughly 35,000 recruits per year. He admitted to the senators the Air Force has failed to curb sexual assault in the Air Force. Welsh suggested the Air Force should impose stiffer punishment on minor offenses and find a method to screen out potential sexual predators.

“Everyone is trying to do the right thing and figure out some way of stopping this, but the fact is we have not. In fact, we have not even reversed the trend,” he said. “The one thing none of us have figured out how to do is stop the perpetrator before the crime.”

Sexual assault in the military has launched into the national spotlight as rates rise, especially after the release of “The Invisible War,” an award-winning documentary on the spree of sexual assaults female servicemembers endure. The documentary highlights the statistic that one-in-five U.S. female veterans have sustained some form of sexual assault.

Each military service has ramped up awareness programs and encouraged female troops to report sexual harassment and assaults. Welsh is not the only member of the Joint Chiefs of Staff to lead a crack down on sexual assault. Marine Corps Commandant Gen. James Amos started a new sexual assault prevention campaign this summer.

Military lawyers said the Pentagon leadership has the right intentions, but these prevention campaigns have flooded military court rooms with so many sexual assault cases, it’s made it harder to prosecute guilty sexual predators.

Prosecutors lack witnesses or strong evidence in the majority of cases, making it hard to yield a conviction, said Michael Waddington, a military defense lawyer and former judge advocate in the Army. He sees too many cases that involve alcohol and depend on hearsay.

The military has the resources to take many sexual assault cases to court, said Philip Cave, a military defense lawyer and retired Navy lawyer. Waddington estimated that ninety percent of the sexual assault cases taken to court-martial would be thrown out in a civilian court because of a lack of evidence.

Judges and juries are skeptical at this point, Cave said. Earning convictions such as the ones seen in the Lackland case is rare.

“There’s almost a presumption that the girl is a liar,” Waddington said. “The juries want to see some physical evidence. The guys in three of my past four [sexual assault] cases have been found not guilty.”

Lawyers pointed out they don’t want to dissuade women from reporting sexual assaults, but they said the lawyers and commanders involved must be careful they don’t overload courtrooms with cases that have no hope of earning convictions.

“They are getting to the point that they are getting counterproductive on the legal side,” Cave said. “We are going to have a situation where [the military prosecution] is going to lose cases because of it.”

Greg Jacob, policy director for the Service Women’s Action Network, worries military leadership is not doing enough to discharge those troops who are convicted of sexual assault. A report by the Sexual Assault Prevention and Response Office of the Department of Defense found that 64 percent of convicted sexual assault perpetrators were discharged from the military.

“That means we are retaining one in three sex offenders,” he said.

Welsh’s suggestion the Air Force create a test to screen out potential sex predators met skeptical responses from the military lawyers and sexual assault advocates contacted for this article. None could think of an existing test or screening process to prevent sexual predators from joining the military.

“If what he’s trying to do is prevent these people from coming into the service, there really is no way that I’m familiar with to screen predators out,” said Roger Canaff, a former prosecutor and president of the board of directors for End Violence Against Women International.

The Air Force should implement a policy similar to the Navy’s which bans all convicted sex offenders from being recruited or commissioned, Jacob said. Sex offenders are not eligible for housing or entry on Navy or Marine Corps installations.

Jacob suggested the Air Force work harder to keep tabs on those airmen who have received sexual harassment complaints. He noted the direct correlation between sexual harassment and sexual assault.

“Perpetrators like to test the waters. They will harass a potential victim to see how they will respond and how those around them respond,” Jacob said. “If there is no enforcement or policy or punitive reaction, they are essentially assured that they can commit the crime.”

Welsh told Congress he’d like to impose stiffer penalties for those convicted of sexual assault. Canaff commended this approach, saying it could force predators to stop considering the military a safe place to prey.

‘It’s a slow process of converting your environment that involves systemic changes that people on the military side are, frankly, not prepared to make,” he said.

However, imposing minimum sentences for sexual assault convictions in a military court would take an act of Congress. Only murder has a minimum sentence, Cave said.

The military trails the civilian court system with regard to jail time for sex offenders. Currently, convicted sex offenders in the military receive about two years in jail per victim. The average ratio in civilian courts is 10 years per victim.

Welsh said he is worried that sexual assault has the potential to “rip the fabric of your force apart over time” if it hasn’t already. The Air Force must address a culture that allows sexual assault to occur or Welsh risks adding his name to a “litany of leaders who wring their hands and say ‘zero tolerance’ over and over again,” Jacob said.

“If they are going to work on this, it must be from a cultural aspect to address harassment, victim assistance and retaliation against victims,” he said.