The President Has Made Military Sexual Assault Cases More Complicated, Experts Say

When the commander-in-chief told reporters this month that it's "a very scary time for young men in America" in light of accusations of sexual misconduct, it undermined years of progress the military has made in getting more victims to come forward, legal experts say.

President Donald Trump's comments -- and subsequent statements in which he called sexual assault allegations made against Supreme Court Justice Brett Kavanaugh a hoax -- could have a chilling effect on getting any sexual assault victim, military or civilian, to speak out, said retired Army Lt. Col. Geoffrey Corn, a professor at South Texas College of Law who served as a longtime judge advocate.

In the military, though, where Corn said leaders have made real progress in getting more victims to report possible crimes, "there can be no doubt" that the commander in chief's comments will hurt those efforts.

"Say you're in the gym. You've been victimized the night before, and you're watching a clip from the president about how men are the ones in trouble and it's unfair to them if you don't report with corroborating evidence," Corn said. "You're going to say, 'Forget it. I'm a private in the Army or the Air Force and I've got to go tell a colonel or a captain. ... I don't stand a chance.' "

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The White House did not respond to a request for comment.

Kavanaugh, Trump's pick to serve on the Supreme Court, faced a tumultuous confirmation process. Emotions ran high as Americans watched back-to-back congressional testimony from Kavanaugh and Christine Blasey Ford, a woman who accused him of sexual assault when both were in high school decades ago.

Republicans argued that it was a "he said, she said" case, and that Kavanaugh had been found guilty by mob rule without any due process. Democrats argued that the allegations by Blasey Ford and others had not been taken seriously and weren't thoroughly investigated by senators across the aisle. The commander-in-chief took sides on Twitter and mocked Blasey Ford during a rally.

Kavanaugh was eventually confirmed Oct. 7 by a 50-to-48 vote, the thinnest margin of a Supreme Court justice in decades, and one that seemed to mirror the country's fiercely divided views.

The public was now involved in a debate that has played out in the military for years, said retired Air Force Lt. Col. Rachel VanLandingham, a Southwestern Law School professor and former judge advocate. Like Corn, she's worried about how it will affect victim reporting in military units.

"It's insidious and it's subtle, but I think the effect could be that it dampens a survivor's or victim's willingness to come forward with these reports because they're already afraid they're not going to be believed," she said.

Muddling the Toughest of Cases

Nearly 4,200 female service members and 1,084 men reported a sexual assault in the military in 2017, up 10 percent from the year prior. More than half of those cases -- 54 percent of them -- resulted in criminal charges being referred to court-martial. That was down from 71 percent in fiscal 2013.

Deciding sexual assault cases can already be exceptionally difficult, Corn said. Adding in questions about how military or civilian juries have been influenced by the president, senators or other national-level conversations only makes that tougher, he added.

"Military judges have to be more vigilant now in the jury selection process and the questioning of potential jurors to make sure ... this public discourse has not undermined their capacity to fulfill their judicial function, which is to have an open mind to assess the evidence fairly," Corn said.

This isn't the first time a commander-in-chief's comments about sexual assault could spill into military court proceedings. In 2013, a Navy judge ruled that two defendants could not be punitively discharged because President Barack Obama's comments about having a zero-tolerance policy for military sexual assault were deemed as unlawful command influence.

Former Marine Corps Commandant Gen. Jim Amos was also found to have exercised unlawful command influence during a service-wide tour, in which he spoke to Marines about sexual assault. That tough talk led to a court of appeals overturning a staff sergeant's sexual assault conviction.

Enforcing the rules without influencing future cases is a tricky issue for commanders, said retired Navy Capt. Lory Manning, director of government relations at the Service Women's Action Network, especially since those officers are often in charge of both the victim and the accused.

"That's a very fine line, and it's going to take court cases ... to figure out and provide much better guidance when you have a dual responsibility of preventing sexual assault and dealing with the aftermath if it happens," she said. "We need more case law and more nuanced training."

Because of the pressure from Congress and others to stamp out sexual assault in the ranks, commanders sometimes feel compelled to push sexual assault cases to court-martial, which isn't always the right move, said Corn, who has advocated for keeping that decision-making power with commanders.

Since Trump's comments didn't speak as directly to military sexual assault as Obama's did, VanLandingham said it's unlikely they'll result in successful unlawful command influence claims.

But, Corn said, the comments could nonetheless make a prosecutor's job harder.

"You have the commander-in-chief and the president of the United States basically endorsing the narrative that anybody who doesn't make an immediate or prompt report with substantial corroborating physical evidence is probably fabricating the accusation," he said.

A Commander's Duty

In the aftermath of the Kavanaugh confirmation, it will be incumbent on military commanders to create and foster an environment in which sexual assault victims trust the system enough to come forward, experts said.

"The military has struggled, even under the best of circumstances, with getting young women and young men who've been sexually assaulted to come forward," Manning said. "They've tried all kinds of things, so we need to do a much better job ... of making them feel safe, respected and listened to when they do."

Marine Commandant Gen. Robert Neller said that's his top message for commanders and senior enlisted personnel.

"'I can't tell you what to do on an allegation of any kind, but I can tell you that you can't do nothing,'" Neller said he tells them.

The Marine Corps saw the biggest spike in sexual assault reports in 2017 with 998, a 14.7 percent increase over the year prior.

"Our numbers are not going down, but the people who do this professionally tell me that's good because it shows that people are still willing to come forward and report allegations," Neller said last week. "To me, the two metrics are, do the Marines have confidence that the chain of command is going to listen to them? And do they trust them? Those numbers have increased over the years."

Proper training for those hearing the allegations and determining whether to pursue charges will be imperative in this process, VanLandingham said. Biases and inappropriate decision-making are overcome through proper procedures and good education and training, she said.

"That's where the military's training on sexual assault is so, so important," she said. "That informs those folks sitting in judgment. So training has to be more than a bunch of PowerPoint slides. ... It has to be meaningful."

Ultimately though, everyone involved in the legal process will need to be vigilant in the wake of Trump's comments -- from ensuring victims still report to making sure jury members deciding cases aren't influenced by his remarks.

"Words matter. When comments such as these are made by the commander in chief, they can have a powerful impact because of who is making them," VanLandingham said. "Therefore, leaders both in and out of uniform need to try even harder to combat inaccurate biases and unfair stereotypes that can undermine the fair evaluation and disposition of allegations of sexual assault.”

-- Gina Harkins can be reached at gina.harkins@military.com. Follow her on Twitter at @ginaaharkins.