June 3, 2013

Better Protection for Soldiers Who Blow the Whistle on Military Sexual Abuse

By Gordon Schnell and Marlene Koury

We have the finest military establishment in the world.  But when it comes to protecting our troops from sexual abuse, apparently we have a very long way to go.  That was the finding of a recently released Pentagon report on the level of sexual harassment and assault in the military.  It estimated that last year more than 26,000 military service members experienced some form of “unwanted sexual contact” ranging from harassment to assault and rape.  This represents a significant jump from the already troubling number of 19,200 episodes the Pentagon reported in 2010.  Defense Secretary Chuck Hagel said that sexual assault is “one of the most serious challenges” facing the military and one that threatens “the health, reputation and trust of this institution.”

But it is not just the rampant abuse that is the problem.  What is equally disturbing about the Pentagon’s findings is that the vast majority of those who are abused are keeping quiet about it.  Fewer than 3,400 of them — only 13 percent — are coming forward and reporting the abuse.  According to the Pentagon report, the reason for this silence is a fear of retaliation.  And it is a fear that would appear to be well-founded.  The report found that 62 percent of those brave few who did report incidents of sexual misconduct experienced some form of retaliation.

These numbers signal a serious problem within our military.  Top military officer General Martin Dempsey recently said, “[w]e’re losing the confidence of the women who serve that we can solve this problem. That’s a crisis.”  The crisis and the congressional response to it are still evolving as new allegations surface, including allegations of assaults by the very officers charged with stamping out sexual assault in the military.  Indeed, only two days before the Pentagon report was released, Lt. Col. Jeffrey Krusinski, the officer in charge of the Air Force’s sexual assault prevention program, was arrested and charged with sexual battery for grabbing a woman’s breasts and buttocks in an Arlington, Virginia parking lot.  The Army has also recently disclosed that the coordinator of its sexual assault prevention program at Fort Hood is under investigation “for pandering, abusive sexual contact, assault and maltreatment of subordinates.”

This clear and present scourge on our military has certainly gotten everyone’s attention.  Even President Obama has made it a top priority, recently declaring that “[i]f we find out somebody’s engaging in this stuff, they’ve got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged.  Period.”  The problem is that unless service members feel comfortable stepping forward and reporting the sexual abuse, the vast majority of it will remain undetected and free to fester.

That is where the Military Whistleblower Protection Act of 1988 is supposed to come in.  It was enacted to protect those reporting on abuse and misconduct within the military.  It obviously has not served its purpose.  This was confirmed in a report issued last year by the Government Accountability Office which detailed the many failings of the law.  Leading the list was the time it took the government to investigate reports of military whistleblower retaliation — 450 days.  This far exceeds the 180-day maximum the law requires.  The GAO report also found that only 19 percent of military whistleblowers who reported retaliation chose to undertake the byzantine bureaucratic process to amend their service records besmirched by retaliatory reviews.  Tom Devine of the Government Accountability Project recently addressed the weakness of the law, stating that “sexual assaults in the military continue for the same reasons as other human rights violations – secrecy coupled with weak or nonexistent rights to challenge abuses of power.  For 25 years, the Military Whistleblower Protection Act has been so weak that GAP has advised soldiers not to file complaints under it.”

But all of this may be about to change if the twin senators from Virginia, Mark Warner and Tim Kaine, have their way.  Last week they introduced legislation that they hope will plug the many holes in the military’s weak whistleblower protection law.  If enacted, their Military Whistleblower Protection Enhancement Act of 2013 would provide explicit protections to military whistleblowers that are lacking under the current law.  This would include:

  • Expanding the scope of disclosures of wrongdoing that are covered by the anti-retaliation protections.
  • Ensuring that service members have a fair chance of demonstrating that retaliation has occurred (by reducing the associated burdens of proof so they are more closely aligned with those contained in virtually every other private and public sector whistleblower law).
  • Ensuring that services members have a reasonable opportunity to file a complaint (by extending to one year the current 60-day statute of limitations).
  • Adding much needed accountability to the process by requiring the Inspector General to determine if retaliation has occurred and, if so, to take action to remedy the violation or report to Congress why no action was taken.
  • Providing a credible review process by allowing service members to request a hearing before the Board of Correction of Military Records and be provided with legal representation.

While the new law, if passed, would not alone solve the dire problem, it is an overdue correction to the current law, and a necessary step to putting a stop to the sexual assaults that seems to be raging within our military.  That was the precise sentiment expressed by Senator Warner in announcing his bill: “Service members should not be victimized in the first place, but when it does occur, there should be a culture in place that supports speaking-out.  Unfortunately, that culture does not exist today.  Improving the military’s whistleblower system is just one part of the solution, but it will be an important step forward in stopping the epidemic of violence against women and men who serve in the U.S. military.”

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If you would like more information or would like to speak to a member of Constantine Cannon’s whistleblower lawyer team, please click here.

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