Rape Reporting in the Military
ccording to Marine Corps lore, semper fidelis, a Latin phrase for “always faithful,” commands Marines to remain a “brotherhood, faithful to the mission at hand, to each other, to the Corps and to country, no matter what. Becoming a Marine is a transformation that cannot be undone and once made, a Marine will forever live by the ethics and values of the Corps.”
The Marine Barracks in Washington, D.C., is the official residence of the commandant of the Marine Corps. It is the home of the Marines who are the ceremonial guard for the president during official U.S. government functions and the security force for the White House and Camp David. The Marine Band, also located at the Barracks, is known as “The President’s Own.” The Barracks is the showplace of the Marine Corps with its Silent Drill Platoon giving weekly military precision performances for the public during the busy summer tourist season.
But the Marine Barracks has its dark and ugly side. It is also the home of officers and enlisted men of the Marine Corps who have been accused of sexually harassing, assaulting and raping female Marine officers and enlisted and civilian women who work there.
According to information provided by the Marine Barracks Washington legal adviser at the request of the Senate Armed Services Committee minority counsel, from 2009 to 2010 three female Marines and two civilian women reported to the Naval Criminal Investigative Service (NCIS) that they had been raped by male Marines. Two of the female Marines held high-visibility jobs at the Barracks and said they were raped by senior officers.
During the same period, two other female Marines and two other civilian women reported that they had been sexually harassed by Marines at the Barracks.
Second Rape Lawsuit Filed Against Marines, Navy and DOD
On March 6, 2012, attorney Susan Burke filed a federal lawsuit in U.S. District Court in Washington, D.C., on behalf of eight military women – four Marines and four Navy members – who said they were raped while in the service. Two of the four female Marine officers served at the Barracks and alleged that they had been raped by Marines assigned there. The two, Lt. Ariana Klay and Lt. Elle Helmer, spoke at a news conference announcing the lawsuit and on national TV shows afterward.
This is the second lawsuit filed in a little over a year against the Department of Defense on the issue of rape in the military. The first lawsuit was filed on Feb. 15, 2011, and was brought by 15 female and two male active-duty military personnel and veterans. They accused the DOD of permitting a military culture that fails to prevent rape and sexual assault and alleged that it mishandled cases that were brought to its attention, thus violating the plaintiffs’ constitutional rights.
On Dec. 9, 2011, U.S. District Judge Liam O’Grady dismissed the suit, saying the sexual assault allegations were “troubling” but that Supreme Court and other court decisions had advised against judicial involvement in cases of military discipline. O’Grady cited Gilligan v. Morgan, decided in 1973 by the U.S. Supreme Court, which determined that “matters of military discipline should be left to the ‘political branches directly responsible – as the judicial branch is not – to the electoral process.’ ” O’Grady said, “Not even the egregious allegations within the plaintiffs’ complaint will prevent dismissal.”
The March 2012 lawsuit names current and former secretaries of defense and military chiefs of the Navy and Marine Corps as defendants. It alleges that “Although defendants testified before Congress and elsewhere that they have ‘zero tolerance’ for rape and sexual assault, their conduct and the facts demonstrate the opposite: They have a high tolerance for sexual predators in their ranks, and ‘zero tolerance’ for those who report rape, sexual assault and harassment.” The lawsuit alleges that “Defendants have a long-standing pattern of ignoring congressional mandates designed to ameliorate the armed services’ dismal record of rape and sexual assault. As but one example, defendant [Leon] Panetta [secretary of defense] continues to violate the law requiring the Department of Defense to establish an incident-specific Sexual Assault Database no later than January 2010.” More than two years later, the database still does not exist.
“Rather than being respected and appreciated for reporting crimes and unprofessional conduct,” the lawsuit alleges, “plaintiffs and others who report are branded ‘troublemakers,’ endure egregious and blatant retaliation, and are often forced out of military service.”
Lt. Ariana Klay
According to the lawsuit, Klay, a Naval Academy graduate, served as a protocol officer for the Marine Barracks. She alleges that while there, she was sexually harassed by a lieutenant colonel, a major and a captain. She said she was gang-raped by a Marine officer and his civilian friend, a former Marine. Klay alleges that the Marine officer threatened to kill her and told his friend he would show him “what a slut she was” and “humiliate” her.
After she reported the alleged rapes and subsequent harassment, the Marine Corps investigation ruled that she welcomed the harassment because “she wore makeup, regulation-length skirts as a part of her uniform and exercised in running shorts and tank tops.”
The Marine Corps did not punish any of those who were accused of sexually harassing Klay. One of her alleged harassers was granted a waiver by the Corps that permitted him to get a security clearance despite accusations of hazing and sexual misconduct against not only Klay but many others. He was selected to be in a nationally televised recruitment commercial while he was still under investigation. According to the lawsuit, the Marine Corps featured Klay’s alleged rapist and a harasser in the Marine calendar.
The Marine Corps finally court-martialed one of Klay’s alleged attackers but didn’t convict him of rape, instead finding him guilty of adultery and indecent language (a common escape by military courts from the rape charge). The military court ruled that Klay “consented” to having sex with the men despite the evidence that the accused threatened to kill her.
Klay has attempted suicide since the alleged rapes and harassment and has been diagnosed with post-traumatic stress disorder.
Lt. Elle Helmer
In 2005, Helmer was appointed the public affairs officer for the Barracks, the federal lawsuit says. In 2006, she was selected to also serve as the first female “ceremonial parade staff flanking officer.” Helmer alleged that the “selecting” officer, a Marine captain, made continuing sexual advances to her that she reported to the Marine Barracks equal opportunity officer. Nothing was done to stop the advances, Helmer said.
Another superior officer, a major, required Helmer to attend a “pub crawl” for St. Patrick’s Day that had been endorsed by the unit’s colonel, the lawsuit alleges. When Helmer objected to going, she says the major told her that it was a mandatory work event. The pub crawl involved Marine officers identified by the T-shirts they were wearing going from bar to bar on Capitol Hill drinking excessive amounts of alcohol, paid for by the Marine Corps, the lawsuit says. Helmer says she was required to drink shots of liquor at the same pace as the bigger male officers and when she drank water to try to keep herself from becoming intoxicated, she was required by the major to drink an extra shot as a punishment.
Helmer became intoxicated and left the group to find a cab home. She said the major followed her and told her that she must come with him to his office to discuss a business matter. When they reached his office, Helmer alleges, the major tried to kiss her and when she resisted he grabbed her and knocked her over. She says she lost consciousness at that point.
Upon regaining consciousness, she said, she found herself lying on the floor in the major’s office, wearing his shorts. He was allegedly passed out on the floor nearby, naked.
Helmer left the office and reported to the Marine Command that she had been raped. She alleges the colonel there discouraged her from asking for a rape kit examination, saying it would “be out of his hands.” Nonetheless, Helmer got a medical examination that employed a rape kit.
NCIS initially refused to investigate Helmer’s allegations, despite the medical and circumstantial evidence, saying that her inability to recall the incident precluded any investigation. After a delay in which the alleged crime scene was destroyed, NCIS eventually conducted a brief investigation and because of Helmer’s lack of consciousness during the incident concluded that nothing could be done. Additionally, the Marine Corps reported it had lost the Helmer rape kit, the medical evidence allegedly indicating rape.
Helmer took the case to the major’s superior officer, who acknowledged that the NCIS investigation was “woefully inadequate” and removed the major from his command. No further steps were taken, the lawsuit alleges. Helmer says the superior officer told her, “You’re from Colorado – you’re tough. You need to pick yourself up and dust yourself off. I can’t baby-sit you all of the time.”
Helmer says she was eventually forced to leave the Marine Corps. The alleged rapist remains a Marine officer in good standing.
Rape Reporting in the Military
The Department of Defense estimates that only 20 percent of military personnel who experience “unwanted sexual contact” report it to military authorities because the accusations can be met with suspicion and the victims can experience retaliation.
In 2009, 3,230 service members reported being raped or sexually assaulted, but the Department of Defense estimated that 16,150 actually were raped or sexually assaulted during that year.
In 2010, 3,158 military personnel reported sexual assault or rape. The DOD estimated 15,790 were actually raped or assaulted.
In addition, in 2010, 68,379 veterans had at least one VA outpatient visit related to military sexual trauma. About 40 percent of those outpatients – nearly 27,000 – requesting treatment for military sexual trauma were male veterans.
Retaliatory Culture for Those Reporting Rape
The Department of Defense has finally quantified the retaliatory culture of the military. The DOD 2010 Annual Report on Sexual Assault in the Military found that 44 percent of active-duty women and 20 percent of active-duty men who had been victims of sexual assaults or rapes did not report them because “they thought their performance evaluation or chance for promotion would suffer.” Even more decided not to report because they “thought they would be labeled a troublemaker.”
Most rapists evade any form of punishment, much less incarceration. The DOD sexual assaults report said that fewer than 8 percent of suspected perpetrators were court-martialed and convicted, while in civilian life 40 percent of the accused were prosecuted. Most military personnel who have committed rape or sexual assault are allowed to be honorably discharged; if they’re forced to retire, they still receive their full benefits.
The DOD does not maintain a military sex offender registry that can alert service members, unit commanders, communities and civilian law enforcement to the presence and movement of sexual predators. Military sex offenders are not placed in the national sex offenders’ database created by the Department of Justice.
The Navy and Marine Corps give a substantial number of waivers to potential recruits who have criminal records, including felony convictions. A 2007 study found that in 2006 the Marines gave 20,750 recruits (54.3 percent of all those recruited that year) waivers for criminal convictions. In 2005, 20,426 recruits (53.5 percent) were given them.
In 2006, the Navy gave 3,502 recruits, or 9.7 percent of those recruited, waivers for criminal conduct. In 2005, it gave them to 3,467 recruits, or 9.2 percent.
According to a 2009 study, 13 percent of men enlisting in the Navy admitted that they had raped someone. Of those men, 71 percent admitted to serial rapes. The perpetrators said that they targeted people they knew rather than strangers and generally used drugs or alcohol rather than brute force to incapacitate their victims.
What Can Be Done to Stop Rape and Boost Prosecutions?
Anu Bhagwati, a former Marine Corps captain and company commander and now executive director of the Service Women’s Action Network, says that the Pentagon’s primary solution for ending rape is through its Sexual Assault Prevention and Response Office (SAPRO), which has no law enforcement authority to prosecute or punish. She says SAPRO’s messaging to military troops is questionable, including its infamous poster that says “Ask Her When She’s Sober.”
Bhagwati strongly believes that the military should have all sexual assault cases handled at the General Court Martial Convening Authority level, where a general officer – with more experience, maturity and impartiality than a junior commander in whose unit the alleged crime occurred – would decide whether they should be prosecuted.
Another option is offered in the Sexual Assault Training Oversight and Prevention Act (the STOP Act), introduced by Congresswoman Jackie Speier on Nov. 16, 2011. H.R. 3435 would take the reporting, oversight, investigation and victim care of sexual assaults out of the hands of the military’s normal chain of command and place jurisdiction for them in the newly created, autonomous Sexual Assault Oversight and Response Office, composed of civilian and military experts.
Speier has been talking about the issue of rape in the military each week for four months on the floor of the House of Representatives.
Because of the reluctance of the military to prosecute sexual predators, Bhagwati also calls for reform to allow service members access to the federal courts for civil redress of these crimes. Currently, service members cannot bring a tort claim in federal court for rape, sexual assault and harassment cases and other crimes and acts of negligence by the military, including medical malpractice and workplace discrimination.
There is a pattern of the military using psychiatric diagnoses to get women who report sexual assaults out of the military.
According to a Freedom of Information Act request, from 2001 to 2010 the military discharged more than 31,000 service members, citing a personality disorder – “a long-standing, inflexible pattern of maladaptive behavior and coping, beginning in adolescence or early adulthood.” The military considers a personality disorder diagnosis as a non-service-related, pre-existing condition. Veterans Affairs will not provide treatment for a pre-existing condition, and the service members are left without treatment for their sexual assault trauma. Additionally, service members who are diagnosed with a personality disorder and are discharged lose GI Bill educational benefits and have to repay re-enlistment bonuses.
Military records obtained by Yale Law School’s Veterans Legal Services Clinic through a separate Freedom of Information Act request show that the personality diagnosis is used disproportionately on women. In the Army, 16 percent of all soldiers are women, but they constitute 24 percent of all personality disorder discharges. Women make up 21 percent of the Air Force but account for 35 percent of personality discharges. In the Navy, women account for 17 percent of the total members but 26 percent of personality discharges, while the 7 percent of the Marine Corps who are female account for 14 percent of the personality discharges. The records do not state how many women were ordered discharged from the military with a personality disorder diagnosis.
On April 16, 2012, after pressure during meetings with congressional leaders, Secretary of Defense Panetta said he would ensure that officers of at least the rank of colonel with special court-martial authority would oversee sexual assault cases rather than junior officer commanders. Although reported sexual assaults continue to rise, junior commander-initiated actions to prosecute offenders were down 23 percent, courts-martial were down 8 percent and convictions decreased 22 percent from 2010 to 2011.
Panetta also will recommend to the military that special victims units be established to handle the offenses and that National Guard and Reserve members be allowed to remain on duty after they are sexually assaulted so they can obtain treatment and support, which they currently lose when they are removed from active duty.
To learn more about rape in the military, see the film “The Invisible War.” It won the audience award at the Sundance Film Festival in January.
About the Author: Ann Wright is a 29 year US Army/Army Reserves veteran retired as a Colonel and a former US diplomat, who resigned in March, 2003 in opposition to the war on Iraq. She was an organizer of the 2011 US Boat to Gaza, “The Audacity of Hope” and was on the 2010 Gaza flotilla that the Israeli military attacked and killed 8 Turkish and 1 American citizen and wounded 50. She is the co-author of the book “Dissent: Voices of Conscience.” (www.voicesofconscience.com).