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July 05, 2012

The Editorial Board of the WaPo Have Found A Witch!

And they're just itching to burn him at the stake without so much as a trial! Imagine our amusement to find this Monty Pythonesque pronouncement in today's Editorial:

One area that clearly demands immediate attention is how the military punishes those who are accused or convicted of sex crimes.

Since when has punishment preceded a formal finding of guilt?

One could certainly make the argument that all accusations of sexual misconduct should be investigated, but surely even the Editors of the WaPo can see the problem with their deliciously Freudian slip? Do they seriously mean to suggest that military men deserve fewer legal protections than the citizens they defend?

Should every allegation of sexual misconduct be fully investigated and brought to trial regardless of the strength of the evidence? That's highly doubtful. Civilian prosecutors don't take every accusation to trial in the real world because resources are finite and allowing cases to proceed without sufficient evidence encourages the legal system to be used as a vehicle for harassing the innocent.

How is military rape worse than civilian rape? The vast majority of sexual assaults are committed by someone the victim knows. Counter to the media stereotype, most sexual assaults do not involve force. Women often don't report the attacks until months later and don't see a doctor.

Often, there's no physical evidence. That's a problem for both accusers and the accused:

"Right now the attitude of guys is to be extremely cautious with girls because they are afraid of them pulling the 'rape card,'" said one Marine. "The military will never say this happens, because they will run off of statistics of court martial convictions. The military has no way of knowing who actually was raped."

Why would someone pull the "rape card"?

Attorneys Richard Stevens and Frank Spinner defend military cases. Through their work navigating the military justice system and defending the accused, they've seen a number of motives for false rape claims:

"Guilt and confusion after a night of drinking. Avoiding a boyfriend or husband’s reaction to unfaithfulness. Shielding oneself from the consequences of one’s own misconduct. Protecting one’s reputation from the 'promiscuous' label. Anger over a sexual encounter not blossoming into a long term relationship as expected," are listed in their experience as court martial lawyers.

You can look up military cases where alleged victims retracted their stories, are exposed for lying, or apologized to the accused in court. False claims not only put innocent people in a damaging position, but they also offend true victims.

The active-duty Marine continued, "A lot of people don't believe women will do that, but they do. Of course, not all of them do and, as with anywhere in society, rapes happen. And those who are raped are offered probably the most decisive way of bringing your rapist to justice the country has seen. All you have to do is say it happened, and that Marine is taken to court martial."

An accusation of criminal behavior can ruin not only careers, but marriages and lives. Suggesting that the military punish accused personnel based solely on the word of the accuser violates the fundamental legal protections our system is based upon.

The real problem the Editors of the Post don't want to talk about is that human sexual interactions are messy and anything but rational. There is no excuse - none whatsoever - for officers or senior enlisted personnel to have even consensual sex with personnel junior to them. Under the UCMJ, that's a punishable offense in its own right - fraternization. But proving that rape has occurred is far from the simple exercise the Post seems to envision, and in America citizens accused of a crime have rights too.

Sadly, the Post seems to believe this is a problem that needs to be fixed.


Posted by Cassandra at July 5, 2012 07:26 AM

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Comments

Counter to the media stereotype, most sexual assaults do not involve force.

I'm not sure I understand what you mean here. What is an example of something that would constitute an assault without force?

Posted by: Grim at July 5, 2012 01:44 PM

I would hazard that assault inflicts APPREHENSION of physical violence as opposed to battery which involves physical violence. In the over-heated rhetoric of the moment claiming "I was assaulted " could be nothing more than a lascivious look resulting in "my eyes are up here...!" I suppose battery could be a rough kiss at a minimum.

In either case, it is one of those things you don't want to have to defend, especially if the alleged aggressor is innocent, as in "I don't beat my wife." It is our culture that women are to be respected and protected. Any complaints to the contrary tend to portray the strong male versus the weak innocent female. Now there is a topic worth discussing. I recall the historic "Tailhook Convention" and the effects of that boys gone wild fiasco. I also recently visited Coronado Island where the bars are loaded with SEALS, BUDS, poseurs, female and male SEAL groupies, loudmouths and grifters of both sexes.

Hell hath no fury like a woman scorned. Along those lines, Hell hath no fury like a Commander embarrassed as the result of a court martial.

Posted by: vet66 at July 5, 2012 02:28 PM

What is an example of something that would constitute an assault without force?

Taking advantage of a woman too drunk or drugged to consent. Cases where a younger or junior female doesn't fight off advances because she is intimidated.

Now I'm not sure all of these things ought to be called rape, but the fact is that once you broaden the definition of rape/sexual assault to include any non-consensual sexual contact, force is no longer a requirement.

Posted by: Cass at July 5, 2012 02:59 PM

I see. Thank you.

Posted by: Grim at July 5, 2012 03:18 PM

If you can understand all of this, you're doing a better job than I am, Grim :)

Personally, part of being a Big Girl and being equal enough to be in the armed forces ought to be taking responsibility for your own decisions. I have a real problem with the "I didn't want to have sex, but I didn't demand in no uncertain terms that he stop either."

If you have said "No", loudly and repeatedly and put up more than token resistance, I am inclined to say that sex was non-consensual. I'm not sure whether the law should require a woman to get beaten up just so she can say that she meant it when she said, "No."

But on the other hand, the decision to just go along with it means you're not going to have any evidence that you didn't consent. Tradeoffs, again.

It seems to me that part of this whole line of reasoning is an implicit admission that women are different from men (and in fact, that we're less capable/inclined to defend ourselves). Which may well be true, but seems problematic if you're arguing that requiring the military to admit women isn't going to impact readiness, morale, or discipline.

Posted by: Cass at July 5, 2012 03:55 PM

Well, it's a tricky legal problem, and a tricky issue in terms of women serving in the force. But I have to admit that what really perplexes me is the appearance of an epistemic problem, and where I least expected one!

That is, I would have thought that one thing I could know with some certainty is whether or not I had assaulted anyone. If someone asked you, "Did you assault Jane?", normally I would expect you to be able to give an answer in the form "Yes" or "No." It sounds like there are some cases here where the answer might be "I don't know," or even "I can't know until she tells us."

For example, at least the "younger female who doesn't object because she feels intimidated" could be a case in which you could be guilty of assault without knowing you had assaulted someone. (Even in the case of a junior female, you might know you were guilty of fraternization but not that you were guilty of assault.)

So you could say, "I never employed any actual or threatened force against Jane for any purpose," but not, "I never assaulted Jane." The question would turn on whether Jane was internally intimidated by you, which you simply might not know. You could say, "Why would she be intimidated? I didn't threaten her." But you couldn't say with confidence whether or not you'd assaulted her.

That's surprising. I wouldn't have expected the question of assault to be hard to answer.

Posted by: Grim at July 5, 2012 04:50 PM

For example, at least the "younger female who doesn't object because she feels intimidated" could be a case in which you could be guilty of assault without knowing you had assaulted someone. (Even in the case of a junior female, you might know you were guilty of fraternization but not that you were guilty of assault.)

This is precisely the reason for the old rules about fraternization, civilian bosses not sleeping with the office help, professors not sleeping with students in their classes, etc. I actually see the logic there, though I would use the term "implied pressure" or "intimidation" rather than assault.

So you could say, "I never employed any actual or threatened force against Jane for any purpose," but not, "I never assaulted Jane." The question would turn on whether Jane was internally intimidated by you, which you simply might not know. You could say, "Why would she be intimidated? I didn't threaten her." But you couldn't say with confidence whether or not you'd assaulted her. That's surprising. I wouldn't have expected the question of assault to be hard to answer.

If people were all rational, it wouldn't be. But they're not. I doubt most men understand how many women will just go along if they find themselves in a bad position with a man rather than risk things turning violent or other professional consequences.

I have to say that any superior (officer or enlisted) who thinks his rank doesn't matter and fraternizes sexually with women far junior to him is a clueless idiot. Quid pro quo sex is as old as time, and a young woman who suspects that sexual refusal of a superior may cause her to be fired or retaliated against isn't paranoid for thinking that.

Power is misused all the time. Men are also forced, pressured or coerced into doing things they don't want to do (some of them illegal or against the rules). This is an age old problem, just in a different form.

But I agree that this definition is very troubling. Either women have to accept the conclusion that they require extra protections not afforded to men simply because they're women (and just try that one out!) OR they need to accept that they must exercise a higher degree of caution and be willing to defend themselves if cornered.

The problem is that official policy refuses to admit that women need extra protection, while surreptitiously giving them extra legal protection that, not coincidentally,
lessens the legal protections afforded to the accused.

That's not right, and it offends me.

Posted by: Cassandra at July 5, 2012 05:12 PM

Hell hath no fury like a woman scorned. Along those lines, Hell hath no fury like a Commander embarrassed as the result of a court martial.

I recall the first scandal like this that my husband investigated. It was many decades ago, and involved a senior staff NCO and brand new female recruits.

The guy was guilty as all getout. He absolutely was using his position to pressure young women into having sex with him pretty much on demand.

Now here comes the tricky part: was force used? No.

Did all the young women completely resist his advances to the best of their ability?

No.

Were some traumatized and horrified by the situation?

Yes.

Would these young women have slept with him, "but for" the strong suggestion that he would ruin them professionally?

No.

Were some others sleeping around anyway and none too particular about with whom?

Yes.

Would *these* young women have slept with him, "but for" the strong suggestion that he would ruin them professionally?

Quite possibly.

So while there absolutely WAS a problem here that the command needed to put a stop to (and they did), the situation was far from clear cut. It was messy. Very messy.

But we're not allowed to talk about that aspect of things because that would be sexist.

Posted by: Cass at July 5, 2012 05:22 PM

That is a problem. Thank you for bringing it to my attention. I hadn't thought about it in these terms before.

It's a strange concept: assault without force, arising from a purely internal emotional state over which the guilty-of-assault has neither control nor, perhaps, even knowledge. Of course, as a man with a fierce and intimidating appearance, I must now wonder if I am assaulting people merely by walking down the street. :)

Posted by: Grim at July 5, 2012 05:25 PM

However! I can be sure that I am at least not guilty of sexual assault. So perhaps the epistemic problem is solved after all.

Posted by: Grim at July 5, 2012 05:29 PM

Cassandra, maybe I'm thick, but I don't see where the *inherent* double standard comes in. Aren't the rules about fraternization applicable to female senior officers and male enlisted men as well? Are you arguing that men can never be intimidated into sex? Or are you just arguing that women somehow don't do such things?

When I was still an undergrad, a friend of mine had a boyfriend who was pretty clearly being sexually harassed by his female boss. She was constantly making sexual comments to him and making passes at him. She was considerably older than him and it made him extremely uncomfortable - I think he ended up quitting to get away from her. If he somehow hadn't been able to quit - if he needed the job, or whatnot - it's not a far stretch to think that he might have found himself faced with the classic quid-pro-quo situation. And what reading I've done on male victims of sexual assault indicates that they almost never report, and when they do, they are generally not believed. Situations that would be clearly rape with male perpetrator / female victim are seen as the male "getting lucky" when the genders are reversed (classic example being the male highschool
student and the older female teacher). I'll grant you that probably more women than men will find themselves in that position, but I don't think you can say it never happens to men. Which to me then seems to bring up the "disparate impact" argument, which I think you've argued against in the past, no?

Or am I completely misunderstanding your point? It's possible, it's early here :)

Posted by: colagirl at July 6, 2012 06:56 AM

Where did I say this never happens to men?

Men have absolutely been raped or sexually assaulted in the military, and it happens far more than people think. During the DADT debate I Googled a list of reports of sexual assault and lots of them were male on male. Again, we're not supposed to talk about this because "everybody knows" that men have been able to bunk and shower with each other for eons and there's never any problem with male on male sexual harassment/assault :p Which naturally proves that we can remove penalties and stigmas that were in place without it affecting anyone's behavior (except in positive ways - there can't be any negative consequences). Just as we could integrate women into the forces with no negative consequences... except of course for that whole epidemic of rape thingy!

When my boys were in middle/HS, one of my neighbors in quarters (a servicemember) was arrested and charged with slipping drugs into young servicemen's drinks and taking advantage of them (we're talking sodomy here).

He had been after me to let him "babysit" my sons for quite some time but there was something about him - I never could put my finger on it - that gave me the creeps, so while I was always polite, I avoided him and made sure my sons did so too.

On another duty station, the child of someone we knew was abused by an older boy. I think that statistically boys are less likely to be sexually abused than girls, but anyone who doesn't understand that boys and even men are abused way too often needs to pay closer attention.

But while we're talking statistics, the number of men who are sexually interested in other men is small relative to the number of men who are sexually attracted to women. Certainly there are men who swing both ways, too. But even if you add those two groups together, they are far outnumbered by men who are heterosexual.

Even an all male force does have to deal with and worry about male-on-male sexual assault. But although the consequences are just as bad (if not worse due to the stigma) for male victims, the overall frequency of male on male or female on male harassment/assault is just not going to be as high as male on female assault. That matters when you're looking at readiness and how much time the command has to spend adjudicating and investigating complaints.

And yes, women can sexually harass men. I think in general, men as a class of people are less easily intimidated than women, but don't think they're any more likely to report such treatment than woman (and this is definitely a problem). But women are also less likely statistically to push the issue as far. So again, we're back to numbers and overall impact.

I'm not unconcerned about the victims, but my comment was attempting to address readiness rather than justice for victims or accused persons. Both matter.

I talked with my husband about this last night, and he mentioned the whole hazing thing. He thinks hazing is definitely something the military needs to be concerned about, but he also said that he remembers when the reporting requirements became so stringent that they definitely placed a huge administrative burden on the command.

So this would be an example of a legitimate problem that suddenly leaped onto the radar scope where most of the victims are male.

My argument would not be that rape disparately impacts women (I suspect it does, but that's true in civilian life as well), but that adding women to the mix increases the overall number of sexual assault incidents and accusations a command has to investigate and adjudicate, and thus has a greater impact on military readiness.

Posted by: Cass at July 6, 2012 08:40 AM

Posted by: Miss Ladybug at July 6, 2012 02:09 PM

Yeah, I've been following that one, Miss Ladybug.

Hard to know what those guys were thinking.

Posted by: Cass at July 6, 2012 02:30 PM

"Assault happens in the mind of the victim." -- or something like that; I'm not a criminal defense lawyer. Assault is a fear of battery or worse; it doesn't have to be a rational fear.

I've been told that because of my height, shoulders, reach, carriage, and penetrating look that I assault people without meaning to. Turning my head and frowning at someone being noisy in the corner of a classroom I've heard about more than once. I feel a little guilty about some of those because I was trying to be intimidating, to quiet the chatter without making a fuss over it. Some of that fear may be from guilt over one's behavior, an expectation of punishment. Some of it I think is projection; if they were huge they'd attack people. (:sighs: Some days you can't win.)

If she's drunk and we haven't before, we don't. Not a very hard rule to express. If I'm their boss or their boss's boss or ... we don't. If there's that much mutual interest, you work together to arrange for that part of the relationship to not be there and then proceed.

Why is it so hard for people to be grown-ups when it comes to this? Is this the ultimate consequence of The Pill? We're becoming a culture of blaming others for our own lack of self-control.

Posted by: htom at July 7, 2012 03:29 AM

There is a continued myth used by feministas and the media that a woman would never falsely cry rape. My experience in command resulted in 60% of accusations being false...most for the reasons mentioned in the article. Unfortunately, most of the damage was already done before the charges were thrown out and/or the accusor changed her story (your career NEVER recovers from charges of rape/sexual assualt). It is also amazing, the number of the false accusations that were thrown out after video docummentaion of the "rape/assualt" came to light......I have no idea why people feel it is a good idea to film themselves having sex/group sex.

Posted by: Bill at July 9, 2012 01:11 PM

Your question answers itself, doesn't it? It's a good idea because it would provide career-saving proof that you weren't guilty of rape!

Of course, a more traditional approach to sexuality also provides some security.

Posted by: Grim at July 9, 2012 04:33 PM

Of course, a more traditional approach to sexuality also provides some security.

*snort* :)

Posted by: Cass at July 9, 2012 04:49 PM

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