September 6, 2013

MILITARY OFFICIALS have chronicled their difficulty in getting victims of sexual abuse to come forward. As many as 26,000 service members were the target of unwanted sexual contact in fiscal 2012, according to a Pentagon survey, but only 3,374 incidents of sexual assault were reported. Among the reasons victims fail to pursue their cases is concern about how they will be treated. If the experience of a young woman who alleges that she was raped by three fellow Naval Academy students is any guide, they have good reason to be fearful.

The 21-year-old midshipman, called to testify in a preliminary investigation conducted pursuant to Article 32 of the Uniform Code of Military Justice, was subject to a brutal cross-examination by attorneys representing the former Navy football players, who are accused of assaulting her during a liquor-fueled, off-campus party in April 2012. During more than 25 hours on the stand, The Post’s Melinda Henneberger and Annys Shin reported, the woman was grilled about whether she was wearing underwear on the night of the alleged assaults, how she danced, her technique for oral sex and other matters not relevant to the claim of rape.

Defendants have the constitutional right to confront their accusers; their attorneys are obligated to challenge and present the most vigorous defense. But the extent and nature of the questioning went “beyond the pale,” as Eugene R. Fidell, scholar of military justice at Yale Law School, put it on WAMU-FM. It was an assessment shared by several other experts in military law we consulted; some cited the failure of the presiding officer to set limits while others pointed to imprecise procedural rules that govern Article 32 hearings, the rough military equivalent to a grand jury. The process produces non-binding recommendations to the convening authority on whether charges should proceed to court-martial.

The current Manual for Courts-Martial has a rule of evidence aimed at protecting rape victims from degrading questions. But according to a Defense Department official, the rules don’t indicate what procedures should be used to apply them at Article 32 hearings, and practice varies widely. The fact that such abusive questioning would be permitted in a case as high-profile as one involving Naval Academy athletes makes one wonder — and shudder — at what happens in the conference rooms where no reporters are seated and no attention paid.

The Pentagon has undertaken a series of initiatives to improve its response to sexual assault. These include the extension of an Air Force program to provide victims with their own legal counsel; a mandate that only judge advocates act as investigating officers; and expedition of transfers for victims seeking reassignment. Last week the Joint Service Committee adopted a proposal — which must be endorsed by President Obama — that would afford better protections for victims testifying at Article 32 hearings.

While these steps are commendable, a bolder approach is needed. Congress should revisit the proposal by Sen. Kirsten Gillibrand (D-N.Y.) that would fix a major flaw of the system by taking sexual abuse cases outside a victim’s chain of command. Under the measure, the authority to investigate and prosecute cases would be made by impartial military prosecutors instead of senior officers with no legal training but inherent conflicts of interest. It’s time, as Ms. Gillibrand argued, to “listen to the victims and create an independent, objective and non-biased military justice system.”