According to the report, the number of Defense Department Inspector General investigations into retaliation against members of the armed services who reported sexual assault skyrocketed in the most recent fiscal year, from five investigations between 2004 and 2013 to 129 in 2018 alone.
The surge is counterintuitively encouraging, showing that more people are willing to report retaliation cases. No doubt, this is the result of important initiatives that the Defense Department undertook after I documented, in two reports as counsel at Human Rights Watch, extensive retaliation against sexual assault victims. After the reports’ release, Congress criminalized retaliation, expanded whistleblower protections, required case managers to follow up with victims about retaliation, created a specialized unit in the inspector general’s office to investigate these cases and incorporated retaliation into sexual assault training programs.
But a deeper dive into the survey’s appendices shows our work is far from done. The Defense Department was only able to substantiate one of the 129 retaliation cases that it investigated in 2018, and 64 percent of victims who reported sexual assault still say they experience retaliation. Clearly, fear of retaliation remains a major barrier to reporting.
The debate about how to address sexual assault has primarily focused on whether commanders should have authority to make decisions about prosecutions. But other important steps can and should be taken to address a culture in which sexual harassment and assault continue unabated.
First, Congress should update the burden-of-proof standard for military whistleblowers. It is virtually impossible under current law for victims to prove retaliation. Military victims must show, by a preponderance of evidence, that the unfavorable action would not have been taken if they hadn’t reported sexual assault. This high burden is inconsistent with standards applied in other contexts in which the victim needs to show only that the report was a “contributing factor” in the challenged discrimination. It would then be up to the actor to show by clear and convincing evidence that the unfavorable personnel action would have been taken even without the sexual assault or harassment report.
When the burden of proof is shifted to defendants, success rates jump from between 1 and 5 percent to between 25 and 33 percent. The improved definition of prohibited conduct and greater awareness of protections against retaliation is worth little if the victims’ cases all fail. When bad actors are not held accountable, that behavior is seen as acceptable, regardless of good training and policy.
Second, the military should provide immunity for minor collateral misconduct. Many victims (34 percent) do not report because they fear they will be in trouble if they do. The rate of sexual assault (11.9 percent) is highest among 17- to 20-year-old women. In nearly half of all sexual assaults against women, the victim was drinking. Underage drinking is an offense under the Uniform Code of Military Justice, as are adultery and fraternization. (Fraternization refers to an improper relationship between service members of different ranks.) Currently, there is no immunity for those whose behavior is revealed in the course of reporting a sexual assault, though commanders have the discretion to delay punishment.
I spoke with many victims who were disciplined or discharged for behavior revealed when they reported a sexual assault. Perpetrators take advantage of this — one woman told me her rapist said she would be in trouble for underage drinking if she told anyone what happened. Some victims’ lawyers discourage clients from reporting for this reason. Until the military promises immunity from prosecution for minor offenses that are revealed when reporting, victims rightly will be reluctant to come forward.
Finally, the military must address sexual harassment. Many survivors told me their supervisors disregarded sexual harassment complaints, and when they were later assaulted, they had no confidence their supervisor would help them. Conversely, when supervisors addressed harassment, assault was less likely.
The new survey shows nearly a quarter of of women in military service experience sexual harassment. Half of those who reported sexual harassment were discouraged from reporting by their supervisors. Forty-four percent of women who reported felt their co-workers treated them worse after reporting. Only one third of victims were satisfied with how they were treated after they reported harassment.
Military leaders are concerned that harassment complaints will reflect poorly on them and may sweep the complaints under the rug. Instead, supervisors should be evaluated on whether they address complaints effectively and create a climate in which victims are confident their concerns will be addressed. The prevalence of the problem will not change if no one is held to account.
Overall, the goal should be to change the environment of the armed forces. What the Defense Department needs now from its leaders is clear, consistent action that shows harassing and retaliatory behavior are unacceptable and inconsistent with military culture.