Trial Magazine

How did you become involved with representing survivors of military sexual assault?

During the George W. Bush presidency, I represented the Iraqis who were tortured at Abu Ghraib prison and those who were killed or injured by employees of Blackwater Security Consulting at Nisour Square. As a result of this work, servicemembers heard about me and asked for help.

My first inquiry about military rape came via email from a woman who was raped by a friend of her husband—both men were soldiers. She had a terrible experience where a court-martial had gone forward, but the Judge Advocate General prosecutor had lost physical evidence, including her underwear, so it was not presented at the court-martial hearing. About six months later, after the court-martial failed to convict, the military asked her to pick up her things—and it turned out that they had the underwear the whole time. It was a terrible miscarriage of justice. After looking into this more, I realized an epidemic of rape and sexual assault exists in the military.

What options are available to servicemembers who are sexually assaulted?

Many don’t realize that dual jurisdiction exists for rapes that occur on military bases in the United States. Victims can report it to the military police and to the civilian police, and I encourage people to do the latter.

They can report it to the military in two different ways: restricted and unrestricted reports. A restricted report alerts the commander that the rape occurred, but it does not seek justice in any way. It is an option for people who do not want to report their assault but want to be able to access medical and psychological help. An unrestricted report—a basic report into the military judicial system, which is their law enforcement system—must be done if your client is going to try to trigger an investigation and prosecution.

But rather than an impartial judicial system and the exercise of prosecutorial discretion by trained lawyers, all the decision-making power is vested in the hands of -nonlawyers: commanders who are trained to fight battles, not prosecute. The commander decides whether an investigation occurs and whether a matter can proceed to court-martial. The commander even selects the military personnel sitting on the jury and controls whether immunity may be granted to witnesses.

People who seek justice for sexual assault often open themselves up to very intrusive questions about their sexual and personal history. How do you prepare your clients to handle such a vulnerable experience?

The military conviction rate is much lower than in civilian counterparts, so you must be truthful and realistic with your clients: Tell them that they are unlikely to see their rapist serve any time in prison. Additionally, military rape survivors may encounter intense retaliation if they remain in the service. At least 60 percent of rape victims endure workplace harassment and retaliation—often so severe that it causes additional trauma.¹ So it takes a tremendous amount of courage for them to come forward.

What are the biggest problems the military has when bringing the perpetrators to justice?

The most significant problem that must be fixed is that commanders who are trained to fight wars control the entire judicial process—not law enforcement, not lawyers, and not judges. You have an inherent conflict of interest: You have people who are biased in an adjudicatory position. You also have people who are not legally trained making legal decisions. That’s a very detrimental dynamic because the people who control the process are not strangers to the perpetrator and the victim.

We’ve been working on Capitol Hill to change this. Rep. Jackie Speier (D-Calif.) and Sen. Kirsten Gillibrand (D-N.Y.) have spearheaded those efforts, seeking passage of the “Military Justice Improvement Act,” which would remove prosecutorial authority from the military chain of command. [See p. 48 for more information on this legislation.]

What are some concrete steps the military can take to overhaul how it handles sexual assault claims?

The Uniform Code of Military Justice allows for the selection of what’s called the “convening authority,” and right now the military uses that power to select commanders. Instead, it could adopt a policy that only lawyers and judges can act in this role. This would remove the bias and get rid of the inherent conflict of interest. It could do that right away. It doesn’t have to wait for legislation.

Susan L. Burke is an attorney at The Law Offices of Susan L. Burke in Baltimore. She can be reached at sburke@burkepllc.com.

Notes

1. See U.S. Dep’t of Defense, Annual Report on Sexual Assault in the Military Fiscal Year 2016, www.sapr.mil/public/docs/reports/FY16_Annual/FY16_SAPRO_Annual_Report.pdf.