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AMERICAN BAR ASSOCIATION
BAR ASSOCIATION OF SAN FRANCISCO
SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES
COMMISSION ON SEXUAL AND DOMESTIC VIOLENCE
COMMISSION ON WOMEN IN THE PROFESSION
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
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RESOLVED, That the American Bar Association urges Congress to enact
legislation that creates and adequately funds alternative avenues of redress for
victims of unwanted sexual contact in the military by: (1) ensuring an alternate
path within the military, but outside of chain of command, to raise claims of
unwanted sexual contact; (2) authorizing entities outside of chain of command,
such as military investigation organizations, to investigate and obtain prosecution
of the crime of unwanted sexual contact; and, (3) prohibiting retaliation against or
coercion of those who make or participate in the investigation of such a charge.
FURTHER RESOLVED, That federal, state and local jurisdictions ensure efficient
and comprehensive collaboration among jurisdictions that have received reports of
unwanted sexual contact involving military victims, witnesses, and perpetrators to
determine promptly the lead agency for support to victims and witnesses, and
jurisdiction for prosecution of offenders.
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REPORT
INTRODUCTION
For more than 20 years, sexual assault and harassment has been a known, public,
admitted issue within the military. Since the Tailhook scandal of 1991, in which over 30
Generals and Admirals were reprimanded for failing to stop an epidemic of sexual abuse,
the military has publicly acknowledged the problem, and promised to repair it. But,
despite the military's presumed best efforts, reported to Congress often over the past two
decades, the problem persists and grows. The Pentagon's recent report shows the number
of unwanted sexual contacts going up, the vast majority of victims not reporting them.
The Pentagon's survey shows that 66% of those victims felt uncomfortable making
a report with the current military system. This resolution seeks to address that concern.
It proposes four principles
(1)
A victim of unwanted sexual contact should have an effective alternative
reporting system, outside of chain of command, to report unwanted sexual contact
(2)
The investigation function should operate within the military investigation
services organizations, independent of the chain of command
(3)
A system of prosecution of unwanted sexual contact should exist within
the military, independent of the chain of command, and
(4)
Retaliation or coercion against anyone who makes or assists in a complaint
of sexual assault must be prohibited.
THE PENTAGON REPORT SHOWS THAT UNWANTED SEXUAL CONTACT
IN THE MILITARY IS GROWING, AND IS NOT BEING REPORTED
Thousands of military service men and women suffer sexual assault every year
and the numbers are growing. According to The Pentagon's figures1, there were over
19,000 cases of "unwanted sexual contact"2 of service men and women in 2010, and over
26,000 such cases in 2013 (12,000 women and 14,000 men). Of the women who
experienced “unwanted sexual contact”, 32% experienced "unwanted sexual touching",
26% experienced “attempted sex” and 31% experienced “completed sex”3 . Of soldiers
Department of Defense Annual Report (“Pentagon Report”) on Sexual Assault in the Military Fiscal Year 2012
Defined in the Pentagon Report, p 12, as “ intentional sexual contact that was against a person’s will or occurred
when the person did not or could not consent…, completed and attempted oral, anal, and vaginal penetration with
any body part or object, and the unwanted touching of genitalia and other sexually related areas of the body.
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Id., Vol. Two, P. 2.
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seen by the Veterans Health Administration, about 1 in 5 women and 1 in 100 men screen
positive for Military Sexual Trauma (“MST”).4
The Pentagon report's own figures, paint a serious picture—one described as a
"scourge" by Defence Secretary Chuck Hagel, and a threat to our military, in the words of
President Obama5. The report shows that only one in seven sexual assaults is ever
reported, and that – of the 26,000 unwanted sexual contacts in fiscal year 2012—only
1,100 people were disciplined. In absolute numbers, more men are victimized than
women, but one in four women will be sexually assaulted during her military service.
There is fear within the ranks of the victims (who are generally lower rank service
members) that their complaints will be met by inaction or retaliation. Secretary of
Defence Hagel recognized the problem reflected by the Pentagon report, and noted that
"the number of occurrences" and a "perception of our tolerance of [sexual assault]"
cannot be part of effective access to a justice system for those victims. As Senator Carl
Levin (D. Michigan), Chair of the Senate Armed Services Committee noted: “We have a
problem with the underreporting of sexual assaults. We have a problem with the
inadequate investigation of sexual assaults. We have a problem with the lack of support
for victims of sexual assaults. We have a problem with retaliation, ostracism and peer
pressure against such victims. And we have a problem with a culture that has taken
inadequate steps to correct this situation.” 6 These recognized circumstances have created
an understandable perception among many sexual assault victims that reporting the crime
will be futile or worse.
This concept of an alternative method of complaint is core to employment
discrimination and harassment law; complaint, reporting and investigation processes must
be perceived as safe, neutral and non-discriminatory. A private employer could not
expect an aggrieved employee to raise a claim if a reasonably feared response is hostile
and punitive. EEOC regulations require “a complaint procedure ‘designed to encourage
victims of harassment to come forward [without requiring] a victim to complain first to
an offending supervisor.’” (29 CFR §1604.11)
The United States Supreme Court in Faragher v. Boca Raton, 524 U.S. 775
(1998), underscored the requirement of “a proven, effective mechanism for reporting and
resolving complaints of sexual harassment, available to the employee without undue
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Military Sexual Trauma, defined at 38 U.S.C. 1720D, encompasses sexual assault and sexual harassment. It is
physical assault of a sexual nature, battery of a sexual nature, or sexual harassment (repeated, unsolicited verbal or
physical contact of a sexual nature, which is threatening in character), which occurred while the veteran was serving
on active duty or active duty for training (Guard and Reserves). See http://www.ptsd.va.gov/public/pages/militarysexual-trauma-general.asp
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http://www.defense.gov/speeches/speech.aspx?speechid=1782;http://www.whitehouse.gov/the-pressoffice/2013/05/24/remarks-president-united-states-naval-academy-commencement
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http://www.armytimes.com/article/20130612/NEWS05/306120025/Senators-side-Joint-Chiefs-sex-assault-law
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risk.” The Supreme Court held that in the absence of such a procedure “the [employer]
could not be found to have exercised reasonable care to prevent the supervisors’
harassing conduct.”
Faragher was analysed by the California Supreme Court in State Department of
Health Services v. McGinnis, 31 Cal 4th 1026 (2003). The California high court made
clear that an employee cannot be expected to use a process if “the employee may
reasonably fear reprisal by the harassing supervisor or other employees,” concluding that
“if an employer has failed to investigate harassment complaints, [or] act on findings of
harassment, or, worse still, [has] retaliated against complainants, future victims will have
a strong argument that the policy and grievance procedure did not provide a ‘reasonable
avenue’ for their complaints." Therefore, it is universal professional practice in drafting
defensible personnel policies to anticipate such circumstances, and provide alternative
paths to raise complaints. The established chain of command exists for good reason in
military settings, but it is often an impediment to accomplishing its mission in the case of
responding effectively to sexual assault charges.
THE POWER OF THE COMMAND
Under the Uniform Code of Military Justice, investigative, prosecutorial, and
sentencing functions are largely consolidated and vested in the offender’s commanding
officer.7 To begin, the UCMJ vests the commander with authority to order investigations
into misconduct. While he may appoint other agents to conduct investigations, and
subject to Department of Defense regulations, a designated commander has the authority
to decide whether to dismiss the charges, adjudicate them within his level of authority, or
forward them to a superior commander for disposition. Similarly, while those
commanders receive guidance and recommendations from legal advisors throughout this
process, those recommendations are not binding.
The commander plays several roles in determining the disposition of cases. The
first is the decision whether to refer a case to trial by general court-martial, special courtmartial, or to resolve a case using non-judicial punishment. The authority to make this
decision in cases involving rape and sexual assault lies within general officers.
In addition, the UCMJ gives the commander significant authority to conduct nonjudicial punishment as an alternative to a court-martial. Under Article 15 of the UCMJ,
the commander may serve as the sole adjudicator of charges against a service member
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Selected excerpts from Military Justice Fact Sheets, Staff Judge Advocate to the Commandment of the United States Marine
Corps, http://www.marines.mil/unit/judgeadvocate/Documents/JAM/Mil_Justice_Materials/Resources/MJFACTSHTS.htm
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without the intervention of a court-martial, deciding upon the guilt or innocence of the
accused and imposing punishment.
Should he elect to do so, the commander may also exercise the authority to
convene summary, general, or special courts-martial, whose panel members are not
drawn randomly, as in the civilian system, but, rather, are personally selected by the
commander. The convening authority, rather than counsel, decides whether to order
depositions, approve and authorize funding for witness travel, approve the employment
and funding of expert witnesses, or grant immunity for witnesses subject to the UCMJ.
If the accused is found guilty, the convening authority must approve the sentence
of the court-martial before it becomes final. In this capacity, the commander may set
aside findings of guilt, limit findings of guilt to a lesser included offense, lessen a
sentence, or order a rehearing. The Commander has the role of taking “final action” to
approve, modify, or set aside findings and sentence in a case. Similar to the President
and state Governors with powers to mitigate sentences (such as pardon, parole, or
commutation of a sentence), the commander is charged with that Executive authority
within the military.
Currently, a small percentage of defendants ever go to court-martial, and
discipline is imposed in a small percentage of those cases, according to the statistics in
the Pentagon report. According to Protect Our Defenders, an organization whose purpose
is the protection of sexual assault victims in the military, “…[C]ommanders are
conflicted: When a sexual assault occurs on their watch, it reflects poorly on them and
that's why it's shoved under the rug. The perpetrators frequently out-rank the victims,
which is also why there is this bias. They're going to trust people they've known -- not an
18 or 19-year-old just new to the service." Senator John McCain, second to none in
supporting the military, admitted that under these facts he could not recommend that
young women join the military.
COMPLAINANTS ARE LEGITIMATELY UNCOMFORTABLE USING, AND
ARE PREJUDICED BY, THE CURRENT SYSTEM
Moving beyond the statistics which demonstrate the broad and growing scope of
this problem, individual examples of the demonization of those who report sexual assault
in the military abound. In a San Francisco Chronicle editorial, Congresswoman Jackie
Speier (D. Ca.) wrote: "Seaman Panayiota Bertzikis, a member of the Coast Guard, was
allegedly raped by a shipmate in 2006. She reported her rape to Coast Guard Command,
who told her to keep quiet or be charged with the military equivalent of slander. She
obtained photographs and admissions made by her rapist through the Freedom of
Information Act, but the Coast Guard Command failed to prosecute him. Coast Guard
personnel called her a 'liar' and a 'whore' and said she would 'pay for snitching.'"
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On June 17, 2013 CBS News aired an interview with a 20 year old female
midshipman at the US Naval Academy, who claims to have been raped by three football
players in April, 2012. She wants to stay at the Academy, and she did not initially report
it; but after the football players publicly bragged about the rape to her and others, she
reported it to the school. Seeing the school failing to act, her mother brought the story to
The Washington Post and CBS News. Two days after the CBS interview aired, and over
a year after the event, the Academy charged the three men with rape.
There have been scores of victims of sexual assault in the military who have come
forward to tell their stories (see, for example:
 http://www.cbsnews.com/8301-505263_162-57589558/naval-academy-studentspeaks-out-on-alleged-rape-by-three-classmates/
 http://www.cbsnews.com/video/watch/?id=50151240n
 http://extras.denverpost.com/justice/tdp_betrayal.pdf).
A recurring theme of these reports is of double victimization – first by the assault itself,
and then by the inaction and retaliation which followed these complaints. The result,
according to the Pentagon's report, is that victims are uncomfortable complaining within
the chain of command, an unwelcoming culture that the military has allowed to flourish.
LEGISLATION IS NEEDED TO AFFORD FAIR ACCESS TO JUSTICE
FOR VICTIMS OF SEXUAL ASSAULT IN THE MILITARY
Given the atmosphere, the peer pressure reported by victims, and the mind set of
vulnerability that dissuades some victims from coming forward, there must be an
alternative for victims who legitimately fear raising complaints to their commanders.
They need and deserve a reporting mechanism which provides reasonable access to
justice, without fear of futility or retaliation.
Legislation has been proposed which addresses some of these barriers to fair
access to justice for victims of sexual assault among military service people. Such
legislation follows the lead of countries including Canada, The United Kingdom, Israel
and others which have recognized the need for a vehicle independent of the chain of
command which victims of sexual assault can use. There are four key concepts behind
these proposals:
(1) Ensuring the alternative of reporting sexual assault outside of the chain of
command, to address the concern of the many who feel that reporting within
the chain of command would not be effective or appropriate;
(2) Authorization of military investigation organizations to act as an investigative
entity, independent of the chain of command;
(3) Creating a vehicle for military prosecution of unwanted sexual contact outside
of the chain of command; and
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(4) Ensuring adequate and effective safeguards, remedies and protection against
retaliation against or coercion of those who make, or testify in, a complaint of
sexual assault.
Supporters of the current system argue that alternative reporting mechanisms
outside the chain of command already exist, such as a Department of Defense sexual
assault hotline, a report of sexual assault to local state or federal investigative authorities,
Sexual Assault Response Counsel, military or civilian medical authorities, or chaplains.
But restricted reports to doctors, counsellors, and clergy do not result in any action
against the perpetrator; they are worthy choices, not legal remedies. And forcing resort to
non-military authorities is not a viable solution for victims who already feel
uncomfortable making a complaint. The military reporting system needs to be made
safer and more welcoming to the victims who are currently uncomfortable using it.
Opponents of this proposal admit the problem, but claim that the best solution
remains within the chain of command, and that the military's new rules to solve the
problem should be given the chance to work. For several reasons, that argument should
be rejected.
First, sexual assault in the military has been a known, admitted and serious
problem for over 20 years. In response to detailed reports commissioned and issued
repeatedly since the Tailhook scandal of 1991, the military has recognized the problem
and the need to do better – but the problem keeps growing, and the broad perception of
tolerance for abusive behavior enhanced. The military has had more than 20 years to fix
this problem internally, and has not been up to the task. The entrenched atmosphere
hostile to complainants has proven too strong to be fixed by internal regulation, and there
is no reason to believe that more regulations will now suffice; legislation is required.
Secondly, victims can choose to report assaults through the chain of command,
and the military has the opportunity to react appropriately and, over time, rebuild
confidence and restore credibility to that process. Many commanders have earned the
trust of victims, and can be among the most effective advocates for them. Nothing stops
the military from starting to improve that process so that the current "chill" of sexual
assault complaints is halted. The military should continue those remedial efforts to
regain the confidence of assault victims, so they believe that reporting through chain of
command is an encouraged, effective and safe remedial process.
However, and this is key, too many military commanders have maintained and
often permitted an atmosphere of tolerance for sexual assault and retaliation against
victims. As Secretary Hagel admitted, that circumstance will make a reasonable victim
fearful of reporting through chain of command; therefore, over 80% of unwanted sexual
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contacts go unreported. There is no way to remedy that existing situation without
creating a reasonable alternative route of reporting assaults without risking negative
consequences. In a culture in which fear of reporting a sexual assault is so prevalent, a
viable alternative must be provided.
This reality is well accepted and recognized in the private sector, and in state and
federal government employment. It is recognized in the military rules of our allies. To
be fair to victims of sexual assault in the military, legislation is required to provide that
remedy of safe, reasonable, effective access to justice. This recommendation should be
approved.
Respectfully submitted,
Christopher Kearney, President
The Bar Association of San Francisco
February 2014
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GENERAL INFORMATION FORM
Submitting Entity: Bar Association of San Francisco
Submitted by: Russell Roeca, Delegate
1.
Summary of Resolution
The resolution seeks to provide reasonable access to justice to military service men and women
who are victims of unwanted sexual contact, and who reasonably believe they cannot report it
through the exclusive channel of chain of command. It urges the ABA to support legislation
which creates that alternative avenue of redress for victims of unwanted sexual contact in the
military by (1) authorizing military investigation organizations to investigate and seek
prosecution of unwanted sexual contact outside of chain of command (2) ensuring an alternate
path within the military but outside of chain of command to raise claims of unwanted sexual
contact, and (3) prohibiting retaliation against or coercion of those who make or participate in the
investigation of such a charge.
2.
Approval by Submitting Entity
On June 19, 2013, the Board of Directors of the Bar Association of San Francisco approved the
Recommendation during a regularly scheduled meeting, for which the time and agenda had been
previously distributed. All edits have been subsequently approved by the BASF leadership.
3.
previously?
Has this or a similar recommendation been submitted to the House or Board
It was submitted to The House in July 2013 and was withdrawn in order to allow lengthy review
and analysis by interested ABA entities.
4.
What existing Association policies are relevant to this recommendation and how
would they be affected by its adoption.
None known at the time this report was drafted.
5.
If a late report, what urgency exists which requires action at this meeting of the
House?
This is not a late report. However, there is some urgency to this matter, as Congress has recently
held hearings regarding sexual assault in the military and legislative proposals relevant to this
recommendation are currently pending in Congress.
6.
Status of Legislation (if applicable)
Bills are pending in Congress relevant to this recommendation (see, HR 1593, S. 967)
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7.
Brief explanation regarding plans for implantation of the policy, if adopted by the
House of Delegates.
If adopted, the ABA entities charged with this topic (such as the Commission on Domestic and
Sexual Violence) would work with the Government Affairs office to help passage of legislation.
8.
Cost to the Association. Both direct and indirect costs.
Adoption of the recommendation will not result in expenditures.
9.
Disclosure of Interest (if applicable)
No known conflict of interest exists.
10.
Referrals
This recommendation was circulated to the following Association entities:
Commission on Women in the Profession
Commission on Domestic and Sexual Violence
Standing Committee on Legal Assistance for Military Personnel
Standing Committee on Legal Aid and Indigent Defense
Standing Committee on Armed Forces Law
Center for Human Rights
Criminal Justice Section
Torts, Trial and Insurance Practice Section
Section on Individual Rights and Responsibilities
Government and Public Sector Lawyers Division
Labor and Employment Law Section
Young Lawyers Division
Litigation Section
Judicial Division
National Conference of Specialized Court Judges
GPSolo Division
Bar Associations:
Alameda County Bar Association
Beverly Hills Bar Association
Los Angeles County Bar Association
Santa Clara County Bar Association
New York State Bar Association
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11.
Contact Person. (Prior to the meeting and presenting the report to the House)
Mark I. Schickman
Freeland Cooper & Foreman LLP
150 Spear Street, Suite 1800
San Francisco, CA 94105
(415) 541 0200
Schickman@freelandlaw.com
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EXECUTIVE SUMMARY
1. Summary of Resolution
The resolution seeks to provide reasonable access to justice to military service men and women
who are victims of unwanted sexual contact. It urges the ABA to support legislation which
creates that alternative avenue of redress for victims of unwanted sexual contact in the military
by (1) authorizing military investigation organizations to receive complaints of and obtain
remedies for unwanted sexual contact outside of chain of command (2) ensuring an alternate path
within the military but outside of chain of command to raise claims of unwanted sexual contact,
and (3) prohibiting retaliation against or coercion of those who make or participate in the
investigation of such a charge.
2. Summary of the Issue that the Resolution Addresses
A recent Pentagon report shows sexual assault in the military to be a growing problem
victimizing lower ranking service men and women. According to the Pentagon report, the
number of unwanted sexual contacts grew from 19,000 in 2010 to 26,000 in 2012. Over 80% of
those assaults go unreported because of fear of indifference and retaliation from the "chain of
command" officers to whom these charges must be raised. There is no appropriate and effective
alternative reporting mechanism available to these victims.
3. Please explain How the Proposed Policy Will Address the Issue
This recommendation supports the establishment of a separate path within the military by which
claims of unwanted sexual contact may be raised without risk of retaliation, and empowers
military intelligence organizations to assist in the investigation and prosecution of those claims
outside of "the chain of command". It also provides added safeguards against retaliation against
or coercion of complaining victims and witnesses.
4. Summary of Minority Views
Opposition within the ABA is unknown. Opponents of this proposal would argue that (1) the
authority of the chain of command is central to military combat readiness, and this proposal
would undercut that authority and (2) this problem will be adequately addressed by new military
rules and regulations, without removing authority from the chain of command.
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