Air Force Rape Case a Blot on Military Justice

“Air Force rape case a blot on military justice” is the title of the Albuquerque Journal’s lead editorial in the March 16, 2013 issue. The Journal was referring to the reversal of the conviction for aggravated sexual assault of Lt. Col. James Wilkerson, a fighter pilot stationed in Italy. The conviction was reversed by Lt. Gen. Craig Franklin, Wilkerson’s commander, or “convening authority”* in military jargon. The Journal was “shocked” by the absence of detailed specific reasons for reversing the conviction.

The Wilkerson case joins the documentary film, “The Invisible War” — on sexual assault — the dozens of recruits sexually assaulted by their trainers at Lackland Air Force Base, and the story of sexual assaults at the Air Force Acadeny, breaking a few years ago, in elevating sexual assault in the military as a major national problem.

A subcommittee of the Senate Armed Services Committee, chaired by Sen. Kristen Gillibrand (D-NY), heard from a panel of military victims of sexual assault — some now heads of sexual assault preventive organizations — closely followed by high-ranking military officers assigned to combat sexual assault. This arrangement allowed those in the second panel to hear the testimony of those in the first panel.

I felt the star among the questioning senators was Claire McCaskill (D- Missouri). She doggedly pursued the issue of the convening authority, pointing out that he/she didn’t need to be a lawyer, wasn’t required to have had legal training and wasn’t required to have read the trial transcript. McCaskill believes there should be a prosecutor outsde of the direct chain of command making decisions on what cases go to trial and she wanted to see an appellate process more reminiscent of what is found in civilian courts.

Sen. McCaskill made two other major contributions during the Senate hearing: 1) She questioned why the alleged perpetrator of the assault is not transferred to another base, only the victim — to prevent, for example, a situation in which the alleged perpetrator works side-by-side with the victim. The reply from the second panel was there is no legal bar to transferring the alleged perpetrator but the general practice is to transfer the victim. 

2) Sen. McCaskill recommended that future sexual crimes tied to the alleged perpetrator be made known to the original victim, because he/she may want to press charges to prevent harm to others.

What I found fascinating about the second panel is that each military service, even the minor ones, have an officer heading a unit assigned to focus on the sexual assault problem. Beyond that, the Department of Defense (DOD) has a separate sexual assault office; in addition, the civilian DOD general counsel reported being under a tight deadline to report a set of recommendations — a second panel member was under a tight deadline to do the same.

How big is the military sexual assault problem and how does it compare to the civilian population? The DOD reported an 11 percent increase in reporting sexual assaults between fiscal years 2009 and 2010. There was a 1 percent increase in reporting from 2011 to 2012. It is difficult to know the true extent of the problem, since only a very small percentage of sexual assaults are reported: the Center for Disease Control and Prevention website shows that only 1 in 79 will report a sexual crime committed against them. The latest DOD estimate is that 19,000 sexual assaults occurred in the last reporting year, with about 10,000 involving male victims. On the surface, 10,000 seems to be a grossly exaggerated share of estimated occurrences, but it should be remembered that the overwhelming number of armed forces personnel are of the male gender.

In FY 2011, 2,439 unrestricted letters and 753 restricted letters were filed DOD-wide. In an unrestricted letter, in addition to providing care and services to the victim, an investigation is triggered. Restricted letters go to specific individuals, such as a sexual assault coordinator, victim advocate and other individuals not in law enforcement or the chain of command; allow for the victim to receive care and services, while keeping the case confidential and not investigating upon the victim’s request.

The main recommendations coming from sexual assault protective groups are to remove the power of commanders to decide what cases go to trial and to reverse a verdict; and to give service members access to civil courts. Both panels in the Senate hearing emphasized training for those helping sexual assault victims navigate the process.

A Final Thought: The DOD estimate that about one-sixth of sexual assaults are reported may deeply understate the occurrences, as the Center for Disease Control and Prevention shows a reporting ratio of 1 in 79 on its website.

* Under most or all cases, the convening authority is the commanding officer of the military base where the alleged crime occurred. He/she decides what cases go to trial, selects the tribunal members who will rule on the case and may reverse the judgment in a case.

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