Written by Jennifer Steinhauer and Richard A. Oppel Jr.
A Republican senator’s revelations of her sexual assault while serving in the Air Force is likely to renew debate over how to best get justice for victims, an issue that seemed settled several years ago when Congress adjusted conduct codes that dictate military justice.
Long before the #MeToo movement brought sexual violence and harassment to the fore, women in the military and their advocates had highlighted such misconduct in the armed forces. In 2005, Sen. Susan Collins, R-Maine, at the time a member of the Senate Armed Services Committee, questioned a top Army official about the issue, and he dismissed her with annoyance.
In the intervening years, Congress has sought to address the matter, which leaves a large number of veterans — women and men alike — in despair long afterward.
But it stopped short of a plan championed in 2013 by Sen. Kirsten Gillibrand, D-N.Y., that would have taken sexual assault cases outside the military chain of command. Military prosecutors, rather than accusers’ commanders, would have the power to decide which cases to try.
Many lawmakers, including Sen. Martha McSally, R-Ariz., who spoke candidly Wednesday about her rape before the Senate Armed Services Subcommittee on Personnel, would like Congress to take another look at the issue.
“This problem doesn’t seem to be getting better,” Collins said. “So maybe we need to try another approach.”
A Pentagon report for the 2017 fiscal year found that the Defense Department received 6,769 reports of sexual assault involving service members as either victims or subjects of criminal investigation, a nearly 10 percent increase over the previous year. That could suggest that more people are reporting their assaults, the goal of the earlier legislation.
In the past few years, women who have run for office have increasingly learned that revealing past traumas is not the political liability that many have perceived. Many have spoken openly during their campaigns about their assaults, abortions, domestic abuse and family tragedies, finding it as a way to connect with others who have suffered similar experiences. “She comforted and inspired millions,” said Rep. Ayanna S. Pressley, D-Mass., who has long shared her own history of assault.
McSally’s revelations were carefully planned. At a meeting a week ago on Capitol Hill, she stunned several military victims’ rights advocates who had come to discuss military justice overhaul when she disclosed her assault.
“She said, ‘I’m a survivor of military sexual trauma,’” said Stacey Thompson, who was sexually assaulted in the Marines and later founded #MetooMilitary, a victims’ rights group. “And she said she was just appalled at the way it was received” when she finally confided it to people inside the military, Thompson said.
Noting that McSally retired as a colonel and was one of the most well-known officers in the Air Force as the branch’s first female pilot to fly in combat, Thompson added: “If it happens at that level, imagine how often it happens at the E-1, E-2 or E-3 level,” referring to the lowest enlisted ranks. “If they didn’t take her seriously, and they did not do anything about it at her level, why would we think they would have done anything about it at lower-ranking levels?”
Thompson said she and several others in the meeting did not press for details: “As a survivor, I don’t think anyone in the room felt the need to ask more.”
Don Christensen, a retired colonel who served as a prosecutor, defense counsel and military judge in the Air Force for 23 years, said that word of McSally’s rape never circulated among the Air Force’s military justice community.
The Air Force tries very hard to stifle accusations against senior officers, and if the accusation was never disclosed outside McSally’s chain of command, then it could have easily been suppressed, said Christensen, who served as the Air Force’s chief prosecutor from 2010 to 2014 but left the military after an Air Force general threw out a conviction he had won against a pilot over sexual assault.
Had the accusation ever been shared with members of the Air Force’s Judge Advocate General’s Corps — the lawyers who serve as legal advisers, prosecutors, defense lawyers and judges — it would have been difficult to stamp out, given her prominence at the time and given how small the corps was, said Christensen, who is now president of Protect Our Defenders, a military victims’ rights group.
“Everybody knew who McSally was,” he said. “She’s kind of an icon in the military. I just don’t think it ever got to the legal world.”
Until 2006, the military’s Uniform Code of Military Justice contained a five-year statute of limitations for rape cases. But Congress eliminated that from 2006 on; however, cases before that were still subject to the five-year statute, Christensen said.
If McSally’s rape occurred after Congress took action, then military investigators could begin an inquiry into her accusations on their own. “But it would be difficult without her cooperation,” Christensen said.
During her testimony Wednesday, McSally indicated that she believed the issue of sexual assault should stay within the military chain of command.
“I share the disgust of the failures of the military system and many commanders who failed in their responsibilities,” she said in prepared remarks. “But it is for this very reason that we must allow — we must demand — that commanders stay at the center of the solution and live up to the moral and legal responsibilities that come with being a commander.”
A spokeswoman for Gillibrand, whose 2013 proposal took the opposite tack, said the senator planned to introduce it again this year. “We do believe the hearing will help create momentum for Congress to do more to address sexual violence in the military,” said the spokeswoman, Whitney M. Brennan. She noted that McSally’s testimony brought to light other issues, too, such as fear of collateral misconduct charges for more minor infringement — underage drinking or fraternization, for example — chilling the willingness of victims to report.
Other experts suggested that Gillibrand’s plan deserved another look. “There is general agreement on this even by those defending the Pentagon’s efforts that they continued to not have a grip on this,” said Eugene R. Fidell, a senior research scholar at Yale Law School. “The numbers suggest that sexual misconduct is continuing essentially unabated. We have been at this for a generation; we are so close to where we started from.”