On Tuesday, Republican Senators Ted Cruz and Rand Paul joined Democratic Senator Kirsten Gillibrand in her push to pass new legislation that would remove the chain of command from military sexual assault cases. Senator Gillibrand argues that women in the military are afraid to report rapes, and when they do report them, the crimes are not always prosecuted.

People of conscience want sexual assault victims to report. We want sexual offenders to be duly processed and punished. We want individuals wrongly accused to suffer as little harm as possible as they clear their names. We share these broad goals, though we may differ about specific means of achieving them.

I respect Senator Gillibrand for formulating a proposal. I respect Senators Cruz and Paul for crossing the aisle to support legislation they believe in. I am unpersuaded, however, that this bill would adequately and fairly address the problem.

Legislation like Gillibrand’s treats as unique a problem that is not. Relevant statistics suggest that young women may be at no greater risk of being sexually assaulted in the military than being sexually assaulted on a college or university campus. Why propagate a message of fear that sending our daughters (or ourselves) into the service amounts to handing them over to an unpatrolled, unrepentant rape culture, but shipping off young women to college is relatively safe? Why send the message that our women are more likely to be raped by a fellow Marine than by a frat brother from Sigma Chi?

First of all, chain of command is an integral, nearly sacrosanct principle in the armed forces. Circumventing that hierarchy comes with wide-reaching consequences. Civilians, including members of Congress, should not underestimate the practical effects of this move, since so much of how the armed forces organize themselves relies on this operating procedure.

Moreover, it is unclear that having service members report sexual misconduct to military prosecutors, instead of commanding officers, will actually encourage more victims to come forward. Doing so will not shield victims from social stigma. It won’t even necessarily increase the likelihood of prosecution. If anything, military prosecutors already feel pressured to push forward on more sexual misconduct cases than they feel is warranted.

A McClatchy review of 68 military sexual-assault cases, involving thousands of pages obtained under FOIA, found that commanding officers aggressively pursue sexual assault prosecutions, sometimes over the objections or concerns of investigators. McClatchy reports that, in 30 of the 68 cases examined, the defendants were acquitted or were found guilty only of lesser charges. In a number of the acquittals McClatchy reviewed, commanding officers had proceeded with prosecution despite explicit objections or serious questions raised by investigating officers.

Just as importantly, Congress ought to beware the symbolic effects of removing the chain of command from these cases. It further demoralizes an already undervalued military by suggesting that the armed forces can’t properly manage themselves. It also sends an empirically false message: by joining the military, young women place themselves at an unusually high risk of being raped.

The recent Pentagon survey that stimulated Congressional outrage over military sexual misconduct estimates that 26,000 service members experienced “unwanted sexual contact” in the year studied. There are 1.4 million active-duty service members, which means that the survey’s estimate of 26,000 equals roughly 2 percent of the United States military. The survey further clarifies that of the 26,000 service members, 12,100 were women and 13,900 were men, which means that 6.1 percent of women (out of 200,000 female service members) and 1.2 percent of men (out of 1.2 million) on active duty experienced “unwanted sexual contact.” Bear in mind that “unwanted sexual contact” is a broad term used by the study to include behavior short of rape, including sexual harassment.

According to a May 2013 report by the Bureau of Justice Statistics, in 2010, females in the population at large experienced 270,000 rape or sexual assault victimizations at a rate of about two victimizations per 1,000 females age 12 or older. Furthermore, compare these data to the New York State Coalition against Sexual Assault’s estimates that 1 out of every 4 women in college has been sexually assaulted and that there are 35.3 incidents of sexual assault per 1,000 female students on campus per 6.91-month academic year, not calendar year.

According to the Rape, Abuse & Incest National Network, only 46 percent of rapes are reported to police and only 9 percent are prosecuted in the civilian system. Only 5 percent of civilian rapes result in a felony conviction.

Air Force Chief of Staff Gen. Mark A. Welsh III told the Senate Armed Services Committee in May that the Air Force prosecution rate in 2012 was only 1 percent below the national average and the conviction rate was 3 percent above the national average.

If military statistics resemble those reflecting the incidence of sexual assault on college and university campuses, that fact should not shock: both environments bring together lots of young men and women, cramming them into close proximity physically and socially. Both college and military life also tend to involve lots of down time — and alcohol consumption.

Let’s be candid about the role that drinking plays in many sexual assault cases, both on campus and on base. When men and women drink heavily, judgment (if not vision) blurs. Women, who may be more intoxicated than their male counterparts if they have been matching drink-for-drink throughout the night, may allow themselves to fall into unsafe circumstances. Men, who may become more aggressive and less sensitive to social cues as they over-imbibe, may push sexual contact when consent from their partners is ambiguous at best.

Both sexes need to take responsibility. Young men need to be reminded that drunkenness vitiates consent. Young women need to acknowledge that staying (at least more) sober keeps them safer from certain types of crimes.

The alcohol-fueled “date rape” that accounts for the majority of college and military sexual assaults is a serious crime. At the same time, if sex was never consensual if any alcohol was involved, a lot of people wouldn’t have consensual sex until somewhere around their second year of marriage. We don’t help anyone by treating these cases as though they are always and exactly identical to forcible rape by a stranger. We also don’t help address the problem of sexual assault in the armed forces by treating it as though what happens between men and women in the military is that different than what happens between men and women in college or elsewhere.

There’s no innocence by association here, mind you. The military doesn’t have less of a problem with sexual assault, even if it doesn’t have more of a problem with sexual assault than college campuses do. But when Congress — Democrats and Republicans, in this case — send the message that an 18-year-old woman would be safer from rape if she went to the average university than if she served her country in our armed forces, it maligns the military and gives women a false fear.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]


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