Rape and the ethics of adultery, or how the military hides its rape problem

By Matt Collins

Best Defense guest commenter

He probably wishes he was back in Afghanistan. Last month, Major General Gary Patton became the new director of the Pentagon’s Sexual Assault Prevention and Response Office, as details of the latest scandal involving sexual assault in the ranks broke. The Air Force has identified 38 women as victims of rape and sexual misconduct at their training facility at Lackland Air Force Base. Two instructors have been convicted, one sentenced to twenty years, and the unit’s commander has been relieved.  The investigation continues as the courts consider the latest lawsuit filed by a group of sexual assault victims who allege that the military mishandled their complaints.

The scope of the problem is startling. A 2008 survey by the Government Accountability Office put the rate of sexual assault at 7 percent of women and 2 percent of men. As women make up about 15 percent of the military, most victims are male. Because of underreporting and the stigma attached to the crime, estimates vary widely. Some VA hospitals report as many as 30 percent of their female patients are victims of sexual assault.

Many victims do not come forward for fear of reprisal. Attackers often outrank their victims, making reporting difficult. Some commanders bully victims into keeping quiet about their attacks. In documentaries like Invisible War and In Their Boots: Outside the Wire*, victims have described how they were threatened with spurious court martial charges and had their careers derailed by their chains of command. Lawsuits filed by victims described how they lost their security clearances for seeking mental health treatment, damaging the only advantage many of them have in the toughest veteran job market in decades.

The problem has even tainted the military’s mental health system. A recent CNN investigation revealed that while women are make up 16 percent of the Army, they account for 24 percent of the mental health discharges, with similar disparities for the other services. The report went on to profile sexual assault victims from all four services who claimed to have been discharged after seeking assistance after their attacks.

The military’s legal system has twisted itself in knots trying to deal with problem. In 2008, the GAO reported that only 17 percent of sexual assault cases were prosecuted.  Commanders and prosecutors responded by increasing the rate of prosecution by 70 percent in 2009.

One troubling tact commanders have taken is to pursue adultery charges in rape cases.  For the victims, this means that their attackers will get off on a misdemeanor conviction and do not have to register as sex offenders. More disturbingly, perhaps, is the tremendous pressure for the accused to plead guilty to adultery to avoid rape charges.  There is a body of academic work in both Game Theory and the Reid Technique, a commonly used interrogation method, which suggests that innocent people will confess to crimes they did not commit to avoid more serious charges. In either case, commanders can plausibly claim that their units do not have a rape problem. In a twist reminiscent of the Iranian justice system, commanders have even threatened victims with adultery charges.

An adversarial justice system involves winners and losers. Prosecuting alleged rapes as adultery produces neither. Rape victims are denied the satisfaction of the military acknowledging the crime and properly punishing the attacker. Those falsely accused are forced to plead guilty and deal with the shame of being drummed out of the military with a dishonorable discharge. The only winners in these cases are the careers of the commanders involved. There is little resembling justice for anyone.

To his credit, the Secretary of Defense has instituted much needed reforms on how the military handles rape cases. In a tacit acknowledgement of mid-level commanders’ inclination to bury rape investigations for career purposes, all such cases are now handled by more senior commanders already eligible for retirement.

Still, there is more that could be done to reform the military’s handling of sexual assault. Perhaps General Patton should look into commanders’ use of adultery charges in rape cases. If he does not, perhaps Congress could do it for him.

Matthew Collins spent ten years as a Marine Intelligence Officer, including a tour as a company executive officer on Marine Corps Base Quantico. He is now an MBA student at St Louis University. If you are a service member who has been the victim of sexual assault, confidential help is available through the DOD Safe Helpline at 877 995 5247.

*Correction, Aug. 29, 2012: The original version of this post misspelled the name of In Their Boots: Outside the Wire.