After All This Time, the Military Is Continuing to Hide Its Rape Problem

By Matthew Collins
Best Defense guest columnist

Last week, the Washington Post published a shocking investigative report about an Air Force colonel at Maxwell-Gunter Air Force Base’s disturbingly aggressive sexual harassment of a subordinate. Despite the volumes of documentation and the military’s ongoing efforts to stop sexual harassment and sexual assault, the colonel avoided a court martial and was quietly retired at a lower rank.

This comes on the heels of another disturbing expose about the mishandling of sexual assault cases at the Air Force Academy. Most disturbing was the revelation that mental health officials appeared to fabricate records to justify spurious diagnosis of personality disorders to damage and discredit victims. While some important reforms have been made in the five years since the sexual assault scandals at Lackland Air Force Base, the story shows the limits of that progress and the lengths that commands will go to bury rape charges and avoid public scrutiny.

One major reform was easing the security clearance reporting requirements for members who have sought counseling for both Post Traumatic Stress Disorder and sexual assault. Still, commanders have ways around those guidelines. The most common way is to claim that victims are not mentally stable enough to keep their clearances. This makes it impossible to do some military jobs and bars them from future employment in defense-related jobs. They can also claim criminal misconduct, as filing a false official statement is a crime. They need not be convicted or even charged to lose their clearances. The accusation alone is sufficient. Finally, the security clearance system gives commanders wide latitude to suspend access to classified material at their discretion. A commander can simply say that they no longer trust the victim to properly safeguard classified material and irreparably damage their careers.

The situation at the academy graphically illustrates that service members have no expectation of doctor-patient confidentiality in the military health care system. The problem is not limited to the Air Force Academy. As an intelligence officer, I have suspended clearances and ended careers because Marines confided in their doctors. At least one unit I am aware of regularly screened patient lists of base mental health clinics to evaluate Marines’ suitability to retain their clearance. Anyone who sought help was gambling with his or her career.

For service members who are sexually assaulted, there are other treatment options. Under the Affordable Care Act, parents may keep their children on their health care plan until they turn 26. If I had a daughter entering the military, I would keep her on my health care plan, so that she would have the option of confidential care if she were assaulted. In 2006, a civilian therapist defied a court order to turn over confidential records in a sexual assault case at the Air Force Academy. While the court martial of the attacker was dismissed, no charges were ever filed against the therapist.

Service members should also be aware that if they are assaulted off post, they may have better options in the civilian justice system. A Marine intelligence officer who was raped after the Marine Corps Birthday Ball in San Diego was advised by a Naval Criminal Investigative Service agent to seek treatment at a civilian hospital that had access to and experience with rape kits. “They are going to screw it up,” he told the victim about the base hospital. Her attacker was eventually prosecuted and convicted by the San Diego County District Attorney’s office.

Lawyers admit that sexual assault and sexual harassment cases, in the military or civilian system, are difficult to prosecute. The military system remains hampered by the fact that it is commanders, not attorneys, who make the decisions about prosecuting cases. Many have used this latitude to prosecute attackers on lesser offenses like adultery or downplay the severity of the crime, as with the colonel at Maxwell-Gunter. Others have used this discretion to bully victims into silence. In a landmark decision, Congress recently stripped military commanders of their ability to set aside court martial decisions, after an Air Force general effectively pardoned an officer convicted of raping a subordinate.

Despite the reforms, situations at the academy and Maxwell-Gunter illustrate how little progress has actually been made. When service members cannot trust their medical professionals to provide competent, unbiased care and their legal system is still beholden to their commanders, they may choose to seek other alternatives like civilian counseling or local authorities if they can. Or they may continue to suffer in silence, as too many still do.

New York’s Sen. Kirsten Gillibrand (D) has introduced bills that would give an independent military prosecutor the authority to bring charges in serious criminal cases like rape and murder, removing commanders from the process. None of these measures has passed. But, if the military continues to struggle to provide the most basic legal and medical services to victims, it may be time to make a change.

Matthew Collins spent 10 years as a Marine intelligence officer and seven years as a volunteer with American Women Veterans. Opinions expressed are his own. If you are a service member who has been the victim of sexual assault, help is available through the DOD Safe Helpline at 877 995 5247.

Photo credit: (U.S. National Archives and Records Administration)