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Gail Heriot in the Weekly Standard: Wrong on Military Justice, Wrong on Rape

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Law professor Gail Heriot’s current piece In the Weekly Standard asserts baldly that the military has no sexual assault crisis, and instead is reeling from media and Congressional hysteria. To be fair, she makes some true statements. Unfortunately they’re all beside the point, or suggest the opposite of what Heriot aruges.

She asserts that colleges and universities are dangerous sexual environments for women, as much if not more than the military. This is true. And also beside the point. College life is alarmingly dangerous in terms of sexual violence and most institutions aren’t doing nearly enough to address it. The military is also a dangerous environment. But unlike the vast and diverse universe of American higher education, the military is under direct civilian control and literally “uniform” in terms of its response, which can be addressed by Congress more readily than colleges and universities.

Heriot also asserts that “off-post rapes” committed by service members (and thus pursuable by both civilian and military prosecutors), are pursued by military prosecutors at far higher rates. This is a good thing, but not surprising. Off-post sex crimes committed by service people are usually committed against other service people and involve military witnesses. The military is in a better position to pursue those cases and has more interest in doing so. Civilian prosecutors offices are also notorious for declining to prosecute challenging sexual violence cases (i.e, the vast majority), so no one should be offering them (collectively) as a standard to be emulated. But again, how does a lackluster civilian response translate into the military having no serious issues with its response?

Yes, the military prosecutes rape, and increasingly does so aggressively and competently. Aside from bold initiatives like the Army’s Special Victim Prosecutor program that I helped develop, I worked with Army trial attorneys whose talent and dedication I’d pray for if a loved one were victimized and her case prosecuted.

But first a report must be made. This is a major response issue the military faces, for the exact reason Heriot inadvertently mentions. Reporting a crime as a soldier or sailor is more like reporting to an employer than to police. Sex crimes are difficult for anyone to report. Imagine reporting to a superior you work with everyday (while your attacker is in or near the very same environment) and then to a command stream where cohesiveness and unflagging enthusiasm are the most demanded attributes. What if your attacker is valued and admired, depended upon where life and death are concerned, but you aren’t? What if you’re isolated on a forward operating base near an active front? The military is not blameworthy for most of these circumstances; they are simply among the hardships experienced by members of a force that must be nimble, cohesive, and lethal when called upon. The efforts of Senator Kirsten Gillibrand (D-NY) and Representative Jackie Speier (D-CA), aim at addressing these realities with military lawyers, just outside the chain of command where inherent conflicts exist.

Heriot dismisses these challenging circumstances by predictably confusing drunk sex (which happens constantly in military and civilian life without being confused as rape) and rape, which is rarely reported even when clear and devastating. She misconstrues UCMJ standards on incapacity, and like many people seems to think that rape is usually the product of an alcohol-fueled misunderstanding rather than a predatory act. She’s wrong. Her reliance for insight on an aggressive defense attorney like Michael Waddington, with a career incentive to make the military appear reactionary, is dubious. As for the Navy prosecutor who sees a distinction between “rape” and “Navy rape?” Move her to contract law.

Curious to me most of all was Heriot’s subtly emasculating criticism of the “supplicating” General Raymond Odierno whom she chastises for assuring Congress that combating sexual assault was our military’s number one priority (rather than defending the country, apparently).

I’ve never met Odierno, but I know he’s a nuclear engineer and considered a literal genius by pretty much everyone who has. Perhaps what Odierno understands is that the military’s highest priority (assumed and obvious except by the occasional law professor) can’t be achieved until the well-being of the young brave men and women ultimately responsible for its security can be.


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