Today, Explained - Congress takes on sexual assault in the military

Episode Date: May 4, 2021

Congress wants to change how the military prosecutes sex crimes. Sen. Kirsten Gillibrand explains her bill. Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit megaphone.fm/adchoices Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

The all-new FanDuel Sportsbook and Casino is bringing you more action than ever. Want more ways to follow your faves? Check out our new player prop tracking with real-time notifications. Or how about more ways to customize your casino page with our new favorite and recently played games tabs. And to top it all off, quick and secure withdrawals. Get more everything with FanDuel Sportsbook and Casino. Gambling problem? Call 1-866-531-2600.

Visit connectsontario.ca. The United States military has a sexual assault problem. It's had one for a very long time. Maybe you've heard of Tailhook? There's a New York Times documentary about it. Old stereotypes about sex-crazed sailors have come back to haunt the Navy. Charges of sexual harassment by women who say they were manhandled

at a gathering of Navy flyers. It was called the worst case of sexual harassment in the Navy's history. More than 100 top gun pilots accused of conduct unbecoming officers and gentlemen. 30 years ago this year, the American public became aware of how bad things were for women in the armed forces. This has been a difficult issue for the Navy because it told us some of our people were not upholding the standards of behavior we expect of them.

Tailhook also brought to light the fact that we had an institutional problem in how we treated women. In that regard, it was a watershed event that has brought about cultural change. Everyone agreed something needed to be done. Such conduct and behavior are not acceptable for officers in our Navy. And I want to ensure that the American people and our officer corps understand the egregious conduct described in this report is not now,

never has been, and never will be acceptable to Navy leadership. And now, 30 years later, things are just still really bad. In 2019, the number of reports on sexual assault in the military was up 3%. Close to 8,000 reported cases, something like 5% of those resulted in convictions. It's gotten so bad that veterans are discouraging young women from enlisting. But Congress is just about as close as it's ever been to doing something that could address it. Democratic Senator Kirsten Gillibrand just unveiled a bill along with

Republican Senator Joni Ernst, and they've got support from the president and even some of the top military brass. Before we get into the specifics of the solution, though, let's talk about the problem. And part of the problem, believe it or not, is cake. One of the other things that the military has tried to do with questionable results is raise the profile of this issue by doing things like during Sexual Assault Awareness Month, having cake cuttings to kick off the Awareness Month or cake cuttings, cake cuttings or featuring teal pancakes, which is the color of the sexual assault awareness in in one particular base. Wait, sorry. So they do like fun baked food to to raise awareness of sexual assault. It is an odd custom, but it's one that has taken place. And the leadership will say that the point is to really inculcate awareness among the service members. But it does feel like an oddly

celebratory practice when you're talking about such a serious phenomenon that continues to plague the military. Missy Ryan writes about the military for The Washington Post. We set aside the cake to talk about what's really, really wrong with the military, how they prosecute sex crimes compared to, say, the civilian world. Well, the biggest difference between the civilian world and the military world is that the decisions around prosecution are made by the chain of command of any individual service member who makes an assault. And so you have, in effect, the boss of the person who is making an allegation deciding whether or not that case or that allegation is brought to trial in a military court, whether it results in some sort of administrative punishment or whether

it's dismissed entirely. And advocates for change will say that that is a conflict of interest potentially because the commander of the individual who makes the allegation could know the accused person. The commander could be involved in the case, him or herself. And, you know, it also raises the possibility of reprisals. And that is something that really has deterred reporting in the past. How much legal expertise does the average military commander have? Fairly senior commander who's making this decision around prosecuting sexual assault. And they would have been in the military for a couple of decades and presumably would have dealt with all sorts of disciplinary problems within their units. But they're not lawyers usually and they're not

certainly not sexual assault specialists they will have a command lawyer who works for them who is advising them but that person again is probably a generalist and so that's why advocates are saying that there needs to be this specialized cohort of military lawyers who have greater expertise in assessing and bringing to trial sexual assault cases. Do we have any idea how having military commanders essentially play judge and jury in these cases of sexual assault has affected the outcome of complaints of these cases? You know, it's really hard to say on a broad basis, but anecdotally, you know, there will be people who say that they don't, that they decline to report because they're afraid that their careers will be impacted, you know, and there's a small

minority of sexual assault cases result in a conviction in the military, just like in the civilian world, you know, and there are people who will argue that one of the reasons the conviction rate is low in the military is that military lawyers will take sort of close cases to trial in a way that doesn't happen in the civilian world. And so that results in a larger volume of trials and maybe a lower conviction rate. And it's really difficult to untangle that. But I think that the broader problem is that this continues to happen year after year, despite promises from senior leaders that the military is going to get this under control. And it really points to, in addition to some problems around reporting and prosecution, it points to a culture problem.

Have senior leadership in the Department of Defense been open to changing this system of having people report to their commanding officers? No, they have not. I mean, they will, you know, talk a great length about the seriousness with which they take this problem and the different reform steps that they've taken to try to get it under control. But the question of command responsibility for any sort of disciplinary problem in the unit is sort of an article of faith among the military leadership. And the commanders, the uniform commanders will make the argument that it will be difficult for them to command and even could create problems that would be reflected in combat situations if they don't have, if they don't retain the authority

to deal with all sorts of problems in their unit. And they've made that case repeatedly before Congress, even the current chiefs, the military chiefs have all argued against this change. But I think the difference now is that after Me Too, and given the fact that this problem just has not gone away over decades, I think that they are probably going to feel constrained in speaking out against this problem. And of course, you have a Secretary of Defense who himself was a four-star general not so long ago, but I think, you know, is also responding to not just the change in American society, but also the fact that President Biden himself has advocated for this kind of change. And we have to take on sexual assault and harassment and violence against women

in the military. Sexual assault is abhorrent and wrong at any time. And in our military, so much of unicohesion is built on trusting your fellow service members to have your back. There's nothing less than a threat to our national security. I take this issue of sexual assault very, very seriously, and I know that the service chiefs and the service secretaries do as well. And so the collection of the data

is a first step. But you can look for us to take additional steps in looking in detail at ourselves and what's worked, what hasn't worked and what measures we need to take going forward to ensure that we provide for a safe and secure and productive environment for our teammates. With the president and the secretary of defense on board, how are military commanders responding to this criticism that things just aren't getting better? We got to shake up the system. They would say that there are other things that you need to try that, you know, better education, better awareness building, and other steps other than the change in the command responsibility. They just sort of sidestep the issue? You know, their belief is that the commander has to be responsible for all aspects of their

subordinates' behavior. And that, you know, they see as sort of a crucial element of their ability to successfully operate as a unit that could be tested in combat. But yeah, the proposal that's on the table in the Senate is a fairly narrow one. And if it does come to pass, you know, they'll adjust and we'll just have to see whether it makes a difference or not. I think that it could result in perhaps greater reporting of sexual assault and more successful referral to prosecution. We'll have to see. But this larger cultural problem is separate, I think, and it's something that will require, I think, years of sustained change and perhaps, you know, the link to, you know, changes in

American society. And it's in the military's interest to make these changes, right? I mean, if the military is aiming to attract more women, to recruit more people, the less likely women are to get sexually assaulted, the better it is for the U.S. military, right? Absolutely. I mean, this, you know, could present a real recruitment and retention problem. You know, there are surveys that show that women are more likely to leave the military earlier than men. And one of the things that they cite repeatedly is the problems of sexual harassment and assault. My name is Caroline Fouts. I serve in the active duty army. I've been in the army for 18 years now.

I started my career when I was 17 years old. When I was in high school, 9-11 happened, and living on Long Island, it had a really big impact on my life, and that's why I wanted to serve my country. When I was sexually assaulted, I had just arrived in Korea, and I was assaulted by my physician's assistant, who is also a uniformed service member. It took me a while to realize that it wasn't just uncomfortable, it was wrong. Because, you know, I trusted this medical provider. I trusted a fellow soldier. I trusted this military officer. And so when things first started becoming peculiar about the exam, and he had spent an exorbitant amount of time around my breasts, I started questioning myself and my judgment far before I started questioning him and his ethics or his motives. That was a pivotal point in not just my life,

but in my career. There's nothing in the world, I think, that could have prepared me for the stress, the stress and the assassination of character that you experience when you go to trial. It became very challenging to do my job. This picture of my life was just taken, dropped, and completely shattered. And all the pieces were still there, but there's no way to pick them all back up and put them back together the way that they were. Thank you. They give finance teams unprecedented control and insight into company spend.

With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp. You can go to ramp.com slash go to ramp.com slash explained ramp.com slash explained r a m p.com slash explained cards issued by Sutton bank member FDIC terms and conditions apply. Bet MGM, authorized gaming partner of the NBA, has your back all season long. From tip-off to the final buzzer,

you're always taken care of with a sportsbook born in Vegas. That's a feeling you can only get with Bet MGM. And no matter your team, your favorite player, or your style, there's something every NBA fan will love about BetMGM. Download the app today and discover why BetMGM is your basketball home for the season. Raise your game to the next level this year with BetMGM, a sportsbook worth a slam dunk and authorized gaming partner of the NBA. BetMGM.com for terms and conditions. Must be 19 years of age or older to wager.

Ontario only. Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. All right, we're back. The military has this longstanding sexual assault problem. Part of the problem is how assaults are reported.

Commanding officers have a lot of power in the equation. There's a plan in the Senate to change that, and one of its authors is Senator Kirsten Gillibrand of New York. Senator, how long you've been trying to do something about this? Well, it really started for me around 2012. I was on the Armed Services Committee and people across my state started to approach me about this issue of sexual assault in the military. And I didn't know much about it, and I didn't really know where to start, but it really came to fruition when a colleague handed me a film called The Invisible War and said, Please watch this. About half a million women have now been sexually assaulted in the U.S. military.

Civilians see it as being a military problem. Anybody can be a victim of sexual assault. Rapists are repetitive criminals. Why would they stop? The Department of Defense has a history of covering up sexual offense problems. I don't know who you think elected you to defy the Congress of the United States. What is it you're trying to hide? I then had an opportunity to choose my subcommittee and I immediately chose the personnel subcommittee so I could start holding hearings. And we started holding hearings in 2013 on this very topic. And it really did begin to bring to light this scourge that's been plaguing the military

forever. And we started to figure out what types of reforms could make a difference. And we've been on that journey now for the past eight years. Why has this been such a tough nut to crack in Congress? So the military has fought us every step of the way. The DOD does not like change. They prefer the status quo. And even in the face of, on average, 20,000 estimated sexual assaults a year and a relatively low conviction rate, they still were unwilling to change how they dealt with these cases. A lot of the survivor community and the legal community all created a consensus around one reform, which was we need to professionalize how the military deals with

these cases. Today, a commander gets to decide who the judge is, the jury, the prosecutor, the defense, and whether or not a case has enough evidence to go to trial. That one decision point, we believe, unfortunately, is biased oftentimes and uninformed. Commanders aren't lawyers. The JAGs that assist them are not specialized in criminal justice. And so we believe that if you professionalize that one decision and gave it to trained military prosecutors, they would look at evidence differently. They have no bias. They don't favor the accused or the accuser over the other. And they will just, based on the evidence, make a decision. And that decision, we believe, will be a better decision and will result in more

cases ultimately going to trial and more cases ending in conviction. And if you want to change the culture in the military, start convicting rapists and show that it is a crime that truly is not tolerated. What you're proposing here doesn't sound like a radical change for anyone who works in, you know, a professional setting that has an HR department. It's not your boss who figures out, you know, what disciplinary measures might take place. It's someone who's, you know, a trained professional when it comes to dealing with personnel. How has the military been responding to this idea of having these sort of special prosecutors put in place? So up until now, they've really resisted it. They wanted to maintain all control over these cases.

But the truth is they just weren't very good at it. And unfortunately, in a lot of cases, when it was he said, she said, there was clear bias, and oftentimes the accused is more senior, more valuable to the unit, more decorated, and more important to the command and to winning wars. Interestingly, the tide is changing. chairman of the Joint Chiefs of Staff, has come out to say he is now open to this idea of taking decision-making out of the chain of command and giving it to trained military prosecutors. Just last week, the former chairman of the Joint Chiefs of Staff, Admiral Mullen, came out with the same statement. And what Admiral Mullen said and what General Milley said was they've been against this for a long time. They've been unwilling to do this. But in light of the fact that nothing has changed after a decade of small ball,

low hanging fruit reforms, which are the ones the Department of Defense was willing to allow, it's not changed. And so they're now willing to listen to the legal experts and the survivor community that has been advocating for this for the last decade. So that means you've got the President of the United States, the defense secretary, and Milley on your side now. Why do you think the momentum is shifting in this moment? Is it because there's a new president who wants to shake things up? It's a combination. First, we have a president who ran on this issue. Joe Biden said on the campaign trail that he would take it out of the chain of command. And so he asked General Austin to do a 90-day commission to make recommendations.

The recommendations of that committee did leak, and they are recommending taking it out of the chain of command. Second, we've had a growing coalition that has continued to grow over the last 10 years. And one person we just added to that coalition is Joni Ernst, who is not only a veteran, she's a former commander, and she's also a sexual assault survivor, and she's a Republican. And so to have the only former combat veteran who is a female from the Republican Party in the Senate to come out in favor of this reform after she herself has really struggled with this issue for the last six years also created more momentum. that there was a recent report out by the Department of Defense about Fort Hood. And a young woman named Vanessa Guillen was murdered, we believe, by her harasser. And the family of Army Specialist Vanessa Guillen is reacting to a new report on the investigation into her sexual harassment at Fort Hood. In an ABC News exclusive, her family says justice has still not been served and that this report just adds insult to injury, confirming that leaders failed to protect Vanessa. She had reported a harassment,

but this report from Fort Hood found that the command climate was so toxic that it was permissive for sexual assault and sexual harassment. And so now in black and white from the DOD itself, we have more evidence of the toxic culture that permits harassment and assault to run rampant. So with the president, the secretary of defense, the chairman, the joint chief of staff on your side and Republican support, at least some Republican support, what is the timeline for seeing this legislation through? If we are able to write this legislation into the national defense bill, then the entire Congress will be able to vote on that by summer, really. Usually it's either right before August or right

after August. If we do not put it in the defense bill, then we'll just have an up or down vote. And we already have over 60 supporters for this bill now. And it's widely bipartisan and always has been, interestingly. There's very few bills in Congress that have the support of Mitch McConnell and Chuck Schumer, Ted Cruz, Rand Paul, and Bernie Sanders and Liz Warren. So it's been widely bipartisan from the beginning of over the last eight years. But this momentum that's growing are from people who have been weighing this carefully over the last several years, including Republicans and Democrats who wanted to see if some of the earlier simpler reforms would work. They've now concluded they haven't worked. And so we need far more structural reform. And as we know from the civilian justice system,

that still might not do the trick, right? What are the next steps if these reforms, once passed, still don't work? If this doesn't work, we'll just keep reforming and keep getting it right. We also, in this bill, are going to increase a lot of prevention. So we want everyone trained to understand what sexual violence, sexual assault, and sexual harassment is, including commanders.

So we're going to require commander training and not just online with an iPad going through a slideshow. There's going to be in-person training. We're also going to increase security and other measures that I think will help prevent the crimes as well. You mentioned that this issue was first introduced to you early on in your career in the Senate when someone basically told you that this was something that needed addressing. What do you hear from military personnel now, not the chairman of the Joint Chiefs of Staff, but regular military personnel who want something to change? It's still a huge issue. And what we find is that younger women and men are traditionally the targets of these predators.

Unfortunately, lower level commanders in some units, in some services, are responsible for setting a climate that unfortunately has been hostile towards women and has permitted sexual harassment to thrive. We've also seen lack of accountability in online predatory behavior, taking photos of women without their consent and posting them online. We had the scandal, the Marines United scandal. It's a problem. service academies and in our colleges what respect is, what consent is, and create a baseline for people to understand that particularly our military can only be strong when there's mutual respect for all service members. And when we build that, we will have a stronger, a more ready, and a more disciplined force. Senator, thank you so much for your time.

Thank you. Take care. Senator Kirsten Gillibrand, she serves on the Armed Services Committee and represents the state of New York. I'm Sean Ramos for them. This is Today Explained. Thank you.