When institutions such as the military or universities are responsible for resolving sexual assault allegations, significant conflicts of interest arise with regards to counseling, protecting victims, and enforcing consequences. Sexual assault has been a recurring and unresolved issue in the military and on college campuses. Examining institutional sexual assault response procedures and the opposing interests of victims and institutions in these settings helps explain why it is so hard for victims to vindicate sexual assault claims.
The military criminalizes sexual assault in Article 120 of the Uniform Code of Military Justice (UCMJ). 10 U.S.C. § 920 (2013). The Supreme Court has found that military personnel cannot bring claims against military officials for torts, such as those involving sex offenses, that are “incidental to service.” Feres v. United States, 340 U.S. 135 (1950). Furthermore, Courts have deferred to the military’s methods for dealing with sexual assault claims, finding that the only avenue of relief for service members who have been sexually assaulted is court-martial under the UCMJ. See, e.g., Gonzales v. U.S. Air Force, 88 F. App’x 371, 373, 375-76 (10th Cir. 2004).
According to the Department of Defense, there were an estimated 26,000 military sexual assaults in 2012, which is an increase from the estimated 19,000 military sexual assaults in 2010. Until very recently, the military’s methods for dealing with sexual assault essentially ignored reports of sex offenses and reinforced a “boys will be boys” culture. Congress has somewhat improved the military’s approach to sexual assault through the 2014 National Defense Authorization Act. Pub. L. No. 113-66, December 26, 2013, 127 Stat 672 [hereinafter NDAA].
In order for any UCMJ criminal offense, including sex offenses, to reach court-martial, an individual is required to report the offense to his or her commanding officer, who conducts an initial investigation and decides whether to recommend the charges for court-martial. Manual for Courts-Martial, United States, Rules for Courts-Martial 301, 303, 307 at II-19, II-27 (2012 ed.). If charges are referred for court-martial, an Article 32 hearing, similar to the civilian Grand Jury process, takes place. 10 U.S.C. § 832 (1996). Historically, victims have not been protected by rape shield laws during the court-martial process, resulting in counsel for the accused extensively questioning victims about their sex lives in Article 32 hearings. For instance, in a 2013 Article 32 hearing regarding an allegation of sexual assault at the Naval Academy, defense counsel questioned the victim about her sexuality for over 30 hours. Even if a sexual assault claim survives the Article 32 hearing, and a court-martial results in a conviction, commanding officers previously had the discretion to overturn both the conviction and the sentence. Manual for Courts-Martial, United States, Rules for Courts-Martial 1107, II-151.
The NDAA of 2014 has added some accountability to how officers handle sexual assault. Officers are now required to immediately report the incident to a criminal investigative agency, and if officers decline to refer a case for charges, a superior officer will review the claim. NDAA § 1742. The act also establishes minimum sentencing guidelines for sex-related offenses, id. § 1705, and removes commanding officers’ authority to dismiss court-martial convictions and sentences in cases involving sex offenses. Id. § 1702. The NDAA further adds victim protections in Article 32 hearings, id. § 1702, allows victims to apply for permanent station changes or unit transfers, id. § 1712, and gives commanders authority to remove or temporarily reassign alleged perpetrators. Id. § 1713.
Although the 2014 changes to the military’s approach to sexual assault add some accountability, commanding officers still function as the gateway through which victims must pass to have their day in court. Commanding officers are typically men, and victims believe that officers will fail to appropriately address sexual assault claims. Additionally, reporting to commanding officers is problematic as many victims indicate either that their rapist outranks them or that the very officer to whom they are supposed to report is the assailant. Moreover, commanding officers have an “inherent conflict of interest” when it comes to being transparent about sexual assault in their units as officers are evaluated on the climate of their unit, which receives a poor rating if sexual offenses are reported. Military victims’ interests in receiving accommodations or vindicating claims simply do not line up with officers’ interests in keeping unit issues under wraps and protecting themselves or other officers.
Institutions of higher education also have conflicts of interest when it comes to dealing with sexual assault. Title IX requires schools to ensure that students do not face sexual discrimination in education. Yet according to the Campus Sexual Assault Study: Final Report, approximately 1 in 5 women experiences unwanted sexual contact during college. The significant issues with university sexual assault have been highlighted by student political acts. For instance, Emma Sulkowicz, a Columbia student, is carrying a mattress around campus until the university takes action against the person who she alleges sexually assaulted her, and the Harvard Crimson article “Dear Harvard: You Win” describes how university advisors discouraged a victim from filing a formal complaint resulting in significant limits on available accommodations. Based on the Office of Civil Right’s ongoing investigations into sexual violence at 89 institutions of higher education, these high profile cases are just the tip of the iceberg.
Similarly to commanding officers in the military, individuals responsible for counseling victims and overseeing sexual assault cases at universities have significant bias issues. The Office of Civil Rights states that Title IX coordinators should be individuals without conflicts of interests, and then suggests that only general counsels, disciplinary board hearing members, and disciplinary board appeals members have conflicts, indicating that most university personnel are considered conflict free. Title IX coordinators appointed by schools are usually individuals on the school’s permanent staff. It does not take a trial advocacy course to put 2 and 2 together: Title IX coordinators get their pay checks from schools, and it will almost always be in the best interest of the school to deal with sexual assault as quickly and quietly as possible to avoid reputational damage. The same is not typically true for victims. In fact, sometimes the only way for victims to get meaningful accommodations after a sexual assault, for instance, having the assailant move to a different dorm, is through a formal proceeding.
The tension between student interests and university interests in sexual assault cases is apparent in the current debate at Harvard. While the university’s new Title IX policy is more expansive, it is still administrated by Harvard employees. The different interests of those in charge of the Title IX process and students is neatly highlighted by the Crimson article: “When I told my House Master that I was considering an Ad[ministrative] Board process, I was told it was a bad time of the semester, that there would be consequences for my assailant anyway, and that we shouldn’t go through the process if it was going to be fruitless.” At the end of the day, individuals who report sexual assault to any university still find themselves in the tenuous position of seeking advice from university employees whose interests do not necessarily align with their own.
No matter how much Congress reforms laws and no matter how many new procedures administrative agencies implement, there is still an inherent conflict of interest between the optimal sexual assault response for victims compared with the optimal sexual assault response for the military and universities. As long as this conflict of interest remains unaddressed, sexual assault will continue to be a serious problem in these arenas.
If commanding officers have a say in the matter it is almost always leading up to a conflict of interest. In all probability the perpetrator will be a member of the same unit (platoon, battalion etc.) and the commanding officer has an overwhelming interesting in presenting his “realm” as clean and himself executing good oversight. It is rather inacceptable that a direct superior should have a say in the matter of whether the case should go to court. This should always be the decision of an independent counsel or prosecutor.