April marks Sexual Assault Awareness Month in America. The National Sexual Violence Resource Center coordinates the annual campaign to raise awareness about sexual assault and prevention. While sexual assault remains a pervasive problem nationwide, it is particularly problematic in our country’s military.
Sexual assault in the military has taken a center role at the Capitol in recent months as lawmakers debate how to adjudicate those claims. The House Armed Services Subcommittee on Military Personnel held a hearing on March 6, 2019 concerning sexual assault in the military and hosted another hearing on April 2, 2019 regarding the role of military commanders in sexual assault prosecutions. This past February, the subcommittee held a hearing on combatting sexual assault at military service academies, after annual reports found an overall increase in the prevalence of unwanted sexual contact and harassment for both men and women at the academies. 
At the March 6th hearing before the House Armed Services Subcommittee, testifying witnesses included survivors who were assaulted while serving in the military and judicial officers who discussed each military branch’s procedure for reporting, investigating and prosecuting sexual assault. During the hearing, Senator Martha McSally (R-AZ), a 26-year Air Force veteran and the first woman in the Air Force to fly in combat, disclosed that she had been raped by a superior officer. Senator McSally explained that the rape was one of multiple instances of sexual assault she experienced while serving in the military. Senator McSally stated that she did not immediately report the sexual assaults because she “didn’t trust the system at the time.” Later in her career, after she shared her assault with others, Senator McSally was “horrified” at how her account was handled and almost left the Air Force.
The Defense Department’s most recent report on sexual assault in the military for fiscal year 2017 found that service member reporting of sexual assault increased across all four military branches.  The report explained that in fiscal year 2017 5,277 service men and women made a report of sexual assault that occurred during his or her military service, which was an increase of 10 percent from the 4,794 reports received in fiscal year 2016. 
Like Senator McSally, not every military sexual assault survivor makes a report for fear of retaliation from their peers or commanding officers. In 2014, the Department of Defense released statistics based on a study conducted by the RAND National Defense Research Institute of the rates of sexual assault, sexual harassment, and gender discrimination in the military. Only 14 percent of respondents indicated that they filed an official report.  Among the survivors who filed an official report of sexual assault, 52 percent of women reported experiencing social or professional retaliation, and 54 percent reported experiencing retaliation or negative career consequences (too few men reported sexual assaults to provide an estimate). 
Lawmakers remain divided about whether sexual assault cases should continue to be handled under the military’s current chain of command structure. Presently, the military justice system gives the commanders, which can be the reporting service member’s commanders, the authority to decide whether to prosecute the sexual assault claim. Others, including Senator Kirsten Gillibrand (D-NY), who is on the Senate Armed Services Subcommittee on Personnel, argue that sexual assault cases should be prosecuted outside of the military chain of command by independent and trained military prosecutors.
In recent years, lawmakers have instituted important reforms to the military’s legal system, including ending the statute of limitations on rape and sexual assault, providing special victim’s counsel to those who experienced a sexual assault, prohibiting retaliation against those who report sexual assault, and removing the authority from senior commanders to overturn convictions. However, a Congress comprised of historic numbers of women—several of which have come forward to share their personal experiences with sexual assault—may provide the requisite momentum to bring systemic changes and eliminate sexual assault in the military.
Nichols Kaster’s Individual Practice team represents employees in a broad range of employment-related claims, including workers who have been subject to sexual harassment and assault in the workplace. For more information, visit: https://www.nka.com/practice-areas/employee-rights/discrimination-and-harassment.html