The Supreme Court today unanimously ruled in favor of former Virginia Gov. Bob McDonnell on appeal of his corruption case. The conviction was vacated, setting the stage for a retrial. We consider the implications of the ruling - in and beyond the Commonwealth.
A Department of Defense report released Tuesday shows a 35 percent increase in military sexual assaults since 2010. It has prompted stern warnings from President Barack Obama and outrage among lawmakers. They point to the weekend arrest of the officer in charge of sexual assault prevention for the Air Force on sexual battery charges as the latest example of a widespread failure in training and prevention. We explore the report and what’s being done to address the issue.
- Susan Burke Attorney, Burke, PLLC
- Jeff Schogol Reporter, Air Force Times
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, this top-secret local cookie recipe has inspired dozens of imitators. We'll talk with the creator of the Salty Oats cookie about culinary trade secrets and launching a baking business. But first, a report released this week by the Defense Department shows sexual assaults in the military are up nearly 35 percent since 2010.
MR. KOJO NNAMDIThis coming on the heels of a string of scandals and headlines putting military sexual assault in the headlines, including right here in our area where the officer in charge of the Air Force's sexual assault prevention program was arrested for groping a woman in a parking lot in Arlington. It's shining a spotlight on a problem many say the Defense Department has failed to address. President Obama and lawmakers are now demanding action, and joining us to discuss it is Jeff Schogol. He is a reporter with the Air Force Times. Jeff Schogol, thank you for joining us.
MR. JEFF SCHOGOLThank you. It's a pleasure to be here.
NNAMDIYou too can join this conversation by calling us at 800-433-8850. Do you think sexual assault in the military is taking seriously enough or seriously at all? 800-433-8850. Send email to firstname.lastname@example.org. You can send us a tweet, @kojoshow, or simply go to our website, kojoshow.org, and join the conversation there. Jeff, as we said, the Defense Department yesterday released a report on sexual assaults in the military. Tell us a little bit more about that report. What are the major points?
SCHOGOLWell, the report was based on anonymous surveys that were given to service members, and the result show that 26,000 active-duty service members reported some kind of unwanted sexual contact. That's up from 19,000 who reported this in fiscal 2010. It should be noted that the 26,000 figure is active-duty service members, does not include the National Guard and Reserve. I've asked for that figure. Now, on the Air Force side, they reported 790 incidents last fiscal year. That's up from 614 the year before. So anyway you look at it, these incidents are going up.
NNAMDIYou mentioned that the report was based on anonymous surveys. What about the number of actual reported incidents of sexual assault?
SCHOGOLThe actual number is much smaller. It's more like 3,300 for last fiscal year. That's up only about 200. What it shows is that this remains a vastly underreported crime.
NNAMDIPresident Obama spoke out about the report and said, as commander-in-chief, sexual assault can not be tolerated. You were in hearings yesterday before Congress. Could you talk about what the response was there?
SCHOGOLThe Air Force has been stressing that they feel this is more than just a military problem. This is a society problem. So they've been talking about the wider issue. However, they also stressed that they have been doing everything they can think of to try to curb this problem. So far, in the words of the chief of staff of the Air Force, they have yet to find the game changers that will really make a difference. But when I spoke to Gen. Welsh, who's the chief of staff of the Air Force, after the hearing, he said no one is trying harder to curb this.
NNAMDIWell, Lt. Col. Jeffrey Krusinski might be a game changer in this regard, but probably not in the way that the Air Force intended. He was involved as one of the more shocking incidents that happened right here in Arlington. Can you tell us about that?
SCHOGOLYes. Apparently, he was arrested over the weekend, charged with sexual battery, and he's expected to be arraigned tomorrow. The Air Force has said they are going to ask for jurisdiction in this case. It's up to the sexual assault prosecutor to decide whether he would be tried in Arlington County or in -- under the Uniform Code of Military Justice, under the military justice system.
SCHOGOLBut apparently, he was arrested after groping a woman, and what makes this adding insult to injury to the Air Force is that he's the head of the Sexual Assault Prevention Response Office branch. This comes after a number of sex assault scandals the Air Force has had to deal with. It started with recruits at basic military training at Lackland Air Force Base in Texas, reporting abuse from their instructors.
SCHOGOLAnd then more recently, a sexual assault conviction against the lieutenant colonel was set aside by a three-star judge in Europe, and that sparked outrage from lawmakers, like Sen. Claire McCaskill.
NNAMDI800-433-8850 is our number. We're talking with Jeff Schogol. He is a reporter with the Air Force Times about sexual assault in the military. You can also send email to email@example.com. Do you think high-ranking military officers should have the discretion to be able to overturn convictions of rape or other serious sexual assault?
NNAMDI800-433-8850. Some are concerned, Jeff, about the training that officers receive. What was the case with Lt. Col. Krusinski? What was the basis of his appointment to this position, and what kind of training would he have received if he was supposed to be leading sexual assault prevention efforts?
SCHOGOLThat's exactly what we've asked the Air Force, and they're trying to get back to us on that. Yesterday, Gen. Welsh said that that this lieutenant colonel was known as a personnelist by training. He had had extensive experience in personnel. And Welsh looked at his record and talked to his immediate supervisor and said he -- there were no indications o a problem. But his background appears to be in personnel. What we're trying to find out from the Air Force is what are the qualifications for this position and exactly why was he hired, how did he meet those qualifications.
NNAMDIAnd one would think that if it was as high a priority as the Air Force says it is that that kind of information would have been immediately available to you.
SCHOGOLNot necessarily. This is -- when you're talking about personnel records and information of the like, it can be a little difficult to get.
NNAMDIAnd now, there's a focus on decisions to overturn sexual assault convictions, including a three-star general who will not likely be promoted. Can you talk about that?
SCHOGOLSen. Claire McCaskill, from Missouri, has put a hold on the nomination for one general who overturned a sexual assault conviction. Just to be clear, he -- the airman in question was found not guilty of one charge of sexual assault, and she overturned the conviction of -- on another. Claire McCaskill has been talking about the indignity the alleged victim had to face when she was forced to salute this person afterward. So that's one thing she has cited in blocking the nomination.
NNAMDILet's bring in Susan Burke into this conversation. Susan Burke is an attorney here in Washington who represents rape victims. Susan Burke joins us by telephone. Thank you for joining us.
MS. SUSAN BURKEOh, thank you for having me.
NNAMDIThe three-star general overturning a sexual assault conviction is the second case like it this year. In both cases, the general ignored the recommendations of their legal advisers and overruled a jury's findings. This is not something that happens in the regular court system. Can you explain how it works?
BURKECertainly. What we have going on in the military is a parallel system of justice under the UCMJ, the Uniform Code of Military Justice, and that adjudicatory process does in some ways mimic civilian processes that we're all familiar with. But the big difference in the military is that they allow the chain of command, so basically the operational people, your -- the employer, the person's boss and the boss of the boss.
BURKEThey allow the operational side, the chain of command, to have unfettered discretion over the legal proceedings. So a general or a colonel can say, oh, you know what, I know Fred Smith has been charged with rape, but guess what, I don't even want you to investigate. Or as we've seen with the Aviano and Gen. Franklin, you know, gee, I know that Lt. Col. Wilkerson, a fighter pilot, was just convicted by a jury of his peers, but, hey, I flew with him.
BURKEHe's a good guy. I'm going to set it aside. So you have this complete and arbitrary use of power, and that's -- that is where we really need the change to come about.
NNAMDII flew with him. He is a good guy. Let's overturn this conviction. That doesn't sound like a justification. Does any justification have to be provided in order to overturn a conviction?
BURKENo, not at all. It's not subject to scrutiny. It's not subject to any kind of appellate review. It is what most of us in the United States find just completely inconsistent with impartial justice. They can know the people. They can be friends with the people. They can listen and hear from other friends that, you know, whose testimony has been excluded in the court of law.
NNAMDIWhat's the reasoning behind allowing this kind of discretion?
BURKEWell, it's basically anachronistic. Back -- years and years ago, when you think about the lack of communication, there was a need as we sent troops out into foreign lands far from home, far from any type of communication, there was a need to have some sort of immediate order and discipline. So the military -- the Code of Military Justice empowered the commanders to handle all the judicial tasks.
BURKEBut as we can see from our Western allies, such as the United Kingdom, we need to modernize. We need to say, all right, whether or not that made sense 100 years ago, it clearly doesn't make sense today when in today's war-fighting environment, the lawyers come along, the court apparatus comes along, and there's no lack of communication.
NNAMDIWell, we got this tweet from Bruce in relation to the sexual battery charge against Lt. Col. Jeffrey Krusinski. "Why is there a possibility of a military trial for an assault on a civilian? Jeff Schogol, can you answer that?"
SCHOGOLWhat -- I think your caller can best describe it. Gen. Welsh did not provide an extensive explanation. All he said is that standard procedure in cases such as these.
BURKEYes. The military does attempt to exercise jurisdiction over all military members, including when they commit crimes against civilians. But we would encourage Arlington County not to defer to the military, to go ahead and prosecute it in the civilian court. This is a civilian victim, and there's absolutely no reason why the military should be adjudicating this case.
NNAMDIHere is Jonathan in Arlington, Va. Jonathan, you're on the air. Go ahead, please.
JONATHANYes. Hi. How do you do, Kojo?
NNAMDII'm doing well.
JONATHANThank you very much for taking my call. I've been a commander in Afghanistan at a very junior level and a very senior command. And I can tell you that the -- you know, I don't know the specifics of the case, but I can tell you that the commander's prerogative is a very necessary one and especially for offenses that may seem minor but are actually quite major in creating good order and discipline within the ranks.
JONATHANAnd so I would just say that this is -- while the case certainly in Aviano is a concerning one -- and it certainly begs the question that there should be some other layer of oversight -- I think we should not be to throw the baby out with the bathwater. And in this one instance or even in this trend of instances where there are concerns, it's important to realize why the commander's prerogative was put in place and to sort of allow cooler heads to prevail.
NNAMDIWell, all of that does indeed sound reasonable, but then you go to specific cases in which a jury has convicted an individual and the officer overturns that conviction without explanation. What is the public supposed to understand by that?
JONATHANI think that's a perfectly fair and legitimate concern. And it's something, obviously, that Congress needs to discuss as they are deciding on changes to the UCMJ. But the fact is is that I can -- I'm willing to bet dollars to doughnuts that there is no question that that three-star general -- and I don't know him and I don't know the specifics of the case, but did not do that ignorance of the fact that his career was probably going to ending because of the decision that he made. That's not necessarily an excuse.
JONATHANBut it should be at least some sort of signal of the awareness of the individual in question. I think there is clearly a space, given all the circumstances and given the pile of circumstances that have happened based on all these tragedies, that there should be some level of oversight at the senior Pentagon level and probably with the civilians who have a little bit.
JONATHANAnd I would even argue, the political civilians that are in charge, the secretary of defense, the secretary of the Air Force who have a little bit more sensitivity and understanding and development of the political concerns and the political reactions, very legitimate ones that are resulting from these cases and can have a better feel for the circumstances than potentially a military commander on the ground.
NNAMDISusan, what Jonathan seems to be saying is, yes, review the Uniform Code of Military Justice, but don't throw it out.
BURKEWell, I think the reality is we don't want what the caller is suggesting, which is that this thing that, you know, that adjudications of rape swing back and forth, given political sensitivities. That's not fair. That's not impartial. That's not the type of American justice system. And although certainly it's imperative that the commanders have the tools they need to keep good order and discipline, adjudicating crimes is not necessary. We can see that from the example of the United Kingdom.
BURKEThe commanders have a whole panoply of other tools that they can use, managerial tools, all sorts of discipline and everything else. There's no reason to put these commanders who are not legally trained, who are not familiar with collecting evidence to put them in the spot of adjudicating rape cases. It's simply not working.
BURKEAnd for every situation, like the Aviano one, it doesn't matter that it may end Gen. Franklin's career. What matters is that you've got 92 percent of your victims unwilling to come forward. That's because they know that even if they get a jury conviction, they can just be set aside. And...
NNAMDIChanged about -- go ahead. Go ahead, please. Finish your thought.
BURKENo, I'm sorry. I was just going to say, you know, the underreporting then makes it harder to get the convictions.
NNAMDIOf course, this was thrown out about 10 years ago in the U.K. But, Jeff, a number of advocates and some lawmakers are calling for taking this process out of the chain of command. What's the answer they generally get?
SCHOGOLWell, yesterday, Gen. Welsh was asked about this and said, over the past three years, the Air Force had something like 1,100 sexual assault cases, and only once did the convening authority not prefer charges against the recommendation of the judge advocate general. So what Gen. Welsh is saying, chain of command is not the reason why victims are refusing to come forward. He said that the reason they cite most often is shame, that they would feel embarrassed, that they don't want their command to know about it, that they don't want friends and family to know about it.
NNAMDIWell, Defense Secretary Chuck Hagel ordered several initiatives. Can you talk about the main ones?
SCHOGOLWell, he's -- in broad terms, he's issued -- he's asked that commanders be held more accountable for -- one way is that there will be these what are known Command Climate Surveys. These are questionnaires filled out by people under various commanders, and the results would go not to the commander, but the commander's superior officer.
SCHOGOLAnd this would be used to judge what kind of environment the commander if engendering. But what is unclear is exactly how these measures will hold commanders accountable. My colleague, Andrew Tilghman, asked an army official yesterday, would these results be used as part of promotions? And the answer was more or less they're still trying to figure that out.
NNAMDIAll important steps, I guess. But is that, in the eyes of some, simply more of what the Defense Department has supposedly been doing to address this?
SCHOGOLIt would not surprise me if critics would say that because if you look at the data, despite what DOD and the Air Force have done, these incidents continue to rise. As I said, Gen. Welsh said yesterday, it's not for lack of trying. And they haven't yet found the solution to this. They are praising something called the Special Victims' Council in which victims of sexual assault are provided an attorney to help them navigate through the legal process.
SCHOGOLAnd he said the number of those victims who have been provided special counsel who decided not to go ahead with prosecution is very small compared to the overall rate of sexual assaults and then those who decided to go forward.
NNAMDIHere is Jay in Baltimore, Md. Jay, your turn.
JAYI'm a current uniformed military lawyer. I came in late to uniform. I was a homicide prosecutor as a civilian and a defense attorney. And the convening authority and the UCMJ always struck me as rather strange, but I've learned to live with it. I do think the system is ripe for change. But I would point out that the convening authority's ability to hear post-trial matters does benefit the defendant and is a matter of due of process that shouldn't be lightly abrogated. And for...
JAYWell, because it doesn't apply just in sexual assault cases. It implies in a number of cases. And, in fact, let me come back to that, but there is a recognized defense in UCMJ called the Good Soldier Defense. You don't even have to address the facts of the allegation. If you can just prove that the person's character is a soldier is exemplary, the jury can take that and acquit on that basis alone.
JAYNow, let me go back to why post-trial is important. Because you're in a military system and there is command influence, there's always the specter that the people sitting on the panel are being influenced by their commanders. And there's got to be a safety valve for bad decisions. The UCMJ operates in extraordinary circumstances. I conducted courts martial in Afghanistan while the base was being rocket-attacked. It's simply a very strange creature.
JAYNow, I'm not defending the general's decision to overturn the panel's decision. That sounds ludicrous to me, but I think we need to be very careful about systemic changes. I definitely think there a problem with sexual assault in the military, and I would say it starts with the culture of the military itself. The investigators, the prosecutors, they simply don't give credence to the victims when the victims complain. Thanks.
NNAMDIOK. Thank you very much. Susan Burke, care to respond to that?
BURKEWell, I would agree with what the caller say that there's just a -- there is a really terrible climate for victims in terms of their credibility is immediately questioned. There's a lot of victim-blaming. And I find, for example, the comment noted by the Air Force Times reporter that Gen. Welsh is saying they don't come forward out of shame.
BURKEHaving represented hundreds of these people who are coming forward, they're just simply not accurate. The reason the people are not reporting is because they know that there's a less than 1 percent chance that the rapist will get convicted, and yet they have a 62 percent documented chance of retaliation. So there's a rational reason why people are not coming forward yet.
NNAMDIHow does that compare to the civilian rate of conviction?
BURKEWell, the civilian rate is a little harder to get your handle on because we don't have national data. But my understanding from the research is that it's approximately 40 percent.
NNAMDIOK. Jay, thank you very much for your call. And we have time for one more call. Here's Dennis in Bethesda, Md. Dennis, have we already answered your question?
DENNISYes, sort of. I guess the question, too, is how many court-martials or people who have been discharged that they -- because of their conviction?
NNAMDIFor -- specifically for sexual assault?
NNAMDIAnd there was the question there that I--
DENNISCan I ask -- question?
DENNISYeah. Also, what could be -- what could, like, the Obama administration or Chuck Hagel, you know, through the secretary, what could they do by sort of an order to change the structure at which these...
NNAMDIWell, let Jeff Schogol tell you because this is really in Congress' hands right now, isn't it?
SCHOGOLThat's correct. The UCMJ was created by Congress, so it's Congress' purview to change. You had asked about court-martials. The data we have for fiscal 2012 is that 594 cases were preferred to court-marital, another 158 received non-judicial punishment. It's administrative action. One hundred twenty-eight received some other form of action, for example, a discharge. Of those that went to court-marital, the Air Force -- excuse me -- the Defense Department only has data on 360 -- 460.
SCHOGOLOf those 460, 238 received the conviction on at least one charge. Now as for changing the UCMJ, as I said, that's up to Congress. That's why the Defense Department came up with recommendations on how to change it, for example, requiring that if a commander were to reduce a sentence or -- at all that they would have to provide some kind of justification in writing.
SCHOGOLThey also recommended that a command -- that the convening authority no longer be able to simply set aside a verdict. They can recommend that, but it's ultimately up to Congress to enact that. And you have lawmakers like Sen. Gillibrand from New York saying, let's take the chain of command out of the equation altogether and have sexual assault victims report directly to a specially trained prosecutor.
NNAMDIIs that what you would favor, Susan Burke?
BURKEYes. I think if you're not going to put it in civilian courts, then you need to, at the very least, take the chain of command out of it and leave it just to the military's legal adjudicatory structure.
NNAMDISusan Burke is a D.C.-based lawyer representing rape survivors. Jeff Schogol is a reporter with the Air Force Times. This conversation on sexual assault in the military is clearly not over. We will probably revisit it at a later date. But thank you both for joining us.
NNAMDIWe're going to be taking a short break. When we come back, this top secret local cookie recipe has inspired dozens of imitators. We'll be talking with the creator of the Salty Oats cookie, about culinary trade secrets and launching a baking business. I'm Kojo Nnamdi.
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