May 23 (Bloomberg) -- As the only woman in her bomb-disposal unit in Afghanistan, Army Sergeant Rebekah Havrilla said she had learned to endure sexual harassment from her team leader and contempt from the captain who commanded the unit.
So when another service member raped her, she said, reporting the crime to her commanding officer was unthinkable.
“There was no way I was going to go to my commander,” Havrilla, who served in Afghanistan from 2006 to 2007, said in an interview. “He made it clear he didn’t like women.”
The reluctance of most victims to report crimes of sexual assault in the U.S. military goes to the heart of the uproar over such attacks, which President Barack Obama denounced last week as “shameful and disgraceful.”
Now a growing number of lawmakers, led by women in the House of Representatives and Senate, are demanding a change that military leaders have long considered anathema: letting independent military prosecutors, instead of commanding officers, pursue sexual assaults and other major crimes.
“Our system is broken,” said Senator Kirsten Gillibrand, a New York Democrat and chief sponsor of a measure to wrest such cases away from military supervisors. “This is the only way we can provide the unbiased justice that our victims need.”
The issue reached a boiling point this month after three officers assigned to programs to prevent sexual abuse were removed from their posts after allegations of wrongdoing.
Yesterday, the Army said a sergeant at the U.S. Military Academy at West Point who supervised 121 cadets was charged with violations including committing indecent acts. The allegations concern secret videotaping of female cadets without their consent while they showered, according to a U.S. official who commented on condition of not being identified discussing details not announced by the Army.
The U.S. military system for handling assault allegations is based on a principle older than the republic: Commanders must be in charge of disciplining their troops. That means a service member’s sexual-assault complaint goes to his or her commanding officer, who decides whether to initiate prosecution in a military court, picks the jury and has the power to reduce or overturn the verdict.
While Defense Secretary Chuck Hagel said last week that all options are now on the table on measures to reduce the “huge problem” of sexual assaults in the military, he had resisted the idea behind Gillibrand’s legislation a week earlier. “The ultimate authority has to remain within the command structure,” Hagel, who served in Vietnam as an Army sergeant, told reporters on May 7.
The military’s top officer continues to express concern.
“I can’t imagine going forward to solve this problem without commanders involved,” Army General Martin Dempsey, chairman of the Joint Chiefs of Staff, said on May 14.
Still, even the Pentagon has said the current system is broken, as the vast majority of sexual assaults go unreported. Based on a confidential survey of service members, the Defense Department projected this month that 26,000 military personnel may have experienced unwanted sexual contact last year, compared with 2,949 victims identified in criminal reports.
Advocates for Gillibrand’s bill say commanders have failed for decades in their responsibility to prosecute crimes and ensure justice for their troops when it comes to sexual assaults.
“Today’s military justice system is not professional,” said Anu Bhagwati, a former Marine captain and company commander who is executive director of the Service Women’s Action Network, a New York-based advocacy group. “It’s controlled by commanders who aren’t fully qualified to make legal decisions.”
Military law scholars such as Victor Hansen say Gillibrand’s legislation would set a troubling precedent that could do more harm than good to military culture.
“The consequences could be really bad if we’re talking about undermining a commander’s ability to ensure good order and discipline,” said Hansen, a retired Army JAG Corps officer who now teaches criminal law at New England Law Boston.
Havrilla, who has testified to Congress about her ordeal, said there was little order or discipline in her unit as she endured months of harassment that culminated in rape.
“I dealt with an abusive team leader for six months in Afghanistan,” she said in an interview. The sergeant first class “tried to pull me into his bed a couple of times, would slap my butt when I walked by if no one was around and one time tried to kiss and bite the back of my neck and put his hand in my shirt.”
The captain in command of the unit told other soldiers that he didn’t think women belonged there and seldom talked to her, Havrilla said.
About a week before she was due to return home, Havrilla said, she stopped by the room of an enlisted man who worked with a bomb dog to drop off some equipment she had borrowed.
“He grabbed me and threw me back on the bed,” she said. “I physically tried to leave and he physically restrained me. I told him ‘no’ repeatedly.”
She eventually relented, she said, to avoid what she feared would be a beating.
“It’s hard to explain what goes through your head, but you do a risk assessment,” Havrilla said. “I didn’t want to get hurt. I wanted to get out of Afghanistan as much in one piece as I could.”
With no faith in the chain of command, Havrilla said, she filed only a “restricted” report, a move that entitled her to counseling without triggering an investigation or charges. After leaving active duty, she filed a second restricted report in February 2009, after running into her rapist at Fort Leonard Wood in Missouri, where she was doing training for the Army Reserves.
Later that year, after a friend notified her that graphic pictures of her rape were posted online, Havrilla said she filed an unrestricted report. An investigation was conducted, though no charges resulted.
“It was a two-year-old case and a ‘he-said-she-said’ situation,” said Havrilla, who left the military in 2010. “I knew the chances of anything happening were pretty much slim to none.”
The record of commanding officers administering justice in sexual-assault cases is difficult to measure, partly because the military hasn’t compiled the data in a centralized manner.
The overturning of convictions is relatively rare, according to congressional testimony. The Air Force reported five such cases involving sexual assault in the last five years. The Navy reported one. The Army reported none since 2008, and the Marine Corps reported none since 2010.
How often commanding officers reduce sentences isn’t clear. The Air Force and Navy said they don’t track that data. The Army and Marines didn’t respond to e-mailed questions on the topic.
Hagel has agreed to legislation pending in Congress that would prohibit commanding officers from overturning verdicts. He has said they should retain the power to reduce sentences, although they should have to explain the reason in writing.
A draft of the annual defense authorization bill emerging from the Republican-controlled House Armed Services Committee stops short of removing sexual assaults from the chain of command, calling instead for a study.
Similar measures were introduced today in the House and Senate by a bipartisan group of lawmakers. The bills would require those found guilty of sexual assault to be dishonorably discharged from the military as a minimum punishment. They also would remove the ability of commanding officers to overturn court-martial verdicts, while calling for a study of their other powers military judicial proceedings.
“The important thing is to try to get as many of us to agree on legislation so we don’t end up with a party-line vote,” said Senator Claire McCaskill, a Missouri Democrat and chief sponsor of the latest proposal. “This is an opportunity where we can bust that gridlock.”
The same may not be true when it comes to prosecuting sexual assault and other crimes outside the chain of command.
“We have generally held the view that the one person that has the power to determine good order and discipline and to make sure it’s present is the military commander,” Republican Lindsey Graham of South Carolina, a former Air Force staff judge advocate and a member of the Senate Armed Services Committee, said at a March 13 hearing.
Senator Barbara Boxer, a California Democrat who is a cosponsor of Gillibrand’s bill, said that philosophy is no longer credible.
“It’s in the chain of command and it’s an utter failure,” Boxer said at a press briefing about the bill. “People are not reporting. We are not going to stop until we fix this.”
Even with an independent prosecutor, Havrilla said she isn’t sure she would have reported her rape immediately because “life would have been difficult” in a close-knit unit deployed in a war zone.
Brian Lewis, a former Navy petty officer third class who said he was raped by a superior noncommissioned officer, told Congress the proposal would have helped him.
“An independent prosecutor would have made a world of difference,” Lewis said at the hearing in March. “It would have gotten the reporting outside of the chain of command and not enabled my commanding officer to sweep this under the rug.”
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