Military Justice: Blaming the Victim

The military justice system doesn't give sexual assault victims confidence they will receive justice.

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One of the problems with stopping sexual assault in the military (and in general) is that victims are reluctant to come forward. A report by the Pentagon estimates that some 26,000 service members were sexually violated last year, but just 3,374 filed complaints.

If one wonders why, in the 21st century, when presumably we don't think a victim of sexual assault or rape was "asking for it" by what she (and, in some cases, he) was wearing, or drinking or doing, then surely people should feel confident that they will receive justice by making a formal complaint.

But anyone who believes that should look at the treatment of a woman who has accused several of her fellow midshipmen of raping her at a party.

[See a collection of political cartoons on women in combat.]

The woman is undergoing what is called an "Article 32" hearing, a procedure in the military to determine whether a trial is warranted. It is not quite the same as civilian proceedings (though it's closest to a grand jury proceeding).

Mostly, the alleged victim in this case is being made out to be the wrongdoer. She was drunk – so drunk, apparently, that she could not even remember the attack until tweets and rumors the following day indicated that three of her comrades had indeed raped her. Her black-out level drunkenness alone is enough to make her unable to consent to sex, her lawyers say. But instead, it is the victim who is being humiliated all over again in the military proceedings.

It's reasonable to ask the victim outright if she had in fact consented to the sex. But defense attorneys went grotesquely further, asking her the following:

  • Was she wearing underwear and a bra the night of the party?
  • How widely does she open her mouth when performing oral sex? (This question was asked of her repeatedly, on the insulting and bizarre premise that oral sex by definition requires consent, since the victim would have to agree to open her or his mouth.)
  • Did she feel like a "ho" the next morning?
  • [See a collection of political cartoons on defense spending.]

    The line of questioning sounds like something out of a bad movie, something so outlandish that such a fictional account would make a mockery of the sort of harassment real-life rape victims endure. But this was real.

    It's the third question that is most disturbing, and not only because of the use of the word "ho," which is insulting street talk not appropriate in a courtroom. The defense attorney apparently could not bring himself to utter the word "whore," which is what "ho" means. But that was the premise of his argument. – that a woman who has sex with three men at a party could only be a prostitute, and therefore not worthy of protection under the law. He wanted her to feel ashamed of what happened to her, then use the shame to make the entire episode her fault.

    Coming after a Montana judge reduced a rape sentence to just 30 days against a teacher who had sex with a 14-year-old girl, the behavior of the military defense attorneys is even more alarming. Our military exists to protect our safety. Judges exist to protect our rights. Rape victims, it appears, do not warrant protection.

    Andrew Weinstein, the defense attorney who grilled the complainant about what undergarments she was wearing, also asked her how many times a day she lies. That's a good question for Weinstein. Because every time he tells himself or someone else he's part of the criminal justice system, he is lying.

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