HRW Letter to US Senators Regarding Military Justice Improvement Act NDAA Amendment

Dear Senators,

We have been informed that the US Army has cited the May 2015 Human Rights Watch report, Embattled: Retaliation against Sexual Assault Survivors in the US Military,[1] in its opposition to proposals to remove decisions about the prosecution of sexual assaults from the chain of command. In materials recently circulated to Senate offices, the Army noted that “none of the 30 recommendations of HRW reduce the authority or role of the commander in the military justice system.”[2]

It is false logic to argue that the failure to include a recommendation on chain of command is a tacit endorsement of the status quo. Our report addressed retaliation against victims of sexual assault in the military and did not address criminal justice accountability for the perpetrators of those assaults. Our report did not include a recommendation on this issue because we considered an analysis of the criminal justice process outside the scope of our research findings. However, we do offer recommendations relating to commanders’ roles in perpetuating or tolerating retaliation. Our research indicates that with respect to addressing retaliation, the chain of command has failed survivors far more often than not. Further, most of the survivors we interviewed felt very strongly that decisions about these crimes should be removed from the chain of command.

“Embattled,” primarily based on more than 250 interviews, including with sexual assault survivors, and numerous public records, examines the widespread problem of retaliation against service members who report sexual assault. Department of Defense statistics indicate that 62 percent of female service members who report sexual assault say they experienced retaliation.[3] Our research documents the many forms that retaliation against victims takes, including physical and psychological abuse; poor performance evaluations and disciplinary actions; and referrals by commanding officers for discharge from the military. In addition, sexual assault survivors may be prosecuted for “collateral charges”—minor offenses (like underage drinking or adultery)—based on information that came to light only because they chose to report their assaults.

Commanders have a critical role to play in preventing and responding to retaliation, but it is a role they have largely abdicated. Commanders should create an environment in which retaliation is viewed as unacceptable and for holding those who do retaliate accountable. While retaliation is now criminalized, much of the behavior that we documented, while pernicious, may not rise to the level of a criminal offense. Commanders have the ability to intervene in such situations and set an example by visibly disciplining retaliators. Unfortunately, most of the survivors Human Rights Watch interviewed told us that their chain of command failed them at the moments when they needed their intervention most. In some cases, commanders openly tolerated the retaliation, permitting harassment and threats to continue unchecked. In others, they were complicit, including by taking unwarranted action to have survivors administratively discharged from the military. Despite seeking information from multiple sources, we were able to identify only two instances in which the chain of command acted effectively to address retaliation.

Certainly, retaliation against survivors has an impact on the criminal justice process. It can result in a survivor deciding to withdraw participation in an investigation or prosecution, and the threat of retaliation may deter victims from reporting in the first place. Indeed, in surveys, service members consistently cite fear of retaliation from the perpetrator or the perpetrator’s friends, or concern about their careers, as reasons for not reporting.[4] This reinforces the need for survivors facing retaliation to have an independent avenue for meaningful redress.

We found that mechanisms that should provide recourse for military sexual assault survivors who experience retaliation fall far short. While data suggest that thousands of survivors have experienced the type of professional retaliation that would be covered by the Military Whistleblower Protection Act, our analysis of public records did not identify any cases in which the law benefitted a survivor. We encourage the Senate to include improved protections for military whistleblowers in this year’s NDAA.

Please find enclosed a full list of our recommendations. Please contact us if we can provide any additional information for your consideration.

Sincerely,

Sara Darehshori                               
Senior Counsel, US Program

Meghan Rhoad
Researcher, Women’s Rights Division