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Although prejudice against homosexuality was the underpinning of "don't ask, don't tell," the military nonetheless insisted that harassment or abuse of gay and lesbian servicemembers was not to be condoned. An attachment to the July 1993 memorandum describing the policy to the secretaries of the Army, Navy, and Air Force from Secretary Aspin stated that: "All servicemembers will be treated with dignity and respect. Hostile treatment or violence against a servicemember based on a perception of his or her sexual orientation will not be tolerated."105 While the Department of Defense asserts its commitment to protecting all servicemembers from prejudice and intimidation,106 it has been remarkably unsuccessful at protecting gay and lesbian servicemembers. Hostility and harassment pervade their lives. On March 14, 2002, the Servicemembers Legal Defense Network reported that there were 1,075 reports of anti-gay verbal and physical harassment in 2001, an increase of 23 percent from the 871 incidents reported in 2000.107 The Pentagon's own research confirms gay servicemembers' reports of hostility. In March 2000, the Department released the results of a random survey of 71,570 active-duty servicemembers to determine the frequency and magnitude of anti-gay comments or harassment. The survey found: · Eighty percent of respondents stated that they had heard offensive speech, derogatory names, jokes, or remarks about gay men and lesbians during the previous year, and 85 percent believed such comments were tolerated to some extent.108 · Thirty-seven percent reported that they had witnessed or experienced an incident that they considered anti-gay harassment.109 · Ten percent believed harassment was tolerated by their peers, while 5 percent believed it was tolerated by someone in their chain of command.110 · One-third of the respondents, roughly 23,600 servicemembers, provided more detailed information on incidents they had experienced or witnessed. · Twenty-two percent (or 5,192) said the incident was witnessed by a senior officer, and of these, 73 percent (or 3,790), stated that the senior officer did nothing immediately to stop the harassment.111 At the press conference releasing the report, the Pentagon's spokesman acknowledged, "We need to do more work on this policy. In short...offensive comments about homosexuals were commonplace and the majority believed that these offensive comments were tolerated to some extent within the military."112 The Department of Defense periodically issued rules intended to curtail and hold accountable those who engage in anti-gay harassment. Under Defense Department anti-harassment guidelines issued in 1999, for example:
Gay and lesbian servicemembers believe reports of harassment are inadequately investigated and those responsible rarely held accountable. According to the Servicemembers Legal Defense Network, not one servicemember was held officially accountable for asking, pursuing, or harassing during the policy's first six years; in 2000, three officers were punished for their involvement in publicized incidents.114 Anti-gay prejudice may have contributed to the inadequate implementation of the 1999 guidelines. One Marine lieutenant colonel's private response to the guidelines vividly manifests that prejudice:
In March, 2000, following the release of the military's harassment survey, Secretary of Defense William Cohen announced a working group of Defense Department leaders to come up with an "action plan" to combat harassment.116 In July 2000, the task force produced a thirteen-point "action plan," that included general recommendations regarding overall Pentagon policy, training, reporting, discipline for those who engage in harassment, and a monitoring program to ensure the reforms were implemented fully.117 While many of the recommendations reiterated previous guidelines, some aspects of the Action Plan went further. For example, the plan contained the recommendation that anti-gay gestures or comments be prohibited.118 The announcement of the Action Plan appeared to be a positive, albeit overdue, development and a genuine effort to address anti-gay harassment in the military. But the good intentions were never implemented as policy or practice. As of September 2002, the Pentagon had failed to issue directives and instructions to implement the Action Plan. The cases noted below illustrate the kind of anti-gay experiences that servicemembers endure, from verbal harassment to violence. They also illustrate how harassment can create such an intolerable work climate that servicemembers choose to secure a discharge by acknowledging their homosexuality. Many who have endured hostile treatment leave the services because they do not believe those responsible for harassment will be held accountable. Threats and Verbal Harassment
· Navy Airman Paul Peverelle told his commander that he was gay, because he wanted his superior to know that a homosexual was doing work that had been highly praised.124 His commander thought that Peverelle was lying about being gay, and the military did not initiate discharge proceedings. Instead, weeks later Peverelle embarked on a six-month tour of duty on the USS Enterprise, eventually being sent to Afghanistan as part of Operation Enduring Freedom. On the ship, Peverelle became the focus of threats and harassment. Two members of his squadron called him names like "faggot" and "gay bitch" and threatened to "beat his ass." Upon his return to Norfolk, Virginia in January 2002, Peverelle was discharged under the "don't ask, don't tell" policy. · In 1998, the Naval Reserve Officers' Training Corps (NROTC) at Cornell University expelled Midshipman Mark Navin after the relentless harassment of his peers led him to declare his bisexuality to his commanding officer.125 From his first weeks in the program in 1995, he was subjected to frequent jokes and questions about his sexual orientation. Fellow recruits made comments in the presence of a superior officer, who did nothing to intervene. The harassment grew worse during his first and second summers in the program, when Navin was assigned to Navy cruises. During the summer of 1997, on a late-night watch, an enlisted crewman threatened Navin, "You'd better not be queer, because in the Navy we kill our fags." Navin was repeatedly asked whether he was gay and teased about an alleged relationship with another NROTC student, Midshipman Robert Gaige. Navin and Gaige's instructor in the NROTC program, a major, took part in this harassment on numerous occasions. According to Navin, on one occasion, upon seeing a red AIDS ribbon on Gaige's jacket, the major asked, "What are you, some kind of fucking homo?" Both Navin and Gaige ultimately disclosed their bisexuality to their commanding officers, citing harassment and fear for their physical safety. "Everything I had experienced with harassment led me to believe that the people I would go to would not be responsive," said Navin.126 · At Andrews Air Force Base, Senior Airman José de Leon wrote a letter to his commander in October 1999, acknowledging that he was gay, and was subsequently discharged. He wrote, "I mostly fear getting beat because of the way I am. I always watch my back where ever I go."127 In his letter, he referred to an incident in which an airman who became angry during a basketball game told de Leon, "If you ever touch me again, I'll kick your faggot ass!" He said that anti-gay comments were common on the base and that rumors about his sexual orientation were circulating.128 De Leon's squadron commander, Lt. Col. Dave Howe, told Human Rights Watch that the airman who had harassed de Leon was given "fair warning" that he might be disciplined if he did something similar again.129 · In August 1999, during training in Pensacola, Florida, superiors and peers repeatedly questioned Marine Private First Class Timothy Smalley, Jr. about his sexual orientation because of the way he stood and walked. A corporal told him, "If I beat you up, would you tell anyone? In the fleet, some people wake up with black eyes for no reason."130 After training, he was assigned to the same base as the officer who had threatened to assault him. Fearing for his safety, he sought and was granted a discharge under the "don't ask, don't tell" policy. He was discharged in December 1999. An investigation into the harassment and threats was initiated, but Human Rights Watch does not know the outcome. · Senior Airman Lauren Brown did not think much about "don't ask, don't tell" when she enlisted in January 1996.131 Beginning in October 1999, while on training exercises in Egypt, she started receiving anonymous death threats. One written on the windshield of her government-leased vehicle stated, "Die you fucking dyke." In November 1999, after she returned to Shaw Air Force Base in South Carolina, a note left on her vehicle stated, "God hates queers and so do we, die you fucking dyke." She decided not to report the threats, because she thought it would jeopardize her career. Then, in December 1999, she found the car torched and destroyed, and two of its tires slashed. She reported the arson and told Air Force and local police investigators about the earlier threats and vandalism. Months later she received another note on her vehicle stating, "Gun, knife, bat. I just can't decide which one. It's not over dyke." The harassment continued after she reported that incident to the Air Force Office of Special Investigations. After the torching of her car, Brown went to the Air Force Equal Opportunity Office and filed a report, but never received a response. Brown was later herself tried by court-martial for the arson to her car, but was ultimately acquitted. Throughout her investigation and trial, Brown never disclosed her sexual orientation. But because Brown felt terrified for her safety and did not think any of the threats against her were adequately investigated, she chose to leave the services in November 2000 with an honorable discharge. In her letter to her commander she stated, "I am still in fear of my life from whomever it is that has threatened me, and still, the Air Force has made no significant effort to have me transferred from Shaw [Air Force Base] or to `welcome me back into the fold.'" She concluded, "The Air Force has done nothing to protect me."132 · Navy seaman Jeremy Manders was asked by his superior, a chief petty officer on the USS Carl Vinson, if he was gay.133 After Manders said he was not, the superior said, "I am not the one you want to tell that you are gay; I will discharge you from the Navy and send you home in a box." Manders also heard his Chief Petty Officer tell others, "I hate faggots. They have no right to be in the Navy." In January 2000, the seaman wrote to the ship's commander acknowledging his homosexuality and seeking a discharge. Violent Assaults
The following cases illustrate how unchecked verbal harassment can lead to violent assault or patterns of violent attacks against individuals who are suspected to be gay or lesbian: · In 1996, during advanced training at Fort Meade, Maryland, two women harassed Air Force recruit Jennifer Dorsey in her dormitory because they believed she was a lesbian. Dorsey found a red swastika drawn on her door and reported it to her commander. The unit received a verbal briefing that harassment was not tolerated, but no disciplinary action followed. One night in April 1996, the same women who had been harassing Dorsey attacked her in the latrine. They repeatedly struck her in the legs and stomach, and called her a "sick dyke." Her commander, in response to her recitation of the events, stated that a "don't ask, don't tell" inquiry would be initiated. The commander affirmed, "If that's your lifestyle, you had better cease and desist. You can be sure there will be an investigation." Dorsey and her legal counsel filed a complaint with the Inspector General's office, but despite repeated attempts to obtain information about the inquiry's outcome and any disciplinary actions against the assailants, the Inspector General's office provided no information.135 After training, Dorsey was transferred to Vandenberg Air Force Base, where rumors about her sexual orientation started again. A sergeant at the base told her, "I've heard you were under investigation at Ft. Meade. I suspect it has followed you. I advise you to get a separation before you face court martial."136 Then, during a visit to an Air Force psychiatrist to discuss her grief over her grandmother's death, the psychiatrist "hypothetically" asked Dorsey if she was a lesbian. She filed a complaint about the harassment and inappropriate questioning with the Inspector General in March 1997. Ten months later that office had still not contacted her, nor advised of the results of an investigation. Dorsey requested a discharge from the services in 1997 because she feared that harassment and inappropriate questioning would continue. 137 · On September 7, 2000, Army Private First Class Ron Chapman's drill sergeant at Fort Jackson called him a "faggot." Chapman believes the drill sergeant used the epithet because Chapman had pierced ears and wore earrings before joining the army. After the drill sergeant's comment, another soldier threatened that Chapman had better watch out. Shortly thereafter, fellow soldiers attacked Chapman using their fists and soap wrapped in a blanket.138 Chapman wrote home the next day: "I have some bad news for you. I got beat up last night. Someone came to my bed-a group of someones-and they were hitting me with blankets and soap. I am aching all over my body ... You guys have to help get me out of here ... This place is dangerous!"139 Superiors asked Chapman what had happened, but he feared that complaining would put him in more danger or that he would be "recycled" back to the beginning of basic training-as his drill sergeant had allegedly threatened to do. Harassment and threats continued, and the battalion command sergeant major questioned him about the incidents. One of his harassers was present when Chapman was questioned, and he feared discussing the beating in his presence. Chapman received an honorable discharge after "telling" that he was gay because he feared for his safety. Chapman's legal counsel pressed his superiors to conduct an investigation into the attack and provided the details about the beating and harassment. Chapman's counsel told Human Rights Watch that an investigation of the command's response to the reported attacks concluded that the command had acted appropriately. An investigation of Chapman's allegations of verbal and physical abuse found the verbal abuse complaint "substantiated," but the physical abuse complaint "unsubstantiated." The counsel was unaware of any discipline stemming from the substantiated verbal abuse complaint.140 The Murder of Private Barry Winchell
The Army initially characterized Winchell's murder as the outcome of a "physical altercation" and said there was no evidence that it was an anti-gay hate crime.143 As the facts emerged, however, it became clear that Private Glover was motivated by anti-gay hatred, and that Army superiors had failed to end a pattern of harassment prior to the murder. After the verdict, Winchell's mother, Patricia Kutteles, filed a wrongful death lawsuit against the Army.144 "I do not want another parent to have to endure what we are going through," she stated. "The Army failed to stop the daily harassment our son faced, and it led to his murder."145
Anti-gay tensions at Fort Campbell did not abate following Winchell's death. A large drawing of a baseball bat, with the words "Fag Whacker" written on it, appeared on a bathroom wall in the base's family support center. Graffiti at the base's recreation center stated, "all fagets [sic] in the army will be killed." The soldier who reported the graffiti ultimately told his commander he was gay and feared for his safety at Fort Campbell:
In a sworn affidavit, Private Javier Torres described the anti-gay climate at Fort Campbell and his experience of constant anti-gay harassment and his fears for his safety.149 He recalled a staff sergeant's cadence during a run, after Winchell was killed, as: "Faggot, faggot down the street, shoot him, shoot him, `til he retreats," or words to that effect.150 Torres stated that he heard soldiers say, "So what if he [Winchell] was killed? He was gay," and "Who cares? He was just a fag." According to Torres, when he expressed concern to other soldiers about Winchell's killing, they responded by asking about his own sexual orientation. In August 1999, a specialist warned Torres that he had heard other soldiers discussing Torres' sexual orientation and that one seemed angry. The specialist expressed his concern for Torres' safety. According to Torres, during a briefing on the "don't ask, don't tell" policy in late August 1999, a sergeant told Torres's unit that it was a "fag briefing" and as he finished the briefing, told the soldiers, "Enough about the fags, let's move on."151 The army discharged Torres in September 1999 after he made a statement acknowledging his homosexuality. The number of discharges from Fort Campbell under "don't ask, don't tell" underscores the tension following Winchell's murder. In Fiscal Year (FY) 1999 there were seventeen such discharges; in FY 2000, there were 161; and in FY 2001 there were 222.152 Questioned in 2000 by reporters about the number of homosexual discharges at the base, Maj. Gen. Robert T. Clark stated that it was simply homosexuals "wanting an easy way out of the Army."153 In October 1999, as a result of the Winchell killing, and the extensive publicity it received, President Clinton signed an executive order amending the Uniform Code of Military Justice. (UCMJ) and the rules for courts-martial to include anti-gay hate crimes as aggravating factors in military criminal sentencing. The order stated: "... evidence in aggravation may include evidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived ... sexual orientation of any person."154 The Pentagon recommended the change to conform with many state hate-crimes statutes. The October 1999 revisions reportedly had been pending for a year, and would have been available for Winchell's killers had they been promptly enacted. Human Rights Watch does not know the extent to which the anti-gay motivation provision has been deemed an aggravating factor in sentencing because such factors are not tracked by judge advocate general's offices.155 Army Inspector General's Report on Fort Campbell
The report concluded that the general command climate at Fort Campbell was good,157 but that an "abusive" non-commissioned officer (NCO) headed Winchell's company. When the report was released, a year after Winchell's killing, that NCO had been transferred from Winchell's unit because of his generally abusive behavior, but no other disciplinary action had been taken against him.158 The report substantiated some of Private Torres' claims of anti-gay harassment at the base. The Inspector General found that officers had used derogatory language during training and cadences at Fort Campbell, and confirmed the presence of the anti-gay graffiti as Torres and others had reported. The Inspector General was not able to substantiate Torres's allegations that the sergeant used derogatory language during a "don't ask, don't tell" policy briefing. The Inspector General also found that Torres had endured "routine harassment" at Fort Benning and "occasional harassment" at Fort Knox-bases where he had been stationed prior to Fort Campbell.159
The report nevertheless confirmed the danger of anti-gay harassment and violence. It noted that commanders suspect that some soldiers claim they are gay to secure a discharge, when in fact they might not be homosexuals. Despite these doubts about the servicemembers' claims, the commanders generally grant the discharge because they fear "the possibility of incidents involving harassment, threats, or bodily injury," against soldiers who have said they are homosexual.162 Indeed, 40 percent of the commanders "expressed concerns that the policy as currently written placed them in an intractable position of ensuring soldier safety." In other words, despite the conclusion that the command climate at Fort Campbell was good, one of the main reasons commanders discharged soldiers who made statements under the "don't ask, don't tell" policy was because they feared those servicemembers would be harmed if others on the base knew of their admission. In reviewing the reasons some soldiers offered for "coming out" and being discharged under the policy, the report stated:
The task force failed to appreciate the hostile environment such jokes created and the importance of curtailing them. Indeed, it appeared to condone offensive jokes not directed at a particular servicemember. The task force described a situation in which a person who made general anti-gay comments explained he did not know the person he addressed was gay or lesbian and thus, would be offended.164 Of course, under the "don't ask, don't tell" policy, soldiers are not supposed to know. The report found that "most soldiers, NCOs and officers at Fort Campbell lacked an understanding and working knowledge of the policy prior to July 5, 1999 [the day Private Winchell was killed]."165 It stated:
With regard to anti-gay harassment, the report stated: "training does not adequately advise victims how and where to report harassment and does not advise soldiers whether they have a duty to report observed harassment."167 Discipline for harassment, the report found, was not clear because commanders were not told which options they had available when allegations of harassment were substantiated.168 Fort Carson, Colorado
After the Servicemembers Legal Defense Network notified the commanding officer at Fort Carson about Private Wooten's allegations, steps were taken to protect Wooten until he was discharged under the policy, and an investigation was initiated focusing on F Troop-Wooten's unit.171 The investigation found that Wooten's superiors had engaged in and condoned anti-gay comments, that anti-gay comments were "part of the unit's normal atmosphere," and that there was no record of training on the "don't ask, don't tell" policy.172 In his report, the investigating officer recommended that troops immediately receive the required refresher training on the "don't ask, don't tell" policy, that troop commanders develop a system for tracking subsequent training requirements, that the squadron commander consider administrative or disciplinary actions for three named sergeants for their "inappropriate and indecent language," and, in the case of the staff sergeant for failing to correct subordinates engaging in inappropriate conduct; that those sergeants conduct training on the role of NCOs in preventing and circumventing harassment of any kind. He also called on senior officials to demonstrate the values of the Army and policies of the Army's Equal Opportunity Program, emphasized the importance of maintaining confidentiality when dealing with soldiers' personal issues, and recommended that a course be taught-separate from the other blocks of instruction-that describes not only the legal aspects of the homosexual conduct policy, but also how harassment due to perceived sexual orientation is in violation of the Army's Equal Opportunity Program.173 105 Attachment to Secretary of Defense Les Aspin's memorandum to secretaries of the Army, Navy, Air Force and Chairman of the Joint Chiefs of Staff, "Policy Guidelines on Homosexual Conduct in the Armed Forces," July 19, 1993. 106 On July 26, 1998, at a Department of Defense conference titled "Building Cohesion From Our Growing Diversity," U.S. Deputy Secretary of Defense John H. Hamre declared, "Our goal is to have an all-volunteer force that has all the diversity of America." He went on to say that the Department of Defense must strive to guarantee four guiding freedoms to all who serve in the armed forces: freedom from prejudice, freedom from indifference or apathy, freedom from ideologies of hate, and freedom from intimidation: "We should make sure that every soldier, sailor, airman and Marine knows that bias is a four-letter word and will not be tolerated." Rudy Williams, "Hamre Says There's No Place for Hatemongers," American Forces Information Service, (n.d.) on file with Human Rights Watch. 107 Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, p. 2. 108 Office of the Inspector General, Department of Defense, "Evaluation Report: Military Environment with Respect to the Homosexual Conduct Policy," Report No. D-2000-101, March 16, 2000, p. 6. The Marine Corps led the branches with 45 percent reporting offensive comments "often or very often," followed by the Army at 37 percent. 109 Ibid., p. 4. 110 Ibid. 111 Ibid., p. 11. 112 Department of Defense news briefing, Pentagon spokesperson Kenneth Bacon, Office of the Assistant Secretary of Defense for Public Affairs, March 24, 2000, at http://www.defenselink.mil/news/Mar2000/t03242000_t0324asd.html (accessed December 14, 2002). 113 The August 1999 guidelines were issued a month after Private Winchell's murder. Memorandum from Rudy de Leon, Under Secretary of Defense for Personnel and Readiness to the secretaries of the military departments, "Guidelines for investigation threats against or harassment of service members based on alleged homosexuality," August 12, 1999. The guidelines reiterated a March 1997 memorandum issued by the same office by Under Secretary of Defense for Personnel and Readiness Edwin Dorn to the secretaries of the military departments, chairman of the joint chiefs of staff, and inspector general, "Guidelines for Investigating Threats Against Servicemembers Based on Alleged Homosexuality," March 24, 1997. 114 Servicemembers Legal Defense Network, Conduct Unbecoming: The Seventh Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," March 15, 2001, p. ii. 115 Electronic-mail message from Marine Lt. Col. Edward Melton of the Twenty Nine Palms, California Marine Base, October 1999. On file with Human Rights Watch. 116 Department of Defense Working Group, Anti-Harassment Action Plan, July 21, 2000, at http://www.defenselink.mil/news/Jul2000/plan20000721.htm (accessed November 26, 2002). 117 Complete text of the Action Plan is attached as Appendix B. 118 At the press briefing on the Action Plan, Under Secretary of Defense for Personnel and Readiness Bernard D. Rostker stated that the task force members had been surprised to learn that only the Navy had a prohibition against verbal abuse. He noted, "It's unfortunate that sometimes we have to take what we all understand is the way we should behave and put it down on a piece of paper for those few people who don't get it." Under Secretary of Defense for Personnel and Readiness Bernard D. Rostker, Department of Defense news briefing, July 21, 2000, at http://www.defenselink.mil/news/Jul2000/t07212000_t721rost.html (accessed October 17, 2002). 119 Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, p. 81. 120 Ibid. 121 Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 64. 122 Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, p. 34. Base name withheld. 123 Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 63. 124 Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, Exhibit 48. 125 Human Rights Watch telephone interview with Mark Navin, April 29, 1999; Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 1999, pp. 20-22. 126 Human Rights Watch telephone interview with Mark Navin, April 29, 1999. 127 Letter, Senior Airman José de Leon to Commanding Officer, 89th Civil engineer squadron, October 13, 1999. 128 Ibid. 129 Human Rights Watch interview with Lt. Col. Dave Howe and other squadron commanders, Andrews Air Force Base, Maryland, March 17, 2000. 130 Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 59. 131 Human Rights Watch telephone interview with Lauren Brown, May 23, 2001; Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, pp. 74-75. 132 Memorandum, Sr. Airman Lauren Brown to Commander, CENTAF, November 30, 2000, cited in Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, Exhibit 43. 133 Letter, Jeremy Madders to Capt. Bruce Clinan, Commanding Officer, USS Carl Vinson, January 28, 2000; Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 57 and Exhibit 65. 134 Office of the Inspector General, Military Environment, March 16, 2000, pp. 8-10. 135 Servicemembers Legal Defense Network, Conduct Unbecoming, February 26, 1997, p. 20. 136 Letter, Servicemembers Legal Defense Network to the Department of Defense Inspector General, March 13, 1997. 137 Jennifer Dorsey, statement made at the SLDN press conference, February 19, 1998, on file at Human Rights Watch. 138 Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, pp. 67-68, Exhibits 65-66. 139 Ibid., Exhibit 65. 140 Human Rights Watch interviews with Sharra Greer, legal director, Servicemembers Legal Defense Network, September 23 and December 17, 2002. 141 Winchell dated a pre-operative transsexual, and was labeled as gay by other soldiers. 142 Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 49; "Soldier pleads guilty in barracks killing," Washington Post, January 9, 2000. 143 Fort Campbell press release, July 7, 1999. The Servicemembers Legal Defense Network reports that the base's Criminal Investigation Division ruled out the possibility that the beating death was a hate crime until August 1999. 144 Andrea Stone, "Mother of slain soldier to sue Army: Says it failed to stop harassment of gay son," USA Today, April 25, 2000. The army rejected her lawsuit, and her appeal to the Secretary of the Army was also denied in May 2001. Nancy Zuckerbrod, "Army rejects appeal in Fort Campbell wrongful death case," Associated Press, May 22, 2001. Procedures for most civil lawsuits filed against the U.S. military are different from those used in civilian courts, and are governed by the Military Claims Act. 145 Francis X. Clines, "For gay soldier, a daily barrage of threats and slurs," New York Times, December 12, 1999. 146 Testimony of specialist Phillip Lewis Ruiz and his wife, Melanie Ruiz, during Article 32 hearing, August 17, 1999. Article 32 hearings are a cross between preliminary hearings and grand jury proceedings in civilian courts. 147 Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 50. 148 Letter, Specialist Michael McCoy to commander, November 30, 1999. Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 59. 149 Sworn affidavit of Private Javier Torres, October 19, 1999, as cited in Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 55. The affidavit was submitted to his commander when Torres sought discharge from the services. Torres stated that he was also harassed at other bases. While at basic training at Ft. Benning, he was harassed on an "almost daily basis" about his sexual orientation by his peers. His drill sergeant called him a faggot and another trainee provoked a fight with Torres because he believed he was gay. He stated that anti-gay comments and epithets are used routinely among the infantry in the Army. 150 Ibid. In an e-mail communication to Human Rights Watch (June 1, 2000), Torres wrote that he was unaware of any investigation into his allegations or of punishment of those responsible other than the Inspector General's command climate review of the base. 151 Sworn affidavit of Private Javier Torres, October 19, 1999, as cited in Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 55. 152 Roberto Suro, "Military's discharge of gays increase; army base where anti-gay murder occurred had record number of departures," Washington Post, June 2, 2001; Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, p. 11. 153 Elizabeth Becker and Katharine Q. Seelye, "Policy on gays part of the drill at army base," New York Times, February 14, 2000. Despite criticism of Major General Clark's leadership at Fort Campbell, including his failure to address anti-gay harassment at the base and his failure to address anti-gay harassment directly following Private Winchell's murder, President George W. Bush recently nominated Clark for a promotion to Lieutenant General, the army's second-highest rank. 154 President William J. Clinton, Executive Order No. 13140, amending R.C.M. 1001 (b)(4), October 6, 1999. 155 The judge advocate general's offices of the navy and army reported that they do not track the use of hate crimes as aggravating factors. Human Rights Watch telephone interview with Lt. Com. William Condron, Criminal Law Division Chief, Office of the Judge Advocate General, Department of the Army, December 16, 2002, and e-mail communication from Carolyn Alison, Public Affairs Officer, Office of the Judge Advocate General, Department of the Navy, December 20, 2002. In its electronic-mail message, the navy responded to Human Rights Watch's inquiry by acknowledging, "...whether a military judge considers the criteria for `hate crimes' aggravation in sentencing is not tracked with any reliable accuracy so that numbers would not prove helpful." The U.S. Air Force directed Human Rights Watch to file a Freedom of Information Act request to obtain information about the application of the hate crimes provision of the UCMJ. Telephone inquiry, December 17, 2002. 156 Department of the Army Inspector General, Fort Campbell Task Force, DAIG Special Assessment of Allegations of Violations of the DOD Homosexual Conduct Policy at Fort Campbell, July 2000. 157 Department of the Army Inspector General, Fort Campbell Task Force, July 2000, pp. C-88-C-101. 158 Eric Shinseki, Chief of Staff of the Army, press briefing, July 21, 2000. 159 Department of the Army Inspector General, Fort Campbell Task Force, July 2000, pp. 2-19, 2-20. Neither Torres nor the Servicemembers Legal Defense Network, which helped Torres pursue these complaints, were advised of any disciplinary action taken against those involved in the harassment allegations found to be credible. 160 Ibid., p. 2-12. Another problem in assessing the prevalence of anti-gay harassment at the base stemmed from the lack of training on the "don't ask, don't tell" policy. The task force report notes "several of the alleged violations reported during this assessment appeared not to have made it to the company commander/first sergeant level, thus the chain of command was unable to take appropriate action against potential Policy violations. This was exacerbated by the fact that many NCOs and soldiers were not sufficiently trained on the policy so that violations such as harassment and lack of sensitivity were perpetuated at the lowest levels." Ibid., p. 2-11. 161 Ibid., pp. C-88-C-101. 162 Ibid., p. 2-43. 163 Ibid., p. 2-45. 164 Ibid., p. 2-45. 165 Ibid., p. ES-6. 166 Ibid., p. ES-7. Frustrations over the policy are not limited to Fort Campbell. Since "don't ask, don't tell" was conceived and implemented, the U.S. military has been grappling with a policy that satisfies no one, including commanders and other officers. Human Rights Watch asked officers at Fort Jackson (Army), Norfolk (Navy), and Andrews (Air Force) bases their opinions of the policy. Responses varied. The commanding officer at Andrews Air Force Base acknowledged that implementation of the "don't ask, don't tell" policy is difficult because it is "too gray," it is a compromise, and no one is happy with it. Before "don't ask, don't tell" he said, it was "cleaner" and better. Human Rights Watch interview, Wing Commander Hawkins, Andrews Air Force Base, Washington D.C., March 17, 2000. A drill sergeant at Fort Jackson told Human Rights Watch that some soldiers get a "light bulb" over their heads that using the "don't ask, don't tell" policy would be a way to get out, because they could claim to be "feather dusters"-an apparent reference to homosexuals. Human Rights Watch interview with a group of six drill sergeants at Fort Jackson, South Carolina, January 18, 2000. 167 Department of the Army Inspector General, Fort Campbell Task Force, July 2000, p. 2-36. 168 The report points out that the options include verbal or written counseling, letters of concern or reprimand, or Uniform Code of Military Justice (criminal) action. Ibid., pp. 2-27, 2-28. 169 Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, pp. 16-17, Exhibits 24-25. 170 Ibid., Exhibit 24. 171 Maj. Richard French, Investigating Officer, Department of the Army Headquarters, 7th Infantry Division and Fort Carson, Memorandum for Chief of Staff, Headquarters, 7th Infantry Division, Ft. Carson, "Allegation of Solider Harassment Based on Suspected Sexuality and the Threatening of Life by a Noncommissioned Officer," September 18, 2001. 172 The investigation report noted that many soldiers said anti-gay comments and jokes and "were made in fun and to ease tension and stress." Memorandum for Chief of Staff, Headquarters, 7th Infantry Division, September 18, 2001, p. 3. According to the report, during an equal opportunity class addressing sexual harassment, the commander referred to female mechanics who fix TOW missiles as "TOW hos," ibid., p. 5. The report also acknowledged that Private Wooten did not submit his complaint through the chain of command because he did not trust them to handle it properly and confidentially. Other members of his troop shared this concern, ibid., p. 6 173 Memorandum for Chief of Staff, Headquarters, 7th Infantry Division, September 18, 2001, pp. 7-9.
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