The following opinion piece was written by Naval Academy professor Bruce Fleming and issued to Patch via email. Fleming is currently under investigation by academy officials after two midshipmen complained of statements he made in class about the academy's stance on sexual assault prevention:
The preliminary hearings of three male Naval Academy midshipmen in Washington D.C. to determine whether they should be court-martialed for the alleged sexual assault of a female Naval Academy midshipmen over the past two weeks, called an Article 32 hearing, have revealed how misguided and destructive the Navy’s all-hands mandatory sexual assault training, largely a response to the new scrutiny on military handling of previous problems, has become. The military is making things worse, not better with its panicked response to outside pressure, and the hearings have shown just how unrealistic the expectations created by that response are.
The military defense attorneys for the three alleged assailants have mounted a strong defense of their clients. The issue on which guilt or innocence for crimes covered by Article 120 of the Uniformed Code of Military Justice is that of consent of the alleged victim, so what they have alleged is that the woman consented. Several factors make this consent or its lack more difficult than usual to establish: the woman was so intoxicated she had no memory of any sexual relations, and was only told by friends after the fact that she had. Thus there is unclarity about whether or not she consented, although drunk (as one defense attorney noted, “drunk sex is not sexual assault”), and the argument was made that oral sex implicitly implies a degree of consent that other forms do not. Defense attorneys grilled the alleged victim for over 20 hours, which proponents of more alleged victims coming forward read as an ominous sign, and argued that she had in fact consented. Too, she initially hesitated to make a complaint, which advocates insist is the rule with alleged victims; defense attorneys countered that her lawyer, known for defending cases of sexual assault, was eager for her to press the case for the lawyer’s own purposes. The fact that the prosecuting lawyers had pressured the Superintendent of the Naval Academy into allowing the hearing at all through newspaper articles (plus a recent Washington Post profile of the lawyer) were offered in evidence.
Within several weeks the military will make a recommendation whether the alleged assailants should be court-martialed, which could of course end either in an acquittal or a conviction for each male midshipman, and would certainly involve more aggressive questioning of the alleged victim. The military’s crime of sexual assault always, with adults, hinges on consent—something these hearings have shown to be sometimes hard to prove or disprove. Every he said, she said argument has two sides, and defense attorneys are merely doing their jobs by defending their clients.
Advocates of alleged victims of sexual assault, who are referred to by the Navy as “Victim Advocates” and who refer to alleged victims merely as “victims,” have been vocal in their outrage at the fact that defense attorneys have defended their clients. Taryn Meeks, a former Navy JAG lawyer and Executive Director of Protect Our Defenders, told MSNBC that “the Article 32 process is yet another example of the broken military justice system. . . .It’s a traumatic experience where the survivor is subject to cross-examination for hours or even days. Article 32 gives defense counsel almost unfettered access to the victim which often re-victimizes that person, and can significantly undermine their shot at getting justice.”
Apparently “justice” here means certain conviction and the assumption seems to be that an alleged victim is a victim, pure and simple. If she says she was assaulted, the next step is to lock the perpetrators away. Certainly the Navy has been using the term “victim” for many years in its mandatory training of personnel in a program that in fact used to be called SAVI, Sexual Assault Victim Intervention. The new training unveiled this month, that I underwent this week as a 27-year civilian professor at the US Naval Academy, continues to refer to “Victim Advocates”. It must be a rude shock for “victims” to be in front of judges who forbid this terminology—as indeed the judges did in the unsuccessful attempt by the Naval Academy to convict two other male midshipmen (also football players, like the current three) in 2005-2006. The military uses “victim” and “victim advocate” to reassure outsiders that it is too doing something to protect its people. But it also villainizes alleged perpetrators, who are also typically its personnel (a victim implies a perpetrator). Worse, it shields all from the rude truth that every story has a counter-story, and that when the allegation goes to court, the defense attorneys will try to earn their pay and uphold the principles of American justice by defending their clients. And that means, by attacking the credibility of the “victims.”
This is so even if this alleged crime alone out of all others is moved outside the military court system: a number of legal scholars hold that the questioning in an Article 32 hearing knows fewer bounds than it does in a civilian court. But why would this crime alone become a civilian matter? And even if it does, simple justice requires defense attorneys to do what they can for their client. The issue is never whether the act took place: it’s the much more nebulous and far more personal question of consent or its lack.
The response to the publication of the Pentagon’s biennial SAPR (Sexual Assault Prevention Response) report earlier in the year that showed an increase in reported cases of sexual assault was the push by Senator Kirsten Gillibrand to remove responsibility for adjudicating these out of military hands. The military resists this. The push these days is on increasing the number of claims of sexual assault, as a key component of the Pentagon report is uncited “civilian research” that turns under 2000 substantiated reports into a conjectured 20,000: most alleged assaults, as all advocates insist, go unreported. However the Article 32 hearings should serve as a reminder that nobody is home free by reporting an alleged crime: that’s just the beginning. And what happens after is by definition not going to be valorizing for the “victim.” Advocates seem to feel that’s unfair: strong questioning by defense attorneys to undermine credibility “re-victimizes” the “victim.” Is the allegation of the crime of sexual assault so different from other crimes that suddenly the defense is supposed to accept whatever the claimant says?
So insistence on more reporting and feel-good training within the walls about “victims” and “victim advocates” is sending the wrong message to personnel about what happens when what is called an unrestricted report is in fact made. This training makes military personnel think that after reporting an alleged assault, the rest is just a walk in the park, and that the opposition merely melts away. The solution is to make clear to them that making an unrestricted report of an alleged assault is only the beginning of an arduous journey, and that opposition by the attorneys of the alleged perpetrator(s) is part of that journey, not unfair and immoral. If the alleged victim has a strong case, s/he should of course be encouraged to think about pursuing it. Indeed, as the training I underwent made clear, if they are military personnel and let the CO know they believe they have been assaulted, they are going to pursue it whether they like it or not.
Court solutions are always painful for all. So far better is just to nip situations in the bud. The best way for this to happen is for the person who feels sexually aggressed or assaulted to speak up. Previous versions of the mandatory training suggested precisely this. The new training does not, and this is a troubling development.
What is new is the utter disappearance from this year’s version of the training of any attempt to get the alleged victim (“victim”) to advocate for herself (as it almost always is). Previous training encouraged those who felt they were the victims of assault to speak to those they felt were victimizing them, and to seek help within the system. Now the emphasis is on the colossally wrong-headed “bystander intervention,” the latest in the military’s panicked responses to outside pressure.
As a midshipman involved in the Academy’s SAPR program explained to me, bystanders are supposed to object on the part of someone who may be the victim of unwelcome sexual advances (the key concept is consent, so if it’s welcome or accepted it’s not assault) because the alleged victim (“victim”) typically will not do so. So we all become third wheels on each other, as most sexual situations do not end in problems: apparently we’re supposed to police them all. The mandatory video showed three scenarios of men coming on to women, where the objection by the woman in two cases stopped the behavior. But this wasn’t our take-home point. The video instead focused on the third party who felt bad after the fact that s/he did not intervene: accompany the subsequent alleged victim home, walk her back to the hotel, or object to the man being overly familiar to a woman who did not object.
But for each situation that ends badly there are countless others that don’t: now we’re supposed to intervene at any point, even before we know if things are going bad. Now, troublingly, the alleged victim is assumed to have no responsibility for defending herself. (The training pays lip service to other kinds of alleged assault than male on female, but fails to consider any.) This isn’t a matter of defending a woman who’s being manhandled in a bar. This involves getting between two people (in one scenario, believed still to be a couple) to monitor their sex life.
The sexual revolution of the 60s was about getting strangers and the state out of others’ sex lives. Indeed the push to repeal DADT was about getting people out of others’ bedrooms. We are now witnessing the astonishing phenomenon of a push to get the state (these are federally funded and mandated training videos) back into people’s sex lives. We are all supposed to be monitoring what others are up to because the woman can’t defend herself. Can the assumption that women are powerless and males aggressors go any further? These are tax-dollar supported videos and training mandatory for all military personnel.
Everybody has the right to a professional life free of unwanted sexual advances. Usually saying they are unwanted stops these, and previous training encouraged this. But now, under the influence of those insisting on just how cowed and powerless alleged victims are, and gunning for more reports of alleged assaults, we are grooming a generation of people about to get their lights punched out by indignant couples, and of traumatized alleged victims surprised that every she said produces a he said. The military is wrong to allow itself to be scared by advocates demanding they do something, anything, into valorizing the world-view of alleged victims and hiding from the brutal reality that whatever they say, others are going to deny it.