(Image: Ben Klay and Ariana Klay)
RECENT HEADLINES highlight the plight of rape victims seeking legal redress for violations suffered while serving their nation in the U.S. military. The background to this crisis in the justice system is the “Catch-22” created by the combination of a Supreme Court ruling prohibiting private suits and the insular procedures for handling rape claims within the military.
In 1950 the United States Supreme Court ruled that “the Government is not liable […] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” This ruling, which came to be known as the “Feres Doctrine” (from the case title, Feres v. United States), was a continuation of the doctrine of sovereign immunity, a concept imported from British common law, generally to the effect that the Sovereign (i.e., the State) cannot be sued except by its own permission. To a limited extent, Congress has “consented” to suit in the Federal Tort Claims Act. But the Supreme Court concluded the right to sue the United States did not extend to injuries suffered while on military duty. “We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving,” wrote Justice Jackson for a unanimous court.
If a service member can’t sue in federal court for any “injury suffered while on military duty,” what recourse remains to a rape victim? The answer has been to pursue the avenues for complaint and investigation permitted under rules of military justice. Underlying this rule is the concept that the military should discipline its own, free of outside interference. Critics decry this rationale, pointing out that requiring rape victims to report assaults only to supervising officers often amounts to asking the officers to prosecute close friends or even themselves.
A growing body of scholarship documents the injustice inherent in the toxic combination of judicial abstention and exclusive military jurisdiction in rape and sexual abuse cases, but perhaps no one work has been as effective as calling this issue to the public’s mind as the Academy Award-nominated documentary film, The Invisible War, which recounts individual stories of servicemen and women who claim their cases of rape or abuse were never fairly acted upon within the military chain of command.
Ben Klay is the husband of Ariana Klay, one of the victims portrayed in The Invisible War. His statement before the Senate Armed Services Committee in March 2013 provides an eloquent summation of the crisis in military justice and outlines reforms to bring independence to military procedures in such cases. Recommendations for creating an independent system for adjudicating rape and sexual assault cases in the military are pending before Congress at this time, but are facing stiff opposition from legislators with strong military allegiances. As of June 12, 2013, a proposal by Senator Kirsten Gillibrand of New York to give military prosecutors rather than commanders the decision to decide which sexual assaults case should be tried was blocked by Senator Carl Levin and replaced with a measure that would modify the current system but still keep the decision to prosecute within the chain of command, as urged by the armed forces.
— Don Franzen, LARB Legal Affairs Editor
Military Sexual Assault, Judicial Independence, and Tort Liability
Statement of Ben Klay for the Senate Armed Services Committee
I served on active duty in the United States Marines from 2003 through 2007, and I was a reservist in 2011. I deployed twice to Iraq, served in combat, and left the Marines as a captain. My wife, Ariana Klay, graduated from the Naval Academy in 2006 and was an officer in the Marines through 2011. She deployed to Iraq as well. Ariana reported a rape at Marine Barracks Washington in 2010, and is currently a plaintiff in the lawsuit Klay v. Panetta, which seeks redress from the leadership of the Department of Defense for their role in the Department’s problems of sexual harassment, rape, cover-up, and retaliation against those who report.
My statement includes my assessment of the causes and patterns of the U.S. military’s mishandling of sexual offenses and my recommendations for what can be done about it. These observations are based on my Marine Corps experience, my experience living through the crimes against my wife described in Klay v. Panetta, and the subsequent research I have done so I could understand the causes and corrections for the systemic abuses my wife and I have suffered. I am providing this statement on my own personal behalf, and not on behalf of my current employer or the Marine Corps.
CAUSES OF THE U.S. MILITARY’S MISHANDLING OF SEXUAL OFFENSES
The U.S. military’s mishandling of sexual offenses is a symptom of a military justice system without independence from the military’s hierarchy, and a military hierarchy that is both immune from tort liability and exceptionally empowered over its people.
Lack of Judicial Independence
Military leaders have an interest in avoiding the exposure of their commands’ serious failures, a natural disinclination against believing their commands could commit such failures, a strong interest in destroying the credibility of any who would allege such failures, and no legal training that would make them qualified to properly perform these tasks anyway. Yet it is these same people who are responsible for overseeing and approving the investigations of such failures and for convening courts-martial to adjudicate them. Likewise, all who staff this system are members of the same small hierarchy, and they know full well that they may someday work for or serve with those their pursuit of justice may harm. In military justice, it is in no member of the system’s interest to prove serious failures where doing so reflects poorly on themselves, their peers, or their leaders.
The result of this conflict of interest experienced by those who oversee and staff the military justice system are tendencies to cover-up crimes that could reflect poorly on the leadership, and retaliate against those who would allege such crimes. Cover-up is often far less risky than exposing an ugly truth, and retaliation serves the purposes of scaring people away from making serious allegations, and destroying the credibility of those who do make them. Where cover-up is infeasible, the tendency is to assign and isolate blame at the lowest plausible level. Military commanders’ lack of legal training and career dependence on preventing blemishes on their military records add to these tendencies, while commanders’ military inclinations to compartmentalize and destroy their enemies add to the ferocity of their retaliation.
Immunity from Tort Liability
At the same time that military commanders’ authority over the military justice system gives them an exceptional ability and incentive to commit wrongs, the U.S. Supreme Court’s Feres doctrine makes military commanders immune from lawsuits for those wrongs. This deprives service-members of their right for redress for civil wrongs, and deprives military leaders of needed incentives to refrain from dishonesty, cover-up, retaliation, and abuse. In addition, military commanders have other powers that make them especially able to harm those they lead. They can issue orders that carry the force of law, they have power over their troops’ society and career, they have special powers for non-judicial punishment, and their troops are obstructed from leaving them to work or even live somewhere else.
This combination of power and immunity from legal accountability for its misuse results in petty tyranny. A commander who is mean or sadistic can abuse. No one can leave his command, so he doesn’t have to worry about his abuse’s impact on retention. He outranks and can give orders to any who would complain. He can discredit them, scare them, oversee investigation into their complaints, and make their lives miserable. Those who work for the commander will fear that if they come to the complainant’s aid they will endanger themselves by crossing their commander. Even a good commander doesn’t have much interest in redress for wrongs in cases where acknowledging those wrongs can reflect poorly on him, create divisions in his unit, and damage his command and/or career. Only victims have the needed incentives to seek redress for the wrongs that only affect them, only a lawsuit can allow for such redress, and only an impartial justice system can grant it. This right for redress and judicial independence, held by every U.S. civilian, is denied from those who serve in the U.S. military.
Military commanders do perform unique military responsibilities from which troops may get hurt but for which those troops should not be able to seek redress through a lawsuit. Ordering troops into battle is an example. A military could not effectively fight battles if its commanders faced lawsuits for any injuries in them. There are other command actions, though, which serve no military purpose and thus deserve no immunity. Sexual harassment and assault, which destroy rather than enhance military readiness and have no unique role in military affairs, are prime examples.
The pathologies from lack of judicial independence and immunity from tort liability are also magnified in the U.S. military through passed on institutional corruption. Commanders learn, and pass on, the lesson that their careers are less likely to be harmed by a mishap if they can cover it up or, where cover-up is impossible, assign blame to the lowest level, than if they thoroughly and impartially expose the facts. Service-members accept the gross failings and inequities of the military justice system both as unspectacular, and as a natural and inevitable part of their governance. Victims learn that reporting a rape has little chance of resulting in justice, and every chance of ending their careers. Predators learn how to use the system to protect themselves and exploit their victims. And the tactics of retaliation and cover-up, such as diagnosing the victim with a personality disorder and attacking the victim for “collateral misconduct,” are also passed on, taught, and normalized. As normalization occurs, abuse at every level of severity becomes more intense and more likely.
Staffing reinforces this too. Professionals who do not accept the failings of the military justice system can be kept away from cases where their integrity would hurt their superiors, or they may become frustrated and leave the service. Lawyers, judges, and investigators who give their superiors the answers they want can be rewarded. Lawyers, judges, and investigators who do the opposite, but in the name of justice, can be punished with social isolation and lackluster reviews, assignments, and career progression. Commanders who retaliate and cover up can advance with spotless records, or even reputations as strict disciplinarians for all the harsh punishment they doled out for misdemeanors as they retaliated and covered up felonies. Those who don’t cover up can be stymied by the admission of their commands’ scandals. And outwardly, military lawyers are inclined to deliver the wrong message about their justice system. They have built their identities and careers around the military justice system, so they have a personal and professional stake in defending its legitimacy. It has no legitimacy.
Resulting Pattern for the Military’s Handling of Sexual Assault
The result of this absence of judicial independence and absence of legal accountability for civil wrongs is the predictable pattern we see for military sexual assault. Sexual harassment feeds on itself and escalates, with no effective check to stop it. The harassment takes its own toll, and also fosters the anxiety, desperation, and situations that would make a potential sexual assault victim more vulnerable; the sense of immunity, power, and conviction that would embolden a rapist; and the attitudes and fears that would make a victim’s peers abandon him. Rape occurs, followed by daily contact with the rapist, terror of reporting, severe trauma, isolation, and all the behaviors and vulnerabilities that go with sexual trauma combined with the official and incestuous qualities of U.S. military betrayal.
If a victim reports his command’s ugliest failure to his command, he then becomes the command’s natural enemy. Beneath official bureaucratic assurances of a thorough hearing he encounters the command’s disbelief and a desire for other explanations—that the victim is lying or crazy or both. So retaliation and isolation begin. This is first a knee jerk attempt to show the command is innocent of disgrace by attacking the victim’s credibility and scaring him away from his assertions. Once retaliation has begun, though, the interest of the command (which includes all who work for it) in attacking the victim’s credibility is deepened. The command must now also attack the victim’s credibility in order to justify its own direct criminal actions—the retaliation, scare tactics, complicity, and cover-up that were the command’s knee jerk reaction to a rape report. The humiliation and attacks are unpredictable, last over months or years, and increase the chance that the victim will perform an act of desperation or withdrawal that can be used to justify more attacks. Finally, in the unlikely event there is a trial at all, a kangaroo court is held. The commander convenes a court staffed by members of an obedient hierarchy within a closed society, and fed information produced during the command’s months or years of retaliation. The rape receives the public, final, and full blessing of the U.S. Government; an emboldened and legally trained rapist is set free after either full vindication or a slap on the wrist; and the victim’s dignity is officially destroyed after the rapist already physically destroyed it. For many victims this will be accompanied with a negative characterization of service on their discharge. Such victims have just lost one career, and that characterization can prevent the pursuit of many others, may preclude veterans’ benefits, and will persist as a permanent and official mark of dishonor their entire lives, with the potential to resurface every time they apply for a job.
The reforms needed are simple, effective, and universally accepted in civilian justice. The military justice system should have judicial independence, and its commanders should not be immune from tort liability.
Judicial independence is needed in military justice to prevent those overseeing or staffing the system from having an interest in the outcome of their proceedings, and thus an incentive and ability to cover-up crimes they want to deny and retaliate against those people they want to silence.
The Congress should put the military’s courts in the judicial branch and its investigators, prosecutors, and defense attorneys in the Department of Justice. Commanders could keep lawyers within their chain of command who overtly advise and represent them, but those are the only lawyers who should be internal to the military’s hierarchy and rotational career progression. Unique laws, procedures, and considerations for uniquely military issues, such as disobedience to orders or crimes committed in the midst of battle, could also be retained. These unique laws, procedures, and considerations should be subject, however, to the independent judicial system. Commanders could retain special authority for non-judicial punishment for certain crimes and where military need justifies it, but the accused should have the option of adjudication of such punishments by an independent judiciary instead, if desired. There is no military need for commanders to have authority for the investigation and adjudication of felonies their own units are responsible for, least of all when those felonies, like rape, have nothing whatsoever to do with military service and are a stain on the commander’s reputation. America’s allies have recognized this, and the international trend in military justice has been away from commander-convened courts-martial for individual cases, towards systems more like general civilian courts in peace and war (see Dahl, Arne Willy, “International Trends in Military Justice,” Presentation at the Global Military Appellate Seminar at Yale Law School, April 1-2, 2011, p. 2).
Absent comprehensive reform such as above, any reform that creates judicial independence would be beneficial. In the current Congress, the most promising bill proposing reform that adds independence to military justice is H.R. 3435, the Sexual Assault Training Oversight and Prevention Act, which takes the handling of military sexual assault out of the chain of command.
Military commanders should not be immune from lawsuits for acts that serve no military purpose.
The Congress or the Supreme Court should amend the Feres doctrine, so that military commanders are liable for civil wrongs that have nothing to do with military affairs. There is a military value in protecting commanders from lawsuits for acts that cause risk of harm, yet serve a unique military purpose, such as ordering soldiers into battle. There is no military value, however, in protecting commanders from liability for participating in, covering up, or condoning abuse that serves no military purpose, such as sexual harassment and assault.
These reforms, together, provide the impartial checks needed to implement and enforce policies against military sexual assault. Past reforms pertaining to this crime have failed because the commanders implementing the reforms have had the power and incentives to believe and show that the problem does not even exist, at least in their own commands. An impartial justice system and legal accountability for civil wrongs removes the conflict of interest and lack of external accountability at the root of the military’s mishandling of sexual assault, thereby enabling justice and humane treatment after the crime, and preventing it as well. Recourse to impartial justice would encourage more victims to report the crime, end the military’s re-victimization of survivors, put predators in jail so they can do no more harm, deter would-be predators, and incentivize commands to set a climate where all members are treated with dignity and respect.
It is the Congress’ responsibility to fix this. It is the Congress’ responsibility “to make rules for the government and regulation of the land and naval forces,” and it is the Congress’ fault that that system of governance and regulation, in the United States Armed Forces, is inherently biased, unjust, and unaccountable. We may criticize military commanders for their mishandling of sexual assault, but we must also recognize that they are acting according to the incentives of the legal system that the Congress has established for them. To remedy that, the Congress must make military justice independent and impartial, and amend the Feres doctrine so commanders are not immune from accountability for civil wrongs that serve no military purpose.
Editor’s Postscript. This piece has generated an outpouring of comments expressing support for the victims of the U.S. military’s Catch 22 system of investigating and prosecuting rape victims. Contrast our military’s resistance to procedural reform to the position taken by the head of the Australian military at http://www.youtube.com/watch?v=QaqpoeVg