The “Oh Hell No” Intervention: Changing Incentives on Sexual Assault in the Military

Brilliance from the Defense Entrepreneurs Forum at def2013.com

Brilliance from the Defense Entrepreneurs Forum at def2013.com

On one of my deployments, I would often share a late dinner with a lieutenant colonel who was a loud, animated sort of man who made you feel like you were out for a beer at your local pub instead of marooned on a tiny base in the mountains of eastern Afghanistan. One night the dinner table discussion was how, despite the hard work we put in and the good things we got done, it still seemed that so much of the bureaucracy we dealt with on a daily basis was just deeply, profoundly broken. Too many wrongs went uncorrected, too many leaders were tone-deaf on big issues, and there never seemed to be any feasible way to get through to someone who could truly take care of things in a timely manner, or even at all.

“The DoD needs a department,” this lieutenant colonel said. “No, a bureau. Someone you can send an email and tell these things to, where they say, ‘You’ve gotta be kidding me,’ and they fix it. The Bureau of ‘You’ve Gotta Be Kidding Me.’”

We talked this through, and I suggested, “We also need a hotline, because sometimes you can’t wait any longer.”

“Yes, my dear lieutenant,” he said.  “What you need is someone to listen to your story and say ‘Oh, hell no.’ The ‘Oh Hell No’ Hotline. They’ll get it fixed fast.”

This was a few years ago, but I’ve never forgotten that conversation, because the Bureau of ‘You’ve Gotta Be Kidding Me’ and the ‘Oh Hell No’ Hotline are more needed than ever.

Since 1989, the Department of Defense has asserted a “zero tolerance” policy on sexual assault, yet we’ve seen far too many troops who’ve been assaulted and felt there was no recourse or justice. This year the DoD’s own report estimates that in 2012, some 26,000 troops experienced “unwanted sexual contact” (defined as unwanted penetration or touching), up from 19,000 in 2010. (Further data analysis shows that these numbers may actually be low estimates.) Of these instances, more than half were attacks on men. Only 13% of these total incidents were ever reported, and only 302 cases were actually prosecuted.  That’s less than 2% of sexual crimes in the military were prosecuted last year. You’ve gotta be kidding me.

Despite all the ads on AFN and PowerPoint slideshows, we still find that even sexual assault prevention leaders are perpetrating these crimes. More than half of female respondents in the DoD’s survey said they did not report sexual assault because they believed nothing would be done about it. Of those who did report an assault, 62% said they had already been retaliated against by command or colleagues. If nothing else is clear, it is that more SecDef memorandums, SARC keychains, and awards ceremonies are not going to solve the problem.

We can do better than this, and we must. But, as DoD has also told us repeatedly as suicide rates within the military have risen to epidemic levels—asking for help is a sign of strength, not weakness.  If, among America’s finest leaders, one can still find command climates where troops make these deeply personal and traumatizing attacks on one another, and the troops attacked by their own teammates believe that nothing will be done—then we have a serious problem. We don’t need more talk of personal responsibility and “zero tolerance.” We need an intervention.

A top-down revision of the UCMJ may just be the “oh hell no” fix that we need. Senator Kirsten Gillibrand has proposed the “Military Justice Improvement Act” (MJIA), which would amend the UCMJ to treat sexual assault as the serious offense that it is, enabling victims to report the offense without fear of retaliation, and ensuring that charges of a serious crime like sexual assault are considered strictly on the case’s facts and merits—and outside of the chain of command.

Here are the specifics of the proposed S. 97: Military Justice Improvement Act (MJIA) of 2013:

  • Revise the UCMJ to place judicial authority in the hands of an O-6 or higher, with expertise in court-martial trials, outside the chain of command of a servicemember accused of offenses triable by court-martial (with exclusions like AWOL or failure to follow a direct order) for which the maximum punishment includes confinement for more than one year.
  • If the case is determined not to proceed to trial, a commanding officer can still refer charges for trial by summary court-martial or impose non-judicial punishment on the accused.
  • When deciding whether a case deserves non-judicial punishment or court-martial, important aspects such as the nature of and circumstances surrounding the offense, possible motive, availability of evidence, the views of the victim, and other facts pertaining to the case could be considered, but the character and military service of the accused would not be taken into consideration.  (This is a change to Rule 306 of the Manual for Courts-Martial)
  • Each military branch would have to establish an office to convene courts-martial and detail judges and members. The only officers authorized to convene courts-martial would be O-6 or higher and specifically assigned by their branch’s chief of staff, and the officer convening a specific court-martial could not be in the accused’s chain of command.
  • A military judge has to call a court-martial trial within 90 days of it being determined a necessity.
  • If the accused is found guilty by the court martial, the guilty verdict cannot be dismissed, set aside, or reduced to a lesser offense.  If any action other than approving a sentence takes place, a written justification of the action must be kept as part of the court-martial record.
  • A commander who receives a report of a sexual-related offense involving a member of his or her chain of command must refer the report immediately to their branch’s criminal investigative office or service.

If command climate is the problem, then the answer is to systemically close the gaps that have allowed command climate to become toxic in the first place. As someone wise once said, “you get what you incentivize.”  If commanders know that crimes committed under his or her command will be reported to and punished by an independent authority, commanders will work hard to prevent those crimes and foster a command climate of respect and discipline.  If commanders know that they have the power to decide what is and isn’t a crime, and what gets reported and what doesn’t, it will be only a commander of exemplary character who will work hard to prevent crimes and foster a positive command climate.  Why have we left this up to something as subjective as individual character? We owe it to ourselves and to our future military leaders to incentivize accountability, respect, discipline, and right actions–not just talk about them.

A different night over dinner I asked my lieutenant-colonel friend why he thought more military leaders weren’t fired for incompetence, negligence, or whatever was ailing them.  “You see, my dear lieutenant,” he said, “if they started holding everyone accountable for the things we get wrong….” He looked serious as he paused, this senior leader who’d commanded troops and seen more than his fair share of time in combat. Then he got that familiar twinkle in his eye.  “Well, we’d probably all be fired,” he said with a smile.

Every military leader faces overwhelming responsibilities, and is expected to perform superbly under immense pressure. Leaders make mistakes as part of their learning process. But allowing sexual assaults within the ranks simply cannot go unreported or under-reported, or, worse yet, unprosecuted or under-prosecuted. Strength comes from unit cohesion, and unit cohesion stems from command climate. Failing to incentivize an accountable, positive command climate simply permits too many mistakes–of the most serious kind–to slide by, unchecked.

The Military Justice Improvement Act has fair support in the Senate, but it’s uncertain as to whether it will pass, and then it’s another matter entirely as to how it will fare in the House. Will Congress see fit to give DoD the intervention we need and incentivize positive command climate?   If passed, the MJIA has a lot better chance of fixing things than an imaginary “Bureau of ‘You Gotta Be Kidding Me.'” Here’s hoping that the MJIA has a chance.

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