When the Solution is Worse than the Problem

You have seen the news, right?

Maddow Blog | gillibrand-bill-on-military-sexual-assaults-gets-gop-backers
USA Today | gillibrand-bill-creates-broad-diverse-coalition
The Diane Rehm Show | prosecuting-military-sexual-assault-cases

Senator Kristen Gillibrand (D-NY) is articulate, and her bill to remove authority from commanders has gained allies in respected conservatives Rand Paul and Ted Cruz, but here’s the deal. Would she, as a Senator, support transferring authority to the military for maintaining good order and discipline within Congress? Would she want Army lawyers (who may know little about the culture of Congress but a lot about order and discipline) to come into the Senate and decide how to investigate and prosecute allegations of misconduct among legislators? I doubt it.

And we all know there is plenty of misconduct among legislators. But let us not digress.

Gillibrand wants to set up a system that, in her own words, caters to the needs of victims. In the United States of America, that is unconstitutional. The phrase I am thinking of is, "Innocent until proven guilty." Even if Gillibrand’s bill passes the Senate, it will not pass the Republican-led House, and even if for some reason it did pass and the President signed it into law, the Supreme Court would strike it down. Excuse me, “should” strike it down.

 

Why can’t we concentrate on what really matters in the military sexual assault epidemic?

• Crucify the commanders who abuse their authority by failing to seek and uphold justice—don’t punish ALL commanders for the faults and failings of a few.
• Crush the perpetrators who use sexual violence as a weapon in an abusive power play—don’t punish victims by not prosecuting allegations, and don’t punish non-perpetrators by subjecting them to hours and hours of PowerPoint lectures. And do not merely discharge these perps, passing the unresolved problem onto society at large!
• A relatively small number of serial perpetrators are committing crimes. Is anyone asking why they perpetrate? What are the underlying causes of sexually violent behavior? What is being done to address the conditions that lead to this reprehensible behavior? Or are we just going to play “sociopath vs. system” games? Prosecution is pandering.
• Are 100% of all incidents reported? If so, good. If not, why not and what is being done? Here is where Gillibrand scores her strongest points. Incidents are way under-reported. The reasons victims do not report are linked to embarrassment, fear of reprisals, and mistrust of the chain of command. Again, these obstacles are real and they must be breached.
• Are the overall numbers of incidents declining? This is hard to measure because of the reporting error, but in any case the goal of "eliminating" sexual assault is unrealistic. Decreasing the numbers of incidents is good, especially if all incidents are being reported and not merely swept under the rug. Decreasing incident rates to a level below society at large is good enough. Getting to zero is a noble goal but a horrible objective.

The military’s approach has not been successful, by definition. If it were successful, we would not have a sexual assault problem in the military. Defending the status quo is not a successful strategy, as was amply demonstrated during the recent testimony of our Nation's senior military leaders before the Senate Armed Services Committee. So, retool or start over? This is a momentous question. If retool, then Gillibrand and her ilk are the enemy of the finest fighting force the world has ever known. They agitate for wholesale change of something they do not understand, even as they control the purse strings. The military leadership had better stay ahead of Gillibrand and retool. If the leaders lose to those who listen to Gillibrand and are forced to start over, we will watch as Congress dismantles the military.

 

Dismantle the military? Yes, I am not exaggerating. Consider this scenario. You, dear reader, are now an armor battalion commander in battle. You receive a report that one of your tank commanders is accused of angrily throwing a cup of coffee at a subordinate. Some of the coffee lands in the junior person’s mouth. Incredibly, this assault with battery meets the legal standard for rape, since there was force and penetration. The Brigade Combat Team attacks at dawn and you need all of your battalion's physical and mental resources for the fight. What do you do, Colonel?

• If you investigate the allegation immediately, you lose the victim and tank commander, and therefore his crew and his tank, for the battle. Oh, and your investigating officer is probably your XO or S3!
• If you defer the investigation, you send a signal that it’s OK to throw coffee at people, so long as one is sufficiently provoked, or if the battle starts at dawn, or it was just horse-play, etc. And the subordinate probably deserved it. And oh, by the way, how can you win a battle with people who are afraid of violence? Derp!
• You'd like to think of this as a relatively insignificant incident compared to battle, but you cannot, because the same Congress that sent you into harm's way also said that all allegations of rape must be investigated by an external board.

Why not just hand the whole matter off to some of Gillibrand’s lawyers?  Wouldn't that relieve you of the effort? Why is that a monumentally bad idea? Because if YOU cannot handle this little situation, Colonel, or at least be seen as handling it, and if it must go to an outside authority to be resolved, then how in the world can you lead your battalion in combat, or even be seen as leading effectively in the bigger issue of battle where many more lives are at stake?

The claim can be made that rapes would never occur in a battalion commanded by a leader who had no tolerance for such abuse. And I have two comments to that. First, toxic commanders, such as those who do not see rape as a "significant" problem or perhaps are even part of the problem, are identified and removed. Secondly, the perpetrators of sexual violence are hard to identify. Don't gloss over that point. These serial predators are sociopaths who are very adept and remaining hidden. It's not as if finding them were a simple task. Therefore, rapes happen in battalions regardless of a commander's leadership qualities.


That said, it's obvious that strong leadership, culture change, new policies, effective training, investigative persistence, and judicial resolve are all part of the solution to the scourge of blue-on-blue sexual violence. I personally believe that the military has the wherewithal to solve this problem internally. I personally believe that Gillibrand and McCaskill (D-MO) do their part when they hold a mirror up to the military.  That's all they have to do! The threat of removing convening authority is over-reach. Would these same legislators, upset over the actions of a few Catholic priests or a few college football coaches start changing laws to dictate how the Catholic church or the NCAA may govern themselves?

 

One final thought, dear reader--and by the way, thanks for playing the role of a battalion commander in this post. As you know, the military exists to fight and win our Nation’s wars. Any parent who sends a son or daughter off to your tank battalion and expects you to protect that young person even if it means losing the battle is either living in a fantasy land or possibly working on Sen. Gillibrand's staff. Rape is unacceptable. Rape inside a family or a high performing team is especially harmful because it not only damages the victim, but it damages the whole unit. I do not minimize the problem of military sexual trauma. I just bristle when people who have never been anywhere close to the Battalion Commander scenario described above take it upon themselves to solve the problem with no comprehension of the second and third order effects.

 

Senator Gillibrand's solution of removing convening authority from military commanders and giving it instead to an outside judicial system is a solution worse than the problem.