By Sarah Mimms and Avi Asher-Schapiro
After a night out drinking in 2007, Samantha Jackson and her husband returned home and started fooling around. Then she passed out.
When Jackson awoke, she realized he was raping her.
According to the military sexual assault activist group Protect Our Defenders, which supports Jackson, she told him to stop but he refused. A year later she discovered that he had videotaped the assault.
When Jackson went to the police, the authorities contacted the Department of Justice and the US military because her husband was an Army soldier stationed in Virginia. Protect Our Defenders says that the Army requested jurisdiction and took control of the case, which was just one of 2,085 of reported sexual assaults involving military service members that year in which victims asked that the military intervene.Though she had the videotape and her then-husband’s admission that he had sex with her while she was unconscious, he was never tried. This is not uncommon: only 181 sexual assault cases in 2007 resulted in court martial.
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Protect Our Defenders says that the Army later informed Jackson in 2015 that it was reconsidering its decision to not prosecute her ex-husband. The group provided her with pro bono counsel, but the military ultimately didn’t follow through; it discharged him from the service instead. Her ex-husband is now outside of the military’s jurisdiction, leaving Jackson with no recourse but to try to re-open the case in civilian courts.
Members of the military who are victims of sexual assault, or those, like Jackson, who charge that a service member assaulted them, have to contend with a distinct justice system that empowers military commanders — some of whom have often worked with the accused for years — to decide how to handle their cases.
Jackson and other survivors aligned with Protect Our Defenders want to change that system by removing the decision to prosecute from the military chain of command and placing it in the hands of special military prosecutors. She launched a petition last week calling for a federal investigation of the Pentagon for allegedly misleading Congress about its handling of sexual assault prosecutions.
“The military told the civilian DA they would handle my case, but then declined to prosecute him. While they were supposedly reviewing my request, they allowed him to separate, so he could no longer be prosecuted. We’ve recently learned that this was not an isolated event,” Jackson said in a statement released by Protect Our Defenders. “Now I, along with thousands of other survivors, am calling on President Obama to ensure all servicemembers have access to a fair, impartial system of justice.”
The Pentagon did not respond to a request for comment on Jackson’s case, but her cause has a vocal champion in Congress: Senator Kirsten Gillibrand (D-NY). Citing concerns that victims are hesitant to report assaults by their superiors and that commanders are reluctant to prosecute men and women with whom they have long worked, Gillibrand has long advocated creating a special legal authority within the military to handle sexual assault cases, stripping commanders of the power to decide whether or not to prosecute.
The Pentagon strongly opposes removing these cases from the chain of command. Testifying before the Senate in 2013, Navy Admiral James Winnefeld, who was then vice chairman of the Joint Chiefs of Staff, told lawmakers that despite a 37 percent surge that year in reports of “unwanted sexual contact” within the military, the armed forces were best equipped to handle the problem in-house.
The previous year, the military only managed to secure conviction in 238 out of 2,558 sexual assaults that were reported for prosecution. (A Pentagon survey of military personnel estimated the actual incidence of sexual assault that year at 26,000 cases.)
Related: Pentagon Says Increase in Reporting of Sex Assaults at Service Academies Is a Good Sign
Winnefeld, who is now retired, suggested to senators that Gillibrand’s legislative push for an independent legal channel to prosecute sexual assault and serious crimes in the military would be a grave mistake. He cited internal Pentagon statistics to show how the military pursued sexual assault cases within the chain of command after civilian prosecutors refused to, pointing to 49 such cases in the Army over the previous two years. Of the 35 that had been resolved, he said, 25 resulted in convictions.
“If the Army had not taken those 49 cases and the 35 where we have achieved a conviction, those people would be walking the street right now,” he said. “The victims would not have had the resolution that they deserved in this case.”
But the Associated Press reported last month that internal Pentagon documents acquired through a Freedom of Information Act (FOIA) request filed by Protect Our Defenders undercut Winnefeld’s testimony. The AP found that a number of the cases where the military described civilian prosecutors as unwilling to pursue cases involved inaccurate or incomplete accounts of the steps they had taken, while others couldn’t be verified. It also determined that there was nothing in the data to suggest that military commanders were more inclined to prosecute than civilian authorities.
The AP spoke to civilian prosecutors who refuted the characterization that they had neglected to pursue sexual assault charges, suggesting that the Pentagon had presented referrals of the cases to the military as “refusals.”
For example, the Army credited itself with prosecuting a soldier at Fort Drum in New York for sexual assault after the local prosecutor turned down the case. When the AP consulted the district attorney, Kristyna Mills, she said that the decision to place the case within the military was a “collaborative effort” with Army officials.
“It is extremely rare that my office ‘declines to prosecute’ a case unless there are serious evidentiary issues that we feel cannot be overcome,” she said.
Despite Winnefeld’s assertion that the offenders caught in the military’s crosshairs were no longer “walking the street,” Protect Our Defenders found that the majority of them were free by the time he testified before Congress. Based on the documents it received from its FOIA request, the group found that nearly 25 percent of those convicted in the cases cited by the Pentagon received less than a year of jail time.
“Some had no confinement. There was an Army major who molested a child who got 30 days of confinement. There was another child molester who had 100 days of confinement,” said Don Christensen, a retired Air Force chief prosecutor who is now president of Protect Our Defenders. “So the idea that these guys were locked up and behind bars and we were safer was also very misleading.”
Now Gillibrand, Senator Chuck Grassley (R-IA), and other lawmakers who support reforming the military’s sexual assault protocols are demanding answers. Following the AP report, Gillibrand and Grassley co-authored a letter to President Barack Obama, who opposed the reform measure in 2013, asking the White House to investigate the allegations.
“We need the facts,” Grassley, who chairs the Senate Judiciary Committee, told VICE News. “The allegations that the Defense Department might have misled Congress to get its way on how to handle military sexual assault cases are alarming.”
The president has not yet responded, Gillibrand said.
She and Grassley were joined by seven of their colleagues in pressing the issue in a letter addressed to Defense Secretary Ash Carter last week.
“We are deeply disturbed by the allegations… that the Department deliberately misled members as they were debating an issue of policy and oversight,” the senators wrote. “We are sure that you share our concerns and request a meeting with you to discuss these allegations as soon as possible.”
Gillibrand personally confronted Carter at a congressional hearing on the war against the Islamic State group last Thursday as she pushed for him to investigate the allegations and determine who crafted the talking points for Winnefeld.
“It’s absolutely essential that we give accurate information,” Carter responded. “Admiral Winnefeld is an extremely honorable man, and I can’t imagine he gave information that was not accurate and incomplete to the best of his knowledge.”
Noting that various senators had repeated Winnefeld’s figures when arguing against her reform initiative, Gillibrand pointedly asked Carter, “What do you think is the line that the department and military should draw when it comes to lobbying for or against legislation?”
The defense secretary downplayed the Pentagon’s role in defeating the measure.
“Our job is not to lobby. I think we’re here to try to tell you the truth about what we’re doing to the best of our ability, and to explain the choices that are before the country,” Carter said. “Lobby is not a word I’d like to use with respect to our responsibilities.”
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Gillibrand later told VICE News that she was not surprised to learn that the military had presented Congress with data that was “very misleading at best and false at worst.” Not only had the Department of Defense opposed her legislation from the outset, she said, but their description of military commanders being more willing to take up sexual assault cases than civilian prosecutors never rang true to her.
“I wasn’t surprised to hear this information because I doubted it when they said it,” she remarked. “It just didn’t make sense to me because it’s just not my experience that prosecutors don’t want to do their jobs and that only commanders are the ones who take these cases seriously.”
Gillibrand’s legislation has twice failed to win floor consideration in the Senate, but she hopes to revive it as an amendment to the National Defense Authorization Act later this year. She’ll need a total of 60 senators to at least agree to give her a vote on the bill, but only a majority of those present to pass it.
The senator said that she is growing increasingly impatient with Obama’s failure to act on the issue. As commander-in-chief of the US armed forces, the president could directly implement the reform if he supported it.
“I’m really frustrated that he hasn’t seen the urgency of this and the recognition that without professionalizing the military justice system, justice is impossible,” she said. “You need professional prosecutors making these decisions based on the evidence.”
When pressed on the AP and Protect Our Defenders reports at a press briefing last week, White House spokesperson Josh Earnest said that it was up to Congress and the Defense Department to resolve the issue.
“It’s important that this bureaucratic dispute not overshadow the way that the president has made [military sexual assault]a top priority when it comes to military policy,” he said.
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Gillibrand is already at work lobbying new Senate members and using the AP and Protect Our Defenders reports to try to sway some previous “nay” votes to her side. But she said that she is facing many of the same arguments this time around as she did in 2014 and 2015.
“I think they just believe what they believe,” she said of the bill’s opponents. “So it doesn’t matter that this isn’t true, they still want commanders in charge.”
Protect Our Defenders is also lobbying Congress to pass Gillibrand’s legislation.
“It is beyond me why there’s opposition to having people who are most qualified to be making these decisions,” Christensen said.
“We would never have a case where a surgeon was getting ready to cut and he would call to the commander and say, ‘Hey, you know, can I do this surgery, boss?'” he added. “That would never happen. But that’s the way it is in the legal world: ‘Can I take this guy to trial, boss?'”
Senator Claire McCaskill (D-MO), one of the primary opponents of Gillibrand’s legislation, is holding her ground. A former prosecutor, McCaskill led the opposition to Gillibrand’s bill in 2014 and 2015. She encouraged members to support a bill she sponsored reforming the way the military handles sexual assaults. It included expanding a special counsel program to all victims of sexual assault, prohibiting the military from using the accused’s character in his or her defense, and giving victims a say in whether military or local authorities should handle their cases when jurisdictional disputes arise — though it left the final decision to prosecute with commanders.
The issue created a rift between the two senators, but Gillibrand ultimately supported McCaskill’s bill, which the Senate passed unanimously in 2014.
McCaskill is also troubled by the allegations that military leaders manipulated her and other colleagues, and has asked for meetings with the heads of each military branch to get to the bottom of the issue.
Those findings haven’t changed the Missouri Democrat’s mind about keeping sexual assault prosecutions in the chain of command, however. Her office noted that the evidence provided by DOD still shows that a commander signed off on the prosecution, whether he or she was the impetus for moving forward with that case or not. No court martial can move forward without the approval of a commander.
McCaskill also pointed out that, despite some high-profile instances, no data suggests that commanders are systematically refusing to pursue sexual assault charges against members of the military.
“What’s missing in this discussion is that commanders were never the problem in terms of cases being brought forward,” McCaskill said last week. “The problem was not getting support at the beginning of the process.”
Of course, the military’s figures are now being questioned. McCaskill acknowledged that they provide just a snapshot, but has pointed to a RAND survey of sexual assault victims in the military conducted in Fiscal Year 2014 in which 82 percent of respondents said that their commander or director “supported them” in their cases. Another 73 percent reported that “overall they were satisfied with the unit commander/director’s response to the report of sexual assault.”
As legislators wait to hear back from the Defense Department about its disputed data, the fight in Congress over removing prosecution decisions from the chain of command rages on.
Follow Sarah Mimms (@SarahMMimms) and Avi Asher-Schapiro (@AASchapiro) on Twitter.
By Sarah Mimms and Avi Asher-Schapiro