- The Washington Times - Tuesday, March 31, 2015

Sex assault victims filed a lawsuit Tuesday against the Department of Defense in an effort to take commanders with “misogynistic and sexist tendencies” out of legal proceedings for sexual harassment and sexual assault cases.

The lawsuit doesn’t seek any financial damages, but it does ask the military to ensure that commanders who have been involved in sexual harassment or assault accusations themselves are not presiding over those types of cases, according to Susan Burke, a Maryland-based lawyer who represents military sexual assault victims.

“We hope we’re going to be able to get the federal court to help make sure that the department doesn’t continue to let people who have known misogynistic and sexist tendencies be the judges,” she said.

Lawmakers and victim advocates have taken issue with how the military justice system sits on sex assault accusations for more than a year. Under the current system, a commander decides whether a case proceeds to a military trial after hearing all the evidence.

Critics of the current system argue that the system is full of potential conflicts of interest, since often both the accuser and the accused report to the same commander making the decision. It opens the system up to blatant favoritism or a desire to not lose a good member of the unit, potentially hurting readiness, by prosecuting an accused service member.



The decision to convene a court-martial, critics say, should rest with a military judge who has legal training and can be more impartial.

Those who support keeping commanders in charge say that the chain of command is crucial to maintaining good order and discipline within the ranks.

A Defense Department spokeswoman declined to comment on ongoing litigation.

Sexist behavior runs rampant within the military, said Jennifer Smith, a retired Air Force technical sergeant who is included in the suit. For example, an unofficial fighter pilot songbook from 2012 includes graphic song lyrics about raping women, she said.

The book contains songs titled “Pubic Hair” and “The Kotex Song,” plus hit song parodies with unprintable titles, Stars and Stripes reported.

Sgt. Smith said that when she was assaulted in Iraq, she didn’t come forward to report it because of the environment cultivated by these songbooks.

Six officers were reprimanded for the songbooks after Sgt. Smith sought outside help, but all remained in their positions as commanders, meaning they could go on to preside over sexual assault cases, she said.

“This is something that is used by Air Force officers today,” said retired Col. Don Christensen, former chief prosecutor of the Air Force and current president of Protect our Defenders. “These are the commanders who sing songs about raping women as fun.”

An initiative to strip commanders of their convening authority introduced by Sen. Kirsten E. Gillibrand, New York Democrat, failed to pass Congress last year, although lawmakers did alter the military justice system in other ways, such as not allowing commanders to overturn verdicts and changing the Article 32 process to make it more victim-friendly.

But Ms. Burke called on Congress to revisit broader, radical changes to a commander’s authority rather than the “slow, incremental steps” that became law last year.

“We know it’s not working, so why do we put curtains on a house that’s falling down?” she said. “I’m glad that they’re interested, I’m glad that they’re engaged, but the big picture needs to be tackled right away.”

In the next steps of the lawsuit, Ms. Burke said she expected the Defense Department to argue matters of the military justice system are outside the court’s jurisdiction — a defense that has worked before and stalled previous lawsuits.

If the victims advocates are able to overcome that argument, Ms. Burke said they should get a hearing in about six months.

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