Read Part One, Read Part Two.

By Captain John P. Cordle, USN (Ret) and K. Denise Rucker Krepp 

Part Three

When these authors’ previous “Hard Truths” articles were published, there were two goals. The first was to encourage senior leadership to talk about the problems of sexual harassment and sexual assault, and the second was to challenge mid-grade leaders to take tangible actions to prevent it. In our focus on statistics and the process, however, an important part of the equation was missing: the human cost and the broken process’s impact on victims.

As a result of the “Hard Truths” articles, numerous victims reached out with their stories. Although we sometimes refer to them as victims, we prefer to call them survivors as this creates a standpoint of empowerment; readers will note this choice mainly in the vignettes. Among the survivors’ stories we heard, there were some common and familiar themes, some of which certainly deserve an explanation in this forum. But some were revelations, and based on additional research, they deserve closer scrutiny. This third part in the series breaks these lessons into three categories: mental health, victim blaming, and the justice system.

John: First of all, mental health. Much has been written about the challenges encountered by servicemembers seeking mental health treatment. The Master Chief Petty Officer of the Navy (MCPON) himself shared in 2022 that it took him six weeks to get into treatment. It is well-known that the nation and the Navy are challenged in this area, but what seems to be missing from many of the official reports is the almost 100 percent correlation between sexual assault and sexual harassment victims, and their need for mental health resources.

Currently, no demographics sources examine the overlap in suicidal ideation and suicides and sexual assault/sexual harassment. However, many of those who came forward anonymously shared that they had experienced such thoughts, in some cases even acted upon them. Several reported a diagnosis of PTSD, or other syndromes that resulted in not only the need for ongoing treatment, but also negative impacts to their professional career, both tangible and intangible. In several cases, the need for mental healthcare, combined with their status as a victim, led them to become a “burden” to the command, and they were often sent to remote workstations, sometimes alone, to remove them from the hostile environment that was causing them stress. This placed them in more danger of self-harm and isolation by removing their support system. Others reported being denied orders or community transfers due to the treatment for mental illness—the very condition caused by the original trauma of the assault.

The takeaway here is that a complete re-thinking of the process is necessary. It should be automatically assumed that the victim of sexual or other forms of harassment or assault will need immediate and continuing mental healthcare. The Office of the Chief of Naval Operations (OPNAV) instruction allows for 30 days of “convalescent leave” in such cases, but this barely scratches the surface. 

Denise: Second, victim blaming. Another common thread was that in almost every case of those with whom we spoke, they became the target of significant questions about their professionalism, performance, and behavior after they reported the sexual harassment and/or sexual assault. From the survivors’ perspective, their commands were attacking them in an attempt to protect the command and the perpetrator instead of solving the problem.

As a young Coast Guard officer in 1998, I witnessed the victim blaming. In 2014, female veterans testified at Congressional hearings about the victim blaming that had occurred in the 1980s and 1990s, and it still continues in 2023. Powerpoint slides will not stop the victim blaming because to most folks the victim is someone they do not know, someone that they cannot relate to. The most effective way we have found to stop the victim blaming is to hold conversations and ask people what they would do if their spouse, partner, sister, brother, mother, father, grandmother, or grandfather were sexually assaulted and then blamed for it. Creating a hypothetical that is relatable makes people better understand the problem and changes their perspective when they, too, are notified of sexual harassment or sexual assault in their command.  

John: The third issue was the justice system itself. One victim described it as “a chess game, where the victim has the white side of the board and has only pawns; the accused and their defense team have the black side of the board with all of the knights, bishops, kings and queens able to move much more nimbly than the victim” – with the result an almost unavoidable “checkmate.”

In Part Two, we discussed the relatively small number of prosecutions that result from unrestricted reports. In looking into a unique aspect of the legal system, however, we discovered an incredibly blatant loophole. Unlike civilian defendants who are charged with a crime, the UCMJ allows the defendant to choose between trial by jury of his peers and trial by judge. We decided to do some digging at one regional legal office to determine the outcomes of cases under trial by judge and trial by jury. The results were astounding.

In one major fleet concentration area, defendants who chose trial by a judge are acquitted at a rate of 100 percent over the past five years, while the conviction rate for those who chose trial by jury was closer to 50 percent. This presents a wide-open door for assailants to drive through using the legal process on a path that almost ensures acquittal. Although the data is not fully available, we found enough open-source information to cause concern. From what we can tell, there are no female judge advocate court judges currently serving on the bench, which not only creates a lack of diversity, but also the opportunity for inherent bias. We included this information to increase transparency and advocate for this disparity to be investigated further. Table 1 demonstrates these acquittal rates: 

Year               Judge G*     Judge NG    Jury G      Jury NG 

2018                  0                    0                     3                     2 

2019**              0                   1                      4                     6 

2020                 0                   0                     0                     2 

2021                  0                   1                     0                     3 

2022                 0                    3                    3                      1 

Total              0                    5                  10                  14 

Table 1: Results of General Courts Marshall for Sexual Assault in Regional Legal Service Office , 2018-2022. G=Guilty; NG = Not Guilty. Source: https://jag.navylive.dodlive.mil/Military-Justice.

*Note that between 2017 and 2022, at least one Region Legal Service Office (RLSO) has never ruled Guilty on a Sexual Assault (Article 120) in any Judge Alone case.  

**Note: In 2019 there is one Judge Alone case where a service member was found Guilty; however, it was not for Sexual Assault. It was for providing alcohol to a minor. 

Denise: Another common thread was the dearth of legal advisement available to victims compared to perpetrators. The victims—survivors—we spoke to were often told by both legal and Equal Employment Opportunity (EEO) personnel that they would have to “recuse themselves” from providing advice because they were assigned to the command where the alleged offense took place. When the victims went to the RLSO, they found that they were often relegated to a line almost akin to a suspect with no resources, who has to take the “next public defender” available.

The defendant, on the other hand, could normally avail themselves of all the resources assigned to the parent command, and often—the majority of alleged assailants being senior to the victims—has the financial resources to seek outside counsel, often in the thousands of dollars per month to fight their case. Some good news here: in July 2023, SECNAV announced that sexual harassment victims will have access to the same legal resources as sexual assault victims—a significant improvement in the process—but more needs to be done.  

Before we move to recommendations, we want to share a few vignettes from those who reached out to us after Part Two. We have changed them slightly to protect the individual while also maintaining their accuracy.  

Denise: I joined the sexual assault community 30 years ago. I have lived with the pain of crime for over half my life. The crime that occurred in the summer of 1993 influenced my decision-making processes when I served as the Maritime Administration Chief Counsel. In the summer of 2011, I was approached by a whistleblower alleging sexual assaults of students at the U.S. Merchant Marine Academy (the fifth federal service school) and at sea.

I immediately requested an Inspector General investigation into the crimes and I was forced to resign my job for making the request. The Secretary of Transportation banned me from the Department of Transportation headquarters building. I suffered a miscarriage after being forced to resign and I did not have additional children because I was not sure if I would have the financial means to support them. The job market for me was bleak because everyone in the industry knew that I was persona non grata. But the crimes in the military and the maritime communities continued, so I testified twice before a Congressionally mandated panel in 2014 and at a 2019 U.S. Commission on Civil Rights hearing. I advised Congress and I have written extensively on the issue. In a 2014 essay I wrote on how failure to act would impact the overall health of the military. It is a message I continue to share today because men and women will not join the six services if they fear becoming yet another sexual assault victim. 

Survivor #1: As a second tour Division Officer, I was running the pre-commissioning detachment in San Diego while everyone else in leadership was in Maine at the shipyard. The Command Master Chief came out often and he always had inappropriate comments and questions for me. Because this was the 90s and “handle at the lowest level” was pounded into us, I confronted him and told him to stop. He did. Or so I thought.

Fast forward to nearly a year later, and the XO calls me into his office because I was the Legal Officer. He’d found a First Class crying in berthing during the Berthing Inspection and it came out that the CMC had been steadily harassing her for months, and while she confided in one of her fellow First Classes (who worked for me!), they didn’t think they could do anything because he was the CMC. Thankfully and unsurprisingly for my leadership, they took immediate and dramatic action to protect that First Class and, as it turns out, a handful of other females. It also turns out that he had started with the one female Department Head, worked his way through the DIVO and the two female Chief Petty Officers, all of whom “handled it at the lowest level” and moved on until he found victims that didn’t think anyone would do anything.

That XO and CO did the right thing. But what if I had told them a full year before? I didn’t tell them not because I didn’t trust them, but because I thought I was doing what I was supposed to do.  

Survivor # 2: I was sexually assaulted by a peer at my last command, and there was a trail of harassment and abuse that led to it that I ignored and minimized because that is what I was trained to do. Since I was singled out by my Chain of Command and retaliated against for making the report against such a “highly regarded” peer, I chose not to file a formal report as it seemed like there was just no chance of justice. It has been two years since then and I’m doing much better at my current command, but I haven’t stopped hearing stories like my own and the experience hasn’t stopped influencing my career in (primarily) negative ways. My assailant is still out there and will likely do it again. 

Survivor #3: I joined the Navy in 2017 with dreams of becoming an officer. By 2019 I was a second class being accepted into Officer Candidate School. My dreams were coming true! However, while I was enlisted, I was left by my division at a command function black-out drunk. An E-7 told the security guards that he would take me home, and he did not. I was sexually assaulted and dropped off at my car bruised and not fully clothed. The next day my best friend picked me up and took me to get a safe kit done. I was very scared and thus filed restricted. The SAFE kit crew did not perform a toxicology report on me.

When I received news that I was accepted to OCS, I went unrestricted with my case. Naval Criminal Investigative Service had performed a wiretap on the accused and my chain of command began retaliating against me, to include isolation in a warehouse. In a general court martial under Article 120, the accused has the right to choose between a jury trial and a judge alone trial, a fact that I believe is exploited by the defense in such cases, and a path that almost always leads to an acquittal. I do not plan on going into the details of the Court Martial except to say that the man who raped me was found not guilty, so my assailant is still out there and will likely do it again.

Where to from here? 

It bears mentioning that each of these survivors went on to report significant mental health issues, ranging from PTSD to Conversion Disorder to feelings of anxiety and even suicidal ideations. All cited the lack of a formal mental health recovery plan as part of the Sexual Assault Prevention and Response (SAPR) process. 

In addition to the important recommendations of the independent review committee report, we would like to add the following:    

1. Fully capture and disclose the Navy-wide breakdown of judge versus jury results using an independent body like the GAO.
2. Remove the option for trial by judge from the UCMJ. Make the accused face a jury of their peers. 
3. Revise the OPNAV instruction to require immediate referral to mental health resources for all victims of sexual harassment and sexual assault. 
4. Remove the limit of 30 days’ convalescent leave.
5. Mandate a blood test for the presence of date rape drugs and blood alcohol level for any rape kit test at all military treatment facilities.
6. Set a requirement that legal counsel for the defense must have equivalent years of bench experience to that of the defendant’s team. Set up a legal advice hotline for defendants to seek counsel and ask questions about this complex process.
7. Rescind the policy of handling sexual harassment at the “lowest level.” It is against the law; treat it as any other crime and prosecute it. 
8. Add a requirement for a formal mental health assessment and treatment plan for all victims of sexual assault and sexual harassment.
9. Review and change Article 120 of the UCMJ to include language that protects inebriated and black-out drunk Sailors. The current Article only covers incapacitation and most judges rule against exploring the interpretation of this law. 

Most striking to us was the extreme commonality between the stories of those who spoke out. Victimized by a shipmate or supervisor, they found themselves victimized again by a system stacked heavily against them, with little hope for justice, or even fairness. This leads us to make one final recommendation to anyone who finds themselves a victim of sexual harassment or assault, one that we found to be the most common advice on a website for victims: call 911. “Don’t leave your fate in the hands of those who facilitate the behavior” was the advice we heard over and over, “to a chain of command with unprepared personnel and overly complex process. Sexual assault is a crime – let the police handle it.” That is probably not the best answer in the long term, but after this journey, unfortunately it is the advice we would give our children if they were in the military. One additional story from a victim of abuse provides an interesting and slightly different perspective. 

Survivor #4: My name is Olivia Stahle, and here is my story.

The Navy saved my life. When I joined at the age of 24, I was trying to improve my family’s situation. I thought if I changed the circumstances, changed the location, and changed the trajectory of our current environment everything would be ok. It was not. 

What my command did not know was that I was in a terrible domestically violent marriage and had been at that point for a few years. They also did not know that one of the very first programs I became familiar with in the Navy as a C school student was FAP, or family advocacy program. It certainly was not my desire.   

The reason I did not tell anyone was because I was embarrassed. Here are comments I’ve heard – “If he beats you, why do you stay with him?” “If your marriage was really that bad, you would have left him already.” “You seem like such a smart girl. Why would you stay in something like that?” “Just leave him. He’s an anchor dragging you down.”

I have answers to those questions now that I did not have before. I stayed with him, because I was afraid of him and what he would do when he found me once I had left. You see, I tried before, quite a few times actually, to leave. But every time I did, one of two things happened – either he would convince me he would get help, or he actually figured out where I was staying and long hours ensued. There is also the aspect of love, children, financial circumstances, religious belief involving divorce, and the sheer legal consequences of a divorce. I was too embarrassed to tell my shipmates, colleagues, and leadership because I feared these questions. I didn’t have good answers at the time, because I was always anxious and afraid. I didn’t feel I deserved a better life, because I didn’t make the best choices initially. It turns out, I have a real talent for being an electronics technician, and I earned the respect of those around me. I would have been mortified for anyone to think less of me. So, how did the Navy save my life? 

I finally got the courage to divorce my husband, but he had not yet moved out of our house on base. One night, my neighbor called the military police after she witnessed my former husband’s abusiveness. I’ll never forget what the MP asked me. “I just have one question for you. Do you want him to stay, or do you want him to go?” Without skipping a beat, I answered I want him to go. They took his ID, and he couldn’t get back on base. It was late in the night before I realized, for the first time, I was safe in my house. He couldn’t get to me. The Navy saved my life, my future, and my family just by the mere circumstance of me being safe on base. It took a while for that security to fully set in, but once it did, I never looked back. I’m still proud to call myself a United States Sailor.

Conclusion