Federal Lawsuit Seeks to Change Military Sexual Assault Case Procedures

By Alicia McElhaney


WASHINGTON (April 1, 2015)-Four current and former members of the U.S. Air Force and Army filed a federal lawsuit Tuesday seeking to prevent military officers known to be involved in creating sexually hostile environments from being appointed as convening authorities in rape and sexual assault cases.

"We want the federal court to make sure that the Department of Defense will make sure people who have misogynistic tendencies don't judge sexual harassment cases," attorney Susan L. Burke said at a news conference in the National Press Club. "We all know that the best justice is a blind justice."

Burke, a Baltimore lawyer, has taken on several previous cases involving sexual assault in the military and appeared in "The Invisible War," a 2012 award-winning documentary about the issue.

"Several of the cases, starting with 'Cioca v. Rumsfeld,' were dismissed at the district court and appellate courts because the government successfully argued that rape is 'incidental to' or essentially an occupational hazard of military service," Erin Powers, Burke's press officer, said Tuesday in an email.

Burke said she hopes this case will have a different outcome, because it is being pursued under a different legal theory. Rather than seeking damages, the plaintiffs are seeking a court injunction to change certain military justice procedures that they say violate their Constitutional rights to due process, a fair trial and freedom of speech.

"This Court should order the Department to use its power under the Uniform Code of Military Justice to appoint legally-trained officers with no pre-existing command relationships to the accused or the victim to serve as the 'convening authority' overseeing the adjudication of rape and sexual assault allegations," says the lawsuit, filed in the U.S. District Court for the Eastern District of Virginia in Alexandria, Va.

"There is no rational reason to vest adjudicatory power into the hands of commanders whose own past conduct evidences sexual harassment, sexual assault, or a willingness to condone such conduct in their peers," the complaint continues.

The Department of Defense, as policy, does not comment on pending litigation, said Laura Seal, a department spokesperson.

The case centers on four plaintiffs.

The complaint says that Celina M. Baldwin, who is serving on active duty in Kuwait as a Strength Manager and Assistance Brigade S-1, was raped and assaulted during her tenure at West Point. According to Baldwin's claim, during the investigation the authority who handled her case relied on good character references from family and friends of the man who raped her, rather than his failed polygraph test and eventual admission of wrongdoing to decide the case.

Jennifer Smith, Baldwin's fellow plaintiff and a retired technical sergeant in the Air Force, also continued to serve after being sexually assaulted, according to the complaint. Smith began reporting fellow airmen for creating a sexually hostile environment, which they did by leaving pornographic magazines in her squadron and by singing sexually hostile songs at events, the complaint alleges.

"I could not bring myself to report the sexual assault," Smith said at Tuesday's press conference. "I eventually reported the porn songbooks…All those involved still lead and manage legal responsibilities. For 17 years I worked in an environment where the rules were different for the officers above me."

The other plaintiffs - Alyssa Rodriguez, a former airman, and Carmelita Swain, a former Army sergeant - are disabled by post traumatic stress disorder after both were raped during their service, according to the lawsuit.

Their stories are not rarities in the military. According to Department of Defense statistics, 4,608 service members reported being sexually assaulted in fiscal year 2014, but an estimated 19,000 were sexual assault victims.

Burke said that the reporting rate for sexual assault in the military is "quite low."

"A right without an enforcement mechanism is an empty right," Burke said. "That's why the situation is so bad. Do we really think that corporate America is less sexist than 50 years ago because people have become more altruistic? Or is that because they now can be sued?"

Others are calling for reform alongside Burke. Don Christensen, a retired Air Force colonel and president of Protect our Defenders, a group that advocates for victims of sexual assault and rape in the military, also spoke at the press conference.

"The time has come for fundamental military reform," Christensen said. "We need to bring relief to thousands of survivors."

Elizabeth Degi Mount, executive director for the Center for the Study of Gender and Conflict at George Mason University's School for Conflict Resolution, agreed that reform is necessary.

"Addressing sexual assault in the military is not just a moral imperative but also practical politics," Mount said. "We must pressure the system to transform. It is not enough to say 'God Bless Our Troops.'"

Burke said the best solution - the one she says she hopes will come out of this lawsuit - is that over time a more appropriate military judicial system will arise.

"Most rapists are serial predators, so if you convict them, if you lock them up, they can't rape people any more," Burke said

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