Earlier this month, the U.S. Naval Academy held a hearing into allegations that three of its football players had sexually assaulted a female midshipman. The alleged victim was a 20-year-old sophomore in April 2012 when she attended an off-campus “toga and yoga” party, drank heavily, and had alleged sexual contact with the three men while being allegedly too intoxicated to give consent. That’s a lot of “allegedlys,” but if true, the midshipman’s tale is a worn, familiar one—especially in the military, where a recent Defense Department report found that an estimated 26,000 service members experienced some form of sexual assault last year, up from 19,000 two years before. Of those incidents, 3,000 were reported; only 302 went to trial. As details from this latest hearing leak out, it’s easy to see why so many victims might prefer to disappear rather than face the punishing interrogations and institutional pressures that come with speaking up.
The woman, now 21, spent more than 20 hours on the stand, requesting several times to be excused from testifying because of exhaustion. Though, according to newspaper accounts, she said repeatedly that her memory of the night was fuzzy (she came to believe she’d been raped after she heard rumors and saw posts about her on social media), the defense lawyers pounced on discrepancies in her story as evidence of instability and deceit. They grilled her on her mental health. They inquired whether she wore a bra or underwear at the party. They quizzed her relentlessly about her oral sex technique, including how wide she opened her mouth. (Why? Because, as the New York Times reports, “oral sex would indicate the ‘active participation’ of the woman and therefore consent,” according to one of the player’s lawyers.) They asked, the paper of record continues, “whether she had apologized to another midshipman with whom she’d had intercourse for ‘being a ho.’ ”
This is shameful. And it makes an excellent case for Sen. Kirsten E. Gillibrand’s bill to remove sexual assault trials from the military chain of command, prosecuting them in civilian courts instead. Supporters of the Gillibrand proposal cite the web of conflicting loyalties between the accused, the accuser, and the judges as one reason that the current system is failing to protect victims. They argue that authorities’ first allegiance may be to the military’s reputation—that the bias is to acquit. But here’s an even simpler reason to make the switch: Civilian courts don’t allow the kind of abusive questioning described above. Lawyers in civilian courts are prohibited (or at least strongly discouraged) from asking an alleged assault victim about her sexual history. Judges in civilian courts would probably break their gavels admonishing a counsel who wanted to know how wide a woman opened her mouth for oral sex.
What unfolded earlier this month was not a civilian trial; it was an Article 32 hearing, the internal preliminary proceedings that determine whether a case goes to court-martial. Taryn Meeks, executive director of Protect Our Defenders, told MSNBC that “the Article 32 process is yet another example of the broken military justice system. It’s a traumatic experience where the survivor is subject to cross-examination for hours or even days. Article 32 gives defense counsel almost unfettered access to the victim which often re-victimizes that person, and can significantly undermine their shot at getting justice.”
In other words, it’s an institution that needs not just to be fixed, but to go away. At least the alleged victim knows her rights are being manhandled. She has filed a lawsuit demanding that the Naval Academy’s superintendent recuse himself from her case.