MILITARY SEXUAL ASSAULT: A COMPARATIVE LEGAL ANALYSIS OF THE DEPARTMENT OF DEFENSE’S 2012 REPORT ON SEXUAL ASSAULT IN THE MILITARY: WHAT IT TELLS US, WHAT IT DOESN’T TELL US, AND HOW INCONSISTENT STATISTIC GATHERING INHIBITS WINNING THE “INVISIBLE WAR”

In May 2013, the Department of Defense released its 2012 Sexual Assault Prevention and Response Office (SAPRO) report.[1] It is two volumes, totaling 1,494 pages of information related to military sexual assault. While this seems an overwhelming amount of information, a thorough analysis reveals many inconsistencies, problems in the information gathering, and the absence of many vital statistics. Much of the report is focused on the Department of Defense and individual military branches touting their efforts at eradicating sexual assault, becoming akin to a “show and tell” exhibition rather than providing accurate, rigorous, and useful information. First, multiple different definitions are used by different gathering organizations, ensuring that the reports are not comparing the same information. Second, different branches of the military are sharing dissimilar data, making a truly accurate comparison of branch to branch impossible, while also affecting the overall calculations and reporting. Third, the widespread use of the term “sexual assault” and “military sexual trauma” have meanings that encompass more than the same terms when used in the civilian context, aiding the lack of understanding about the true issue.[2] Fourth, the report lists the most serious of the alleged crimes in the findings, though the final findings of the investigation or disciplinary process may not be reflected.[3] Fifth, one crucial statistic that remains unknown is how many victims are not reporting[4] as many victims report retaliation after coming forward which remains an oft cited reason for the lack of reporting[5] by other victims. Though estimates are made in an attempt to gain an accurate picture of sexual crimes within the military, the estimates are made by a different group using a different definition, which brings the problem back to number 1 and 2. Has our military gone rogue where all females are likely to become a victim? Are commanders failing in their leadership by allowing sexual miscreants to walk free? Or in an institution that prizes honor and character are there merely a few bad seeds tarnishing the reputation of the masses of heroes in uniform? It becomes clear then that prior to implementing changes to address the problem, the Department of Defense, Congress, and the public need to have a better understanding of the issue. How else can it be determined if the current laws and policies are a step in the right direction or are merely providing triage for surface issues? Do the implemented changes bring desired reform or result in spreading resources too thin to focus aid where it is actually needed? Has the confusion over the terms actually clouded the facts and thus impeded efforts at combating this problem? Andy Stanley sums up the difficulty with this type of approach to problem-solving in the following statement, “It’s difficult to solve a problem when you don’t know what’s wrong to begin with…The problem may be that you don’t know what the problem may be. You have an idea of what the problem may be, but you’ve been working on it for so long and made such little progress – it may be that you don’t know what the problem may be.”[6] In an effort to determine what the problem may be, and to subsequently solve the problem of sex crimes within the military, this article examines the five primary deficiencies in the report as and makes recommendations to ensure a better understanding of the sexual assault climate within the military. [1] Department of Defense, Annual Report on Sexual Assault in the Military, Volumes I, II, April 2013. [2] Ibid p. 63 The Department uses the term “sexual assault” to refer to a range of crimes, including rape, sexual assault, nonconsensual sodomy, aggravated sexual contact, abusive sexual contact, and attempts to commit these offenses, as defined by the UCMJ. [3] Ibid. [4] The DEPARTMENT OF DEFENSE reports that there were 3,374 total reports of sexual assault (restricted and unrestricted) in Fiscal Year 2012, (Ibid Vol. 1 p.69) though they estimate 26,000 sexual assaults (ibid p. 23) which is up 7,000 from Fiscal Year 2011 (Department of Defense, Annual Report on Sexual Assault in the Military 2011, April 2012 p. ). [5] San Antonio Express, Twice-Betrayed (May 18, 2013) http://www.mysanantonio.com/news/article/Twice-Betrayed-4526464.php [6] Andy Stanely, “Free” Video Series, Message 2 “Now you know” October 21, 2012. While this statement was not made in relation to military sexual assault, it accurately summarizes the challenge in trying to address a problem that is not completely understood