A woman traveling abroad on business goes out for a night on the town with her colleagues. Feeling unsteady after several drinks, she asks a co-worker to help her back to her room and awakes the next morning to find that she has been raped. After being warned against reporting the incident, she notifies the authorities only to become the subject of an investigation herself. After days of interrogation, she is sentenced with unauthorized alcohol consumption and adultery.
Sound familiar? The story of Marte Dalelv, a young Norwegian woman betrayed by the justice system from which she sought protection during a stay in Dubai, was understandably received with outrage throughout the world, so much so that public intervention ultimately resulted in her release. The same path from accuser to accused, however, routinely confronts a group of victims closer to home: those serving in the military.
According to the Pentagon, one of the most significant barriers to reporting sexual assault within the military is fear of punishment for “collateral misconduct” on the part of victims. Like the offenses attributed to Dalelv, the charges most often encountered by military victims — adultery, fraternization, alcohol consumption — bring no criminal penalties in civilian society but can yield grave consequences under a separate, culturally specific legal system.
As an advocate, I’ve witnessed repeatedly the unique vulnerability of military victims to self-incrimination: the woman who was prosecuted for unauthorized possession of a prescription drug after reporting an assault and ultimately jailed alongside her perpetrator; the soldier charged with fraternization, or improper relations between an officer and enlisted member, while her assailant went free; the member warned that if she filed a report, she would be charged with dereliction of duty for walking 10 feet away from her guard post to smoke a cigarette.
In most cases, victims don’t realize that they can be prosecuted for what amount to voluntary admissions of guilt; unlike criminal suspects questioned upon arrest, they are not warned against self-incrimination. Others simply assume that by reporting a crime, they’ve earned immunity from prosecution, a common arrangement in the civilian world, especially where fear of punishment would otherwise prevent reporting. Under the Violence Against Women Act, for example, undocumented victims may not be penalized for their immigration status and can even receive temporary legal status in exchange for assisting in the investigation of crimes.
It is this dual identity as victim and defendant that Sen. Carl Levin, D-Mich., overlooks in asserting that because our allies changed their military justice systems to protect defendants, such reforms couldn’t work to the advantage of victims. Like those accused of committing sex crimes, victims charged with collateral misconduct are best served by a system that prioritizes legal merit over personal and professional allegiance. After all, for every example of clemency toward “good soldiers,” there are just as many instances of unjust penalization of service members perceived to undermine morale or disrupt group cohesion.
Equally misguided is the argument recently put forward by Sen. Claire McCaskill, D-Mo., that commanders are more apt than prosecutors to pursue cases that they’re unlikely to win. Contrary to popular rhetoric, the goal of military justice reform isn’t simply more prosecutions but, rather, more meritorious prosecutions. If advocates for victims and for defendants can agree on nothing else, they voice a common concern over the types of charging decisions yielded by a commander-driven criminal justice system. Whether recounting instances of unmerited prosecutions or citing improper refusals to prosecute, they express the same frustration with the practical results of allowing an interested party to decide whether to invoke the judicial process.
For the accuser as well as the accused, the best way to guard against improper prosecutorial motives is to professionalize case disposition by vesting authority in a neutral specialist. Those who occupy both roles are doubly in need of such protection.
Rachel Natelson is an attorney specializing in the rights of military women. She formerly served as the legal director of the Service Women’s Action Network, and she developed and presided over the Veterans and Servicemembers Project at the Urban Justice Center in New York City.