USAF/PACAF SEXUAL ASSAULT/CONDUCT ISSUES:

Privacy Issues Under Supreme Court Rulings (2003):

An 8 Oct UPI article in Military.com stated that the military appeals court could strip the anti-sodomy laws from the UCMJ based upon this decision and extend the privacy protections mandated by the U.S. Supreme Court in June to the sex lives of military personnel. At least two other cases are moving forward that challenge the military sodomy law, both of which involve heterosexual sodomy as well as adultery. The Supreme Court released its historic decision in June in Lawrence v. Texas, striking down anti-sodomy laws in Texas and 12 other states. The case involved the conviction of gay USAF TSgt Eric Marcum for consensual sodomy three years ago. He was sentenced to 10 years in prison but has since been released on parole.

In the article it stated, "In Lawrence, the Supreme Court said private sexual conduct is just that: private. "The petitioners are entitled to respect for their private lives," Justice Anthony Kennedy wrote for the court's majority. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime." "We'll grant you have a compelling interest (in good order and discipline). But that doesn't relieve the military of explaining why or how making certain private sexual acts a crime," Essex said."

The article stated that an independent commission on military justice recommended to the Pentagon in 2001 that it strip the anti-sodomy and anti-rape regulations from the Universal Code of Military Justice and replace it with a general moral penal code. "(T)he well-known fact that most adulterous or sodomitical acts ... are not prosecuted creates a powerful perception that prosecution of this sexual behavior is arbitrary and vindictive," the Cox Commission wrote in 2001. The Pentagon has not acted on the recommendation.

The article went on to state that at least two other cases are moving forward that challenge the military sodomy law, both of which involve heterosexual sodomy as well as adultery: United States v. Edwin J. Christian, now before the Navy-Marine Corps Court of Criminal Appeals and United States v. Private (E2) Anthonynoel S. Meno, currently before the U.S. Army Court of Criminal Appeals. The military is expected to argue that it needs to be able to prosecute for sodomy -- oral and anal sex -- between any two partners whether same sex or even married -- to maintain order.

The first aftershocks of the Supreme Court's landmark decision striking down a Texas sodomy law have reached the U.S. military, where the ruling is sparking new court challenges to the armed forces' ban on openly gay personnel and other rules affecting sexuality. ... In Lawrence, the court ruled that the Texas sodomy law was unconstitutional because the restrictions it placed on liberty "furthered no legitimate state interest." It was one of the rare cases in which the court has found that a statute could not meet that minimal constitutional standard. ... But Loomis is also challenging the military's sodomy statute, known as Article 125 of the Uniform Code of Military Justice, as a violation of Lawrence. Article 125 prohibits "unnatural carnal copulation with another person of the same or opposite sex or with an animal." Though rarely enforced, Article 125 has been used to court-martial soldiers for consensual acts, both homosexual and heterosexual. ... "The Article 125 case is a better case," said Matt Coles, director of the gay rights project of the American Civil Liberties Union (news - web sites). "The question for the military is a tough one: 'What interest do you have in regulating private consensual activity?' " ...

In a separate case, Army Pvt. Anthonynoel Meno was recently given a bad-conduct discharge and reduction in pay for allegedly engaging in consensual sodomy with a female soldier. His appeal was rejected by the U.S. Army Court of Criminal Appeals, but after the Supreme Court issued its ruling in Lawrence, Lt. Col. Robert D. Teetsel, the chief of the Army defense counsel appellate division, asked the court to reconsider the case. The U.S. Court of Appeals for the Armed Forces, the highest military appeals court, upheld Article 125 in a case of consensual heterosexual oral sex in 1992, citing Bowers. Because of Lawrence, that court may ultimately have to revisit the question, Teetsel said, adding that among military defense lawyers, "we're all jostling in the different services to get a case to them." In a sign that the Defense Department itself may question the viability of Article 125, Pentagon general counsel Charles Haynes has instructed the Joint Service Committee on Military Justice, a body of military lawyers known as judge advocates general, to review Article 125 in light of Lawrence, a Pentagon official said. The review, to be completed by the end of the year, could result in recommendations to Congress for changes in the law, the official said.

On July 9, Rep. Barney Frank (D-Mass.) proposed a bill that would amend Article 125 to decriminalize consensual sexual activity between adults.

PACAF Orders Commanders to Improve Rape/Assault Services (March 2004)

Study generates order to commanders to improve services to rape victims

By Nancy Montgomery and Joseph Giordono, Stars and Stripes
Pacific edition, Saturday, March 13, 2004

PACAF sex-assault review shows 7 percent conviction rate

Of 106 suspects cited in the Pacific Air Forces sex assault study, 14 were tried by court-martial and seven were convicted of rape and sentenced to an average eight years in prison. Three suspects were discharged, and two of those cases have yet to be adjudicated. That's a 7 percent conviction rate, less than half the 18 percent civilian conviction rate cited in the report.

But Lt. Col. Steven J. Lepper, PACAF's top lawyer and leader of the study, said the review panel believed commanders did aggressively pursue rape cases because all reports were investigated and because of the number of cases — more than 40 — in which accused servicemembers were punished for lesser charges more easily proved, such as adultery. They were given such punishment as demotions, pay forfeitures or letters of reprimand.

"Where we couldn't prove the rape, the commanders did hold them accountable for misconduct they could prove," he said.

No action was taken against 28 others because of lack of evidence, the survey found, and 19 other cases are pending.

"The 'take away' message … is that while commanders charged only 12 subjects with rape, over 50 percent of subjects were held accountable to some extent for misconduct revealed during the course of the rape investigation," according to a slide presentation of the report.

But the report also noted that "there are legitimate reasons why commanders might be more conservative than civilian district attorneys: distraction from the mission, significant investments of manpower, and personnel consequences to subjects during the delay before trial that are not present in the civilian community."

In most of the PACAF cases, the victims were not injured and there were no witnesses, Lepper said.

Suspects, usually close in age and rank to the victim, usually said the sex was consensual, and sometimes the victims were unclear what had happened because of the alcohol they'd consumed, he said.

"In some cases the victim didn't even remember the specifics of the act that occurred," Lepper said. Although the PACAF review did not include interviews of victims, Lepper said researchers concluded that alleged victims did not face pressure to keep silent and soldier on.

Lepper said this conclusion was based on the fact that the number of cases reviewers looked at and, based on the evidence, thought should have gone to court-martial matched the number that were so referred.

One woman who reported a rape ended up being punished herself for rules violations: a lieutenant who had gone drinking and dancing with a sergeant, whom she said later raped her. She was reprimanded for fraternization, while the sergeant, who said the sex was consensual, was not prosecuted for rape.

"The additional fact is that she was married to someone else," Lepper said. "What we suspect is she felt badly about having had sex and reported it as a rape." Asked why a married woman would call more attention to adulterous sex, including being cross-examined at court-martial, instead of maintaining a discreet silence, Lepper said he didn't know, and couldn't know for sure whether she had in fact been raped, but that there was not enough evidence for prosecution.

Flaws to correct

The PACAF review found flaws in how records were kept, how victims were treated and how investigations were conducted, and PACAF commander Gen. William J. Begert ordered immediate changes in those areas.

Among them:

• • In more than a third of the cases, no forensic test of the victim for DNA evidence was done, because the suspect maintained he'd had consensual sex with the victim. Begert ordered a forensic test now be done in all cases.
  
  
• • In cases not prosecuted, there was often no record on what analysis went into such decisions. Now military lawyers must provide written assessments of the case, and commanders' decisions on whether a case goes forward will be filed with those reports.
  
  
• • In most cases, there was no indication that women had been provided with a victim liaison. Now one must be provided immediately, must serve as an advocate to help the victim, and must continue to provide services even if the case is not prosecuted.
  
  
• • Only 16 suspects were given a polygraph. While polygraph results are not admissible in court, investigators say suspects sometimes confess when confronted with results indicating deception. Polygraphs can be performed only when a suspect agrees to one.
  
  

— Nancy Montgomery

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Commanders throughout the Pacific Air Forces have been ordered to immediately begin providing better services to rape victims, perform more thorough investigations, and keep better records of sexual assaults following a five-month review that found 92 reports of rape from 2001 to 2003 and flaws in how the cases were handled.

The review was ordered in September by Gen. William J. Begert, Pacific Air Forces commander, to learn about the prevalence of rapes and how they were dealt with on his bases in Guam, South Korea, Japan, Okinawa, Hawaii, Alaska, Singapore and Diego Garcia. The general's concern was a result of last year's rape scandal at the Air Force Academy.

In interviews this week, officials at several bases touted extensive programs either already in place or under consideration. From banning alcohol in common dorm areas at Kadena Air Base, Okinawa, to a required 20-minute video presentation at Kunsan Air Base, South Korea, the measures vary widely.

South Korea

The PACAF report found more than one-third of the cases were reported at air bases in South Korea, home to about one-quarter of the command. Leaders at Osan and Kunsan say they have aggressive plans that either existed before Begert's review or have been implemented shortly after.

At Kunsan, a Sexual Assault Fact and Education Program (SAFE) has been in place since May 2003 and "meets or exceeds" the new PACAF guidelines, according to 8th Fighter Wing commander Col. Robin Rand.

Col. Bill Coutts, wing vice commander and head of a sexual assault prevention task force, said the effort includes representatives from the Office of Special Investigations, the judge advocate general's office, Life Skills and medical personnel, the chaplains' office and base security. Most of the measures have been established since August, he said, when the command decided to beef up the SAFE program.

"The very first day our people come in, as soon as they get off the plane, they get a mission brief that emphasizes the policy toward preventing and deterring sexual assaults," Coutts said. Every incoming airman watches as part of their in-processing a locally produced, 20-minute video on sexual harassment and assault.

Younger airmen also get targeted briefs from the wing commander, as Kunsan's own internal study showed most cases involved alcohol and airmen between the ages of 18 and 24. Twice a year, squadron commanders hold required sexual assault briefing for airmen, separated by sex to ensure a "completely open" atmosphere, Coutts said.

Rand is also putting an emphasis on removing fear of retribution for reported attacks, Coutts said. Beginning Friday, Rand will hold a series of meetings with senior NCOs, officers, junior enlisted and senior enlisted to emphasize that a zero-tolerance policy is in effect for co-workers or immediate supervisors who try to pressure a potential victim into not filing charges.

The efforts hit "smaller," but not less-important notes, Coutts said. SAFE wallet cards, with information on how to prevent sexual assault as well as phone numbers and evidentiary instructions if an assault occurs, are distributed to all personnel. First names have been removed from dorm room name plates so gender cannot be determined from outside a door.

Some of the measures mirror efforts at Osan Air Base. There, officials have even stressed such simple measures as installing self-locking doors and peepholes in every dorm door so residents can see who is outside.

More broadly, a "Tiger Team" of enlisted leaders, medical personnel, legal officials and security forces has been tasked with reporting new findings and recommendations to the 51st Fighter Wing commander by March 22, said Chief Master Sgt. Jerry Sutton, the wing's senior enlisted advisor.

Existing measures include a 10 p.m. to 5 a.m. "Wing Man" policy, which requires all soldiers to be accompanied when out of their dorms. Squadron commanders are authorized to require senior enlisted or officer presence in dorms on the weekends. The largest squadron on the base, the 51st Maintenance Group, also has that policy in effect, Sutton said.

The command also will put more emphasis on having front-line leaders watch younger airmen. Beginning this weekend, chief master sergeants will be in on- and off-post clubs to show a presence, Sutton said. A victim advocacy program is in place.

Japan

The 35th Fighter Wing staff judge advocate at Misawa Air Base, Japan, said officials there had formed a group several months ago to start looking at the issue of sexual assault.

"We actually had something called a 'special interest item' the inspector general had been working on," said Lt. Col. Eric Bee. "I mean, sexual assault is not new, the Air Force Academy has been percolating for awhile, the SJAs have been … looking at it, the inspector general has been looking at it."

Bee said the group met the day before Begert sent out his directives.

"As we talked through the issues of sexual assault, we actually came up with an awful lot of those types of things," Bee said of Begert's action items. "It's not rocket science. What do you need to do? You need to take care of the victim … you need to make sure everyone is talking to each other on the base."

Bee said Misawa has good programs.

"The thing that Gen. Begert's action plan is going to do for us is put those together," Bee said of the individual programs, and make the process "a seamless approach."

Bee said the working group found two main areas where they thought the base could improve: the first, prevention/education; the second, forming a holistic "seamless" approach to getting all the agencies involved.

Bee said all airmen arriving at Misawa are briefed on sexual assault during in-processing. He said the base is studying separating the males and females for that briefing.

He said commanders are looking at the dorms' alcohol policies but have made no changes.

Yokota Air Base doesn't provide a shelter for alleged victims of sexual assault, officials said, but the 374th Airlift Wing appoints a victim liaison after an incident is reported. That individual is appointed by the staff judge advocate under the provisions of the Victim Witness Assistance Program.

The liaison, normally a judge advocate or paralegal, helps alleged victims access base services such as medical treatment, Family Advocacy, and the Air Force Aid Society's Financial Assistance Program. Officials said that person also obtains information related to any investigation and the military justice process.

Okinawa and Guam

At Kadena Air Base on Okinawa, every newcomer receives at least one of two briefs on the issue. The 18th Air Wing Commander addresses the issue at the weekly newcomers' briefing and Office of Special Investigations agents brief every First Term Airman's Center class, said spokesman Charles Steitz.

The OSI brief covers specifics such as the legal definition of rape/sexual assault; contributing factors typically seen, especially alcohol; when and how to report incidents; and how to avoid getting into dangerous situations.

"This training also addresses the fact that the lack of express consent can constitute sexual assault," Steitz said. "This is especially [emphasized] with regard to situations where a person may be unable to consent because of alcohol use."

Kadena is the only overseas PACAF base to bar alcohol in common areas of dorms. Several other bases said they were considering that policy. Kunsan rescinded such a policy recently, after its own sexual assault survey indicated most cases involved off-base or base-club drinking.

Kadena also has victim liaisons on hand. Normally a military judge advocate or paralegal, the liaisons are appointed through the Victim Witness Assistance Program to help the victim access everything from medical treatment to the Air Force Aid Society Financial Assistance Program, Steitz said.

Kadena also has establishment of a Joint Services Family Shelter — one of only two in the entire Department of Defense, they say — which provides 24-hour services and shelter to victims.

At Andersen Air Base on Guam, officials will hold a meeting Monday with "all the key base agencies involved, to discuss how to implement the action items," said Maj. Kristina Meyle, chief of public affairs.

While the base does not currently have training or education programs specifically tailored to address sexual assaults, family advocacy provides sexual assault briefings geared toward new commanders.

Those briefings, which are part of a larger domestic violence briefing, are mandatory for new unit commanders, Meyle said.

Andersen does have 36th Air Expeditionary Wing active-duty members and DOD contractors assigned to Life Skills and who work sexual assault response programs with trained social workers. Andersen, because it is on Guam, also has more of the traditional community resources found near stateside bases.

Cause for review

The Air Force Academy cases focused attention on the problem and spurred Begert's review, officials said. Women cadets there reported being raped and intimidated by upperclassmen and said they were punished for rules infractions if they reported an assault, while their attackers often went unpunished.

"After the academy stories arose, he (Begert) wanted to get a better sense of the nature of the issue in PACAF," Lt. Col. Steven J. Lepper, the command's top lawyer and study leader, said by phone from Hawaii. "It started very small but grew as we got further and further into the data, he had more and more questions."

Lepper said the vast majority of reported rapes were "acquaintance rapes," in which both people knew each other. "The resulting message to our young men and women is that even people they trust can sometimes take advantage of them," the report said.

On top of local bases following Begert's orders, Lepper said the Air Force Command also wants airmen to watch out for drunken colleagues, much as designated drivers do to prevent DUIs. He calls them "designated thinkers," and wants them to ensure that women airmen who've had too much to drink are safe. "That they're tucked in and locked in so that no one can hurt them," Lepper said.

— T.D. Flack, Sid Acker, Vince Little and Fred Zimmerman contributed to this report.

Sex assault investigators visit PACAF bases to check for improvements

By Nancy Montgomery, Stars and Stripes
Pacific edition, Friday, April 2, 2004

Four investigative teams were meeting with wing commanders and airmen throughout the Pacific this week in a follow-up to the Pacific Air Forces survey to see how commands are dealing with sexual assault and how to improve both prevention and response.

Four three-person teams, each led by a colonel and including an Air Force lawyer and medical professional, are visiting wings in Alaska, Japan, Hawaii, South Korea and Guam. Each visit is to last about four days, officials said.

“We’re trying to get a better handle on the problem,” said Col. Steve Lepper, the Pacific Air Command staff judge advocate who headed the September study that analyzed 92 reported rapes in PACAF.

The teams not only will “look at how programs are working, but also go a step farther and get perceptions from airmen on the issue of sex assault,” he said. “We’ll talk to people who live in the dorms and have a more grass-roots perspective and also see how they feel leadership is stepping up to this issue.”

The study Lepper headed was initiated by Gen. William Begert, who commands the Pacific Air Forces, in the wake of the sexual assault scandal at the Air Force Academy. Bergert wanted to know how prevalent sexual assault was in his command, whether offenders were appropriately punished and how victims were treated.

The study found that most of the assaults were non-injury “acquaintance rapes,” and that in many cases alcohol was a factor. The study also found flaws in how the cases were handled, prompting orders to ensure victim advocates were appointed, more complete evidence was gathered and cases were better documented, including a legal analysis of each. The study brought about a servicewide investigation, including instructions for each command to send out teams to gather information.

“So now we’ve really in effect come full circle,” Lepper said in a phone interview. “We are now taking action that was initiated based on the action we took.”

Victims would not be interviewed during the short visits, Lepper said. “We were advised by folks better acquainted with post-traumatic stress that the burdens and disadvantages of re-traumatizing victims might outweigh the benefits,” he said. “We knew pretty much where our weaknesses were.”

In February, Secretary of Defense Donald Rumsfeld ordered a Department of Defense-wide review of how sex assault victims are treated. The order followed questions from Congress and news reports that after returning to the United States, at least 37 female soldiers in Iraq sought help from civilian organizations for sexual trauma. Those women reported poor medical services and inadequate investigations by commanders. Rumsfeld ordered the review be completed by May.

Next month at a PACAF commanders’ conference, Lepper said, the group will meet with Christine Hansen, executive director of the Miles Foundation, a Connecticut-based group to help victims of military sexual assault and domestic violence and a critic of how the military has dealt with such issues.

“We want to learn,” Lepper said. “We know we’re only starting to understand the dynamics of sexual assault and how to respond. We’re thirsty for whatever information we can get. We’re starting with commanders. We believe this is a leadership issue.”