Skip to main content

Military rape prosecutions won't work

By Maia Goodell, Special to CNN
May 16, 2013 -- Updated 1514 GMT (2314 HKT)
STORY HIGHLIGHTS
  • Recently, two military sexual assault scandals hit the headlines
  • Maia Goodell: Congress should look beyond the military criminal justice system
  • She says the military should use civil legal solution on sexual assault cases
  • Goodell: If service members can file civil lawsuits, victims can directly challenge abuser

Editor's note: Maia Goodell is chair of New York City Bar's Military Affairs and Justice Committee and supervising attorney at MFY Legal Services Inc. She served as a surface warfare officer in the U.S. Navy from 1993 to 1998.

(CNN) -- It happens every so often: A military sexual assault scandal hits the headlines. Most recently, an Air Force general decided to pardon an officer convicted of rape. Then came revelations that not one but two of the service members that the military assigned to prevent sex abuse are under investigation for perpetrating it.

And in light of a new Pentagon report estimating the number of military sexual assaults at 26,000 a year -- about half of them against men -- this time around, even many in the military community agree there is a problem that won't go away and can't be ignored.

Congress is reacting, as it often does to headlines, by proposing reforms. But the current crop of ideas misses the mark.

Sergeant trained to protect victims faces sexual assault allegations

The bills primarily propose changes to a commander's authority to start or control cases in the military criminal justice system. But courts martial, with their due process and proof beyond a reasonable doubt, will always be too rare to make a difference.

Maia Goodell
Maia Goodell

What changed the face of civilian employment was a civil legal approach -- sexual harassment law -- that made it cost money when employees are assaulted. This approach shouldn't be sidelined in addressing the military sexual assault problem.

The civil legal system reaches people who probably won't see a criminal prosecution.

It reaches people such as Joseph Oncale, who was sexually assaulted by several co-workers on an offshore oil rig in the Gulf of Mexico. It reaches people such as Mechelle Vinson, who was 19 when she started work at a bank and the manager demanded that she sleep with him.

The civil legal solution gives voice to workers who are not that different from the military members who face a command gone wrong: People working long hours, with few options, sometimes living at work, sometimes immigrants with nowhere else to go.

The civil system balances workers' needs against legitimate business concerns -- to give managers authority -- by making the employer pay if managers abuse that authority. The employer has an economic incentive to make sure that doesn't happen.

After officer charged in sex assault, military faces questions

This law changed what people thought was right.

A friend told me that in the 1960s, a teacher told her she needed to sleep with him to pass. She said: "We just called that life." Now, in the civilian world, it's called sexual harassment, and it's illegal.

The military hasn't had the benefit of that change. Civilian judges (not Congress, and not the military) made up special military immunities, loosely called the Feres doctrine, to block it. It's time to overrule them.

The civil legal approach can nip problems in the bud. It can stop a predator who is testing the waters or change a command environment that has lost sight of the need to treat all of its personnel professionally.

If service members had the same rights as other employees to bring civil lawsuits, victims would have direct power to challenge abuses of authority. They would not have to wait for government officials to take up their case, and they might not have to wait until something as horrific as a criminal rape happened to them.

Military rape victims: Stop blaming us

But doesn't sexual harassment mean policing petty slights and awkward jokes? That's a myth.

Even in the civilian workplace, to win you have to show behavior that is severe or pervasive to the objective observer -- something so serious or so frequent that it significantly alters working conditions.

The military is not the civilian workplace, and its unique needs have to be considered carefully in any reform, whether criminal or civil. Civil actions are, after all, potentially less disruptive than outside prosecutors and anonymous tips.

What happens next should come from a partnership between the uniformed services and civilian experts. But it should look more broadly at solutions that go beyond the latest scandal.

Of course, some people think it would be unfair to make the military change. Boys will be boys, the thinking goes.

When I joined the military, many of my contemporaries cringed, fearing the worst, but they were wrong: The men I served with met the highest standards of professionalism. To expect anything less is to undersell our men, and women, in uniform.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Maia Goodell.

ADVERTISEMENT
Part of complete coverage on
October 1, 2014 -- Updated 1947 GMT (0347 HKT)
Julian Zelizer says Jimmy Carter's message about the need to restore trust in public officials is a vital one, decades after the now 90-year-old he first voiced it
October 1, 2014 -- Updated 2156 GMT (0556 HKT)
Ford Vox says mistakes and missed opportunities along the line to a diagnosis of Ebola in a Liberian man have put Dallas residents at risk of fatal infection
October 1, 2014 -- Updated 2221 GMT (0621 HKT)
Pepper Schwartz says California is trying, but its law requiring step-by-step consent is just not the way hot and heavy sex proceeds on college campuses
October 2, 2014 -- Updated 0217 GMT (1017 HKT)
Mike Downey says long-suffering fans, waiting for good playoff news since 1985, finally get something to cheer about
October 1, 2014 -- Updated 2139 GMT (0539 HKT)
Steve Israel saysJohn Boehner's Congress and the tea party will be remembered for shutting down government one year ago
October 1, 2014 -- Updated 1856 GMT (0256 HKT)
Yep. You read the headline right, says Peter Bergen, writing on the new government that stresses national unity
October 1, 2014 -- Updated 2312 GMT (0712 HKT)
Hong Kong's pro-democracy demonstrators are but the latest freedom group to be abandoned by the Obama administration, says Mike Gonzalez
September 30, 2014 -- Updated 1653 GMT (0053 HKT)
Jeff Yang calls Ello a wakeup call to Facebook and Twitter, and a sign of hope for fast-rising upstarts Pinterest and Snapchat.
October 1, 2014 -- Updated 1423 GMT (2223 HKT)
Paul Waldman says the Secret Service should examine its procedures to make sure there are no threats to the White House--but without losing the openness so valuable to democracy
October 1, 2014 -- Updated 1455 GMT (2255 HKT)
Jesse Williams says the videotape and 911 call that resulted in police gunning down John Crawford at a Walmart reveals the fatal injustice of racial assumptions
September 30, 2014 -- Updated 2303 GMT (0703 HKT)
Mel Robbins says officials should drop the P.C. pose: The beheading in Oklahoma was not workplace violence. Plenty of evidence shows Alton Nolen was an admirer of ISIS.
September 30, 2014 -- Updated 1911 GMT (0311 HKT)
The Occupy Central movement has already achieved much by bringing greater attention to Hong Kong's struggle for democracy, William Piekos says..
September 30, 2014 -- Updated 1911 GMT (0311 HKT)
The Occupy Central movement has already achieved much by bringing greater attention to Hong Kong's struggle for democracy, writes William Piekos.
September 30, 2014 -- Updated 1413 GMT (2213 HKT)
As Prime Minister Narendra Modi visits America, Madeleine Albright says a world roiled by conflict needs these two great democracies to commit to moving their partnership forward
September 30, 2014 -- Updated 1404 GMT (2204 HKT)
John Sutter: Lake Providence, Louisiana, is the parish seat of the "most unequal place in America." And until somewhat recently, the poor side of town was invisible on Google Street View.
September 29, 2014 -- Updated 1311 GMT (2111 HKT)
Julian Zelizer says in the run up to the 2016 election the party faces divisions on its approach to the U.S.'s place in the world
September 29, 2014 -- Updated 1419 GMT (2219 HKT)
Ruben Navarrette says Common Core supporters can't devise a new set of standards and then fail to effectively sell it.
September 30, 2014 -- Updated 1329 GMT (2129 HKT)
Earlier this month, Kenyans commemorated the heinous attack on the Westgate Mall in Nairobi.
September 30, 2014 -- Updated 1859 GMT (0259 HKT)
David Wheeler says Colorado students are right to protest curriculum changes that downplays civil disobedience.
September 27, 2014 -- Updated 0158 GMT (0958 HKT)
Sally Kohn says when people click on hacked celebrity photos or ISIS videos, they are encouraging the bad guys.
September 26, 2014 -- Updated 1155 GMT (1955 HKT)
Loren Bunche says she walked by a homeless man every day and felt bad about it -- until one day she paused to get to know him
September 30, 2014 -- Updated 1332 GMT (2132 HKT)
ISIS grabs headlines on social media, but hateful speech is no match for moderate voices, says Nadia Oweidat.
September 29, 2014 -- Updated 1233 GMT (2033 HKT)
A new report counts jihadists fighting globally. The verdict? The threat isn't that big, says Peter Bergen.
September 23, 2014 -- Updated 2137 GMT (0537 HKT)
Ebola could become the biggest humanitarian disaster in a generation, writes former British Prime Minister Tony Blair
September 26, 2014 -- Updated 1658 GMT (0058 HKT)
ISIS has shocked the world. But will releasing videos of executions backfire? Four experts give their take.
September 26, 2014 -- Updated 1439 GMT (2239 HKT)
Eric Holder kicked off his stormy tenure as attorney general with a challenge to the public that set tone for six turbulent years as top law-enforcement officer.
September 26, 2014 -- Updated 1309 GMT (2109 HKT)
LZ Granderson says Obama was elected as a war-ending change agent, not a leader who would leave behind for his successor new engagement in Iraq and Syria. Is he as disappointed as the rest of us?
September 24, 2014 -- Updated 0910 GMT (1710 HKT)
Gayle Lemmon says the question now is how to translate all the high-profile feminizing into real gains for women
ADVERTISEMENT