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The 2012 film The Invisible War, written and directed by Kirby Dick, is the first in-depth documentary to expose the crisis of sexual assault in the U.S. military. Provocative and gut-wrenching, it has won several festival awards and earned an Academy Award nomination for Best Documentary Feature. Most viewers will be shocked, and then outraged, by the experiences of the veterans portrayed in the film. They should be outraged: approximately 19,300 acts of sexual assault are committed annually against service members, the overwhelming majority by fellow troops.
To explain how such violence could happen in the U.S. military, one must understand how the place of servicewomen has evolved over time. In the United States, women have been excluded from full military service in varying degrees since the inception of the republic (women fought in the Revolutionary War disguised as men). The wars in Afghanistan and Iraq in the first decade of this century changed everything for servicewomen. Before those wars, the concept of front lines and rear areas had effectively kept most combat support troops, including women, away from direct engagement with the enemy. But front lines did not exist in Iraq, and they do not exist in Afghanistan. The battle spaces have been fluid, and, as a result, women have been exposed to hostile fire unseen in past operations. Commanders have struggled to enforce “combat exclusion,” an obsolete policy designed to keep women away from units primarily engaged in firefights.
In Afghanistan and Iraq, U.S. servicewomen found themselves doing jobs formerly done only by men, such as commanding convoys and manning machine guns on roads laden with improvised explosive devices and serving alongside combat arms personnel whose primary mission was to kick down doors and engage the enemy. They also participated in all-women Lioness and Female Engagement teams and gathered intelligence through conversations with local women -- a task unsuited for their male counterparts because of Afghan and Iraqi gender norms.
The consequences for female troops have been striking: in the last ten years, more than 280,000 U.S servicewomen have been deployed in support of the wars in Afghanistan and Iraq. At the time of writing, 153 of them have died and thousands more have returned home wounded, with both visible and invisible wounds.
Even as the facts on the ground changed, though, politicians continued to debate the extent to which women should fight alongside their male peers. In 2005, Representative Duncan Hunter (R-Calif.) infamously waxed poetic about the horrors of U.S. servicewomen coming home in body bags. He invoked the 35 women that had been killed and the 280 that had been wounded in Iraq to try to restrict women from some of the 22,000 jobs they were already doing in battle. He clearly misread American public opinion. When Representative Louise Slaughter (D-N.Y.) referred to his statements as “disgusting,” she echoed the thoughts of many. Eventually, military and civilian leadership forced Hunter to back down.
It is thus time for the U.S. military to search its soul and decide what kind of institution it will be going forward. Fortunately, former Defense Secretary Leon Panetta’s decision to lift the ground combat exclusion policy in January 2013 has paved the way for women to compete for any assignment, job, or school. But the service branches have yet to formalize access to these assignments, and institutional resistance remains palpable. Further, the official exclusion of women from combat for over two centuries has perpetuated a culture in which servicewomen are either devalued or outright despised. Restrictions on assignments and double standards for fitness, which exist to this day, have made women second-class soldiers. Over time, this climate has allowed sexual harassment and sexual assault to thrive. Transforming military culture so that women can reach their full potential will be difficult going forward.
The Invisible War arrived in theaters last year after much of servicewomen’s history in Afghanistan and Iraq had already been made. It was perfect timing. The film shares the private experiences of dozens of veterans whose lives have been gutted by military rape, and it exposes the dysfunction and cruelty of military leaders who have failed to take care of their subordinates. After reporting being raped, assaulted, or harassed, many of the victims faced disbelief or even retaliation. Unable to find justice within the military system, they are now sharing their stories with the world. The footage is excruciating to watch, but it should be required viewing for anyone interested in the future of the U.S. military.
That is not to say that The Invisible War is without flaws; the film reinforces common myths about rape and presents some inaccurate reflections on military culture. For one, all of the film’s central subjects are white women, which suggests that sexual assault in the military affects only members of this group, or that white women warrant more attention than other victims. Throughout history, however, the vast majority of sex crimes in the military have been inflicted against servicemen -- no wonder, since most service members are men. Even today, men make up 40 percent of the patients being treated by the Department of Veterans Affairs (VA) for psychological conditions related to military sexual assault or harassment, such as post-traumatic stress and depression. And of the 19,300 service members who were assaulted in 2010, the Defense Department estimates that 10,700 victims were men.
The problem with the film’s portrayal of rape as a women’s issue is that such misinformation hinders efforts to fully integrate women into the military. After all, top military officials still publicly express anxiety about the full inclusion of women. On February 17, 2013, for example, Marine Corps Commandant General James Amos told The New York Times that he would not allow any qualified women to serve in the infantry unless many women were qualified -- the so-called critical mass argument, which has historically served to restrict women’s career progress in the armed forces, and has been debunked by other allied militaries that have already fully integrated their forces. Additionally, Amos declared that he would not allow qualified enlisted women to serve in the infantry unless women infantry officers were at the helm. In saying this, he perpetuates the misguided beliefs that men who work with women are inherently inclined to assault them, that men cannot effectively lead women, and that women cannot withstand the rigors of military life without being babysat or supervised by other women. Amos’ beliefs defy logic, as neither military leadership nor the inclination to perpetrate sex crimes is a function of gender.
Moreover, by focusing on white women in particular, The Invisible War presents a distorted view of race in the military. In truth, servicewomen are disproportionately women of color. As of 2010, 48 percent of active duty servicewomen were women of color. Casting white women as the main subjects is a common tactic filmmakers use (consciously or unconsciously) to gain sympathy and increase ratings. But the fact that the film’s cast does not accurately reflect the population of the military has real, negative consequences, such as the re-traumatization and marginalization of women of color and of men who already feel too isolated or unsupported to report their crimes, seek mental health treatment, or find community support and resources for healing.
When my colleagues and I at the Service Women’s Action Network (SWAN) interact with military leadership, we struggle to dismantle rape mythology. Many top-ranking military leaders insist that sexual assault has never been a problem among their troops because they have never led women. Others assume that victims become victims because they fit a certain stereotype: white, female, and conventionally attractive. This line of reasoning reinforces the myth that victims bring sexual assault upon themselves. Films such as The Invisible War do not help us make the case that it is the criminal’s behavior that we must focus on, not the victim's outward appearance. Still, inasmuch as The Invisible War outrages and moves viewers to action, it has been enormously helpful. But what is to be done next?
There is no question that the military’s criminal justice system needs an overhaul. Currently, authority over criminal cases rests with the offender’s commander, not with a professional prosecutor or judge. Yet commanding officers are simply unqualified to be the arbiters of justice in criminal cases. On the most basic level, they are not professional legal authorities. To make matters worse, they are not impartial. Professional ties to the accused -- who is in the adjudicating officer’s chain of command – diminish the officer’s ability to be objective. Another problem is that, in levying charges, commanders are authorized to take account of the “character and military service” of the accused in addition to evidence of crimes committed. In civilian cases, the accused’s character can be considered by a judge during sentencing, but it is not used to determine whether an accused perpetrator is brought to trial -- and it shouldn’t be. By vesting authority in the person who commands one or both parties, the current system cannot be expected to be fair or impartial.
Fortunately, in recent years, several common law countries, such as Canada and the United Kingdom, have concluded that a command-driven system violates the right to a fair and impartial trial, and they have transferred authority over criminal cases from commanders to prosecutors. This is a sensible step that the U.S. military should take as well. Professionalizing the U.S. military’s criminal justice system would serve all parties better.
Criminal justice reform, however, should constitute only part of a larger plan to end military rape. In both civilian and military life, sex crimes rarely yield criminal prosecutions, much less convictions. But civilian victims have another means of redress: civil suits. Military personnel have been barred from civil litigation ever since the Supreme Court ruled in 1950 that service members cannot bring negligence claims related to injuries considered “incident to service” in Feres v. United States. Over time, the courts have consistently rejected all service members’ claims, from negligence to intentional discrimination, citing deference to the military. This has not only served to doom service members to accepting insufficient forms of legal redress; it also raises serious questions about the fairness of denying service members rights that those doing virtually the same jobs possess. In fact, military contractors and civilian employees at the Defense Department are permitted to pursue civil claims, but uniformed personnel performing the same work in the same setting are not.
That must change. Civil cases are a deterrent to workplace discrimination and crime because when victims win civil cases, the courts can grant them relief that deters employers from violating the law. Under laws like the Federal Tort Claims Act and the Civil Rights Act, employers can be held liable for failing to exercise reasonable care to prevent and correct harassment and assault, as well as for retaliating against employees who report violations. Accordingly, civil remedies have successfully contributed to safer, more equitable workplaces throughout the United States. And once U.S. operations in Afghanistan are officially over, public attention on this issue could well diminish.
In its final scenes, The Invisible War focuses on the question of whether the main subjects regret having joined the military. Several of them do. In one memorable scene, Kori Cioca, a former Coast Guard seaman, cautiously warns a woman -- a total stranger -- against enlisting. These scenes have made even sympathetic viewers from the military and veterans community nervous. But who can blame Cioca? And even if there is some counter-recruiting messaging in the film, it has certainly not damaged the military’s ability to recruit women. With the combat exclusion policy coming to an end, the U.S. military’s brass ceiling is showing more cracks by the day. Courageous, athletic, idealistic women with enormous leadership potential will join the military in ever-larger numbers, squashing any notion that they do not belong and helping change a culture that has allowed sex offenders to go largely unpunished. While the courts continue to defer service members’ chances for justice back to a broken military system, let’s hope Congress keeps up. Now is the time for legislative reforms that will transform the way the military handles sex crimes.