Shielding the Whistleblowers
Originally published in Politico.
By Debra S. Katz and Danielle Brian
Seaman Kori Cioca, who was featured in “The Invisible War,” an Academy Award-nominated movie about sexual assault in the U.S. military, long dreamed of enlisting in the armed forces and dedicating her life to the service of her country. Her dreams were shattered — as was her jaw — when her supervising officer attacked and brutally raped her. Although she reported the rape up the chain of command, the military failed to take meaningful action against her attacker and retaliated against her instead.
There’s a history here. According to a Defense Department’s Sexual Assault Prevention and Response Office (SAPRO) report, 62 percent of service members who reported their attackers ultimately suffered some form of retaliation — just as Cioca did. In her case, her commanding officers warned her that if she pursued charges of rape, she would be court-martialed for lying. They subsequently made public her confidential reports of rape, ordered her to sign a false statement that the rape was consensual, transferred her to a base where she could not receive medical treatment for the severe injuries she suffered, and ultimately discharged her, appallingly explaining their decision as due to her “history of inappropriate relationships with individuals in the Coast Guard.” In the years since, she has struggled to secure benefits from the Department of Veterans Affairs to pay for the care necessitated by the violence of her attack.
Service members understand full well that they will most likely be disciplined, physically menaced, harassed or discharged for taking action against their assaulters. Indeed, some victims of sexual assault have even been court-martialed for “adultery” for reporting forced sex with a married serviceman. At the same time, their married assailants are given a slap on the wrist, if that. Fear of retaliation deters service members from coming forward: Although there were more than 26,000 victims of sexual assaults in 2012 (up from 19,000 in 2010), only 3,374 members actually made reports. The Pentagon has driven this problem underground by permitting victims to be persecuted and punished for telling the truth.
If Secretary of Defense Chuck Hagel is serious about adopting a zero tolerance policy for sexual assaults in the military, a robust set of whistleblower protections will be required to enforce it. Although the Military Whistleblower Protection Act has been in the books for 24 years and was enacted to serve just this purpose, the law fails to provide the protections necessary to ensure that victims are not revictimized for having reported their assailants. As it currently stands, the act is riddled with loopholes that restrict a victim’s recourse for retaliation, limiting, for example, where, when and to whom victims may report their charges in order to fall under the law’s protection. It sets standards of proof that permit wrongdoers to avoid suffering a cost for retaliating against victims, requires that victims come forward within 60 days and provides legal representation to those who retaliate but not to those who are retaliated against. Furthermore, the law allows the Department of Defense Inspector General to exercise unfettered discretion to determine whether to take action to address retaliation.
The House Armed Services Committee had an opportunity on Wednesday to do so when it marked up the defense authorization bill. As this article was going to press, a vote was anticipated on a bipartisan amendment offered by Reps. Jackie Speier (D-Calif.) and Mike Coffman (R-Colo.) that would go a long way to address the shortcomings of the current law to ensure that service members are protected from retaliation when they show the courage to report sexual assaults and other unlawful behavior. Mirroring the Military Whistleblower Protection Enhancement Act of 2013, which was recently introduced in the Senate by Virginia Democratic Sens. Mark Warner and Tim Kaine, it is similar to the reforms passed last year to provide stronger legal protection for federal employees. This legislation protects witnesses and victims who report violations of law, including sexual assaults and other sexual misconduct. It explicitly protects service members who report such abuse up the chain of command or to an Inspector General.
By incorporating the same burdens of proof needed to show retaliation that have been included in virtually every public- and private-sector whistleblower law passed since 1989, including protections for Defense Department contractors and Department of Energy employees and contractors, the bill ensures that service members have a fair chance to prove that reprisal has in fact occurred.
The bill also adds much needed accountability into the system by requiring the Department of Defense Inspector General to determine if reprisal has occurred, and if so, requiring the service secretary to either take action to correct the reprisal or report to Congress if no action is taken. The service secretary will then be required to initiate any appropriate disciplinary action, a crucial change to deter systemic violations of the law.
If passed, the law would also guarantee that the official records of those service members are automatically corrected upon a finding that they suffered an adverse personnel action for having reported unlawful behavior to the military. Critically, the bill requires that victims of reprisal be provided with JAG representation in proceedings before the Board for Correction of Military Records.
Men and women who join the military do so out of a profound sense of service to the country. We owe them a debt of gratitude, not a blind eye. This bipartisan legislation provides the type of legal protection for service members that is necessary to both protect victims and change the culture. The bill tracks the changes that Congress unanimously approved for the nation’s federal workforce when it amended the Whistleblower Protection Act in December 2012. We owe it to our military service members to do the same for them.
Debra S. Katz is a partner with Katz, Marshall & Banks in Washington, D.C., and specializes in sexual harassment law and in the representation of whistleblowers.