Neil Macdonald: The U.S. military surge in sexual assaults

Deep in the weeds of the Pentagon's response to a lawsuit detailing a nasty list of sex crimes perpetrated against several women in uniform is a phrase that neatly sums up the U.S. military's view of why civilian courts have no business considering such accusations.

"There can be no question," says the Pentagon's legal brief last year, that the rapes and assaults were "incident to the military service" of the women involved.

In other words, they go with the job.

The District Court for the District of Columbia agreed, and tossed out the suit.

• Watch 'The Invisible War,' an Oscar-nominated documentary about the epidemic of rape within the U.S. military. Runs 1:25:40

For public consumption, of course, the Pentagon's line on sexual assaults in the service is rather more sympathetic.

It portrays military justice as a rigorous mirror of the civilian system, and says all the right things about the topic.

"Sexual assault is a crime that has no place in the Department of Defence," declares the first sentence of the U.S. military's latest annual report on the subject, released last week.

The facts suggest otherwise.

Using anonymous internal questionnaires, the Pentagon itself calculates there were 26,000 sexual assaults, ranging from rape to abusive sexual contact, against soldiers, male and female, in 2012.

That's an average of over 70 a day, and an increase of about 35 per cent over the previous two years.

Military authorities "routinely and systemically fail to catch predators," says Susan Burke, the D.C. lawyer who, out of sheer frustration, filed the civil suit on behalf of the 12 plaintiffs that was thrown out in District Court. "And most predators are serial offenders, so of course you have a serially growing predation problem."

Punishing the accusers

The daughter of a career army officer, and a highly regarded defence attorney, Burke is currently spearheading a series of similar sexual abuse lawsuits against the U.S. military.

As she puts it: "What you have is an utter lack of accountability. A rapist has less than a one per cent chance of serving jail time if he's serving in the military."

Her math is simple.

Last year, 3,374 people came forward with a formal complaint of sexual assault against a soldier. Of that, the Pentagon says in another report, 238 resulted in convictions at courts martial. But the vast majority of the complaints drew minor, administrative punishments or were dismissed as baseless.

Set that 238 number against the Pentagon's estimate of 26,000 reported and unreported assaults, and the military is, to use military jargon, a target-rich environment for rapists.

Or perhaps even a legal sanctuary.

Given the ugly details of some of Susan Burke's cases, or testimony collected by the advocacy group Protect Our Defenders, it's easy to understand the low reporting rate.

In one account after another, publicly and using their real names, soldiers describe a culture that doesn't just discourage rape complaints, but often punishes the accuser.

Culture of immunity

Lt. Elle Helmer was one. When she reported a rape by a superior officer in 2005, her commander advised her to forget about requesting a rape kit. If she persisted, she says he told her, "it's out of my hands."

She did persist, and the Marines subsequently lost the rape kit, something Burke says is common. Helmer's accusation was dismissed, and she says she was forced out of the corps.

Even cases where soldiers are convicted at court martial, they still sometimes walk away free and clear.

Earlier this year, for example, Air Force Lt.-Gen. Craig Franklin summarily quashed the court martial conviction of Lt.-Col James Wilkerson, a fighter pilot who'd been sentenced to a year in prison for aggravated sexual assault at a U.S. air base in Aviano, Italy.

Gen. Franklin is not a military judge or lawyer. He simply decided he didn't believe the accuser, and considered the fighter pilot to be a fellow of good character.

Wilkerson was then posted to a military base in Arizona where his victim, a civilian employee named Kimberly Hanks, now lives. As she put it, the general was "protecting one of his own."

Another senior commander, Lt.-Gen. Susan Helms, did the same thing a year earlier, reversing the conviction of a captain who had been found guilty of aggravated sexual assault against a female lieutenant.

To be sure, public outrage is building in the wake of all these reports and incidents.

President Barack Obama publicly warned the Pentagon last week that he wants something done about its culture of immunity.

"I have no tolerance for this," said Obama, declaring that, as commander in chief, he "has the back" of anyone who wants to report an assault.

"If we find out somebody's engaging in this stuff, they've got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period."

Fine words, but Susan Burke has her doubts.

The military, she says, is demonstrating "an overwhelming resistance to change."

Commanders want to keep this problem all in chain of command, where they deal with it as they see fit, she says. "Anytime a military person is involved in anything, the military tries to go in and assert jurisdiction."

Tellingly, the strongest push for serious change is coming from three U.S. senators, all of them women. Susan Collins, a Republican from Maine, has actually warned Americans that their daughters might not be safe if they enlist.

But perhaps the defining scandal came last week, when Lt.-Col. Jeffrey Krusinski, the head of the Pentagon's sexual assault prevention office, was charged with … sexual assault.

Police say he aggressively groped a woman, a civilian, in an Arlington, Va., parking lot after a night of drinking.

Then, quietly, the Pentagon tried to take over the case from Arlington's civilian authorities. This time, the military brass was firmly rebuffed.