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Military Law

Aug. 13, 2020

Vanessa and other women who have served

Supposedly, women have equal employment opportunities within our nation’s armed forces. But to avail themselves of those opportunities, they must assume the risk of being sexually assaulted ... or killed.

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

Military sexual trauma is an experience, not a diagnosis. It is defined in 38 U.S.C., Section 1720D, but in general, it is sexual assault or repeated threatening, sexual harassment that occurs during service in the armed forces. Female service members are at a significantly greater risk of experiencing military sexual trauma than males. The Department of Defense reported 13,000 military women were known to be sexually assaulted or raped in 2018, and that the rate increased by 3% in 2019.

Service members and veterans who experienced military sex trauma sometimes commit suicide, often have both physical and mental health problems throughout their lives and sometimes self-medicate with drugs and alcohol. Aggressive behaviors and decreased coping mechanisms are common; 40% of homeless women veterans faced military sex trauma. Recently we found out that murder is also a possibility.

Calling the murder of 20-year-old Vanessa Guillen a watershed moment, even the military newspaper Stars and Stripes is asking for reform. The Army appointed an independent panel to review the culture at Fort Hood, Texas, in the wake of the killing of the young military woman who had told her family she was being sexually harassed at work, but she felt too afraid to report it.

Newspapers across the country have reported that Vanessa was last seen alive in an arms room at Fort Hood, Texas. Witnesses saw her presumed killer coming out of the arms room wheeling a large box. Vanessa's dismembered body was discovered by a riverbed on June 30.

Vanessa's sister later told Stars and Stripes that Vanessa was "one of the many thousands of girls being sexually harassed. They signed a contract with the U.S. Army to serve the nation to protect people. They did not sign to be someone's property. They did not sign to be seen as a sexual object." The family is working with an attorney to advocate for the creation of an independent agency where service members would be able to report instances of sexual assault and harassment. Existing rules require troops to report assaults to other service members, sometimes through their chain of command.

Meanwhile, Marine Corporal Thae Ohu has been struggling for five years after being sexually assaulted by another Marine. Friends and family described her mental deterioration since the assault to a Virginian-Pilot reporter. Now 26, Ohu attempted suicide earlier this year, and was later arrested for assault with a deadly weapon following a psychological break. She is being held in pretrial confinement, and receiving no medical treatment. Ohu's sister Phyu, a Navy sailor, told the reporter she had also been sexually assaulted.

Ohu sought help from Senator Martha McSally, the first woman in the Air Force to fly in combat. The New York Times reported that last year that McSally told other senators she had been raped by a superior officer, and that was just one of many times she was sexually assaulted while she served her country.

Helen Thorpe's book "Soldier Girls" concerns three women who served in Afghanistan and Iraq. They said predatory men were considered a kind of friendly fire. As soon as one of the three recruits signed the contract, the recruiter sexually assaulted her. Another of the three soldiers was particularly attractive, and men, both single and married, followed her around like puppy dogs. The woman soldier who worked in the motor pool said Sports Illustrated pin-ups adorned the walls. Later, she was attached to a unit whose leader told the men that females were not their friends and to stay away from them, explaining he was concerned about the safety of "my Joes."

In Gayle Lemmon's book "Ashley's War," she discusses a woman who was raped after a Marine Corps ball. He had previously done the same thing to another woman Marine. The Marine Corps refused to prosecute the repeat rapist. Because the rape occurred in a civilian hotel, the victim was able to go to the San Diego Sex Crimes Unit. In civilian court, the rapist was charged with six counts of sexual assault. Two days into trial, he pled guilty. The unpublished appellate opinion (People v. Dowson, D047827 (Cal. App. 4th Dist. 2006) affirming his conviction can be found at WL 2673277.

No positive progress in the military

The Department of Defense's report states that assaults were primarily concentrated among service women aged 24 and under, and that the military still has a long way to go when it comes to ending sexual assaults. The latest report describes a toxic and harassing command culture that sets the stage for sexual violence. Feedback from focus groups revealed that young service members are as vulnerable as ever to unwanted advances both from peers and authority figures. Some compare assaults by peers to incest because of the high degree of trust involved with the military's battle buddy teaching and philosophy. As to authority figures, the study found they sometimes groom subordinates in order to sexually assault them.

Offhand comments with sexual innuendos are common. Focus group participants relayed such comments as: "But I come in in civilian clothes in the morning and I've had people say, 'Well [expletive], I didn't know you had all that," and "Today I bent over to get something. And I didn't know there was anybody behind me. Bent over to grab something real quick and a Sergeant is behind me and said, 'Oh, don't tempt me."

Women in the focus groups said service members need to be called out on their negative actions, expressing concern that when sexual harassment is ignored, it becomes normalized. But there are barriers to making reports of sexual harassment. Bullying of the accuser is common. Confidentiality is almost impossible when reports must be made within the military. Almost two-thirds faced retaliation after they reported an assault, and one third of the victims were discharged after reporting.

When alcohol is involved with younger service members, they don't report because they of fear they will get in trouble for drinking. Another factor involving alcohol is the easy availability of transportation with such providers as Uber and Lyft. In earlier times, there was usually a designated sober driver who could intervene when others engaged in improper off-base alcohol-related activities. These days, it is common that everyone in a group engages in drinking.

The report says that military senior leadership is committed to safety, but it's the mid- and junior-level leaders who are not modeling proper behavior or are turning a blind eye when they see troubles arise. One problem, the report states, is that males perceive the mere suggestion of sexual misconduct means one is "guilty until proven innocent," and their career is ruined.

Other federal notes of interest

Last year's National Defense Authorization Act was poised to make powerful changes in the military's handling of sexual assaults. Ultimately there was a stalemate, purportedly due to discussions about money for a border wall. When the NDAA was signed into law, it was silent with regard to sexual assaults in the military.

News media around the country covered movie star Ashley Judd's recent success in court, allowing her to proceed with her suit against Harvey Weinstein. Judd v. Weinstein, 2020 DJDAR 7916 (9th Cir. July 29, 2020). But nothing has changed regarding private lawsuits against the military. Even though actions against the federal government have been permitted since the Federal Tort Claims Act was enacted in 1946, those sexually assaulted in the military may not bring suit against the military because the U.S. Supreme Court carved out an exception to the FTCA's waiver of sovereign immunity in a 1950 opinion, Feres v. United States, which determined that the government is not liable for injuries sustained in the course of an activity incident to service.


Meanwhile here in California, a Female Veteran Experiences Survey was conducted of the women veterans in the state's community colleges by Irvine Valley College, and published in April. Nearly two-thirds, 64%, revealed they experienced military sexual trauma. Over half of them had never received counseling or support for their trauma. Compounding the problem was that most of those responding faced housing insecurity as they do not have a stable place to live, and 45% did not always have enough to eat. The survey's authors recommended that services offered by California's community colleges be made more meaningful and useful for female veterans, including helping them address their housing and food needs. They also recommend the community colleges strengthen awareness of military sexual trauma services. For such a program, of course, the California Legislature would need to take some action to fund it.

There was hope last year that civil actions might be available to those who were sexually assaulted by someone in the California National Guard. Early versions of Senate Bill 481, authored by Senator Tom Umberg, contained provisions for allowing such lawsuits. The National Guard, however, strongly opposed it and those provisions were removed. There was some talk that Senator Umberg might try again this year, but thus far, nothing has happened.


Supposedly, women have equal employment opportunities within our nation's armed forces. But to avail themselves of those opportunities, they must assume the risk of being sexually assaulted ... or killed. Reform for this travesty could happen through action by Congress, the military or the United States Supreme Court. In California, action could be taken by the Legislature addressing sexual assaults in California's National Guard. 


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