There's something off with the military and the way it handles sexual assault, and the recent Naval Academy sexual assault case illustrates a lot of it.
The female midshipman had accused three Naval Academy Football players of raping her an at off-campus party last year. She'd been drinking heavily and couldn't remember a lot of the night. During the resulting Article 32 hearing — a specific justice hearing for military forces — the defense lawyers for the football players jumped on her inability to remember the details of the night. For the next eight days, during which she spent more than 20 hours on the stand, they grilled her about it.
Was she drinking? Yes. Heavily? Yes. She couldn't remember much of the night, much less of the incident. She pieced together what happened after the party after hearing rumors and seeing stuff posted on social media — including some posts allegedly put up by the accused.
And then this is where the hearing skews sideways:
The players' defense lawyers asked about her mental health, because there had been some discrepancies in what she had said. That was a sign of mental instability, they hinted — not that she'd been drunk beyond remembering.
They asked about her sexual history, whether she was wearing a bra, whether she had underwear on. They asked about her oral sex technique. How wide, exactly, did she have her mouth open? asked Lt. Cmdr. Angela Tang. As the New York Times reported, Tang said this would indicate her "active participation" and therefore consent.
Another defense layer, Andrew Weinstein, asked her if she "felt like a ho" afterward.
No civilian trial would allow these questions. But this wasn't a civilian trial: It was an Article 32 hearing, used to determine whether there's enough evidence to go on to a court martial. In an Article 32 hearing, practically anything goes.
“The Article 32 process is yet another example of the broken military justice system,” Taryn Meeks, a former Navy Judge Advocate General lawyer and Executive Director of Protect Our Defenders, told MSNBC. “It’s a traumatic experience where the survivor is subject to cross-examination for hours or even days. Article 32 gives defense counsel almost unfettered access to the victim which often re-victimizes that person, and can significantly undermine their shot at getting justice.”
It might go some way to explain these Department of Defense numbers:
There were 26,000 estimated cases of some form of sexual assault last year — up 5,000 from just two years before. 3,000 were actually reported. That's 8.6 percent.
Of those, 302 went to trial, and about 205 of those were sent to court-martial.
That's less than one percent of the original 26,000 estimated assaults.
It also speaks to the "bro culture" that's present in the military. There, women are still incredibly outnumbered — a system that isn't equipped to deal with cases such as rape and sexual assault. It's illustrated by the fact that such brutally intrusive cross-examinations are allowed to occur — if a case actually makes it to a hearing.
“What this case shows is that we think the military justice system can somehow solve the sexual assault problem, but it can’t,” said Diane H. Mazur, an emeritus law professor at the University of Florida, told the New York Times.
Asking crude questions about whether the midshipman was wearing a bra or what her oral sex technique was like does nothing for the trial. What it does do is play into the outdated thought that rape is the woman's fault in a world where men can't check their own behavior: If she's not wearing panties, she's asking for it.
“These have become their own trials,” said Jonathan Lurie, a professor emeritus of legal history at Rutgers University and expert on military justice told the New York Times. “If this is what Article 32 has come to be, then it is time to either get rid of it or put real restrictions on the conduct during them.”