How the case of Vanessa Guillen gave new momentum to legal push to end sexual abuse in the Armed Forces

In 1992, Paula Coughlin was a Navy helicopter pilot when she blew the whistle on one of the biggest sexual abuse scandals in U.S. military history.

While attending a military conference in September 1991 in Las Vegas, she was assaulted by a large group of drunken male attendees in what became known as the Tailhook scandal.

Even though other women came forward with similar accusations, no one was ever prosecuted.

She recalls that when she told her commander what had taken place, “I was told, ‘that’s what you get’.”

Fast forward almost 30 years and Coughlin is excited by the change she finally believes is about to happen that could help put a stop to the “epidemic” of sexual abuse that she and thousands of other women – and men - have suffered in the military.

“I feel like at the precipice of lasting and significant change in the military justice system,” she told a podcast released this week by the victims’ advocacy group, Protect Our Defenders.

After failing for decades to prevent sexual abuse in the military, the Pentagon appears poised to accept major changes in the way these cases are handled by removing commanding officers from their decision-making role in the prosecution of cases in their own units.

A bill that would do just that was introduced last week by New York Senator Kirsten Gillibrand and has already received the support of almost 50 Senators. A similar bill in the House of Representatives, the I Am Vanessa Guillen Act, will be re-introduced May 13.

President Joe Biden has also signaled his support for the move.

Cornerstone

Removing commanders from prosecutorial decisions would be possibly the most fundamental change in the American military justice system since 1775, according to Eugene R. Fidell, a senior research scholar at Yale Law School, referring to the country’s earliest military rules which were adopted from Britain.

“What's at stake right now is what I would argue is the cornerstone of the military justice system, which is the role of the commander in deciding who gets prosecuted for what,” he told Univision.

Currently, U.S. military commanders have to power to make the decision to refer or not refer sexual assault and harassment charges to court-martial in consultation with military lawyers, or judge advocates general (JAG) officers.

Advocates of changing the law say the military commanders can no longer be trusted to act impartially, given their poor record of prosecuting abuse, fueled by a conflict of interest to protect the reputation of their units, and their own career advancement.

Data speaks for itself

Over the last decade, the Pentagon's own data show that unrestricted reports of sexual assaults in the military have doubled, yet the rate of prosecution and conviction has halved. In 2018, there were 20,500 cases of sexual assault, including 7,500 men, compared to 14,900 in a prior survey in 2016. The number of women in the military who experienced sexual assault increased by 50%, from 8,600 in 2016 to 13,000 in 2018.

Members of the Armed Forces are "more likely to be sexually assaulted than shot by the enemy in war," according to Gillibrand.

Legislation

Despite the high hopes, there are still a number of obstacles to be overcome before the historic legislation is passed, including resolving differences between the two bills in the House and Senate.

Both bills would remove prosecution of sex abuses from the chain of command and put it in the hands of trained, independent military prosecutors. The House bill, led by California Representative Jackie Speier, would also allow victims to file claims for damages, although only within the military system and not in civilian courts where damages can be much higher.

Gillibrand’s version, Military Justice Improvement and Increasing Prevention Act, does not include claims, but covers a wider range of serious crimes, including murder.

But sources told Univision that Gillibrand and Speier are flexible and open to working together to smooth out differences.

“For years, Senator Gillibrand has worked closely with Chairwoman Speier on combatting military sexual assault and will continue to work with her to institute important changes to the military justice system that will ensure justice for survivors,” Gillibrand's spokesman, Evan Lukaske, told Univision.

Vanessa Guillen

The legislation gained huge momentum after the murder last year of US Army soldier Vanessa Guillen who reported being sexually harassed at Fort Hood, Texas. Her death played a part in the evolution of thinking on Capitol Hill, members of Congress say, including Iowa Senator Joni Ernst, a former military officer who was also a victim of abuse.

Ernst, who is a Republican, admitted to being torn about her decision, until she read about the conditions at Fort Hood. “It just showed such a horrible command climate completely up and down the chain of command,” she told a press conference last week.

"Sexual abuse in the military was always put in a bubble, an issue that no-one wanted to talk about, hear about, or think about," said Natalie Khawam, the lawyer for the Guillen family. "We set out to make it a household, human issue. Our hard work and effort has paid off. We are now the 'Me Too' movement for the military," she added.

Inflection point

The rare bipartisan support is what could make the difference after a decade of frustrated efforts to pass legislation. “We are at the perfect inflection point. It’s going to happen and it’s going to happen this year,” said Colonel Don Christensen, the former Chief Prosecutor of the United States Air Force and president of Protect Our Defenders.

“What’s amazing about this is there is very little [bipartisan] legislation where you have Senator Elizabeth Warren (Democrat of Massachusetts) on one side and Senator Ted Cruz (Republican of Texas) on the other, agreeing,” he added.

Last month, a Pentagon panel made an initial recommendation backing the move to an independent military prosecutor — not a commanding officer — handle decisions to prosecute service members for sexual assault and harassment. A top former Chief of Staff of the Armed Forces, retired Admiral Mike Mullen, also became the first prominent former military officer to support the move.

“The first fissures are being seen,” said Fidell, pointing to Mullen’s comments. “That's a very that's a very significant change. The admirals and generals have tended to stick together,” he said.

No civil liability

Some experts question if the legislation goes far enough, saying the only answer is to follow what other countries have done and allow all crimes to be prosecuted in civilian court, including claims for damages.

“It’s the appearance of a victory, but it’s all artificial,” said Major Dwight Stirling, the founder of the Center for Law and Military Policy, who is also a reserve military prosecutor, known as a JAG officer, in the California National Guard.

“If the goal is to deter sexual violence, you have to put the wrongdoer, the one who engages in that violence, you have to put that person on trial in civilian court,” he said.

Years ago, the United Kingdom, Canada, Australia, South Africa and Israel, all allowed civilian court to handle serious crimes in the military. All have far lower rates of sexual abuse in the ranks.

“The only way, in my opinion, to have a reduction of sexual assault in the military is to make the guy who engaged in the rape or the assault, to be personally liable. You have to empower the victim. And none of the bills would do that,” said Stirling.

The current bills would still allow the military to control the process. “It’s all still in the chain of command. It’s still the fox guarding the hen house,” he said.

While many advocates of reform may agree with that, they question if it’s politically feasible. “Will this be a magic bullet? Suddenly sexual assault will go away and everybody will be happy, no,” said Christensen.

“But what it does is set us up for future success. I do think we will see more convictions,” he added, noting that military commanders are often conflicted and lack the expertise that independent prosecutors would have.

"My whole life would be different"

Coughlin says she is “emotional” about the prospect for change, especially when she looks back at her own battle for justice 30 years ago. “Back in 1991 I had no organization, no Military Justice Improvement and Increasing Prevention Act to look to for support,” she said.

Back then victims were almost defenseless, with no legal resources, such as the Special Victim’s Advocate that exists today. “When I was ordered to have therapy, my therapy records became light reading distributed through my chain of command,” she said.

Using the Pentagon data, she calculates that since 1991 there have been about 600,000 sexual assaults in the military. “These are careers that could have been saved, lives that could have been saved,” she said.

That’s why removing commanders from the control of prosecutions is so important to her. “If the military justice system had compelled my commanding officer to turn over my case to a trained professional my whole life would be different,” she said.